Exhibit 23.3
AGREEMENT
Agreement by and between Century Bank and Trust Company, a Massachusetts trust
company (the "Company"), and Marshall M. Sloane ("Mr. Sloane"), dated as of
December 28, 2001.
WHEREAS, the Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its stockholders for the Company
to enter into this Agreement as part of a retention strategy for Mr. Sloane and
in recognition of his invaluable contributions to the Company's success in
developing, implementing and managing the strategy of growth and
diversification.
NOW, THEREFORE, the Company and Mr. Sloane agree as follows:
1. SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT
Effective immediately, Mr. Sloane's Supplemental Executive Retirement Benefit
shall be frozen at its current level with no future increases or
contributions by the Company ($2,925,000 of pre-retirement death benefit and
$455,034 of annual retirement income).
2. SPLIT DOLLAR LIFE INSURANCE POLICY
(a) ACQUISITION AND PREMIUM PAYMENT. In consideration for the agreement of
Mr. Sloane in Section 1, as soon as practicable after the date of this
Agreement, the Company will acquire a life insurance policy (the
"Policy") providing a death benefit of at least the Death Benefit
described below upon the death of the survivor of Mr. Sloane or Mrs.
Sloane (his "wife"). The Company will select a reputable and
financially sound insurance company or
companies to issue the Policy (if the Company selects more than one
insurance company to issue a life insurance contract pursuant to the
requirements of this subsection (a), all such life insurance contracts
are referred to collectively as the Policy herein). When the Policy is
acquired, the attachment identifying the Policy will be attached to
this Agreement. The Company will pay all premiums necessary to acquire
the Policy and maintain it in force, and will, if requested, provide
evidence of such payment to the Sloane's. Further, the Company's
obligation to pay premiums shall not be subject to any right of setoff
or counterclaim that the Company may have, for any reason, against Mr.
Sloane.
The "Death Benefit" payable to the Sloane's named beneficiary shall
equal:
(i) $25 million;
(b) COMPANY'S OWNERSHIP INTEREST. The Company will be the owner of record
of the Policy and will endorse the right to designate the beneficiary
(and contingent beneficiary) of and the settlement option for payment
of the Death Benefit to the Sloane's or the Sloane's assignee. The
Company agrees to complete, execute and file with the issuer of the
Policy such forms of endorsement, designation of beneficiary or other
documentation necessary to effectuate such endorsement as to the
portion of the Policy death benefit equal to the Death Benefit (subject
to the provisions of this Agreement). Unless Mr. Sloane has irrevocably
assigned his interest under the Policy, Mr. Sloane will have the right
to designate the beneficiary or beneficiaries and the settlement option
for payment of such death benefits. The Company shall have sole
ownership interest in that portion of the Policy's death benefit that
is in excess of the amount endorsed to the Sloane's beneficiary or the
beneficiary of the Sloane's assignee hereunder.
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Except as provided herein, the Company may exercise all ownership
rights under the Policy. The Company will not exercise ownership rights
in a way that will or could result in the reduction of the death
benefits payable upon the death of the survivor of Mr. or Mrs. Sloane
to the Sloane's beneficiary or to Sloane's assignee's beneficiary below
the Death Benefit. In addition, the Company will not sell, assign,
transfer, surrender or cancel the Policy, or take any other action with
respect to the Policy that would be inconsistent with the Company's
obligations under this Section or that could reasonably be expected to
jeopardize the payment of the Death Benefit to the Sloane's beneficiary
or the Sloane's assignee's beneficiary hereunder, provided, however,
that the following shall not prohibit or limit any merger or other
acquisition of the Company.
(c) TAX GROSS-UP PAYMENTS. The Company will pay to Mr. Sloane (or Mrs.
Sloane or, if applicable, his or her estate or any trust or other
assignee of the Sloane's right, title and interest pursuant to
subsection (e) below) each year an amount equal to the federal and (if
applicable) state income taxes owed by such taxpayer on the imputed
income under applicable tax rules generated by the Company's payment of
premiums with respect to the Policy plus any federal and (if
applicable) state income taxes owed as a result of the payments under
this subsection (c).
(d) INSURER NOT A PARTY. The insurance company issuing the Policy shall be
fully discharged from its obligations under the Policy by payment of
the Policy death benefit to the beneficiary or beneficiaries named in
the Policy, subject to the terms and conditions of the Policy
(including any endorsement thereon filed with the insurance company).
In no event shall the insurance company be considered a party to this
Agreement, or any modification or amendment hereof.
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(e) ASSIGNMENT BY MR. SLOANE. Notwithstanding any provision hereof to the
contrary, Mr. Sloane shall have the right absolutely and irrevocably to
assign by gift all of his right, title and interest under this
Agreement. This right shall be exercisable by the execution and
delivery to the Company of a written assignment. Upon receipt of such
written assignment executed by Mr. Sloane, the Company shall thereafter
treat the Sloane's assignee as the sole owner of all of Mr. Sloane's
right, title and interest under of this Agreement and in and to the
Policy. Thereafter, Mr. Sloane shall have no right, title or interest
under this Agreement or the Policy, all such rights being vested in and
exercisable only by such assignee.
(f) ERISA MATTERS. The provisions of this subsection (f) shall apply only
if and to the extent that it is determined that the benefits provided
under this Agreement constitute an employee welfare benefit plan for
purposes of ERISA.
(i) The Company is hereby designated as the named
fiduciary under this Agreement. The named fiduciary
shall have authority to control and manage the
operation and administration of this Agreement, and
it shall be responsible for establishing and carrying
out a funding policy and method consistent with the
objectives of this Agreement.
(ii) Any claim for a benefit under this Agreement will be
reviewed and determined under procedures that satisfy
the applicable requirements of ERISA and regulations
thereunder for the determination of claims.
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2. MISCELLANEOUS
(a) BINDING ON SUCCESSORS. This Agreement shall be binding upon, shall
inure to the benefit of, and shall be enforceable by the Company and
its successors and assigns and Mr. Sloane, Mr. Sloane's heirs,
executors, administrators, and permitted assigns.
As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(b) TAX WITHHOLDING. The Company will withhold (or cause to be withheld)
from any payment due hereunder all taxes required by law to be
withheld, any amounts specified for payment under this Agreement will
be reduced by all such required tax withholdings.
(c) NO ASSIGNMENT. Except as specifically provided for hereunder, neither
Mr. Sloane nor any beneficiary or Permitted Transferee will have any
power or right to transfer, assign, anticipate or otherwise encumber
any benefit or amount payable under this Agreement, nor shall any such
benefit or amount payable be subject to seizure or attachment by any
creditor of Mr. Sloane or a beneficiary or Permitted Transferee, or to
any other legal, equitable or other process, or be liable for, or
subject to, the debts, liabilities or other obligations of Mr. Sloane
or any beneficiary or Permitted Transferee, except as may otherwise be
required by law.
(d) ATTORNEYS' FEES. The Company agrees to pay Mr. Sloane's reasonable
attorneys' fees if Mr. Sloane, in Mr. Sloane's reasonable judgment,
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determines that it is necessary to engage counsel to represent Mr.
Sloane in protecting his rights (or those of an assignee) under this
Agreement. The Company further agrees that its obligations under this
subsection (d) are additional contractual obligations to Mr. Sloane (in
accordance with their terms) and the Company will pay the Sloane's
reasonable attorneys' fees as required by this subsection (d) even if
the benefit in dispute is one that is determined to be subject to
ERISA, and the Company also agrees that it will not in such a
circumstance assert that its obligations under this subsection (d) are
preempted by ERISA.
(e) SURVIVING PROVISIONS. The parties intend that this Agreement shall be
enforceable as written. However, if any portion or provision of this
Agreement is declared illegal or unenforceable to any extent by a court
of competent jurisdiction, if is intended that the remainder of this
Agreement will not be affected thereby and that each portion and
provision of this Agreement will be valid and enforceable to the
fullest extent permitted by law.
(f) NOTICES. All notices and communications required or permitted to be
given hereunder shall be given by delivering the same in hand, by
mailing the same by certified or registered mail, return receipt
requested, postage prepaid, or by prepaid overnight carrier, as
follows:
IF TO THE COMPANY:
Century Bank and Trust Company
400 Mystic Avenue
Medford, MA 02155
Attn: Treasurer
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IF TO THE EXECUTIVE:
Marshall M. Sloane
Or to such other address as either party shall have furnished to the other
party in writing in accordance with this subsection.
(g) CAPTIONS AND HEADINGS; DEFINITIONS. All captions and headings in this
Agreement are intended solely for the convenience of the parties, and
shall not affect the meaning or construction of any provision hereof.
Any term defined in any section of this Agreement will have the same
meaning when used anywhere else in this Agreement unless expressly
provided otherwise.
(h) AMENDMENT. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or their
respective successors or assigns.
(i) CONTROLLING LAW. This Agreement shall be construed under and governed
in all respects by the law of the State of Massachusetts without
reference to principles of conflicts of laws.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has executed
this Agreement.
Century Bank & Trust Company
By: /s/ Paul V. Cusick, Jr.
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Paul V. Cusick, Jr., E.V.P.
/s/ Marshall M. Sloane
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Marshall M. Sloane
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