Attached files
file | filename |
---|---|
8-K - FORM 8-K - DIONEX CORP /DE | f57629e8vk.htm |
EX-2.1 - EX-2.1 - DIONEX CORP /DE | f57629exv2w1.htm |
EX-10.1 - EX-10.1 - DIONEX CORP /DE | f57629exv10w1.htm |
EX-10.2 - EX-10.2 - DIONEX CORP /DE | f57629exv10w2.htm |
Exhibit 10.3
[Dionex letterhead]
December 15, 2010
Mr. Frank Witney
219 Cross Rd.
Oakland, CA 94618
219 Cross Rd.
Oakland, CA 94618
Re: 280G Gross-Up
Dear Frank:
The Board of Directors of Dionex Corporation (the Company) has determined that it is in the best
interests of the Company and its stockholders to assure the Company will have your continued
dedication, notwithstanding the possibility, threat or occurrence of a Change in Control, as
defined in the Change in Control Severance Benefit Plan (the Plan), attached hereto as
Exhibit A. Therefore, in order to accomplish these objectives, the Companys Board of
Directors has caused the Company to enter into this agreement (this Agreement). Capitalized
terms not explicitly defined in this Agreement but defined in the Plan shall have the same
definitions as in the Plan:
The parties hereby agree as follows:
1. Notwithstanding Section 5(g) of the Plan, if any Payment would constitute a parachute
payment within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
Code), and but for Section 5(g) of the Plan would be subject to the excise tax imposed by Section
4999 of the Code (the Excise Tax), then subject to Section 2 of this Agreement such amount shall
not be reduced, and instead the Company shall pay you a Gross-Up Payment. For this purpose,
Gross-Up Payment means an amount such that, after your payment of (a) all federal, state, local
and foreign income, excise, social security and other taxes, and any interest and penalties imposed
with respect thereto (excluding the Excise Tax), and (b) the Excise Tax imposed upon the Gross-Up
Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payment. For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to
pay federal income taxes at the highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest
marginal rate of taxation in either the state and locality of your place of employment at the time
of the Change in Control or in the state and locality of residence at the time or times of payment,
as applicable, net of the maximum reduction in federal income taxes that could be obtained from the
deduction of the state and local taxes. Notwithstanding the foregoing, if your Gross-Up Payment
would exceed the Gross-Up Cap (as defined below), your Gross-Up Payment will equal the Gross-Up
Cap, and you will be solely responsible for any tax or other liabilities in excess of the Gross-Up
Cap, including, without limitation, any additional Excise Tax.
2. For purposes of this Agreement, the Gross-Up Cap equals $750,000 multiplied by your
Percentage Interest (as defined below); provided, however, that if it is determined that the
Reduced Amount you would receive under Section 5(g) of the Plan, without taking into account this
Agreement, would exceed your Payment under the Plan plus the Gross-Up Payment under this Agreement,
in each case determined after taking into account all applicable federal, state and local
employment taxes, income taxes, and the Excise Tax, all computed at the highest applicable marginal
rates, then your Gross-Up Cap will equal zero, and you shall receive the Reduced Amount. For
purposes of this Agreement, your Percentage Interest equals (a) the Excise Tax applicable to your
Payment (before application of Section
5(g) of the Plan and the provisions of this Agreement) divided by (b) the sum of the Excise
Tax described in clause (a) above plus the Excise Tax applicable to Michael Pettigrews Payment
(before application of Section 5(g) of the Plan and the provisions of this Agreement), unless
Michael Pettigrew is determined to have a Gross-Up Cap equal to zero, in which case your Percentage
Interest shall equal 100%.
3. All determinations required to be made under this Agreement, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be
utilized in arriving at such determinations, shall be made by the accounting firm engaged by the
Company to provide the other calculations required by Section 5(g) of the Plan. The calculation of
the Gross-Up Cap shall be made as of the Effective Time of the merger that is expected to occur
pursuant to the Agreement and Plan of Merger among Thermo Fisher Scientific Inc., Weston D Merger
Co. and the Company, dated as of December 12, 2010 (the Merger), and the remaining determinations
under Section 5(g) of the Plan shall be made and will be provided to you within fifteen calendar
days after the date on which your right to a Payment is triggered. Any Gross-Up Payment that
becomes due pursuant to this Agreement shall be paid by the Company to you on the same date that
any Payment is made, or if later, within five days of the receipt of the accounting firms
calculations, but, for purposes of compliance with Section 409A of the Code, in no event later than
the end of the calendar year next following the calendar year in which you have remitted the Excise
Tax in respect of the Payment.
4. Notwithstanding any other provision of this Agreement, the Company may, in its sole
discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing
authority, for your benefit, all or any portion of the Gross-Up Payment, and you hereby consent to
such withholding.
This Agreement, together with the attached Plan, will form the complete and exclusive statement of
your rights under the Plan. The terms in this Agreement supersede any other agreements, promises
or representations made to you by anyone, whether oral or written regarding the subject matters
hereof. This Agreement cannot be changed except in a written agreement signed by you and a duly
authorized member of the Companys Board of Directors. If the Merger is not consummated, this
Agreement shall be of no further force or effect.
If this Agreement is acceptable to you, please sign below and return the original to me.
Sincerely,
/s/ Rod McGeary | ||||
Rod McGeary | ||||
On behalf of the Board of Directors |
Agreed and Accepted:
/s/
Frank Witney |
December 16, 2010 | |
Frank Witney
|
Date |
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