EXHIBIT 10.6 


	
 


	
EXECUTION COPY





AMENDED AND RESTATED 1ST UNITED
BANCORP/1ST UNITED BANK 

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT


                    THIS
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (the “Agreement”), originally
adopted May 31, 2006, by and among 1ST UNITED BANCORP, INC. a
Florida bank holding company (the “Company”), 1ST UNITED BANK, a
Florida commercial bank (the “Bank”), and WARREN ORLANDO (the “Executive”), is
hereby amended and restated, effective December 18, 2008. 


                    The
purpose of this Agreement is to provide specified benefits to the Executive, a
member of a select group of management or highly compensated employees who
contribute materially to the continued growth, development and future business
success of the Company and the Bank. This Agreement shall be unfunded for tax
purposes and for purposes of Title I of the Employee Retirement Income Security
Act of 1974 (“ERISA”), as amended from time to time. Benefits will be paid from
the general assets of the Company and the Bank. 


                    The
Company, the Bank and the Executive agree as provided herein. 


Article 1

Definitions


                    Whenever
used in this Agreement, the following words and phrases shall have the meanings
specified: 


                    Section
1.1 “Applicable PBGC Rate” shall have the meaning set forth in the
Employment Agreement. 


                    Section
1.2 “Beneficiary” means the estate of the deceased Executive or such
other person designated in accordance with Article 4 that is entitled to
benefits, if any, upon the death of the Executive determined pursuant to
Article 4. 


                    Section
1.3 “Board” means the Board of Directors of the Company. 


                    Section
1.4 “Change in Control” means a change in the ownership or effective
control of the Company or the Bank, or in the ownership of a substantial
portion of the assets of the Company or the Bank, as such change is defined in
Section 409A of the Code and regulations thereunder. 


                    Section
1.5 “Code” means the Internal Revenue Code of 1986, as amended. 


                    Section
1.6 “Constructive Early Termination” means that the Executive Separates
from Service with the Company or the Bank for any of the reasons set forth in section
9(a) of the Employment Agreement. 


                    Section
1.7 “Disability” means Executive: (i) is unable to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12) months;
or (ii) is, by reason of any medically determinable






physical or
mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months, receiving
income replacement benefits for a period of not less than three (3) months
under an accident and health plan covering employees of the Bank. Medical
determination of Disability may be made by either the Social Security
Administration or by the provider of an accident or health plan covering
employees of the Bank. Upon the request of the Plan Administrator, the
Executive must submit proof to the Plan Administrator of the Social Security
Administration’s or the provider’s determination. 


                    Section
1.8 “Early Termination” means that, prior to Normal Retirement Age, the
Executive’s employment with the Company or the Bank terminates for reasons
other than Termination for Cause, death, Disability, Constructive Early
Termination, or a Change in Control. 


                    Section
1.9 “Effective Date” means June 1, 2006. 


                    Section
1.10 “Employment Agreement” means that Employment Agreement dated March
4, 2004 among the Executive, the Company and the Bank, as amended and restated
effective as of the date hereof. 


                    Section
1.11 “Final Base Salary” means two (2) times the average base annual
salary, excluding bonuses, commissions, fringe benefits, and incentive
compensation but including deferrals under any retirement, reimbursement or
cafeteria plan, of the highest three (3) of the last five (5) years in which
the Executive is employed by the Company or the Bank. 


                    Section
1.12 “Normal Retirement Age” means the Executive’s seventy-fifth (75th)
birthday. 


                    Section
1.13 “Normal Retirement Date” means the later of the Normal Retirement
Age or the effective date of Separation from Service. 


                    Section
1.14 “Plan Administrator” means the plan administrator described in
Article 8. 


                    Section
1.15 “Plan Year” means each twelve-month period commencing on the
Effective Date. 


                    Section
1.16 “Separation from Service” means the Executive’s separation from
service (within the meaning of Section 409A of the Code and the regulations
thereunder) with the Bank and the Company. 


                    Section
1.17 “Specified Employee” means a key employee (as defined in Section
416(i) of the Code without regard to paragraph 5 thereof) of the Company or the
Bank (as determined in accordance with the methodology established by the
Company as in effect on the date of the Executive’s Separation from Service) if
any stock of the Company or the Bank is publicly traded on an established
securities market or otherwise. 


                    Section
1.18 “Termination for Cause” means discharge of the Executive for
“cause” as defined in the Employment Agreement. 


2






                    Section
1.19 “Vesting Commencement Date” means the first day of the calendar
month following the calendar quarter in which the Company and the Bank first
have consolidated total assets of at least $250 million, as reported by the
Company and the Bank to their banking regulators. 


Article 2

Benefits During Lifetime


                    Section
2.1 Normal Retirement Benefit. Subject to Sections 2.5 and 2.6, upon
Separation from Service on or after the Normal Retirement Age for reasons other
than death, the Company and the Bank shall jointly and severally pay to the
Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Article. 


	
 

	
 


	
 

	
                    2.1.1
 Amount of Benefit. The annual benefit under this Section 2.1 is thirty
 percent (30%) of the Executive’s Final Base Salary. 


	
 

	
 


	
 

	
                    2.1.2
 Payment of Benefit. The annual benefit shall be paid to the Executive
 in twelve (12) equal monthly installments commencing on the first day of the
 month following the Executive’s Normal Retirement Date, and continuing on the
 first of each month thereafter for a total period of twenty (20) years. 





                    Section
2.2 Early Termination Benefit. Subject to Sections 2.5 and 2.6, upon
Early Termination, the Company and the Bank shall jointly and severally pay to
the Executive the benefit described in this Section 2.2 in lieu of any other
benefit under this Article. 


	
 

	
 


	
 

	
                    2.2.1
 Amount of Benefit. The annual benefit under this Section 2.2 is thirty
 percent (30%) of Executive’s Final Base Salary, subject to the following
 vesting schedule. Prior to the Vesting Commencement Date, the Executive shall
 not be vested in any Early Termination benefits. 








	
 

	
 

	
 

	
 


	
Full Calendar Years Subsequent to the

Vesting Commencement Date 

	
 

	
Vested Portion of Benefit 


	


	
 

	



	
1

	
 

	
20%

	
 


	
2

	
 

	
40%

	
 


	
3

	
 

	
47.5%

	
 


	
4

	
 

	
55%

	
 


	
5

	
 

	
62.5%

	
 


	
6

	
 

	
70%

	
 


	
7

	
 

	
77.5%

	
 


	
8

	
 

	
85%

	
 


	
9

	
 

	
92.5%

	
 


	
10 or more

	
 

	
100%

	
 








	
 

	
 


	
 

	
                    2.2.2
Payment of Benefit. The annual benefit shall be paid to the Executive in
twelve (12) equal monthly installments commencing on the first day of the month
following the Executive’s attainment of Normal Retirement Age, and continuing
on the first of each month thereafter for a total period of twenty (20) years. 








3






                    Section
2.3 Constructive Early Termination Benefit. Subject to Sections 2.5 and
2.6, upon Constructive Early Termination, the Company and the Bank shall
jointly and severally pay to the Executive the benefit described in this
Section 2.3 in lieu of any other benefit under this Article. 


	
 

	
 


	
 

	
                    2.3.1
 Amount of Benefit. The annual benefit under this Section 2.3 is thirty
 percent (30%) of the Executive’s Final Base Salary. 


	
 

	
 


	
 

	
                    2.3.2
 Payment of Benefit. The annual benefit shall be paid to the Executive
 in twelve (12) equal monthly installments commencing on the first day of the
 month following the Executive’s Normal Retirement Age, and continuing on the
 first of each month thereafter for a total period of twenty (20) years. 





                    Section
2.4 Disability Benefit. Subject to Sections 2.5 and 2.6, upon Separation
from Service due to Disability prior to Normal Retirement Age, the Company and
the Bank shall jointly and severally pay to the Executive the benefit described
in this Section 2.4 in lieu of any other benefit under this Article. 


	
 

	
 


	
 

	
                    2.4.1
 Amount of Benefit. The annual benefit under this Section 2.4 is thirty
 percent (30%) of the Executive’s Final Base Salary. 


	
 

	
 


	
 

	
                    2.4.2
 Payment of Benefit. The annual benefit shall be paid to the Executive
 in twelve (12) equal monthly installments commencing on the first day of the
 month following the Executive’s Normal Retirement Age, and continuing on the
 first of each month thereafter for a total period of twenty (20) years. 





                    Section
2.5 Change in Control Benefit. Notwithstanding any provision of this
Agreement to the contrary, upon a Change in Control while the Executive is in
the active service of the Company and the Bank, the Company and the Bank shall
jointly and severally pay to the Executive the benefit described in this
Section 2.5 in lieu of any other benefit under this Article. 


	
 

	
 


	
 

	
                    2.5.1
 Amount of Benefit. The benefit under this Section 2.5 shall equal the
 lump sum present value as of the date of payment, determined based on the
 Applicable PBGC Rate for the month of payment, of a hypothetical annual
 benefit of seventy percent (70%) of the Executive’s Final Base Salary that would
 be payable in twelve (12) equal monthly installments commencing on the first
 day of the month following the Change in Control, and continuing on the first
 of each month thereafter for a total period of twenty (20) years. 


	
 

	
 


	
 

	
                    2.5.2
 Payment of Benefit. The benefit shall be paid to the Executive within
 thirty (30) days of the Change in Control. 





                    Section
2.6 Change in Control Following Separation From Service. In the event
that a Change in Control occurs following a Separation From Service with
respect to which the Executive has a future entitlement to payments under this
Article 2 or under Article 3 but prior to all such payments having been
distributed, the present value (determined as of the date of payment, determined
based on the Applicable PBGC Rate for the month of payment) of all such
payments not previously distributed shall be paid to the Executive within
thirty (30) days of 


4






the Change in
Control (which lump sum payment shall serve in lieu of any subsequent payments
hereunder). 


                    Section
2.7 Restriction on Timing of Distribution. Notwithstanding any provision
of this Agreement to the contrary, if the Executive is considered a Specified
Employee at Separation from Service under such procedures as established by the
Company and the Bank in accordance with Section 409A of the Code, benefit
distributions that are made upon Separation from Service may not commence
earlier than six (6) months after the date of such Separation from Service. Therefore,
in the event this Section 2.7 is applicable to the Executive, any distribution
which would otherwise be paid to the Executive within the first six months
following the Separation from Service shall be accumulated and paid to the
Executive in a lump sum on the first day of the seventh month following the
Separation from Service. All subsequent distributions shall be paid in the
manner specified. 


                    Section
2.8 Distributions Upon Income Inclusion Under Section 409A of the Code.
Upon the inclusion of any portion of the benefits payable pursuant to this
Agreement into the Executive’s income as a result of the failure of this
non-qualified deferred compensation plan to comply with the requirements of
Section 409A of the Code, to the extent such tax liability can be covered by
the Executive’s vested accrued liability, a distribution shall be made as soon
as is administratively practicable following the discovery of the plan failure.



                    Section
2.9 Change in Form or Timing of Distributions. All changes in the form
or timing of distributions hereunder must comply with the following
requirements. The changes: 


	
 

	
 


	
 

	
                    (a)
 may not accelerate the time or schedule of any distribution, except as
 provided in Section 409A of the Code and the regulations thereunder; 


	
 

	
 


	
 

	

                    (b)
must, for benefits distributable under Sections 2.1, 2.2, 2.3, 2.4 and 2.5,
delay the commencement of distributions for a minimum of five (5) years from
the date the first distribution was originally scheduled to be made; and  


	
 

	
 


	
 

	
                    (c)
 must take effect not less than twelve (12) months after the election is made.
 





Article 3

Death Benefits


                    Section
3.1 Death During Active Service. If the Executive dies prior to a Change
in Control while in the active service of the Company and the Bank, the Company
and the Bank shall jointly and severally pay to the Beneficiary the benefit
described in this Section 3.1. This benefit shall be paid in lieu of the
benefits under Article 2. 


	
 

	
 


	
 

	
                    3.1.1
 Amount of Benefit. The annual benefit under this Section 3.1 is thirty
 percent (30%) of the Executive’s Final Base Salary. For purposes of
 determining Final Base Salary under this Section 3.1, if at the time of his
 death the Executive was employed by the Company and the Bank for (i) less
 than five (5) years, the average base salary shall be based on the highest
 three (3) of the total years employed or (ii) less than 





5






	
 

	
 


	
 

	
three (3)
 years, the average base salary shall be the highest base salary in any year
 employed. 


	
 

	
 


	
 

	
                    3.1.2
 Payment of Benefit. The annual benefit shall be paid to the
 Beneficiary in twelve (12) equal monthly installments commencing within sixty
 (60) days following the Executive’s death, and continuing on the first of
 each month thereafter until two hundred forty (240) total payments have been
 made. 





                    Section
3.2 Death During Payment of a Benefit. If the Executive dies after any
benefit payments have commenced under Article 2 of this Agreement but before
receiving all such payments, the Company and the Bank shall jointly and
severally pay the remaining benefits to the Beneficiary at the same time and in
the same amounts they would have been paid to the Executive had the Executive
survived. 


                    Section
3.3 Death After Separation from Service But Before Payment of a Benefit
Commences. If the Executive is entitled to any benefit payments under
Article 2 of this Agreement, but dies prior to the commencement of said benefit
payments, the Company and the Bank shall jointly and severally pay the same
benefit payments to the Beneficiary that the Executive was entitled to prior to
death except that the benefit payments shall commence within sixty (60) days
following the date of the Executive’s death. 


Article 4

Beneficiaries


                    Section
4.1 Beneficiary. The Executives shall have the right, at any time, to
designate a Beneficiary(ies) to receive any benefit distributions under this
Agreement upon the death of the Executive. The Beneficiary designated under
this Agreement may be the same as or different from the beneficiary designation
under any other plan of the Company or the Bank in which the Executive
participates. 


                    Section
4.2 Beneficiary Designation: Change. The Executive shall designate a
Beneficiary by completing and signing the Beneficiary Designation Form, and
delivering it to the Plan Administrator or its designated agent. The
Executive’s beneficiary designation shall be deemed automatically revoked if
the Beneficiary predeceases the Executive or if the Executive names a spouse as
Beneficiary and the marriage is subsequently dissolved. The Executive shall
have the right to change a Beneficiary by completing, signing and otherwise
complying with the terms of the Beneficiary Designation Form and the Plan
Administrator’s rules and procedures, as in effect from time to time. Upon the
acceptance by the Plan Administrator of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be cancelled. The Plan
Administrator shall be entitled to rely on the last Beneficiary Designation
Form filed by the Executive and accepted by the Plan Administrator prior to the
Executive’s death. 


                    Section
4.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and acknowledged in
writing by the Plan Administrator or its designated agent. 


                    Section
4.4 No Beneficiary Designation. If the Executive dies without a valid
beneficiary designation, or if all designated Beneficiaries predecease the
Executive, then the 


6






Executive’s
spouse shall be the designated Beneficiary. If the Executive has no surviving
spouse, the benefits shall be made to the personal representative of the
Executive’s estate. 


                    Section
4.5 Facility of Distribution. If the Plan Administrator determines in
its discretion that a benefit is to be distributed to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
that person’s property, the Plan Administrator may direct distribution of such
benefit to the guardian, legal representative or person having the care or
custody of such minor, incompetent person or incapable person. The Plan
Administrator may require proof of incompetence, minority or guardianship as it
may deem appropriate prior to distribution of the benefit. Any distribution of
a benefit shall be a distribution for the account of the Executive and the
Executive’s Beneficiary, as the case may be, and shall be a complete discharge
of any liability under the Agreement for such distribution amount. 


Article 5

General Limitations


                    Section
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company and the Bank shall not pay any benefit
under this Agreement if the Executive’s employment with the Company or the Bank
terminates due to Termination for Cause. 


                    Section
5.2 Suicide or Misstatement. Notwithstanding any provision of this
Agreement to the contrary, the Company and the Bank shall not pay any benefit
under this Agreement if the Executive commits suicide within two (2) years
after the Effective Date. In addition, the Company and the Bank shall not pay
any benefit under this Agreement if the Executive has made any material
misstatement of fact on any application for life insurance owned by the Company
or the Bank on the Executive’s life. 


Article 6

Claims And Review Procedures


                    Section
6.1 Claims Procedure. An Executive or Beneficiary (“claimant”) who has
not received benefits under the Agreement that he or she believes should be
paid shall make a claim for such benefits as follows: 


	
 

	
 


	
 

	
                    6.1.1
 Initiation – Written Claim. The claimant initiates a claim by
 submitting to the Plan Administrator a written claim for the benefits. If
 such a claim relates to the contents of a notice received by the claimant,
 the claim must be made within sixty (60) days after such notice was received
 by the claimant. All other claims must be made within one hundred eighty
 (180) days of the date on which the event that caused the claim to arise
 occurred. The claim must state with particularity the determination desired
 by the claimant. 


	
 

	
 


	
 

	
                    6.1.2
 Timing of Plan Administrator Response. The Plan Administrator shall
 respond to such claimant within ninety (90) days after receiving the claim.
 If the Plan Administrator determines that special circumstances require
 additional time for processing the claim, the Plan Administrator can extend
 the response period by an additional 90 days by notifying the claimant in
 writing, prior to the end of the initial 90-





7






	
 

	
 


	
 

	
day
 period, that an additional period is required. The notice of extension must
 set forth the special circumstances and the date by which the Plan
 Administrator expects to render its decision. 


	
 

	
 


	
 

	
                    6.1.3
 Notice of Decision. If the Plan Administrator denies part or all of
 the claim, the Plan Administrator shall notify the claimant in writing of
 such denial. The Plan Administrator shall write the notification in a manner
 calculated to be understood by the claimant. The notification shall set
 forth: 


	
 

	
 


	
 

	
                    (a)
 The specific reasons for the denial; 


	
 

	
 


	
 

	
                    (b)
 A reference to the specific provisions of the Agreement on which the denial
 is based; 


	
 

	
 


	
 

	
                    (c)
 A description of any additional information or material necessary for the
 claimant to perfect the claim and an explanation of why it is needed; 


	
 

	
 


	
 

	
                    (d)
 An explanation of the Agreement’s review procedures and the time limits
 applicable to such procedures; and 


	
 

	
 


	
 

	
                    (e)
 A statement of the claimant’s right to bring a civil action under ERISA
 Section 502(a) following an adverse benefit determination on review. 





                    Section
6.2 Review Procedure. If the Plan Administrator denies part or all of
the claim, the claimant shall have the opportunity for a full and fair review
by the Plan Administrator of the denial, as follows: 


	
 

	
 


	
 

	
                    6.2.1
 Initiation – Written Request. To initiate the review, the claimant,
 within sixty (60) days after receiving the Plan Administrator’s notice of
 denial, must file with the Plan Administrator a written request for review. 


	
 

	
 


	
 

	
                    6.2.2
 Additional Submissions – Information Access. The claimant shall then
 have the opportunity to submit written comments, documents, records and other
 information relating to the claim. The Plan Administrator shall also provide
 the claimant, upon request and free of charge, reasonable access to, and
 copies of, all documents, records and other information relevant (as defined
 in applicable ERISA regulations) to the claimant’s claim for benefits. 


	
 

	
 


	
 

	
                    6.2.3
 Considerations on Review. In considering the review, the Plan
 Administrator shall take into account all materials and information the
 claimant submits relating to the claim, without regard to whether such
 information was submitted or considered in the initial benefit determination.
 


	
 

	
 


	
 

	
                    6.2.4
 Timing of Plan Administrator Response. The Plan Administrator shall
 respond in writing to such claimant within sixty (60) days after receiving
 the request for review. If the Plan Administrator determines that special
 circumstances require additional time for processing the claim, the Plan Administrator
 can extend the response period by an additional sixty (60) days by notifying
 the claimant in writing, prior to the 





8






	
 

	
 


	
 

	
end of the
 initial 60-day period, that an additional period is required. The notice of
 extension must set forth the special circumstances and the date by which the
 Plan Administrator expects to render its decision. 


	
 

	
 


	
 

	
                    6.2.5
 Notice of Decision. The Plan Administrator shall notify the claimant
 in writing of its decision on review. The Plan Administrator shall write the
 notification in a manner calculated to be understood by the claimant. The
 notification shall set forth: 


	
 

	
 


	
 

	
                    (a)
 The specific reasons for the denial; 


	
 

	
 


	
 

	
                    (b)
 A reference to the specific provisions of the Agreement on which the denial
 is based; 


	
 

	
 


	
 

	
                    (c)
 A statement that the claimant is entitled to receive, upon request and free
 of charge, reasonable access to, and copies of, all documents, records and
 other information relevant (as defined in applicable ERISA regulations) to
 the claimant’s claim for benefits; and 


	
 

	
 


	
 

	
                    (d)
 A statement of the claimant’s right to bring a civil action under ERISA
 Section 502(a). 





Article 7

Amendments and Termination


                    Section
7.1 Amendments. This Agreement may be amended only by a written
agreement signed by the Company, the Bank and the Executive. However, the
Company and the Bank may unilaterally amend this Agreement to conform with
written directives to the Company and the Bank from its auditors or banking
regulators or to comply with legislative or tax law, including without
limitation Section 409A of the Code and any and all regulations and guidance
promulgated thereunder. 


                    Section
7.2 Plan Termination Generally. This Agreement may be terminated only by
a written agreement signed by the Company, the Bank and the Executive, in which
case the Executive shall receive the Early Termination Benefit, determined as
of the date the Agreement is terminated. Except as provided in Section 7.3, the
termination of this Agreement shall not cause a distribution of benefits under
this Agreement. Rather, upon such termination benefit distributions will be
made at the earliest distribution event permitted under Article 2 or Article 3
(and permissible under Section 409A of the Code and the regulations
thereunder). 


                    Section
7.3 Plan Terminations Under Section 409A. Notwithstanding anything to
the contrary in Section 7.2, if this Agreement terminates in the following
circumstances: 


	
 

	
 


	
 

	
                    (a)
 Within thirty (30) days before, or twelve (12) months after a Change in
 Control, provided that all distributions are made no later than twelve (12)
 months following such termination of the Agreement and further provided that
 all the Company’s and the Bank’s arrangements which are substantially similar
 to the Agreement are terminated so the Executive and all participants in the
 similar 





9






	
 

	
 


	
 

	
arrangements
 are required to receive all amounts of compensation deferred under the
 terminated arrangements within twelve (12) months of such terminations;


	
 

	
 


	
 

	
                    (b)
 Upon the Company’s and the Bank’s dissolution or with the approval of a
 bankruptcy court, provided that the amounts deferred under the Agreement are
 included in the Executive’s gross income in the latest of (i) the calendar
 year in which the Agreement terminates; (ii) the calendar year in which the
 amount is no longer subject to a substantial risk of forfeiture; or (iii) the
 first calendar year in which the distribution is administratively practical;
 or 


	
 

	
 


	
 

	
                    (c)
 Upon the Company’s and the Bank’s termination of this and all other
 arrangements that would be aggregated with this Agreement pursuant to Treasury
 Regulations Section 1.409A-1(c) if the Executive participated in such
 arrangements (“Similar Arrangements”), provided that (i) the termination and
 liquidation does not occur proximate to a downturn in the financial health of
 the Company and the Bank, (ii) all termination distributions are made no
 earlier than twelve (12) months and no later than twenty-four (24) months
 following such termination, and (iii) the Company and the Bank do not adopt
 any new arrangement that would be a Similar Arrangement for a minimum of
 three (3) years following the date the Company and the Bank take all
 necessary action to irrevocably terminate and liquidate the Agreement; 





the Company
and the Bank may distribute the present value (determined as of the date of
distribution, based on the Applicable PBGC Rate) of the Early Termination
Benefit (determined as of the date of the termination of the Agreement) to the
Executive in a lump sum on the first date permitted by Treasury Regulations
Section 1.409A-3(j)(4)(ix). 


Article 8

Administration of Agreement


                    Section
8.1 Plan Administrator Duties. This Agreement shall be administered by a
Plan Administrator which shall consist of the Board, or such committee or
person(s) as the Board shall appoint. The Executive may be a member of the Plan
Administrator. The Plan Administrator shall be the named fiduciary for purposes
of ERISA, if applicable, and shall also have the discretion and authority to
(i) make, amend, interpret and enforce all appropriate rules and regulations
for the administration of this Agreement and (ii) decide or resolve any and all
questions including interpretations of this Agreement, as may arise in
connection with the Agreement. 


                    Section
8.2 Agents. In the administration of this Agreement, the Plan
Administrator may employ agents and delegate to them such administrative duties
as it sees fit, (including acting through a duly appointed representative), and
may from time to time consult with counsel who may be counsel to the Company. 


                    Section
8.3 Binding Effect of Decisions. The decision or action of the Plan
Administrator with respect to any question arising out of or in connection with
the administration, interpretation and application of the Agreement and the
rules and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any 


10






interest in
the Agreement. No Executive or Beneficiary shall be deemed to have any right,
vested or nonvested, regarding the continued use of any previously adopted
assumptions, including but not limited to the Discount Rate. 


                    Section
8.4 Indemnity of Plan Administrator. The Company and the Bank shall
jointly and severally indemnify and hold harmless the members of the Plan
Administrator against any and all claims, losses, damages, expenses or
liabilities arising from any action or failure to act with respect to this
Agreement, except in the case of willful misconduct by the Plan Administrator
or any of its members. 


                    Section
8.5 Company Information. To enable the Plan Administrator to perform its
functions, the Company shall supply full and timely information to the Plan
Administrator on all matters relating to the date and circumstances of the base
salary, retirement, Disability, death, or Separation from Service of the
Executive, and such other pertinent information as the Plan Administrator may
reasonably require. 


                    Section
8.6 Annual Statement. The Plan Administrator shall provide to the
Executive, within one hundred twenty (120) days after the end of each Plan
Year, a statement setting forth the benefits payable under this Agreement. 


Article 9

Miscellaneous


                    Section
9.1 Binding Effect. This Agreement shall inure to the benefit of and
bind the Executive, the Company and the Bank, and their beneficiaries,
survivors, executors, successors, administrators and permitted transferees. 


                    Section
9.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Company or the Bank, nor does it interfere with the Company’s
or the Bank’s right to discharge the Executive under the terms of the
Employment Agreement. It also does not require the Executive to remain an
employee nor interfere with the Executive’s right to terminate employment at
any time. 


                    Section
9.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner, except by
the laws of descent and distribution. 


                    Section
9.4 Tax Withholding. The Company and the Bank shall withhold any taxes
that are required to be withheld, including but not limited to taxes owed under
Section 409A of the Code and regulations thereunder, from the benefits provided
under this Agreement. The Executive acknowledges that the Company and the
Bank’s sole liability regarding taxes is to forward any amounts withheld to the
appropriate taxing authority(ies). Further, the Company and the Bank shall
satisfy all applicable reporting requirements, including those under Section
409A of the Code and regulations thereunder. 


11






                    Section
9.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Florida (without regard to principles of
conflicts of laws), except to the extent preempted by the laws of the United
States of America. 


                    Section
9.6 Unfunded Arrangement. The Executive and Beneficiary are general
unsecured creditors of the Company and the Bank for the payment of benefits
under this Agreement. The benefits represent the mere promise by the Company
and the Bank to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on the
Executive’s life is a general asset of the Company and/or the Bank to which the
Executive and Beneficiary have no preferred or secured claim. 


                    Section
9.7 Reorganization. The Company and/or the Bank shall not merge or
consolidate into or with another company or bank, or reorganize, or sell
substantially all of its assets to another company, bank, firm, or person
unless such succeeding or continuing company, bank, firm, or person agrees to
assume and discharge the obligations of the Company and the Bank under this
Agreement. Upon the occurrence of such event, the terms “Company” and “Bank” as
used in this Agreement shall be deemed to refer to the successors or survivor
entities. 


                    Section
9.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company, the Bank and the Executive as to the subject matter
hereof. No rights are granted to the Executive by virtue of this Agreement
other than those specifically set forth herein. 


                    Section
9.9 Interpretation. Wherever the fulfillment of the intent and purpose
of this Agreement requires, and the context will permit, the use of the
masculine gender includes the feminine and use of the singular includes the
plural. 


                    Section
9.10 Alternative Action. In the event it shall become impossible for the
Company, the Bank or the Plan Administrator to perform any act required by this
Agreement, the Company, the Bank or Plan Administrator may in its discretion
perform such alternative act as most nearly carries out the intent and purpose
of this Agreement and is in the best interests of the Company, the Bank,
provided that such alternative acts do not violate Section 409A of the Code. 


                    Section
9.11 Headings. Article and section headings are for convenient reference
only and shall not control or affect the meaning or construction of any of its
provisions. 


                    Section
9.12 Validity. In case any provision of this Agreement shall be illegal
or invalid for any reason, said illegality or invalidity shall not affect the
remaining parts hereof. 


                    Section
9.13 Notice. Any notice or filing required or permitted to be given to
the Company or the Bank or Plan Administrator under this Agreement shall be
sufficient if in writing and hand-delivered, or sent by overnight delivery, or
sent by registered or certified mail, to the address below: 


	
 

	
 


	
 

	
1st
 United Bancorp, Inc. 


	
 

	
Attn:
 Chairman


	
 

	
One North
 Federal Highway 


	
 

	
Boca Raton,
 FL 33432





12







Any notice or
filing required or permitted to be given to the Executive under this Agreement
shall be sufficient if in writing and hand-delivered, or sent by mail, to the
last known address of the Executive according to the Company’s and the Bank’s
records. All notices shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date of receipt as shown on the postmark on
the receipt for registration or certification. 


                    Section
9.14 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of
execution by electronic transmission of a facsimile signature page shall be
binding upon any party so confirming 


                    Section
9.15 Compliance with Section 409A. This Agreement shall at all times be
administered and the provisions of this Agreement shall be interpreted
consistent with the requirements of Section 409A of the Code and any and all
regulations thereunder, including such regulations as may be promulgated after
the Effective Date of this Agreement. 


                    Section
9.16 Rescissions. Any modification to the terms of this Agreement that
would inadvertently result in an additional tax liability on the part of the
Executive, shall have no effect to the extent the change in the terms of the
plan is rescinded by the earlier of a date before the right is exercised (if
the change grants a discretionary right) and the last day of the calendar year
during which such change occurred. 


                    Section
9.17 Arbitration. Subject to the parties’ right to seek equitable
remedies under Section 9.18, all claims for monetary damages and disputes
relating in any way to the performance, interpretation, validity, or breach of
this Agreement shall be referred to final and binding arbitration, before a
single arbitrator, under the commercial arbitration rules of the American
Arbitration Association in Palm Beach County, Florida. The arbitrator shall be
selected by the parties and if the parties are unable to reach agreement on
selection of the arbitrator within ten (10) days after the notice of
arbitration is served, then the arbitrator will be selected by the American
Arbitration Association. All documents, materials, and information in the
possession of a party to this Agreement and in any way relevant to the claims
or disputes shall be made available to the other parties for review and copying
not later than 60 days after the notice of arbitration is served. To the extent
that a party would be required to make confidential information available to
any other, an agreement or an order shall be entered in the proceeding
protecting the confidentiality of and limiting access to such information
before a party is required to produce such information. Information produced by
a party shall be used exclusively in the arbitration or litigation that may
arise, and shall not otherwise be disclosed. In no event shall a party be
entitled to punitive damages in any arbitration or judicial proceeding and all
parties hereby waive their rights to any punitive damages. In the event an
arbitration panel or a court concludes that the punitive damages waiver
contained in the previous sentence is unenforceable, then the parties agree that
the court with subject matter jurisdiction over the confirmation of the award
shall have sole and exclusive jurisdiction to determine issues of entitlement
and amount of punitive damages. The arbitrator shall NOT have subject matter
jurisdiction to decide any issues relating to the statute of limitations or to
any request for 


13






injunctive
relief, and the parties hereby stipulate to stay the arbitration proceeding
(without the need of a bond) until any such issues in dispute are resolved.
Judgment upon the award rendered by the arbitrator shall be final, binding and
conclusive upon the parties and their respective administrators, personal
representatives, legal representatives, heirs, successors and permitted
assigns, and may be entered in any court of competent jurisdiction. 


                    Section
9.18 Equitable Remedies. Each of the parties acknowledges that the
parties will be irreparably damaged (and damages at law would be an inadequate
remedy) if this Agreement is not specifically enforced. Therefore, in the event
of a breach or threatened breach by any party of any provision of this
Agreement, then the other parties shall be entitled, in addition to all other
rights or remedies, (a) to an injunction restraining such breach, without being
required to show any actual damage or to post an injunction or other bond, or
(b) to a decree for specific performance of the provisions of this Agreement,
or both. 


                    Section
9.19 Enforcement Costs. If any civil action, arbitration or other legal
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys’ fees, court costs, sales and
use taxes and all expenses even if not taxable as court costs (including,
without limitation, all such fees, taxes, costs and expenses incident to
arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in
that proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys’ fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use taxes and all
other charges billed by the attorney to the prevailing party (including any
fees and costs associated with collecting such amounts). 


14






                    IN
WITNESS WHEREOF, the Executive and a duly authorized representative of the
Company and of the Bank have signed this Agreement. 


	
 

	
 

	
 

	
 


	
EXECUTIVE:

	
 

	
COMPANY:


	
 

	
 

	
1st UNITED BANCORP, INC.


	
 

	
 

	
 


	
/s/ Warren Orlando

	
 

	
By:

	
/s/ John Marino


	


	
 

	
 

	



	
Warren Orlando

	
 

	
Title:

	
President


	
 

	
 

	
 

	



	
 

	
 

	
 


	
 

	
 

	
BANK:


	
 

	
 

	
1st UNITED BANK


	
 

	
 

	
 

	
 


	
 

	
 

	
By:

	
/s/ John Marino


	
 

	
 

	
 

	



	
 

	
 

	
Title:

	
CFO/COO


	
 

	
 

	
 

	






15