EXHIBIT 10.12
SCRIPPS BANK
UNFUNDED SUPPLEMENTAL RETIREMENT AGREEMENT
1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to provide
Xxxxxx Xxxxxxx ("Employee"), current President of Scripps Bank, with
supplemental retirement benefits contingent upon his remaining employment by
Scripps Bank through October 1, 2002.
2. RETIREMENT BENEFIT.
2.1 BENEFIT. If the Employee remains in the employment of Scripps
Bank until October 1, 2002 (the "Retirement Date") or retires prior to such date
due to a total and permanent disability, Employee shall be entitled to receive a
monthly annuity payment from Scripps Bank in the amount of $2,083.33, commencing
on the first day of the month that next follows his Retirement Date (or such
earlier date upon which he ceases employment with Scripps Bank due to total and
permanent disability) and continuing on the first day of each subsequent month
until the month next following the date of Employee's death. In the event that
Employee defers retirement beyond the Retirement Date, the monthly benefit shall
be actuarially increased to reflect the delayed commencement of the benefit
payments. Notwithstanding the preceding sentences, Scripps Bank in its sole and
absolute discretion may, at any time, pay the Employee the lump sum present
value of the then remaining retirement benefit payable under this Section 2.1.
The determination of present value and any actuarial adjustments in the annuity
payment to reflect an late commencement of benefits hereunder shall be made by
an actuary selected by Scripps Bank. For purposes of this Agreement, total
disability shall mean the inability of the Employee, because of a physical or
mental impairment that is expected to be of long-term duration, to perform the
usual duties of the Employee. Total disability shall be determined by a
physician selected by Scripps Bank.
2.2 INFLATION ADJUSTMENT. On each anniversary of the Retirement
Date, the monthly benefit shall be increased by three percent (3%) as a
cost-of-living adjustment.
2.3 PRERETIREMENT TERMINATION OF EMPLOYMENT. If the employment of
the Employee is terminated for cause on or after the Retirement Date or if
Employee voluntarily terminates employment prior to the Retirement Date, the
Employee shall not be entitled to any benefits under this Agreement. For
purposes of this Agreement, termination for cause shall mean termination for any
of the following reasons: (i) theft or dishonesty; (ii) improper use or
disclosure of confidential information of Scripps Bank; and (iii) failure or
inability to carry out duties after written notice and opportunity to cure. If
Scripps Bank terminates Employee's employment prior to the Retirement Date for
reasons other than cause, Employee shall be deemed to be employed on the
Retirement Date for purposes of entitlement to the supplemental retirement
benefits under this Agreement.
2.4 WITHHOLDINGS. Applicable income and/or other taxes shall be
withheld from all payments made under this Agreement. In addition, in the event
that Employee is indebted to Scripps Bank for any reason at the time payments
are made under this Agreement,
Scripps Bank shall be authorized, but not required, to offset the payments
due hereunder by the amount of such indebtedness.
3. UNFUNDED BENEFIT. Scripps Bank shall not be required to establish a
trust or otherwise set aside funds to pay the supplemental retirement benefits
due under this Agreement. Employee acknowledges that the payment of the
benefits under this Agreement shall be subject to the financial ability of
Scripps Bank to make such payments, in accordance with applicable insolvency,
bankruptcy and banking laws. In the event that Scripps Bank sets aside any
funds to assist it in meeting its obligations hereunder, such funds shall at all
times remain the sole property of Scripps Bank and be subject to the claims of
Scripps Bank's general creditors, and neither Employee nor anyone claiming
through or under Employee shall have any property interest whatsoever in such
funds or in any specific assets of Scripps Bank.
4. AMENDMENT AND TERMINATION. This Agreement may be amended or
terminated when in the sole opinion of Scripps Bank such amendment or
termination is advisable. The Agreement and all rights hereunder shall be
terminated immediately in the event that Employee is terminated for cause, as
defined in Section 2.3. In the event of a termination of the Agreement prior to
the payment of all benefits hereunder (other than a termination described in the
preceding sentence), Scripps Bank shall pay to Employee in a lump sum payment
(less applicable withholdings) the present value of the retirement benefits
payable under Section 2.1 of this Agreement. Except as set forth above, the
amendment or termination of the Agreement shall not reduce the benefit payable
to Employee under the Agreement or otherwise restrict his right to such benefit
unless the Employee consents in writing to such amendment. Any amendment or
termination of this Agreement shall be made by a written instrument approved by
the Board of Directors.
5. MISCELLANEOUS PROVISIONS.
5.1 INFORMATION TO BE FURNISHED. Employee shall provide Scripps Bank
with such information and evidence, and shall sign such documents, as may
reasonably be requested from time to time for the purpose of determining
entitlement to benefits under this Agreement.
5.2 SPENDTHRIFT CLAUSE. Employee shall have no right to transfer,
assign, alienate, anticipate, pledge, or encumber any part of the benefits
provided under this Agreement, nor shall such benefits be subject to seizure by
legal process by any creditor of the Employee. Any attempt to effect such a
diversion or seizure shall be deemed null and void for all purposes.
5.3 NO RIGHT TO EMPLOYMENT. Employee shall not acquire any right to
be retained in Scripps Bank's employ by virtue of this Agreement, nor, upon his
dismissal or upon his voluntary termination of employment, shall he have any
right or interest in any retirement benefits or other payments other than as
specifically provided herein or in any other written agreement between Employee
and Scripps Bank.
5.4 GOVERNING LAW. This Agreement shall be construed, administered,
and enforced according to the laws of California.
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5.5 SUCCESSORS. This Agreement shall not be terminated merely by
reason of a transfer or sale of the assets of Scripps Bank or by the merger or
consolidation of Scripps Bank into or with any other corporation or entity, but
the Agreement shall be continued in accordance with its terms after such sale,
merger, or consolidation, and the transferee, purchaser, or successor entity
shall be required as part of the sale, merger, or consolidation to agree to such
continuation.
5.6 INTERPRETATION OF AGREEMENT. The Board of Directors of Scripps
Bank shall have the full authority to interpret, construe and administer the
terms and provisions of this Agreement, in their sole discretion, and their
decisions shall be final and conclusive. No director or employee of Scripps
Bank shall be individually liable to Employee for any action taken or omitted
with respect to this Agreement, unless such action or omission constitutes
willful misconduct.
5.7 NOTICES. All notices or other communications required or
permitted to be given to a party to this Agreement shall be in writing and shall
be personally delivered, sent by registered or certified mail, postage prepaid,
return receipt requested, or sent by an overnight express courier service that
provides written confirmation of delivery, to such party at the following
respective address:
To Scripps: 0000 Xxxxxxx Xxxxxx
Xx Xxxxx, XX 00000
To Xxxxxxx: 0000 Xxxxxxxx Xxxxxx
Xx Xxxxx, XX 00000
Each such notice or other communication shall be deemed given, delivered and
received upon its actual receipt, except that if it is mailed in accordance with
this Section, then it shall be deemed given, delivered and received on the
delivery date or the date on which delivery is refused by the addressee, in
either case, in accordance with the United States Postage Service's return
receipt. Any party to this Agreement may give a notice of a change of its
address to the other party(ies) to this Agreement.
5.8 WAIVER. No delay or omission in the exercise of any right or
remedy shall impair such right or remedy or be construed as a waiver. A consent
to or approval of any act shall not be deemed to waive or render unnecessary
consent to or approval of any other or subsequent act. Any waiver of a default
under this Agreement must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
5.9 DRAFTING AMBIGUITIES. The parties to this Agreement acknowledge
that each party to this Agreement and its counsel have had the opportunity to
review and revise this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or of any amendments or
exhibits to this Agreement.
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Executed as of February 17, 1999 at La Jolla, California.
SCRIPPS BANK
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Chairman
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Individually
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