Exhibit 10.2
SEPARATION AGREEMENT AND
RELEASE
This
Separation Agreement and Release (“Agreement”), is
entered into effective the ______ day of September, 2006, by Martin
P. Mahan (“Executive”) and Bancshares of Florida, Inc.,
(“Bancshares”). For purposes of this Agreement,
“Bancshares” shall include any and all of
Bancshares’ affiliates, parents, subsidiaries, related
business entities, successors, and assigns.
Whereas, Executive is employed by Bancshares as
Executive Vice President and Chief Operating Officer pursuant to
the terms of a written employment agreement dated February 1, 2005
(“the Employment Agreement”); and
Whereas,
the parties have now resolved to end
their employment relationship under the terms and conditions set
forth herein,
Now
therefore, for and in
consideration of the covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Bancshares and Executive agree as follows:
1.
Effective Date: Executive’s employment with Bancshares
will be terminated effective October 1, 2006 (“the Effective
Date of Termination”). On the Effective Date of Termination,
Mr. Mahan will also resign from the Boards of Directors of
Bancshares and of Bank of Florida – Southeast. The Executive
will be relieved of all duties and responsibilities related to his
positions as of that date.
2.
Separation Benefits: Upon expiration of the revocation
period set forth in Paragraph 10 of this Agreement
(“Revocation Period”), and provided that Executive is
in compliance with the terms and conditions of this Agreement,
Bancshares agrees to provide Executive (or his heirs in the case of
Executive’s death) the following severance
benefits:
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(a)
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the base salary he would have
been due (i.e., $225,000 per year) from the Effective Date of
Termination through December 31, 2008 (totaling $506,250), less
applicable withholdings, to be distributed in accordance with
ordinary Bancshares pay periods, beginning the next regular pay
period after the expiration of the Revocation Period.
Notwithstanding the foregoing:
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(i)
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one full year of such severance
($225,000) payable under this Section 2(a) shall be paid to
Executive as a lump sum payment on or prior to October 31, 2006;
and
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(ii)
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should a
“Change-in-Control” (defined herein to mean the
acquisition of greater than 50% of the outstanding shares of
Bancshares’ common stock) occur, Executive shall receive any
remaining unpaid portion of his severance payable under this
Section 2(a) immediately in a lump sum payment.
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(b)
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a $70,000 payment upon the
termination of the Revocation Period, as specific consideration for
the non-solicitation covenants contained in Paragraph 7 of this
Agreement .
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(c)
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at Bancshares’ expense,
Bancshares shall continue the Executive’s participation in
any employee benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Effective Date of
Termination for the shorter of:
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(i)
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one year from the date of
termination; or
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(ii)
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the period of time ending on the
date the Executive becomes eligible for participation in a
comparable plan provided by another employer; provided, however,
that the Executive’s continued participation is possible
under the general terms and provisions of such plans and
programs.
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(d)
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Executive’s rights relative
to the following stock option grants shall be as stated in the
relevant stock option agreements issued under the Stock Option
Program (as defined in Paragraph 5[a]), except that the:
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(i)
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grant effective on August 28,
2002 for 22,500 shares shall expire on December 31, 2007 and shall
no longer be treated as incentive stock options under the Internal
Revenue Code of 1986, as amended.
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(ii)
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grant effective on October 21,
2003 for 10,000 shares shall expire on December 31, 2007 and shall
no longer be treated as incentive stock options under the Internal
Revenue Code of 1986, as amended.
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(iii)
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grant effective on December 15,
2005 for 4,329 shares shall be governed by the relevant stock
option agreement shall expire on December 31, 2007 and shall no
longer be treated as incentive stock options under the Internal
Revenue Code of 1986, as amended..
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(iv)
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grant effective on December 30,
2004 for 15,000 shares shall be governed by the relevant stock
option agreement.
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(v)
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grant effective on December 15,
2005 for 15,671 shares shall be governed by the relevant stock
option agreement.
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2
Hereafter,
the period between the expiration of the Revocation Period and
December 31, 2008, shall be referred to as “the Severance
Period”. The first payment in the Severance Period shall
include the severance payments which accrued from the Effective
Date of Termination to the expiration of the Revocation
Period.
3.
Total Severance: Executive acknowledges that Bancshares has
paid Executive for any unused vacation and sick/personal business
leave time accrued as of the Effective Date of Termination. During
the Severance Period, Executive shall not be eligible for any
additional compensation, incentive pay, bonuses, stock options, or
benefits, except as provided for in this Agreement. Executive
shall not accrue any additional vacation or sick/personal leave
during the Severance Period, or any other benefits, rights or
privileges he would have accrued as an active employee of
Bancshares.
4.
Waiver of Rights: Executive agrees that the severance
payments and benefits referenced in this Agreement are in excess of
all monies and/or benefits owed by Bancshares to him for any reason
whatsoever, and except as specifically provided by this Agreement,
all rights associated with Executive’s employment and
Employment Agreement are terminated as of the Effective Date of
Termination of his employment, which will be October 1,
2006.
5.(a)
In exchange for the consideration set forth in this Agreement, the
Executive, for himself and his heirs, successors and assigns,
hereby releases and discharges Bancshares, its subsidiaries,
affiliates, related companies, predecessors, successors or assigns,
and all their executives, employees, officers, directors, agents,
shareholders, and assigns, from all claims, charges, liability,
legal action, litigation, charges, demands, damages, actions, or
causes of actions of any kind, whether known or unknown, which
Executive has or may have from the beginning of the world to the
date of this Agreement, except as expressly set forth herein. This
release includes, but is not limited to: (i) claims arising under
any federal, state, or local constitution, statute, regulation,
ordinance, or law, including without limitation the Age
Discrimination in Employment Act; the Americans with Disabilities
Act, the Rehabilitation Act of 1973, Title VII of the Civil Rights
Act of 1964, the Florida Civil Rights Act, the Family and Medical
Leave Act, (ii) claims arising out of Executive’s
employment with Bancshares or the separation of that employment;
(iii) claims arising out of any prior oral or written agreements
between Executive and Bancshares, including but not limited to
the Employment Agreement; (iv) claims arising under the 1999
Stock Option Plan or the 2005 Stock Compensation Plan, amendments
thereto and any agreements executed in connection therewith
(collectively “the Stock Option Program”); (v) any
purported right of Executive to receive any salary, wages, bonus,
stock, insurance, severance pay, commission, paid time off,
unemployment compensation or other compensation or benefits of any
kind whatsoever; (vi) claims relating to any impairment of
Executive’s ability to obtain employment; (vii) claims for
attorneys’ fees and costs; and (viii) any and all other
state, federal or local statutory, contract, tort or common law
claims of any kind.
(b)
In exchange for the consideration set forth in this Agreement,
Bancshares hereby releases and discharges Executive from all
claims, charges, liability, legal action, litigation, charges,
demands, damages, actions, or causes of actions of any kind,
whether known or unknown, which Bancshares has or may have from the
beginning of the world to the date of this Agreement, except as
set forth hereafter . This release includes, but is not limited
to: (i) claims arising under any federal, state, or local
constitution, statute, regulation, ordinance, or law, (ii) claims
arising out of Executive’s employment with Bancshares or the
separation of that employment; (iii) claims arising out of any
prior oral or written agreements between Executive and any of
Bancshares; (iv) claims for attorneys’ fees and costs; and
(v) any and all other state, federal or local statutory, contract,
tort or common law claims of any kind. Notwithstanding the
foregoing, Bancshares does not release Executive from any claims by
thir
