Exhibit 10.2
RETENTION,
CONFIDENTIALITY,
NONSOLICITATION AND NONACCEPTANCE
AGREEMENT
This AGREEMENT (the
“Agreement”) is made as of March 2, 2007 by and
between Boston Private Financial Holdings, Inc., a Massachusetts
corporation with its headquarters located in Boston, Massachusetts
(the “Employer”), Charter Bank, a Washington chartered
bank (the “Bank”) and Terry A. Peterson (the
“Executive”), which shall be effective at the Effective
Time of the Merger (as defined in the Agreement and Plan of Merger
by and between the Employer and Charter Financial Corporation dated
as of March 3, 2007 (the “Merger Agreement”)). In
the event that the Effective Time shall not occur, this Agreement
shall be void ab initio and of no further force and
effect.
WHEREAS, at the Effective Time, the
Employer will acquire Charter Financial Corporation and its
wholly-owned subsidiary, the Bank;
WHEREAS, following the Effective
Time, the Employer will continue to operate the Bank under the name
Charter Bank;
WHEREAS, following the Effective
Time, the Bank desires to continue to employ the Executive as
President and Chief Operating Officer of the Bank, and the
Executive desires to continue to be employed by the
Bank;
WHEREAS, the Executive acknowledges
that, in his position he will be given access to and will help
develop trade secrets, valuable confidential business or
professional information, substantial customer relationships and
customer good will on behalf of the Bank and the
Employer;
NOW THEREFORE, in consideration of
the mutual promises contained in this Agreement, the Employer, the
Bank and the Executive agree as follows:
1. Restricted Stock
Grants .
(a) Conditions of Grants . On
the Effective Date and the first anniversary thereof, provided that
the Executive is employed by the Employer and/or the Bank on such
date, the Executive will receive a grant of a number of restricted
shares of the Employer (the “Restricted Shares”)
pursuant to the terms of the Employer’s 2004 Stock Option and
Incentive Plan or any successor plan (the “Plan), to the
extent not inconsistent with the terms herewith, as
follows:
(i) Initial Grant of Restricted
Shares . The number of Restricted Shares issued on the
Effective Date shall be equal to the quotient obtained by dividing
(x) $98,750 by (y) the closing price of the
Employer’s common stock on the Effective Date,
(ii) Second Grant of Restricted
Shares . The number of Restricted Shares issued to the
Executive on the first anniversary date of the Effective Date shall
be equal to the quotient obtained by dividing (A) $98,750 by
(B) the closing price of the Employer’s common stock on
the date of grant.
(b) Vesting of
Restricted Stock Grant . Subject to Section 1(c) below of
this Agreement, each grant of Restricted Shares will vest over a
five-year period, with vesting at 33 1 / 3 percent on each of
the third, fourth and fifth anniversary of the date of grant,
subject to the Executive’s continuous employment with the
Employer and/or the Bank on each applicable vesting
date.
(c) Potential for Accelerated
Vesting of Restricted Shares . Notwithstanding the foregoing
and any provision in the Plan (including without limitation
Section 7(c) thereof) to the contrary, the Restricted Shares
shall immediately vest upon a Change of Control (as defined in the
Plan) or upon the Executive’s death or disability.
2. Confidential Information,
Nonsolicitation and Nonacceptance .
(a) Confidential Information
. As used in this Agreement, “Confidential Information”
means information belonging to the Employer and the Bank which is
of value to the Employer and the Bank in the course of conducting
their business and the disclosure of which could result in a
competitive or other disadvantage to the Employer or the Bank.
Confidential Information includes, without limitation, financial
information, reports, and forecasts; inventions, improvements and
other intellectual property; trade secrets; know-how; designs,
processes or formulae; software; market or sales information or
plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of
businesses or facilities) which is of value to the Employer and the
Bank in the course of conducting its business and the disclosure of
which could result in a competitive or other disadvantage to the
Employer and the Bank. Confidential Information includes
information developed by the Executive in the course of the
Executive’s employment by the Bank, as well as other
information to which the Executive may have access in connection
with the Executive’s employment. Confidential Information
also includes the confidential information of others with which the
Employer has a business relationship. Notwithstanding the
foregoing, Confidential Information does not include information in
the public domain, unless due to breach of the Executive’s
duties under Section 2(b).
(b) Confidentiality . The
Executive understands and agrees that the Executive’s
employment creates a relationship of confidence and trust between
the Executive and the Employer and the Bank with respect to all
Confidential Information. At all times, both during the
Executive’s employment with the Employer and the Bank and
after its termination, the Executive will keep in confidence and
trust all such Confidential Information, and will not use or
disclose any such Confidential Information without the written
consent of the Employer or the Bank, except as may be necessary in
the ordinary course of performing the Executive’s duties to
the Employer and the Bank or as may be required by applicable law
or pursuant to legal process.
(c) Documents, Records, etc .
All documents, records, data, apparatus, equipment and other
physical property, whether or not pertaining to Confidential
Information, which are furnished to the Executive by the Employer
and or Bank or are produced by the Executive in connection with the
Executive’s employment will be and remain the sole property
of the Employer and the Bank. The Executive will return to the
Employer and the Bank all such materials and property as and when
requested by the Employer and/or the Bank. In any event,
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the Executive will return all such materials and
property immediately upon termination of the Executive’s
employment for any reason. The Executive will not retain with the
Executive any such material or property or
