Common use of Section 4999 of the Code Clause in Contracts

Section 4999 of the Code. In making a determination as to whether a payment or other benefit payable under this Agreement would cause an excise tax to be imposed under Section 4999, all payments or benefits under this Agreement shall be consolidated with the benefits provided by all other arrangements, programs, plans, agreements or understandings of any kind between the Company and/or any affiliate and the Executive if they are of a type that would be deemed “parachute payments”, as that term is defined in Section 280G of the Code; provided, however, any payment to or for the benefit of Executive in the nature of compensation under the Equity Incentive Plan of Ascent Energy, Inc. (the “Plan”); any replacement plans or similar, additional plans; any stock option plans; share appreciation rights; or any additional current or future incentive plans of Ascent Energy, Inc. or any affiliate, shall not be considered “parachute payments” for purposes of this Agreement and shall be excluded from the limitation on payments set forth in this Section 7(g) . In the event it is determined that any such excise tax would be due, the Executive shall have the right to elect to reduce the amount payable to the Executive under any one or more of the agreements, plans, programs, arrangements or understandings in any way that he determines, and if any one agreement, plan, program, arrangement or understanding has more than one benefit, he may choose between benefits in order to reach the required reduction overall. The determinations required to be made under this provision shall be made by the Company’s auditors and such determinations shall be final and binding on the Company and the Executive except in the case of manifest error. Should the Company’s auditors fail or refuse to make any determination required by the provision then another accounting firm shall be selected by the mutual agreement of the Company and the Executive, and if they fail to reach an agreement, then the Company shall select one accounting firm at its expense and the Executive shall select a second accounting firm at Executive’s expense; and those two accounting firms shall select the accounting firm which shall make the determination required of the Company’s auditors above.

Section 4999 of the Code. In making a determination as to whether a payment or other benefit payable under Anything in this Agreement would cause an excise tax or the Company’s Incentive Compensation Plan to be imposed under Section 4999the contrary notwithstanding, all payments or benefits under this Agreement in the event it shall be consolidated with determined that any payment, award, benefit or distribution (including, without limitation, the benefits provided by all other arrangements, programs, plans, agreements or understandings acceleration of any kind between payment, award, distribution or benefit), by the Company and/or or any affiliate and the Executive if they are of a type that would be deemed “parachute payments”, as that term is defined in Section 280G of the Code; provided, however, any payment its affiliates to or for the benefit of the Executive in (whether pursuant to the nature terms of compensation under this Agreement or otherwise) (a “Payment”) would be subject to the Equity Incentive Plan excise tax imposed by Section 4999 of Ascent Energy, Inc. the Code or any corresponding provisions of state or local tax law (the “PlanExcise Tax”); any replacement plans , then such Payments shall either (a) be delivered in full, or similar(b) subject to, additional plans; any stock option plans; share appreciation rights; and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state or any additional current local income and employment taxes and the Excise Tax, results in receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or future incentive plans some portion of Ascent Energy, Inc. or any affiliate, shall not such payments and benefits may be considered “parachute payments” for purposes of this Agreement and shall be excluded from subject to the limitation on payments set forth in this Section 7(g) Excise Tax. In the event it is determined that any such excise tax would Payments are to be duereduced pursuant to this Section 12.10, then the Executive reduction shall have the right to elect to reduce the amount payable be applied as follows: (i) first, on a pro rata basis to the Executive Executive’s cash severance payments under any one or more of the agreements, plans, programs, arrangements or understandings in any way that he determinesSection 5.03 above, and if any one agreement(ii) second, plan, program, arrangement or understanding has more than one benefit, he may choose between benefits in order on a pro rata basis to reach the required reduction overallExecutive’s equity incentive awards. The All determinations required to be made under this provision Article 12 shall be made by a nationally recognized accounting or consulting firm (other than the regular outside accounting firm retained by the Company’s auditors ) selected by the Company and such determinations agreed to by the Executive, which agreement shall not be final and binding on unreasonably withheld (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive except in within 15 business days after the case receipt of manifest error. Should notice from the Company that the Executive has received a Payment, or such earlier time as is requested by the Company’s auditors fail or refuse to make any . Any determination required by the provision then another accounting firm Accounting Firm meeting the requirements of this Section 12.10 shall be selected by the mutual agreement of binding upon the Company and the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. If required, and if they fail to reach an agreement, then the Company shall select one accounting firm at its expense enter into an engagement letter with the Accounting Firm containing reasonable and the Executive shall select a second accounting firm at Executive’s expense; customary terms and those two accounting firms shall select the accounting firm which shall make the determination required of the Company’s auditors aboveprovisions.

Section 4999 of the Code. In making a determination as to whether a payment or other benefit payable under Anything in this Agreement would cause an excise tax or the Company’s Incentive Compensation Plan to be imposed under Section 4999the contrary notwithstanding, all payments or benefits under this Agreement in the event it shall be consolidated with determined that any payment, award, benefit or distribution (including, without limitation, the benefits provided by all other arrangements, programs, plans, agreements or understandings acceleration of any kind between payment, award, distribution or benefit), by the Company and/or or any affiliate and the Executive if they are of a type that would be deemed “parachute payments”, as that term is defined in Section 280G of the Code; provided, however, any payment its affiliates to or for the benefit of the Executive in (whether pursuant to the nature terms of compensation under this Agreement or otherwise) (a “Payment”) would be subject to the Equity Incentive Plan excise tax imposed by Section 4999 of Ascent Energy, Inc. the Code or any corresponding provisions of state or local tax law (the “PlanExcise Tax”); any replacement plans , then such Payments shall either (a) be delivered in full, or similar(b) subject to, additional plans; any stock option plans; share appreciation rights; and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state or any additional current local income and employment taxes and the Excise Tax, results in receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or future incentive plans some portion of Ascent Energy, Inc. or any affiliate, shall not such payments and benefits may be considered “parachute payments” for purposes of this Agreement and shall be excluded from subject to the limitation on payments set forth in this Section 7(g) Excise Tax. In the event it is determined that any such excise tax would Payments are to be duereduced pursuant to this Section 12.10, then the Executive reduction shall have the right to elect to reduce the amount payable be applied as follows: (i) first, on a pro rata basis to the Executive Executive’s cash severance payments under any one or more of the agreements, plans, programs, arrangements or understandings in any way that he determinesSection 5.03 above, and if any one agreement(ii) second, plan, program, arrangement or understanding has more than one benefit, he may choose between benefits in order on a pro rata basis to reach the required reduction overallExecutive’s equity incentive awards. The All determinations required to be made under this provision Article 12 shall be made by a nationally recognized accounting or consulting firm (other than the regular outside accounting 10 | Page firm retained by the Company’s auditors ) selected by the Company and such determinations agreed to by the Executive, which agreement shall not be final and binding on unreasonably withheld (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive except in within 15 business days after the case receipt of manifest error. Should notice from the Company that the Executive has received a Payment, or such earlier time as is requested by the Company’s auditors fail or refuse to make any . Any determination required by the provision then another accounting firm Accounting Firm meeting the requirements of this Section 12.10 shall be selected by the mutual agreement of binding upon the Company and the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. If required, and if they fail to reach an agreement, then the Company shall select one accounting firm at its expense enter into an engagement letter with the Accounting Firm containing reasonable and the Executive shall select a second accounting firm at Executive’s expense; customary terms and those two accounting firms shall select the accounting firm which shall make the determination required of the Company’s auditors aboveprovisions.

Section 4999 of the Code. In making a determination as to whether a payment or other benefit payable under Anything in this Agreement would cause an excise tax or the Company’s Incentive Compensation Plan to be imposed under Section 4999the contrary notwithstanding, all payments or benefits under this Agreement in the event it shall be consolidated with determined that any payment, award, benefit or distribution (including, without limitation, the benefits provided by all other arrangements, programs, plans, agreements or understandings acceleration of any kind between payment, award, distribution or benefit), by the Company and/or or any affiliate and the Executive if they are of a type that would be deemed “parachute payments”, as that term is defined in Section 280G of the Code; provided, however, any payment its affiliates to or for the benefit of the Executive in (whether pursuant to the nature terms of compensation under this Agreement or otherwise) (a “Payment”) would be subject to the Equity Incentive Plan excise tax imposed by Section 4999 of Ascent Energy, Inc. the Code or any corresponding provisions of state or local tax law (the “PlanExcise Tax”); any replacement plans , then such Payments shall either (a) be delivered in full, or similar(b) subject to, additional plans; any stock option plans; share appreciation rights; and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state or any additional current local income and employment taxes and the Excise Tax, results in receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or future incentive plans some portion of Ascent Energy, Inc. or any affiliate, shall not such payments and benefits may be considered “parachute payments” for purposes of this Agreement and shall be excluded from subject to the limitation on payments set forth in this Section 7(g) Excise Tax. In the event it is determined that any such excise tax would Payments are to be duereduced pursuant to this Section 12.10, then the Executive reduction shall have the right to elect to reduce the amount payable be applied as follows: (i) first, on a pro rata basis to the Executive Executive’s cash severance payments under any one or more of the agreements, plans, programs, arrangements or understandings in any way that he determinesSection 5.03 above, and if any one agreement(ii) second, plan, program, arrangement or understanding has more than one benefit, he may choose between benefits in order on a pro rata basis to reach the required reduction overallExecutive’s equity incentive awards. The All determinations required to be made under this provision Article 12 shall be made by a nationally recognized accounting or consulting firm (other than the regular outside accounting firm retained by the Company’s auditors ) selected by the Company and such determinations agreed to by the Executive, which 15 | Page agreement shall not be final and binding on unreasonably withheld (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive except in within 15 business days after the case receipt of manifest error. Should notice from the Company that the Executive has received a Payment, or such earlier time as is requested by the Company’s auditors fail or refuse to make any . Any determination required by the provision then another accounting firm Accounting Firm meeting the requirements of this Section 12.10 shall be selected by the mutual agreement of binding upon the Company and the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. If required, and if they fail to reach an agreement, then the Company shall select one accounting firm at its expense enter into an engagement letter with the Accounting Firm containing reasonable and the Executive shall select a second accounting firm at Executive’s expense; customary terms and those two accounting firms shall select the accounting firm which shall make the determination required of the Company’s auditors aboveprovisions.

Section 4999 of the Code. In making a determination as to whether a payment or other benefit payable under Anything in this Agreement would cause an excise tax or the Company’s Incentive Compensation Plan to be imposed under Section 4999the contrary notwithstanding, all payments or benefits under this Agreement in the event it shall be consolidated with determined that any payment, award, benefit or distribution (including, without limitation, the benefits provided by all other arrangements, programs, plans, agreements or understandings acceleration of any kind between payment, award, distribution or benefit), by the Company and/or or any affiliate and the Executive if they are of a type that would be deemed “parachute payments”, as that term is defined in Section 280G of the Code; provided, however, any payment its affiliates to or for the benefit of the Executive in (whether pursuant to the nature terms of compensation under this Agreement or otherwise) (a “Payment”) would be subject to the Equity Incentive Plan excise tax imposed by Section 4999 of Ascent Energy, Inc. the Code or any corresponding provisions of state or local tax law (the “PlanExcise Tax”); any replacement plans , then such Payments shall either (a) be delivered in full, or similar(b) subject to, additional plans; any stock option plans; share appreciation rights; and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state or any additional current local income and employment taxes and the Excise Tax, results in receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or future incentive plans some portion of Ascent Energy, Inc. or any affiliate, shall not such payments and benefits may be considered “parachute payments” for purposes of this Agreement and shall be excluded from subject to the limitation on payments set forth in this Section 7(g) Excise Tax. In the event it is determined that any such excise tax would Payments are to be duereduced pursuant to this Section 12.10, then the Executive reduction shall have the right to elect to reduce the amount payable be applied as follows: (i) first, on a pro rata basis to the Executive Executive’s cash severance payments under any one or more of the agreementsSection 5.03 above, plans10 | Page and (ii) second, programs, arrangements or understandings in any way that he determines, and if any one agreement, plan, program, arrangement or understanding has more than one benefit, he may choose between benefits in order on a pro rata basis to reach the required reduction overallExecutive’s equity incentive awards. The All determinations required to be made under this provision Article 12 shall be made by a nationally recognized accounting or consulting firm (other than the regular outside accounting firm retained by the Company’s auditors ) selected by the Company and such determinations agreed to by the Executive, which agreement shall not be final and binding on unreasonably withheld (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive except in within 15 business days after the case receipt of manifest error. Should notice from the Company that the Executive has received a Payment, or such earlier time as is requested by the Company’s auditors fail or refuse to make any . Any determination required by the provision then another accounting firm Accounting Firm meeting the requirements of this Section 12.10 shall be selected by the mutual agreement of binding upon the Company and the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. If required, and if they fail to reach an agreement, then the Company shall select one accounting firm at its expense enter into an engagement letter with the Accounting Firm containing reasonable and the Executive shall select a second accounting firm at Executive’s expense; customary terms and those two accounting firms shall select the accounting firm which shall make the determination required of the Company’s auditors aboveprovisions.

Section 4999 of the Code. In making a determination as to whether a payment or other benefit payable under Anything in this Agreement would cause an excise tax or the Company’s Incentive Compensation Plan to be imposed under Section 4999the contrary notwithstanding, all payments or benefits under this Agreement in the event it shall be consolidated with determined that any payment, award, benefit or distribution (including, without limitation, the benefits provided by all other arrangements, programs, plans, agreements or understandings acceleration of any kind between payment, award, distribution or benefit), by the Company and/or or any affiliate and the Executive if they are of a type that would be deemed “parachute payments”, as that term is defined in Section 280G of the Code; provided, however, any payment its affiliates to or for the benefit of the Executive in (whether pursuant to the nature terms of compensation under this Agreement or otherwise) (a “Payment”) would be subject to the Equity Incentive Plan excise tax imposed by Section 4999 of Ascent Energy, Inc. the Code or any corresponding provisions of state or local tax law (the “PlanExcise Tax”); any replacement plans , then such Payments shall either (a) be delivered in full, or similar(b) subject to, additional plans; any stock option plans; share appreciation rights; and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state or any additional current local income and employment taxes and the Excise Tax, results in receipt by the Executive, on an after‐tax basis, of the greatest amount of payments and benefits, notwithstanding that all or future incentive plans some portion of Ascent Energy, Inc. or any affiliate, shall not such payments and benefits may be considered “parachute payments” for purposes of this Agreement and shall be excluded from subject to the limitation on payments set forth in this Section 7(g) Excise Tax. In the event it is determined that any such excise tax would Payments are to be duereduced pursuant to this Section 12.10, then the Executive reduction shall have the right to elect to reduce the amount payable be applied as follows: (i) first, on a pro rata basis to the Executive Executive’s cash severance payments under any one or more of the agreements, plans, programs, arrangements or understandings in any way that he determinesSection 5.03 above, and if any one agreement(ii) second, plan, program, arrangement or understanding has more than one benefit, he may choose between benefits in order on a pro rata basis to reach the required reduction overallExecutive’s equity incentive awards. The All determinations required to be made under this provision Article 12 shall be made by a nationally recognized accounting or consulting firm (other than the regular outside accounting firm retained by the Company’s auditors ) selected by the Company and such determinations agreed to by the Executive, which agreement shall not be final and binding on unreasonably withheld (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive except in within 15 business days after the case receipt of manifest error. Should notice from the Company that the Executive has received a Payment, or such earlier time as is requested by the Company’s auditors fail or refuse to make any . Any determination required by the provision then another accounting firm Accounting Firm meeting the requirements of this Section 12.10 shall be selected by the mutual agreement of binding upon the Company and the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. If required, and if they fail to reach an agreement, then the Company shall select one accounting firm at its expense enter into an engagement letter with the Accounting Firm containing reasonable and the Executive shall select a second accounting firm at Executive’s expense; customary terms and those two accounting firms shall select the accounting firm which shall make the determination required of the Company’s auditors aboveprovisions.