EXHIBIT 10.7
UNIVERSAL TECHNICAL INSTITUTE, INC.
AMENDED AND RESTATED
2003 EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, Universal Technical Institute, Inc. (the "Company") previously
adopted the Universal Technical Institute, Inc. 2003 Employee Stock Purchase
Plan ("Prior Plan") effective as of the date on which the Company's initial
public offering was consummated ("Original Effective Date");
WHEREAS, the Company wishes to amend and restate the Prior Plan because of
changes to the financial accounting reporting requirements applicable to
employee stock purchase plans that offer employer stock at more than a five
percent discount and provide a look-back feature in which the purchase price of
the stock is determined by reference to the stock's market value as of the first
or last day of an offering period, whichever is less;
NOW THEREFORE, the Company hereby adopts the Universal Technical
Institute, Inc. Amended and Restated 2003 Employee Stock Purchase Plan (the
"Plan") effective as of the Offering Period beginning on July 1, 2005
("Effective Date"), as set forth below.
1. PURPOSE. The purpose of the Plan is to encourage stock ownership by
eligible employees of the Company and its Subsidiaries and to provide them with
an incentive to contribute to the profitability and success of the Company. The
Plan is intended to qualify as an "employee stock purchase plan" under
Section 423 of the Code and will be maintained for the exclusive benefit of
eligible employees of the Company and its Subsidiaries.
2. DEFINITIONS. For purposes of the Plan, in addition to the terms defined
in Section 1, the following terms are defined:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CASH ACCOUNT" means the account which shall be a subaccount in the
Company's general cash account, maintained on behalf of a Participant by the
Company for the purpose of holding cash contributions withheld from payroll
pending investment in Stock.
(c) "CODE" means the Internal Revenue Code of 1986, as amended.
(d) "CUSTODIAN" means Credit Suisse First Boston or any successor or
replacement appointed by the Board or its delagatee under Section 3(a).
(e) "EARNINGS" means a Participant's salary or wages, including
overtime (but excluding bonuses) for services performed for the Company and its
Subsidiaries and received by a Participant for services rendered during an
Offering Period.
(f) "FAIR MARKET VALUE" means the closing price of the Stock on the
relevant date as reported on New York Stock Exchange (or any national securities
exchange or quotation
system on which the Stock is then listed), or if there were no sales on that
date the closing price on the next preceding date for which a closing price was
reported.
(g) "OFFERING PERIOD" means the six-month period beginning on each
January 1 and ending each June 30 and the six-month period beginning on each
July 1 and ending on each December 31.
(h) "PARTICIPANT" means an employee of the Company or a Subsidiary who
is participating in the Plan.
(i) "PURCHASE RIGHT" means a Participant's option to purchase Stock
that is deemed to be outstanding during a Offering Period. A Purchase Right
represents an "option" under Section 423 of the Code.
(j) "STOCK" means the common stock of the Company.
(k) "STOCK ACCOUNT" means the account maintained on behalf of the
Participant by the Custodian for the purpose of holding Stock acquired under the
Plan.
(l) "SUBSIDIARY" means any subsidiary corporation defined in Code
Section 424(f).
3. ADMINISTRATION.
(a) BOARD ADMINISTRATION. The Plan will be administered by the Board.
The Board may delegate its administrative duties and authority (other than its
authority to amend or terminate the Plan) to any Board committee or to any
officers or employees or committee thereof as the Board may designate (in which
case references to the Board will be deemed to refer to the administrator to
which such duties and authority have been delegated). The Board will have full
authority to adopt, amend, suspend, waive, and rescind rules and regulations and
appoint agents as it deems necessary or advisable to administer the Plan, to
correct any defect or supply any omission or reconcile any inconsistency in the
Plan and to construe and interpret the Plan and rules and regulations
thereunder, to furnish to the Custodian such information as the Custodian may
require, and to make all other decisions and determinations under the Plan
(including determinations relating to eligibility). No person acting in
connection with the administration of the Plan will, in that capacity,
participate in deciding any matter relating to his or her participation in the
Plan.
(b) THE CUSTODIAN. The Custodian will act as custodian under the Plan,
and perform those duties specified in the Plan and in any agreement between the
Company and the Custodian. The Custodian will establish and maintain Participant
Stock Accounts and any subaccounts as may be necessary or desirable to
administer the Plan.
(c) WAIVERS. The Board may waive or modify any requirement that a
notice or election be made or filed under the Plan a specified period in advance
on an individual case or by adopting a rule or regulation under the Plan,
without amending the Plan.
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(d) OTHER ADMINISTRATIVE PROVISIONS. The Company will furnish
information from its records as directed by the Board, and such records,
including a Participant's Earnings, will be conclusive on all persons unless
determined by the Board to be incorrect. Each Participant and other person
claiming benefits under the Plan must furnish to the Company in writing a
current mailing address and any other information as the Board or Custodian may
reasonably request. Any communication, statement, or notice mailed with postage
prepaid to any such Participant or other person at the last mailing address
filed with the Company will be deemed sufficiently given when mailed and will be
binding upon the named recipient. The Plan will be administered on a reasonable
and nondiscriminatory basis and uniform rules will apply to all persons
similarly situated. All Participants will have equal rights and privileges
(subject to the terms of the Plan) with respect to Purchase Right outstanding
during any given Offering Period in accordance with Code Section 423(b)(5) .
4. STOCK SUBJECT TO PLAN. Subject to adjustment as provided below, the
total number of shares of Stock reserved and available for issuance or which may
be otherwise acquired upon exercise of Purchase Rights under the Plan will be
300,000. Any shares of Stock delivered by the Company under the Plan may
consist, in whole or in part, of authorized and unissued shares or treasury
shares or shares of Stock purchased on the open market. The number and kind of
such shares of Stock subject to the Plan will be proportionately adjusted, as
determined by the Board, in the event of any extraordinary dividend or other
distribution, recapitalization, forward or reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share exchange, or
other similar corporate transaction or event affecting the Stock. If, at the end
of any Offering Period, the number of shares of Stock with respect to which
Purchase Rights are to be exercised exceeds the number of shares of Stock then
available under the Plan, the Board shall make a pro rata allocation of the
shares of Stock remaining available for purchase in as uniform a manner as shall
be practicable and as it shall determine to be equitable.
5. ENROLLMENT AND CONTRIBUTIONS.
(a) ELIGIBILITY. An employee of the Company or any Subsidiary
designated by the Board may be enrolled in the Plan for any Offering Period if
such employee is employed by the Company or a Subsidiary authorized to
participate in the Plan on the first day of the Offering Period, unless one of
the following applies to the employee:
(i) such person has been employed by the Company or a Subsidiary
less than 30 days;
(ii) such person is customarily employed by the Company or a
Subsidiary for 20 hours or less a week;
(iii) such person is customarily employed by the Company or a
Subsidiary for not more than five months in any calendar year;
or
(iv) such person would, immediately upon enrollment, be deemed to
own, for purposes of Section 423(b)(3) of the Code, an
aggregate of five percent or more of the total combined voting
power or
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value of all outstanding shares of all classes of the Stock of
the Company or any Subsidiary.
The Company will notify an employee of the date as of which he or she
is eligible to enroll in the Plan, and will make available to each eligible
employee the necessary enrollment forms.
(b) INITIAL ENROLLMENT. An employee who is eligible under Section 5(a)
(or who will become eligible on or before a given Offering Period) may, after
receiving current information about the Plan, initially enroll in the Plan by
executing and filing with the Company a properly completed enrollment form,
including the employee's election as to the rate of payroll contributions for
the Offering Period. To be effective for any Offering Period, such properly
executed enrollment form must be filed with the Company at least two weeks (or
such other period determined by the Board) preceding such Offering Period.
(c) AUTOMATIC RE-ENROLLMENT FOR SUBSEQUENT OFFERING PERIODS. A
Participant whose enrollment in, and payroll contributions under, the Plan
continues throughout a Offering Period will automatically be re-enrolled in the
Plan for the next Offering Period unless (i) the Participant terminates
enrollment before the next Offering Period in accordance with Section 7(a), or
(ii) the Participant is ineligible to participate under Section 5(a). The
initial rate of payroll contributions for a Participant who is automatically
re-enrolled for a Offering Period will be the same as the rate of payroll
contribution in effect at the end of the preceding Offering Period, unless the
Participant files a new properly executed enrollment form designating a
different rate of payroll contributions and such new enrollment form is filed
with the Company no later than two weeks (or such other period determined by the
Board) prior to the beginning of the next Offering Period.
(d) PAYROLL CONTRIBUTIONS. A Participant will make contributions under
the Plan only by means of payroll deductions from Earnings for each payroll
period that ends during the Offering Period, at the rate elected by the
Participant in his or her enrollment form in effect for that Offering Period
(except that such rate may be changed during the Offering Period to the extent
permitted below). The rate of payroll contributions elected by a Participant may
not be less than one percent (1%) nor more than ten percent (10%) of the
Participant's Earnings for each payroll period, and only whole percentages may
be elected; provided, however, that the Board may specify a lower minimum rate
and higher maximum rate, subject to Section 8(c). Notwithstanding the above, a
Participant's payroll contributions will be adjusted downward by the Company as
necessary to ensure that the limit on the amount of Stock purchased for an
Offering Period set forth in Section 6(a)(iii) is not exceeded. A Participant
may elect to increase, decrease, or discontinue payroll contributions for a
future Offering Period by filing a new enrollment form designating a different
rate of payroll contributions, which properly executed form must be filed with
the Company at least two weeks (or such other period determined by the Board)
prior to the beginning of an Offering Period to be effective for that Offering
Period. In addition, a Participant may elect to discontinue payroll
contributions during an Offering Period by filing a new properly executed
enrollment form, such change to be effective for the next payroll after the
Participant's new enrollment form is filed with the Company.
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(e) CREDITING PAYROLL CONTRIBUTIONS TO CASH ACCOUNTS. All payroll
contributions by a Participant under the Plan will be credited to a Cash Account
maintained by the Company on behalf of the Participant. The Company will credit
payroll contributions to each Participant's Cash Account as soon as practicable
after the contributions are withheld from the Participant's Earnings.
(f) NO INTEREST ON CASH ACCOUNTS. No interest will be credited or paid
on cash balances in Participant's Cash Accounts pending investment in Stock.
6. PURCHASES OF STOCK.
(a) PURCHASE RIGHTS. Enrollment in the Plan for any Offering Period by
a Participant will constitute a grant by the Company of a Purchase Right to such
Participant for such Offering Period. Each Purchase Right will be subject to the
following terms.
(i) The purchase price of each share of Stock purchased for each
Offering Period will equal 95% of the Fair Market Value of a
share of Stock on the last day of an Offering Period.
(ii) Except as limited in (iii) below, the number of shares of
Stock that may be purchased upon exercise of the Purchase
Right for a Offering Period will equal the number of whole
shares that can be purchased at the purchase price specified
in Section 6(a)(i) with the aggregate amount credited to the
Participant's Cash Account as of the last day of an Offering
Period.
(iii) The number of shares of Stock subject to a Participant's
Purchase Right for any Offering Period will not exceed the
number derived by dividing $12,500 by 100% of the Fair Market
Value of one share of Stock on the first day of the Offering
Period.
(iv) The Purchase Right will be automatically exercised on the last
day of the Offering Period.
(v) Payments by a Participant for Stock purchased under a Purchase
Right will be made only through payroll deduction in
accordance with Section 5(d) and (e).
(vi) The Purchase Right will expire on the earlier of the last day
of the Offering Period or the date on which the Participant's
enrollment in the Plan terminates.
(b) PURCHASE OF STOCK. At or as promptly as practicable after the last
day of an Offering Period, amounts credited to each Participant's Cash Account
will be applied by the Company to purchase Stock, in accordance with the terms
of the Plan. Shares of Stock will be purchased from the Company or in the open
market, as the Board determines. The Company will aggregate the amounts in all
Cash Accounts when purchasing Stock, and shares purchased will be allocated to
each Participant's Stock Account in proportion to the cash
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amounts withdrawn from such Participant's Cash Account. After completing
purchases for each Offering Period (which will be completed in not more than 15
calendar days after the last day of an Offering Period), all shares of Stock so
purchased for a Participant will be credited to the Participant's Stock Account.
(c) DIVIDEND REINVESTMENT; OTHER DISTRIBUTIONS. Cash dividends on any
Stock credited to a Participant's Stock Account will be automatically reinvested
in additional shares of Stock and such amounts will not be available in the form
of cash to Participants. The Company will aggregate all purchases of Stock in
connection with dividend reinvestment for a given dividend payment date.
Purchases of Stock for purposes of dividend reinvestment will be made as
promptly as practicable (but not more than 15 calendar days) after a dividend
payment date. The purchases will be made directly from the Company at 100% of
the Fair Market Value of a share of Stock on the dividend payment date or on the
open market. Any shares of Stock distributed as a dividend or distribution in
respect of shares of Stock or in connection with a split of the Stock credited
to a Participant's Stock Account will be credited to such Account.
(d) WITHDRAWALS AND TRANSFERS. Shares of Stock may be withdrawn from a
Participant's Stock Account, in which case one or more certificates for whole
shares may be issued in the name of, and delivered to, the Participant, with
such Participant receiving cash in lieu of fractional shares based on the Fair
Market Value of a share of Stock on the day preceding the date of withdrawal.
Alternatively, whole shares of Stock may be withdrawn from a Participant's Stock
Account by means of a transfer to a broker-dealer or financial institution that
maintains an account for the Participant, together with the transfer of cash in
lieu of fractional shares based on the Fair Market Value of a share of Stock on
the day preceding the date of withdrawal. Participants may not designate any
other person to receive shares of Stock withdrawn or transferred under the Plan.
A Participant seeking to withdraw or transfer shares of Stock must give
instructions to the Custodian in such manner and form as may be prescribed by
the Custodian, which instructions will be acted upon as promptly as practicable.
Withdrawals and transfers will be subject to any fees imposed in accordance with
Section 8(a).
(e) EXCESS ACCOUNT BALANCES. If any amounts remain in a Cash Account
following the date on which the Company purchases Stock for an Offering Period
as a result of the limitation set forth in Section 6(a)(iii) or for any other
reason, such amounts will be held in the Participant's Cash Account and used to
purchase shares of Stock in the next succeeding Offering Period.
7. TERMINATION AND DISTRIBUTIONS.
(a) TERMINATION OF ENROLLMENT. A Participant's enrollment in the Plan
will terminate upon (i) the beginning of any payroll period or Offering Period
that begins after he or she files a written notice of termination of enrollment
with the Company, provided that such Participant will continue to be deemed to
be enrolled with respect to any completed Offering Period for which purchases
have not been completed, (ii) such time as the Participant becomes ineligible to
participate under Section 5(a) of the Plan, or (iii) the termination of the
Participant's employment by the Company and its Subsidiaries. An employee whose
enrollment in the Plan terminates may again enroll in the Plan as of any
subsequent
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Offering Period that is at least 90 days after such termination of enrollment if
he or she satisfies the eligibility requirements of Section 5(a) as of such
Offering Period. A Participant's election to discontinue payroll contributions
will not constitute a termination of enrollment.
(b) DISTRIBUTION. As soon as practicable after a Participant's
enrollment in the Plan terminates, amounts in the Participant's Cash Account
which resulted from payroll contributions will be repaid to the Participant. The
Custodian will continue to maintain the Participant's Stock Account for the
Participant until the earlier of such time as the Participant directs the sale
of all Stock in the Account, withdraws, or transfers all Stock in the Account,
or one year after the Participant ceases to be employed by the Company and its
Subsidiaries. If a Participant's termination of enrollment results from his or
her death, all amounts payable will be paid to his or her designated beneficiary
or beneficiaries and if no such designation is made, to his or her estate.
8. GENERAL.
(a) COSTS. Costs and expenses incurred in the administration of the
Plan and maintenance of Accounts will be paid by the Company, to the extent
provided in this Section 8(a). Any brokerage fees and commissions for the
purchase of Stock under the Plan (including Stock purchased upon reinvestment of
dividends and distributions) will be paid by the Company, but any brokerage fees
and commissions for the sale of Stock under the Plan by a Participant will be
borne by such Participant. The rate at which such fees and commissions will be
charged to Participants will be determined by the Custodian or any broker-dealer
used by the Custodian (including an affiliate of the Custodian), and
communicated from time to time to Participants. In addition, the Custodian may
impose or pass through a reasonable fee for the withdrawal of Stock in the form
of stock certificates (as permitted under Section 6(d)), and reasonable fees for
other services unrelated to the purchase of Stock under the Plan, to the extent
approved in writing by the Company and communicated to Participants.
(b) STATEMENTS TO PARTICIPANTS. The Participant's statement will
reflect payroll contributions, purchases, sales, and withdrawals and transfers
of shares of Stock and other Plan transactions by appropriate adjustments to the
Participant's Accounts. The Custodian will, not less frequently than quarterly,
provide or cause to be provided a written statement to the Participant showing
the transactions in his or her Stock Account and the date thereof, the number of
shares of Stock credited or sold, the aggregate purchase price paid or sales
price received, the purchase or sales price per share, the brokerage fees and
commissions paid (if any), the total shares held for the Participant's Stock
Account, and such other information as agreed to by the Custodian and the
Company.
(c) COMPLIANCE WITH SECTION 423. It is the intent of the Company that
this Plan comply in all respects with applicable requirements of Section 423 of
the Code and regulations thereunder. Accordingly, if any provision of this Plan
does not comply with such requirements, such provision will be construed or
deemed amended to the extent necessary to conform to such requirements.
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9. GENERAL PROVISIONS.
(a) COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS. The Plan, the
granting and exercising of Purchase Rights hereunder, and the other obligations
of the Company and the Custodian under the Plan will be subject to all
applicable federal and state laws, rules, and regulations, and to such approvals
by any regulatory or governmental agency as may be required. The Company may, in
its discretion, postpone the issuance or delivery of Stock upon exercise of
Purchase Rights until completion of such registration or qualification of such
Stock or other required action under any federal or state law, rule, or
regulation, or the laws of any country in which employees of the Company and a
Subsidiary who are nonresident aliens and who are eligible to participate
reside, or other required action with respect to any automated quotation system
or stock exchange upon which the Stock or other Company securities are
designated or listed, or compliance with any other contractual obligation of the
Company, as the Company may consider appropriate. In addition, the Company may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of Stock in compliance with applicable laws, rules, and regulations,
designation or listing requirements, or other contractual obligations.
(b) LIMITS ON ENCUMBERING RIGHTS. No right or interest of a Participant
under the Plan, including any Purchase Right, may be pledged, encumbered, or
hypothecated to or in favor of any party, subject to any lien, obligation, or
liability of such Participant, or otherwise assigned, transferred, or disposed
of except pursuant to the laws of descent or distribution, and any right of a
Participant under the Plan will be exercisable during the Participant's lifetime
only by the Participant.
(c) NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Plan nor any action
taken hereunder, including the grant of a Purchase Right, will be construed as
giving any employee the right to be retained in the employ of the Company or any
of its Subsidiaries, nor will it interfere in any way with the right of the
Company or any of its Subsidiaries to terminate any employee's employment at any
time.
(d) TAXES. The Company or any Subsidiary is authorized to withhold from
any payment to be made to a Participant, including any payroll and other
payments not related to the Plan, amounts of withholding and other taxes due in
connection with any transaction under the Plan, and a Participant's enrollment
in the Plan will be deemed to constitute his or her consent to such withholding.
In addition, Participants may be required to advise the Company of sales and
other dispositions of Stock acquired under the plan in order to permit the
Company to comply with tax laws and to claim any tax deductions to which the
Company may be entitled with respect to the Plan. This provision and other Plan
provisions do not set forth an explanation of the tax consequences to
Participants under the Plan. A brief summary of the tax consequences will be
included in disclosure documents to be separately furnished to Participants.
(e) CHANGES TO THE PLAN. The Board may amend, alter, suspend,
discontinue, or terminate the Plan without the consent of shareholders or
Participants, except that any such action will be subject to the approval of the
Company's shareholders within one year after such Board action if such
shareholder approval is required by any federal or state law or regulation or
the rules of any automated quotation system or stock exchange on which the Stock
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may then be quoted or listed, or if such shareholder approval is necessary in
order for the Plan to continue to meet the requirements of Section 423 of the
Code, and the Board may otherwise, in its discretion, determine to submit other
such actions to shareholders for approval. However, without the consent of an
affected Participant, no amendment, alteration, suspension, discontinuation, or
termination of the Plan may materially and adversely affect the rights of such
Participant with respect to outstanding Purchase Rights relating to any Offering
Period that has been completed prior to such Board action. The foregoing
notwithstanding, upon termination of the Plan the Board may (i) elect to
terminate all outstanding Purchase Rights at such time as the Board may
designate, and all amounts contributed to the Plan which remain in a
Participant's Cash Account will be returned to the Participant (without
interest) as promptly as practicable, or (ii) shorten the Offering Period to
such period determined by the Board and use amounts credited to a Participant
Cash Account to purchase Stock.
(f) NO RIGHTS TO PARTICIPATE; NO SHAREHOLDER RIGHTS. No Participant or
employee will have any claim to participate in the Plan with respect to Offering
Periods that have not commenced, and the Company will have no obligation to
continue the Plan. No Purchase Right will confer on any Participant any of the
rights of a shareholder of the Company unless and until Stock is duly issued or
transferred and delivered to the Participant (or credited to the Participant's
Stock Account).
(g) FRACTIONAL SHARES. As of the Effective Date, unless otherwise
determined by the Board, purchases of Stock under the Plan executed by the
Custodian may not result in the crediting of fractional shares of Stock to the
Participant's Stock Account. Fractional shares will not be issued by the
Company, and certificates representing fractional shares will not be delivered
to Participants under any circumstances.
(h) PLAN YEAR. The Plan will operate on a plan year that begins on
January 1 and ends December 31 in each year.
(i) GOVERNING LAW. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan will be determined in
accordance with the laws of the State of Arizona, without giving effect to
principles of conflicts of laws, and applicable federal law.
(j) EFFECTIVE DATE. The Prior Plan was effective on the Original
Effective Date. The Plan, as amended and restated, is effective as of the
Effective Date, which is the Offering Period beginning on July 1, 2005.
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