Exhibit
10.13
CHANGE IN
CONTROL SEVERANCE AGREEMENT
THIS
CHANGE IN CONTROL SEVERANCE AGREEMENT (this
“Agreement”) is made and entered into as of August 10,
2009 by and between Semitool, Inc. , a Montana corporation
(the “Company”), and Larry Viano, Vice President and
Chief Financial Officer (“Executive”).
RECITALS
A. The
Company has determined that it is in its best interests, and the
best interests of its shareholders, to retain the continued
dedication of Executive to the Company so that the Executive is
encouraged not to base decisions related to his/her continued
employment on the effect, if any, of any possible Change in Control
(as defined herein).
B. To
reduce any personal uncertainties to Executive associated with
continued employment in the event of a Change in Control, and to
encourage Executive’s dedication to the Company currently,
the Company wishes to provide Executive with compensation and
benefits upon a Change in Control in amounts that are competitive
with those of similarly situated executives at comparable
businesses, subject to the terms of this Agreement.
AGREEMENT
1. Definitions
. Capitalized terms used herein have the meanings ascribed to
them in Appendix A hereto.
2. Change in
Control Severance Benefits; Retention Benefits .
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2.1 Severance
Benefits upon Change in Control Termination . Upon a Change
in Control Termination the Company shall provide Executive the
following benefits:
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(a)
The Company shall pay to Executive a cash lump sum, within 30 days
after the Termination Date, an amount equal to two (2) multiplied
by the Executive’s highest annual base salary received over
the preceding 3-year period;
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(b)
For a period of eighteen (18) months following the Termination
Date, the Company shall continue all health insurance, disability
and life insurance benefits to Executive and his/her family, in
amounts at least equal to those which would have been provided in
accordance with plans and programs that continue in place at the
Company for employees of Executive’s level (or if no employee
continues with the Company at Executive’s level, then at the
level of coverage provided comparable employees at a parent or
affiliate entity of the Company), provided that, if Executive
becomes reemployed with another employer and is actually covered
(and not merely eligible for coverage) by that employer’s
comparable programs, then the benefits described herein shall be
secondary to those provided under such other coverage;
and
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(c)
All outstanding unvested equity rights Executive holds as of the
Termination Date will accelerate and be fully vested as of the
Termination Date, all blackout periods, conditions or restrictions
for the exercise of any options or disposition of any restricted
stock granted to Executive shall terminate, all options shall
remain exercisable until the expiration of ten (10) years from the
Grant Date (but not longer than the original Expiration Date (as
such terms are defined in the applicable option agreements)), and
the restricted stock shall be transferred to Executive as soon as
reasonably practicable thereafter.
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2.2 Termination for
Cause or Other than Good Reason . If the Company terminates
Executive’s employment for Cause or Executive voluntarily
terminates employment under circumstances that do not constitute a
Good Reason Termination, then this Agreement shall terminate
without further obligations to the Executive.
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3. Compensation
Limitation . The parties agree and acknowledge that their
intent is that benefits under this Agreement shall not constitute
an “excess parachute payment” under § 280G of
the Internal Revenue Code of 1986, as amended (the
“Code”), which would trigger an excise tax under Code
§ 4999. To give effect to that intent, and
notwithstanding any other provision of this Agreement to the
contrary, the parties specifically agree that the maximum benefits
payable under this Agreement shall not exceed 2.99 multiplied by
Executive’s “base amount,” as defined in
Code § 280G.
4. Withholding
Taxes . In connection with payments under this Agreement,
the Company shall withhold any income and employment taxes required
under applicable law.
5. Governing Law
and Jurisdiction . This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes
relating thereto, shall be governed by and construed in accordance
with the laws of the State of Montana. The parties agree that the
state courts of Montana shall have exclusive jurisdiction over any
dispute between the parties not otherwise amicably
resolved.
6. No Set-off; No
Duty of Mitigation . There shall be no right of setoff or
counterclaim with in respect to any actual or alleged claim, debt
or obligation, against any payments or benefits required to be made
or provided to Executive under this Agreement. Except as herein
otherwise expressly provided, in the event of any termination of
Executive’s employment, Executive shall be under no
obligation to seek other employ
