CHANGE IN DUTIES AND TRINITY, OR IS SUCCESSOR, AS
APPLICABLE, SHALL HAVE TEN (10) DAYS TO CURE THE SPECIFIED CONDITION.
C.
TAX LIMITATIONS.
IF IT IS DETERMINED
THAT ANY PAYMENT OR DISTRIBUTION FROM TRINITY, ANY AFFILIATE (AS DEFINED BELOW),
OR TRUSTS ESTABLISHED BY THE TRINITY OR BY ANY AFFILIATE TO OR FOR THE BENEFIT
OF WELLS (WHETHER PAID OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO
THE TERMS OF THIS AGREEMENT OR OTHERWISE, AND WITH A "PAYMENT" INCLUDING,
WITHOUT LIMITATION, THE VESTING OR PAYMENT OF NON-CASH BENEFITS OR PROPERTY) (A
"PAYMENT") WOULD BE NONDEDUCTIBLE BY TRINITY OR ITS SUCCESSOR, AS APPLICABLE,
FOR FEDERAL INCOME TAX PURPOSES BECAUSE OF SECTION 280G OF THE CODE, OR ANY
SUCCESSOR PROVISION, THEN THE AGGREGATE PRESENT VALUE OF AMOUNTS PAYABLE OR
DISTRIBUTABLE TO OR FOR THE BENEFIT OF WELLS PURSUANT TO THIS AGREEMENT
("AGREEMENT PAYMENTS") SHALL BE REDUCED (BUT NOT BELOW ZERO) TO THE REDUCED
AMOUNT.
FOR PURPOSES OF THIS SECTION, THE "REDUCED AMOUNT" SHALL BE AN AMOUNT
EXPRESSED IN PRESENT VALUE WHICH MAXIMIZES THE AGGREGATE PRESENT VALUE OF
AGREEMENT PAYMENTS WITHOUT CAUSING ANY PAYMENT TO BE NONDEDUCTIBLE BECAUSE OF
SAID SECTION 280G OF THE CODE.
THE DETERMINATION TO BE MADE HEREUNDER SHALL BE
MADE WITHIN TWENTY (20) DAYS AFTER THE DATE OF TERMINATION BY THE ACCOUNTING
FIRM FOR TRINITY (THE "ACCOUNTING FIRM"), WHICH SHALL PROVIDE DETAILED
CALCULATIONS THEREOF TO TRINITY AND TO WELLS, PROVIDED, HOWEVER, THAT WELLS
SHALL ELECT WHICH AND HOW MUCH OF THE AGREEMENT PAYMENTS SHALL BE REDUCED
CONSISTENT WITH SUCH CALCULATIONS.
THE DETERMINATION TO BE MADE BY THE
ACCOUNTING FIRM SHALL BE BINDING UPON TRINITY AND WELLS.
FOR PURPOSES OF THIS
AGREEMENT, TRINITY'S "AFFILIATES" INCLUDE EACH COMPANY, CORPORATION,
PARTNERSHIP, BANK, SAVINGS BANK, SAVINGS AND LOAN ASSOCIATION, CREDIT UNION OR
OTHER FINANCIAL INSTITUTION, DIRECTLY OR INDIRECTLY, WHICH IS CONTROLLED BY,
CONTROLS, OR IS UNDER COMMON CONTROL WITH, TRINITY (SPECIFICALLY INCLUDING THE
COMPANIES), AND "CONTROL" MEANS (X) THE OWNERSHIP OF 51% OR MORE OF THE VOTING
SECURITIES OR OTHER VOTING INTEREST OR OTHER EQUITY INTEREST OF ANY CORPORATION,
PARTNERSHIP, JOINT VENTURE OR OTHER BUSINESS ENTITY, OR (Y) THE POSSESSION,
DIRECTLY OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE
MANAGEMENT AND POLICIES OF SUCH CORPORATION, PARTNERSHIP, JOINT VENTURE OR OTHER
BUSINESS ENTITY.
7.
TERMINATION BY REASON OF WELLS'
DISABILITY OR DEATH.
WELLS' EMPLOYMENT MAY BE TERMINATED UPON THE EVENT OF HIS
DEATH OR THE GOOD FAITH DETERMINATION OF THE CEO OF HIS DISABILITY AS DEFINED
HEREIN.
A.
DISABILITY IS DEFINED AS:
(I) WELLS IS
PERMANENTLY AND TOTALLY DISABLED IF HE IS UNABLE TO ENGAGE IN ANY SUBSTANTIAL
GAINFUL ACTIVITY BY REASON OF ANY MEDICALLY DETERMINABLE PHYSICAL OR MENTAL
IMPAIRMENT WHICH CAN BE EXPECTED TO RESULT IN DEATH OR WHICH HAS LASTED OR CAN
BE EXPECTED TO LAST FOR A CONTINUOUS PERIOD OF NOT LESS THAN TWELVE (12) MONTHS;
(II)
WELLS' LIMITATION DUE TO SICKNESS OR INJURY, IN PERFORMANCE OF THE
MATERIAL AND SUBSTANTIVE DUTIES OF HIS POSITION FOR A PERIOD OF SIX (6)
CONSECUTIVE
6
MONTHS; OR (III)