Common use of Section 280G Gross-Up Payment Clause in Contracts

Section 280G Gross-Up Payment. Notwithstanding anything to the contrary contained herein, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of a Change in Control but determined without regard to any additional payments required under this Agreement (collectively the "Payment"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable federal, state or local excise tax, (such excise tax, together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, Employee shall retain an amount equal to the Payment minus all applicable taxes on the Payment; provided, however, that Employee will be entitled to receive a Gross-Up Payment only if the amount of a parachute payment, as defined in Section 280G(b)(2) of the Code, exceeds the sum of (A) the greater of (i) $100,000 or (ii) ten (10) percent of the payments under this Agreement plus (B) 2.99 times the Employee's base amount, as defined in Section 280G(b)(3) of the Code, and provided further, that if Employee is not entitled to receive a Gross-Up Payment, Employee will receive only an amount of total payments that would not include any excess parachute payment, as defined in Section 280G(b)(1)