Exhibit 10.6


 


BANKUNITED


 


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


ARTICLE I


 


INTRODUCTION


 


1.1          Purpose.  BankUnited
(the Employer) establishes this BankUnited Nonqualified Deferred Compensation
Plan (the Plan) to attract and retain key employees by providing the
opportunity to defer compensation and receive employer contributions that
cannot be made to the Qualified Plan due to the limitations in Section 401(a)(17)
of the Internal Revenue Code of 1986, as amended (the Code).


 


1.2          Legal status.  The
Plan is a deferred compensation plan for a select group of management or
highly-compensated employees within the meaning of Sections 201(2), 301(a)(3),
and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as
amended (ERISA). The Employer intends the Plan to be unfunded for purposes of
ERISA and the Code and to satisfy the requirements of Code Section 409A.
Plan provisions will be interpreted consistent with this intent.


 


1.3          Effective date.  The
Plan is effective October 1, 2009.


 


ARTICLE II


 


DEFINITIONS


 


2.1          Key
terms and construction.  When used in the Plan, the
following terms will have the meanings set forth below. Several other terms are
not defined here but, for convenience, are defined as they are introduced into
the text. References to specific Code provisions include any final regulations,
Revenue Rulings, and guidance of general applicability thereunder.


 


Beneficiary means the individual, trust, or other entity
designated by a Participant to receive Plan benefits in the event of the
Participant’s death.


 


Cause means acts that constitute theft, fraud or the
embezzlement of funds, gross negligence or deliberate misconduct in the
performance of the Participant’s job responsibilities, acts or omissions
involving moral turpitude, breach of a material provision of any agreement
between the Employer and the Participant, or violation of any material written
policy of the Employer.


 


Change in Control means a change in the ownership or effective
control of the Employer, or in the ownership of a substantial portion of its
assets, within the meaning of Treas. Reg. 1.409A-3(i)(5). For purposes of
clarification, an initial public offering of the Employer’s securities will not
be a Change in Control.


 


Compensation means the Participant’s cash compensation from the
Employer.


 

















 


Disability means a medically determinable physical or mental
impairment that can be expected to result in death or to last for a continuous
period of not less than 12 months and that either renders a Participant unable
to engage in any substantial gainful activity or is the reason the Participant
is receiving income-replacement benefits for a period of at least 3 months
under an accident and health plan of the Employer.


 


Eligible Compensation means the Participant’s Compensation to the extent
it exceeds the limitation in Code Section 401(a)(17), reduced by the
amount specified in Appendix A of this Plan. Thus, a Participant’s Eligible
Compensation in a year will be that portion of each paycheck that exceeds the
sum of (i) a portion of that year’s Code Section 401(a)(17) limit
determined by dividing the limitation by the number of paychecks in the year
and (ii) a portion of the amount specified in Appendix A determined by
dividing such amount by the number of paychecks in the year.


 


Participant means an employee of the Employer who defers
Eligible Compensation or receives Employer contributions under the Plan. A
Participant will remain a Participant as long as he or she has an account
balance in the Plan.


 


Plan Year means the calendar year.


 


Qualified Plan means the Employer’s tax-qualified Code Section 401(k) plan,
currently known as the “BankUnited 401(k) Plan.”


 


Separation from Service occurs (or a Participant Separates from Service)
when the Participant ceases to be employed by the Employer and all entities
considered a single employer with the Employer under Code Sections 414(b) and
(c) as a result of death, retirement, or other termination of employment
For this purpose, an 80% or greater threshold will be used in determining a
controlled group of corporations within the meaning of Code Section 414(b) and
the trades and businesses that are under common control within the meaning of
Code Section 414(c).


 


Whether a Separation from
Service occurs will be determined in accordance with the rules under Code Section 409A.
In general, a Participant’s employment will be deemed terminated on the date as
of which, in the Employer’s and Participant’s reasonable expectation, the
Participant’s level of bona fide services for the Employer decreases to 20% or
less of his or her average level of bona fide services over the immediately
preceding 36-month period (or the full period of services if the Participant
has been providing services to the Employer for fewer than 36 months) and a
Participant’s employment will be deemed not to have terminated as long as the
Participant’s level of bona fide services exceeds the 20% threshold.


 


A Participant’s employment
will be treated as continuing while he or she is on military leave, sick leave,
disability leave, or other bona fide leave of absence if the period of the
leave does not exceed six months or, if longer, as long as the Participant has
a statutory or contractual right to reemployment with the Employer. If the
period of leave exceeds six months, and the Participant does not have a
statutory or contractual right to reemployment, the Participant’s employment
will be deemed to terminate on the first day immediately following the
six-month period.


 


2

















 


Unforeseeable Emergency, means a Participant’s severe financial hardship
resulting from (i) an illness or accident of the Participant or his or her
spouse or “dependent,” as defined in Code Section 152(a), and the related
extraordinary and unforeseeable medical expenses, (ii) loss of the
Participant’s property due to casualty, including the need to rebuild a home
following damage not otherwise covered by insurance, or (iii) other
similar and unforeseeable circumstances due to events beyond the control of the
Participant, such as the imminent foreclosure of or eviction from the
Participant’s primary residence or extraordinary funeral expenses of a spouse
or “dependent,” as defined above. The Administrator will determine whether an
event is an Unforeseeable Emergency, based on the relevant facts and
circumstances of each case.


 


ARTICLE III


 


ADMINISTRATION


 


3.1          Plan administrator. The Compensation Committee of the Employer’s Board
of Directors will administer the Plan (Administrator). The Administrator may
appoint one or more delegates to discharge any or all of the Administrator’s
responsibilities under the Plan. The Administrator and delegates will have all
the discretionary authority, rights, and duties that are necessary or
appropriate for the proper administration of the Plan and may rely upon
financial, legal, accounting, and other advisors, as they see fit. The
decisions of the Administrator and delegates, including interpretations of the
Plan and determinations of amounts due under the Plan, are final and binding on
all parties.


 


ARTICLE IV


 


ELIGIBILILTY


 


4.1          Plan participation.  The
Administrator, in its sole discretion, will select the Plan’s Participants from
among the Employer’s executives.


 


ARTICLE V


 


ACCOUNTS


 


5.1          Establishment
of accounts.  The Administrator will establish a
bookkeeping account for each Participant to which the contributions described
in Article VI will be credited. The Administrator also may establish
sub-accounts for Participants, as the Administrator deems appropriate. The
accounts and sub-accounts will be adjusted to reflect interest and
distributions.


 


5.2          Investment
credits.  For Plan Years 2009 and 2010, the
Administrator will credit Participants’ accounts daily with interest at an
annual rate of 6%. For each subsequent Plan Year, the Administrator will set
and inform Participants of the crediting rate before the start of the Plan
Year.


 


3

















 


ARTICLE VI


 


CONTRIBUTIONS


 


6.1          Elective
deferrals.  Before the first day of each Plan Year or,
in a Participant’s first year of participation, within 30 days after the date
he or she first becomes a Participant, the Participant may elect to reduce
Compensation or Eligible Compensation, as appropriate, by a percent (in whole
numbers) not to exceed the Maximum Deferral. For Plan Year 2009, the Maximum
Deferral is 100 percent of Compensation, less any amounts required to be
withheld by law. For subsequent Plan Years, the Maximum Deferral is 50 percent
of Eligible Compensation. Such amounts will be withheld ratably from each of
the Participant’s paychecks. Provided that, in the case of a newly eligible
Participant, an election will apply only to Compensation or Eligible
Compensation for services performed after the election.


 


6.2          Employer
contributions.  In addition to a Participant’s elective
deferrals, the Employer will make contributions to the accounts or sub-accounts
of Participants, as follows. For the 2009 Plan Year, each Participant will
receive 4.5 percent of Eligible Compensation. For subsequent Plan Years, the Participant
will receive 100 percent of the first 1 percent, plus 70 percent of the next 5
percent, of the Eligible Compensation the Participant defers under Section 6.1.


 


6.3          Contribution
timing.  Elective deferrals will be credited to a
Participant’s account or sub-account on or as soon as practicable after the
date the Eligible Compensation would have been paid but for the deferral.
Employer contributions will be credited to a Participant’s account or
sub-account as soon as practicable after the end of the applicable Plan Year.


 


6.4          Election
forms and changes.  To be valid, Participant elections must be
made on forms provided by the Administrator and received by the Administrator
on or before the specified deadline. An election may not be changed after the
deadline. Provided, however, that a Participant’s elective deferrals will cease
automatically upon the Administrator’s approval of a distribution for the
Participant’s Unforeseeable Emergency and the Participant may not resume
elective deferrals until the next Plan Year.


 


ARTICLE VII


 


VESTING


 


7.1          Vesting.  A
Participant’s elective deferrals and interest thereon are at all times 100
percent vested. A Participant’s Employer contributions and interest thereon
will become 100 percent vested upon the earlier of a Change in Control or the
Participant’s, death, Disability, attainment of “Normal Retirement Age,” or
completion of 2 “Years of Service,” as such quoted terms are defined in the
Qualified Plan.


 


7.2          Forfeitures of Employer contributions. A Participant who Separates from Service
will forfeit all unvested Employer contributions and interest thereon.
Notwithstanding Section 7.1, a Participant whose employment is terminated
for Cause will forfeit all Employer contributions and interest thereon, without
regard to whether such amounts are vested or unvested.


 


4

















 


ARTICLE VIII


 


BENEFIT PAYMENTS


 


8.1          Distribution timing.


 


(a)           Elective
deferrals. Coincident with each
election to defer Eligible Compensation for a Plan Year, a Participant may
elect a specific date on which that Plan Year’s elective deferrals and interest
thereon will be paid or commence to be paid. Such date must be no earlier than January 1
of the third Plan Year following the Plan Year in which the Eligible
Compensation would have been paid but for the deferral. Coincident with a
Participant’s first election to defer Eligible Compensation, the Participant
may elect to receive his, or her elective deferrals and interest, thereon in
the event of a Change in Control. The Participant’s elective deferrals and
interest thereon will be paid or commence to be paid on the earliest of (i) the
Participant’s Separation from Service, including by reason of death, (ii) the
Participant’s Disability, (iii) the specific payment date elected by the
Participant, if the Participant has elected to receive elective deferrals on a
specific date, or (iv) a Change in Control, if the Participant has elected
to receive elective deferrals upon a Change in Control.


 


(b)           Employer
contributions. Within 30 days after
the date an executive first becomes a Participant, he or she may elect to
receive Employer contributions and interest thereon in the event of a Change in
Control. The Participant’s Employer contributions and interest thereon will be
paid or commence to be paid on the earliest of (i) the Participant’s
Separation from Service, including by reason of death, (ii) the
Participant’s Disability, or (iii) a Change in Control, if the Participant
has elected to receive Employer contributions upon a Change in Control.


 


8.2          Form of
distribution.  A
Participant may not elect the form of payment when payment is made because of
the Participant’s death or Disability or a Change in Control. In these events,
the Participant will automatically receive his or her elective deferrals,
Employer contributions, and interest thereon in a single lump sum. For other
events, the following rules apply:


 


Coincident with each election
to defer Eligible Compensation for a Plan Year, the Participant may elect the
form in which that Plan Year’s elective deferrals and interest thereon will be
paid if payment is made because of the occurrence of a specific date.
Coincident with a Participant’s first election to defer Eligible Compensation,
the Participant may elect the form in which elective deferrals and interest
thereon will be paid if payment is made because of a Separation from Service
other than death. Within 30 days after the date an executive first becomes a
Participant, he or she may elect the form in which Employer contributions and
interest thereon will be paid if payment is made because of a Separation from
Service other than death. A Participant may choose a single lump sum or 5, 10,
or 15 annual installments, determined by dividing the applicable account or sub-account
balance by the number of remaining installments.  If a Participant fails to elect a form of
payment for a particular event, and benefits are paid because of that event, or
if a Participant’s entire account balance is less than $50,000 as of the date
of the event, then the Participant will receive his or her benefits in a single
lump sum.


 


8.3          Changes to time and form of distribution. A Participant may elect to change the time
and form of a distribution, provided the election satisfies both of the
following conditions:


 


5

















 


·                  The election is not effective until 12 months after it is
made. If an election is made later than 12 months before a scheduled lump sum
payment or the commencement of installments, the election will be null and void
and the Participant’s benefit will be paid in accordance with his or her most
recent valid election.


·                  The election defers payment for at least 5 years from the
date the payment otherwise would have been made or, if earlier, until the
Participant’s Disability or death.


 


For purposes of this Section 8.3,
installments are deemed to be a single payment, commencing on the date of the
first installment.


 


8.4          Unforeseeable
Emergency.  Notwithstanding Sections 8.1, 8.2, and
8.3, in the event of a Participant’s Unforeseeable Emergency, the Participant
may request, and the Administrator may approve, a distribution from the vested
balance in his or her account. The distribution will be limited to the amount
that the Administrator determines is reasonably necessary to satisfy the
emergency need and may include amounts necessary to pay any federal, state, and
local taxes or penalties reasonably expected to result from the distribution. A
distribution will not be made to the extent that the emergency is or may be
relieved through reimbursement from insurance or otherwise, or by liquidation
of the Participant’s assets, provided the liquidation of assets would not cause
severe financial hardship.


 


8.5          Beneficiaries.  A
Participant may designate the Beneficiary or Beneficiaries who will receive
benefits payable upon his or her death and change or revoke the designation
without the consent of any Beneficiary. The last designation received by the
Administrator will be controlling. A designation, change, or revocation will
not be effective unless it is received by the Administrator in writing prior to
the Participant’s death. If the Participant fails to furnish an effective
designation, or the Participant’s Beneficiaries predecease him or her, the
Participant’s estate will be deemed to be his or her Beneficiary.


 


8.6          Tax withholding and consequences. Each Participant’s payments will be reduced
by the federal, state, and local taxes, which the Employer is required to
withhold. The Employer does not represent or guarantee that any particular tax
consequences will result from participation in the Plan and has no obligation
to Participants for any adverse tax consequences.


 


ARTICLE IX


 


SOURCE OF PAYMENTS


 


9.1          Benefits
and expenses.  Plan benefits and expenses will be paid
directly from the Employer’s general assets. The Employer is not required to
set aside, earmark, or escrow any funds or other assets to satisfy its
obligations under the Plan. Participants and Beneficiaries have no interest in
any specific assets of the Employer, other than the unsecured right to receive
benefits pursuant to the terms of the Plan. In this regard, Participants
acknowledge that the accounts and sub-accounts referred to in the Plan are
merely bookkeeping entries used to track their benefits.


 


6

















 


ARTICLE X


 


CLAIMS PROCEDURE


 


10.1        Filing
of claim.
In  general, the payment of Plan
benefits is automatic and no claims have to be filed. However, a Participant or
Beneficiary (Claimant) may file a written claim for benefits with the
Administrator. The claim must be filed no later than 60 days after the latest
date under the terms of the Plan for or payment of the benefit in dispute.


 


10.2        Denial
of claim.
If the claim is denied in whole or in part, the Claimant will be given a
written notification containing specific reasons for the denial. The written
notification will refer to the pertinent Plan provisions on which the denial of
benefits is based. It also will contain, a description of any additional
materials or information necessary for the Claimant to perfect a claim and an
explanation of why such material or information is necessary. Further, the
notification will provide appropriate information as to the steps to be taken
if the Claimant wishes to submit his or her claim for review. This written
notification will be given to a Claimant within 60 days after receipt of his or
her claim by the Administrator.


 


10.3        Right
of review.
If a claim is denied in whole or in part, the Claimant or his or her duly
authorized representative will be permitted to review pertinent documents and
to submit to the Administrator issues and comments in writing. In addition, the
Claimant or his or her duly authorized representative may make a written request
for a full and fair review of his or her claim and its denial by the
Administrator, provided the written request is received by the Administrator
within 60 days after the Claimant receives written notification of the denial.


 


10.4        Decision
on review.
The Administrator will render a decision within 60 days after receipt of the
request for review. However, where special circumstances require an extension
of time for making the decision, it may be postponed on written notice to the
Claimant (prior to the expiration of the initial 60-day period) for an
additional 60 days, but in no event will the Administrator render the decision
more than 120 days after the receipt of the request for review. The decision
will be furnished to the Claimant in writing and in a manner calculated to be
understood by the Claimant and will set forth the specific reason(s) for
the decision and the specific Plan provision(s) on which the decision is
based.


 


10.5        Time
of payment.
In the event a claim is upheld, the Participant’s or Beneficiary’s benefit will
be paid no later than the last day of the calendar year in which the decision
to uphold the claim is made.


 


ARTICLE XI


 


MISCELLANEOUS PROVISIONS


 


11.1        Plan
amendment and termination. The Employer reserves the right to amend, discontinue, or terminate the
Plan at any time by action of the Compensation Committee of its Board of
Directors (Board). However, no amendment, discontinuance, or termination will
diminish the benefits of a Participant that are earned and vested prior to the
date the Board 


 


7

















 


approves
the amendment, discontinuance, or termination. The Employer may not accelerate
the timing of benefit payments, except to the extent Code Section 409A
permits.


 


11.2        Non-alienation
of benefit.
The interest of a Participant or Beneficiary in his or her Plan benefits is not
subject to the claims of the Participant’s or Beneficiary’s creditors and may
not be voluntarily or involuntarily sold, transferred, pledged, alienated,
assigned, anticipated, or encumbered. Any attempt by a Participant or
Beneficiary to do so will be null and void.


 


11.3        No
employment rights.
The Plan does not constitute a contract of employment and participation in the
Plan does not give a Participant the right to continue employment with the
Employer or limit the Employer’s right to discharge any employee with or
without Cause.


 


11.4        Indemnification. To the extent the law allows, the Employer
will indemnify and hold harmless the Administrator, any of the Administrator’s
delegates, and any  employee who may act
on behalf of the Employer in the administration of the Plan from and against
any liability, loss, cost, or expense (including reasonable attorneys’ fees)
incurred at any time as a result of or in connection with any claims, demands,
actions, or causes of action of any Participant, any person claiming through
any Participant, or any other person, party, or authority claiming to have an
interest in the Plan or standing to act for any person or groups having an interest
in the Plan, for or on account of any of the acts or omissions (or alleged acts
or omissions) of the Administrator, any delegate, or any employee, except to
the extent resulting from that person’s willful misconduct.


 


11.5        Successors. The Plan is binding on the Employer and its
successors and assigns and on each Participant and Beneficiary.


 


11.6        Severability. In case any provision of the Plan is held
illegal or invalid for any reason, the illegality or invalidity will not affect
the remaining provisions of the Plan, which will be construed and enforced as
if the illegal or invalid provision had never been set forth.


 


11.7        Controlling
law. To the extent
not superseded by the laws of the United States, the laws of Florida are
controlling in all matters relating to the Plan, without regard to that state’s
choice of laws provisions.


 


8

















 


IN WITNESS WHEREOF, BU Financial Corporation has duly executed this
Plan as of 09/25/09.


 


BU FINANCIAL CORPORATION


 


	
  By:

  	
  /s/ Rajinder P. Singh

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


BANKUNITED


 


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


Effective October 1,
2009


 


APPENDIX A


 


Eligible Compensation for
certain Participants shall be reduced each year by the amount specified below:


 


	
  Participant Name

  	
   

  	
  Offset Amount

  	
   

  
	
  John A. Kanas

  	
   

  	
  $

  	
  250,000

  	
   

  
	
  John Bohlsen

  	
   

  	
  $

  	
  250,000