 



Exhibit 10.1

TRANSITION AND SEPARATION AGREEMENT

This TRANSITION AND SEPARATION AGREEMENT (the “Agreement”) dated
               , 2008 (“Effective Date”) between Jennifer L. Haslip (“Employee”)
and Universal Technical Institute, Inc., a Delaware corporation (the “Company”)
provides:

WHEREAS, Employee is currently employed by the Company; and

WHEREAS, Employee has been employed by the Company for approximately ten
(10) years and has gained access to confidential information as more fully
described in this Agreement and has acquired an extensive amount of knowledge
regarding the Company’s operations, strategies and business; and

WHEREAS, the Company has determined it is in its best interests for Employee’s
employment with the Company to terminate; and

NOW, THEREFORE, the parties hereto agree as follows:

1. Previous Agreement Superseded. The previous Employment and Non-Interference
Agreement between the parties dated November 30, 2003 (the “Previous Employment
Agreement”) is hereby superseded, replaced in its entirety and considered null
and void.

2. Position During Transition. From the Effective Date of this Agreement until
March 31, 2008 (the “Transition Period”), Employee agrees to continue to be
available to the Company at her current salary and benefits, and Employee will
perform such duties as requested by Kim McWaters, President and Chief Executive
Officer. Throughout the Transition Period, Employee will continue to report to
Ms. McWaters.

3. Separation Date. Employee agrees and acknowledges that her last day of
employment with the Company shall be March 31, 2008 (the “Separation Date”).

4. Payments After Separation.

(a) For and in consideration of the promises and covenants set forth herein,
after the revocation period set forth on Exhibit A, the Company agrees to pay
Employee the total amount of Three Hundred and Ninety Thousand dollars
($390,000), less applicable local, state and federal withholdings. This amount
shall be payable in thirty-nine bi-weekly payments pursuant to the Company’s
normal payroll practices, in the gross amount of Ten Thousand dollars ($10,000),
less applicable local, state and federal withholdings.

 

 



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(b) For fiscal year 2008, Employee will be entitled to an annual bonus,
pro-rated based on a separation date of March 31, 2008, if: (a) such a bonus is
approved by UTI’s Board of Directors as payable to all current employees, and
(b) Employee signs, returns, and does not revoke the Release attached as
Exhibit A. The 2008 bonus, if payable, will be paid during December 2008, or
such other time as paid to all other employees, and the bonus, if any, will be
based on the performance metrics previously established by the Board of
Directors (or any subsequent changes that benefit Employee).

5. Benefits. Employee’s current medical and dental benefits will continue
pursuant to Company policy, until March 31, 2008. Beginning on the first day
that active employee coverage is ineffective, Employee may elect to continue
current medical and dental benefits for up to eighteen (18) months in accordance
with any applicable plan provisions and the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), and Employee will be responsible for paying
any COBRA premiums. The Company will pay Employee the equivalent value of
medical, dental, and Execucare benefits for a period of eighteen (18) months
following the Transition Period, which totals Twenty-Eight Thousand Six Hundred
Eighty-Six dollars ($28,686), less withholdings, to be paid to Employee in two
equal installments. The first installment ($14,343) will be paid within ten
(10) business days after expiration of the revocation period set forth in
Exhibit A and the second installment ($14,343) will be paid on or about
December 31, 2008.

6. Stock Awards. All stock Awards (as defined by any applicable Plan), including
stock options and restricted stock, shall be governed by the terms and
provisions of the Plan and the grant Agreement under which such Award was
granted. The Company has previously authorized Employee to sell her stock in the
open market and exercise stock options and restricted stock without any
limitations, in accordance with applicable law.

7. Outplacement. The Company shall pay for twelve (12) months of outplacement
services by paying Employee a one-time payment of the total gross amount of
Twelve Thousand dollars ($12,000), less withholdings, to be paid to Employee
within ten (10) business days after expiration of the revocation period set
forth in Exhibit A.

8. Mitigation or Reduction of Benefits. Employee shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. Except as otherwise specifically set forth herein, the amount
of any payment or benefits provided herein shall not be reduced by any
compensation or benefits or other amounts paid to or earned by Employee as the
result of employment by another employer after the Separation Date.

9. Section 409A Compliance. The parties intend that the benefits provided under
Sections 4(a), 5 and 15 comply with the separation pay exception to the
requirements of Section 409A of the Internal Revenue Code as described in Treas.
Reg. Section 1.409A-1(b)(4) and Treas. Reg. Section 1.409A-1(b)(9)(iii) and
(v) respectively. Nevertheless, under no circumstances may the time or schedule
of any payment made or benefit provided pursuant to this Agreement be
accelerated or subject to further deferral except as otherwise permitted or
required pursuant to regulations and other guidance issued pursuant to
Section 409A of the Code.

 

 



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In addition, the Employee shall not have any right to make any election
regarding the time or form of any payment due under this Agreement. For purposes
of this Agreement, the determination of whether Employee has terminated
employment will be made in accordance with Treas. Reg. Section 1.409A-1(h)(l).
The right to each monthly payment under Section 4 shall be treated as the right
to a series of separate payments within the meaning of Treas. Reg.
Section 1-409A-2(b) (2).

If the Company concludes at a later date, in the exercise of its discretion,
that neither the short-term deferral exception, the separation pay exception nor
any other exception to the requirements of Section 409A is available, all
monthly payments, if any, that are to be made following the fifteenth (15) day
of the third (3rd) month of the Employee’s taxable year in which the Separation
Date occurred, but before the date which is six (6) months following the
Separation Date, that are, in the aggregate, in excess of the Excludable
Compensation shall be paid in a lump sum on the first (1st) day of the seventh
(7th) month following the Employee’s Separation Date or, if earlier, the date
the Employee dies following the Separation Date. For purposes of this Section,
“Excludable Compensation” shall equal the lesser of two times (i) the Employee’s
annualized base compensation for the Employee’s taxable year prior to the
Employees’ taxable year in which the Separation Date occurred or (ii) the
applicable limit set forth in Section 401 (a) (17) of the Code for the year in
which the Separation Date occurred.

Each provision of this Agreement shall be interpreted, to the extent possible,
to comply with Section 409A or any exception thereto.

10. Release. In order to receive payments and benefits described herein, other
than those provided in Section 2, Employee must execute a Release in the form
attached as Exhibit A and that Release must become effective. If Employee fails
to sign the Release within the period provided in the Release, or if Employee
revokes the Release within the seven (7) day revocation period provided therein,
Employee will forfeit any right to the payments and benefits described in
Sections 4, 5, 7 and 16.

11. Covenant Not to Solicit. Employee agrees that during the course of her
employment, she has received Confidential Information and training, designed to
give her special skills and to provide the Company with a competitive advantage
and which has commercial value. Employee acknowledges that the Company has a
legitimate interest in protecting its Confidential Information and in taking
reasonable steps to protect its goodwill, its relationships with students,
employees, consultants, vendors, suppliers, manufacturers and to protect itself
against unfair competition.

Employee therefore agrees:

(a) As used in this Section 11(a), the term “Company Relationship” means any of
the following individuals or entities with whom Employee had dealings in
connection with her Company employment during the past twenty-four (24) months:
any Company employee, student, consultant, independent contractor, vendor,
supplier, manufacturer, or any other person or entity with a business
relationship with the Company. For a period of eighteen (18) months (or twelve
(12) months if an arbitrator or arbitration panel finds that eighteen
(18) months are unreasonable, or for nine (9) months if an arbitrator or
arbitration panel finds that twelve (12) months are unreasonable) after the
Separation Date, Employee agrees that she will not, either directly or
indirectly, or through others, solicit or attempt to solicit any Company
Relationship to terminate or limit its relationship with the Company in order to
become an employee, consultant, or independent contractor to or for any other
person or entity.

 

 



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12. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that
the restraints contained in Sections 11 and 15 (both separately and in total)
are reasonable and should be fully enforceable in view of the high level
position Employee has had with the Company, and the Company’s legitimate
interests in protecting its Confidential Information and its goodwill and
relationships. Employee specifically hereby acknowledges and confirms that
Employee is willing and intends to, and will, abide fully by the terms of
Sections 11 and 15 of this Agreement.

13. Company’s Right to Obtain Injunctive Relief. In addition to any other legal
or equitable remedies the Company may have (including any right to damages that
it may suffer), the Company shall be entitled to temporary, preliminary and
permanent injunctive relief restraining a breach or imminent breach of
Employee’s obligations to Company in this Agreement. Employee hereby expressly
acknowledges that the harm which might result to Company’s business as a result
of noncompliance by Employee with any of the provisions of this Agreement would
be largely irreparable.

14. Employee Agreement to Disclose this Agreement. Employee agrees to disclose,
for a period of eighteen (18) months following the Transition Period, the terms
of Sections 11 and 15 to any potential future employer.

15. Confidential Information. During and after the Employee’s employment,
Employee will not, directly or indirectly, in one or a series of transactions,
disclose to any person, or use or otherwise exploit for the Employee’s own
benefit or for the benefit of anyone other than the Company, any Confidential
Information, whether prepared by Employee or not; provided, however, that any
Confidential Information may be disclosed (i) to officers, representatives,
employees and agents of the Company who need to know such Confidential
Information in order to perform the services or conduct the operations required
or expected of them in the business, and (ii) in good faith by the Employee in
connection with the performance of Employee’s duties hereunder to persons who
are authorized to receive such information by the Company. Employee shall use
Employee’s best efforts to prevent the removal of any Confidential Information
from the premises of the Company, except as required in Employee’s normal course
of employment by the Company. Employee shall use Employee’s best efforts to
cause all persons or entities to whom any Confidential Information shall be
disclosed by Employee hereunder to observe the terms and conditions set forth
herein as though each such person or entity was bound hereby. Employee shall
have no obligation hereunder to keep confidential any Confidential Information,
if and to the extent such information is disclosed publicly through no breach of
this Agreement by Employee or disclosure of any such information is specifically
required by law; provided, however, that in the event disclosure is required by
applicable law, the Employee shall provide the Company with prompt notice of
such requirement, prior to making any disclosure, so that the Company may seek
an appropriate protective order. The Company acknowledges that Employee has
delivered to the Company all Confidential Information which Employee may possess
or control. Employee agrees that all Confidential Information of the Company
conceived, discovered or made by Employee during employment exclusively belongs
to the Company (and not to Employee). Employee will perform all actions
reasonably requested by the Company to establish and confirm such exclusive
ownership.

 

 



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16. Attorneys Fees. The Company agrees to reimburse Employee for her attorneys
fees incurred in connection with the negotiation of this Agreement in the amount
of Ten Thousand dollars ($10,000), less applicable withholdings, to be paid to
Employee within ten (10) business days after expiration of the revocation period
set forth in Exhibit A.

17. References. Within ten (10) days after expiration of the revocation period
set forth in Exhibit A, the Company will deliver to Employee a written job
reference from Ms. McWaters in the forms attached hereto as Exhibit B. The
Company will also provide a reference from Company Director Conrad Conrad within
fourteen (14) days after expiration of the revocation period set forth in
Exhibit A.

18. Agreement to Arbitrate. All disputes or claims regarding this Agreement
shall be submitted for resolution exclusively to binding arbitration under the
Commercial Rules of Arbitration of the American Arbitration Association in
Phoenix, AZ, no later than six (6) months from the date such claim arises. The
arbitrator or arbitration panel shall have the authority to award temporary or
permanent injunctive relief and to award attorney’s fees and costs to the
prevailing party. Any temporary or permanent injunctive relief ordered by the
arbitrator or the arbitration panel may be enforced in court by either party by
seeking judicial confirmation of such award.

19. Severability. If any provision of this Agreement or the application thereof
to any person or circumstance shall to any extent be held to be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law. An arbitrator or arbitration panel can reasonably modify this Agreement by
rewriting it and/or it can “blue-pencil” this Agreement by striking things out.

20. Headings. The headings in this Agreement are inserted for convenience of
reference only and shall not in any way affect the meaning or interpretation of
this Agreement.

21. Counterparts. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.

22. Waiver. Neither any course of dealing nor any failure or neglect of either
party hereto in any instance to exercise any right, power or privilege hereunder
or under law shall constitute a waiver of such right, power or privilege or of
any other right, power or privilege or of the same right, power or privilege in
any other instance. Without limiting the generality of the foregoing, Employee’s
continued employment without objection shall not constitute Employee’s consent
to, or a waiver of, Employee’s rights. All waivers by either party hereto must
be contained in a written instrument signed by the party to be charged
therewith, and, in the case of the Company, by a resolution adopted by a
majority of the Board of Directors.

 

 



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23. Entire Agreement. This instrument constitutes the entire agreement of the
parties in this matter and shall supersede any other agreement between the
parties, oral or written, concerning the same subject matter.

24. Amendment. This Agreement may be amended only by a writing which makes
express reference to this Agreement as the subject of such amendment and which
is signed by Employee and by the Chairman of the Compensation Committee of the
Board of Directors or the Chairman’s designee.

25. Governing Law. In light of Company’s and Employee’s substantial contacts
with the State of Arizona, the facts that the Company is headquartered in
Arizona and Employee resides in and provides services to the Company in Arizona,
the parties’ interests in ensuring that disputes regarding the interpretation,
validity and enforceability of this Agreement are resolved on a uniform basis,
and Company’s execution of, and the making of, this Agreement in Arizona, the
parties agree that: (a) any arbitration or litigation involving any
noncompliance with or breach of the Agreement, or regarding the interpretation,
validity and/or enforceability of the Agreement, shall be filed and conducted
exclusively in the state of Arizona; and (b) the Agreement shall be interpreted
in accordance with and governed by the laws of the State of Arizona, without
regard for any conflict/choice of law principles.

IN WITNESS WHEREOF, Employee and the Company have executed this Agreement as of
the day and year first above written.

            UNIVERSAL TECHNICAL INSTITUTE, INC.
      By:   /s/ Chad A Freed         Senior Vice President and General Counsel 
              Jennifer L. Haslip
      By:   /s/ Jennifer L. Haslip                      

 

 



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Exhibit A

MUTUAL WAIVER AND RELEASE

This MUTUAL WAIVER AND RELEASE (the “Release”) dated                 ,         
is by and between Jennifer L. Haslip (“Employee”) and Universal Technical
Institute, Inc., a Delaware corporation (“Company”);

WHEREAS, the Company and Employee are parties to a Transition and Separation
Agreement dated                , 2008 (the “Agreement”), which provides certain
payments and benefits to Employee upon separation of employment; and

WHEREAS, the execution of this Release is a condition precedent to, and material
inducement to, the Company’s provision of certain benefits under the Agreement;

NOW, THEREFORE, the parties hereto agree as follows:

1. Mutual Promises. The Company undertakes the obligations contained in the
Agreement, which are in addition to any compensation to which Employee might
otherwise be entitled, in exchange for Employee’s promises and obligations
contained herein. The Company’s obligations are undertaken in lieu of any other
employment benefits.

2. Release of Claims by Employee; Agreement Not to File Suit.

a. Employee, for and on behalf of herself and her heirs, beneficiaries,
executors, administrators, successors, assigns and anyone claiming through or
under any of the foregoing, agrees to, and does, release and forever discharge
the Company and its subsidiaries and affiliates, each of their shareholders,
directors, officers, employees, agents and representatives, and its successors
and assigns (collectively, the “Company Released Persons”), from any and all
matters, claims, demands, damages, causes of action, debts, liabilities,
controversies, judgments and suits of every kind and nature whatsoever, foreseen
or unforeseen, known or unknown, which have arisen or could arise from matters
which occurred prior to the date of this Release, which matters include without
limitation: (i) the matters covered by the Agreement and this Release,
(ii) Employee’s employment, and/or termination from employment with the Company,
and (iii) any claims which might otherwise arise in the future as a result of
arrangements or agreements in effect as of the date of this Release or the
continuance of such arrangements and agreements.

b. Employee, for and on behalf of herself and her heirs, beneficiaries,
executors, administrators, successors, assigns, and anyone claiming through or
under any of the foregoing, agrees that Employee will not file or otherwise
submit any arbitration demand, claim, complaint, or action to any court,
organization, or judicial forum (nor will Employee permit any person, group of
persons, or organization to take such action on Employee’s behalf) against any
Company Released Person arising out of any actions or non-actions on the part of
any Company Released Person arising before the date of this Release or any
action taken after the date of this Release pursuant to the Agreement.

 

 



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Employee further agrees that in the event that any person or entity should bring
such a charge, claim, complaint, or action on Employee’s behalf, Employee hereby
waives and forfeits any right to recovery under said claim and will exercise
every good faith effort to have such claim dismissed.

c. The charges, claims, complaints, matters, demands, damages, and causes of
action referenced in Sections 2(a) and 2(b) include, but are not limited to:
(i) any breach of an actual or implied contract of employment between Employee
and any Company Released Person, (ii) any claim of unjust, wrongful, or tortuous
discharge (including, but not limited to, any claim of fraud, negligence,
retaliation for whistle blowing, or intentional infliction of emotional
distress), (iii) any claim of defamation or other common law action, or (iv) any
claims of violations arising under the Civil Rights Act of 1964, as amended, 42
U.S.C. §2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. §621
et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.,
the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §201 et seq., the
Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq., the Family and
Medical Leave Act, or any other relevant federal, state, or local statutes or
ordinances, or any claims for pay, vacation pay, insurance, or welfare benefits
or any other benefits of employment with any Company Released Person arising
from events occurring prior to the date of this Release other than those
payments and benefits specifically provided herein.

d. This Release does not affect Employee’s right to any governmental benefits
payable under any Social Security or Worker’s Compensation law now or in the
future; Employee’s rights in the Agreement; Employee’s rights with regard to
stock, stock options, and restricted stock the Company previously issued to her
or that she owns; Employee’s rights to indemnification as an officer, agent or
employee under applicable law, charter document, bylaws, or agreement; or
Employee’s rights under insurance policies, including Directors and Officers
liability insurance policies.

e. This Release does not affect Employee’s right to participate in any federal,
state or local investigation by any governmental agency or to challenge the
validity of this Agreement. Further, this Release is not intended to be a
release of any claims under the Arizona Minimum Wage Act, effective January 1,
2007.

3. Release of Claims by the Company; Agreement Not to File Suit.

a. The Company agrees to, and does release and forever discharge Employee, from
any and all matters, claims, demands, damages, causes of action, debts,
liabilities, controversies, judgments and suits of every kind and nature
whatsoever, foreseen or unforeseen, known or unknown, which have arisen or could
arise from matters which occurred prior to the date of this Release, which
matters include without limitation: (i) the matters covered by the Agreement and
this Release, (ii) Employee’s employment, and/or termination from employment
with the Company, and (iii) any claims which might otherwise arise in the future
as a result of arrangements or agreements in effect as of the date of this
Release or the continuance of such arrangements and agreements.

 

 



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b. The Company agrees that it will not file or otherwise submit any arbitration
demand, claim, complaint, or action to any court, organization, or judicial
forum (nor will the Company permit any person, group of persons, or organization
to take such action on the Company’s behalf) against Employee arising out of any
actions or non-actions on the part of Employee arising before the date of this
Release or any action taken after the date of this Release pursuant to the
Agreement. The Company further agrees that in the event that any person or
entity should bring such a charge, claim, complaint, or action on the Company’s
behalf, the Company hereby waives and forfeits any right to recovery under said
claim and will exercise every good faith effort to have such claim dismissed.

4. Release of Benefit Claims. Employee, for and on behalf of herself and her
heirs, beneficiaries, executors, administrators, successors, assigns and anyone
claiming through or under any of the foregoing, further releases and waives any
claims for pay, vacation pay, insurance or welfare benefits or any other
benefits of employment with any Company Released Person arising from events
occurring prior to the date of this Release other than claims to the payments
and benefits specifically provided for in the Agreement and claims for benefits
which are not subject to waiver under the law.

5. Revocation Period; Knowing and Voluntary Agreement. Employee acknowledges
that she is knowingly and voluntarily waiving and releasing any rights she may
have under the Age Discrimination in Employment Act, as amended, (“ADEA”).
Employee also acknowledges that the consideration given for the waiver and
release in the preceding Section is in addition to anything of value to which
she would be entitled to without this Agreement. Employee further acknowledges
that Employee is advised by this writing, as required by the ADEA, that:
(a) this waiver and release does not apply to any rights or claims that may
arise after execution date of this Release; (b) Employee has been advised of
having had the right to consult with an attorney prior to signing this Release;
(c) Employee has twenty-one (21) days to consider this Release (although
Employee may choose to voluntarily execute this Release earlier); (d) Employee
has seven (7) days following the signing of this Release by the parties to
revoke the Release; and (e) this Release shall not be effective until the date
upon which the revocation period has expired, which shall be the eighth day
after this Release is executed by the Employee.

6. Severability. If any provision of this Release or the application thereof to
any person or circumstance shall to any extent be held to be invalid or
unenforceable, the remainder of this Release and the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each provision of
this Release shall be valid and enforceable to the fullest extent permitted by
law.

7. Headings. The headings in this Release are inserted for convenience of
reference only and shall not in any way affect the meaning or interpretation of
this Release.

8. Counterparts. This Release may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.

 

 



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9. Entire Agreement. This Release and related Agreement constitutes the entire
agreement of the parties in this matter and shall supersede any other agreement
between the parties, oral or written, concerning the same subject matter.

10. Governing Law. This Release shall be governed by, and construed and enforced
in accordance with, the laws of the State of Arizona, without reference to the
conflict of laws rules of such State.

IN WITNESS WHEREOF, Employee and the Company have executed this Release as of
the day and year first above written.

            UNIVERSAL TECHNICAL INSTITUTE, INC.
      By:   /s/ Chad A. Freed         Senior Vice President and General Counsel 
              JENNIFER L. HASLIP
      By:   /s/ Jennifer L. Haslip                      

 

 
{'dataset': 'atticus_contracts'}