TO
CHANGE IN CONTROL AGREEMENT
THIS AMENDMENT TO
CHANGE IN CONTROL AGREEMENT (“ Amendment ”) is
executed as of November 14, 2008, by and among UNITED
COMMERCIAL BANK, a California Bank, UCBH Holdings, Inc., a Delaware
corporation, (collectively, the “ Company ”) and
KA WAH TSUI, an individual (“ Executive
”).
WHEREAS, the
Company and Executive previously entered into a Change in Control
Agreement dated April 26, 2007 (the “ CIC
Agreement ”) that sets forth terms and conditions
relating to certain severance benefits upon the termination of
Executive’s employment with the Company following a change in
control of the Company; and
WHEREAS, since
April 26, 2007, the Company has administered the CIC Agreement
in all material respects in good faith compliance with the
applicable requirements of Section 409A of the Internal
Revenue Code of 1986, as amended; and
WHEREAS, the
Company and Executive desire to amend the CIC Agreement to comply
with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended, and the final regulations issued
thereunder (“ Section 409A ”);
and
WHEREAS, the
Company and Executive also desire to amend the CIC Agreement to
comply with the executive compensation requirements of the United
States Department of the Treasury’s (“ Treasury
”) Capital Purchase Program (“ CPP ”)
under Treasury’s Troubled Assets Relief Program established
by Treasury pursuant to the Emergency Economic Stabilization Act of
2008 (“ TARP ”); and
WHEREAS,
Section 7 of the CIC Agreement provides that the CIC Agreement
may be amended pursuant to a written agreement between the Company
and Executive; and
NOW, THEREFORE,
the Company and Executive hereby agree the CIC Agreement shall be
amended as follows:
1. Defined Terms . Unless
otherwise defined in this Amendment, including the recitals,
defined terms shall have the meanings ascribed to them in the CIC
Agreement.
2. Specified Employee .
Notwithstanding anything contained in the CIC Agreement, as
amended, to the contrary, if at the time of Executive’s
“separation from service” (as defined in
Section 409A) Executive is a “specified employee”
(within the meaning of Section 409A and the Company’s
specified employee identification policy, if any) and if any
payment, reimbursement and/or in-kind benefit that constitutes
nonqualified deferred compensation (within the meaning of
Section 409A) is deemed to be triggered by Executive’s
separation from service, then, to the extent one or more exceptions
to Section 409A are inapplicable (including, without
limitation, the exception under Treasury
Regulation Section 1.409A-1(b)(9)(iii) relating to
separation pay due to an involuntary separation from service and
its requirement that
installments
must be paid no later than the last day of the second taxable year
following the taxable year in which such an employee incurs the
involuntary separation from service), all payments, reimbursements,
and in-kind benefits that constitute nonqualified deferred
compensation (within the meaning of Section 409A) to Executive
shall not be paid or provided to Executive during the six- (6-)
month period following Executive’s separation from service,
and (i) such postponed payments and/or reimbursement/in-kind
amounts shall be paid to Executive in a lump sum within thirty
(30) days after the date that is six (6) months following
Executive’s separation from service; (ii) any amounts
payable to Executive after the expiration of such six- (6-) month
period shall continue to be paid to Executive in accordance with
the terms of the CIC Agreement; and (iii) to the extent that any
group hospitalization plan, health care plan, dental care plan,
life or other insurance or death benefit plan, and any other
present or future similar group executive benefit plan or program
or any lump sum cash out thereof is nonqualified deferred
compensation (within the meaning of Section 409A), Executive
shall pay for such benefits from his separation from service date
until the first day of the seventh month following the month of
Executive’s separation from service, at which time the
Company shall reimburse Executive for such payments. If Executive
dies during such six- (6) month period and prior to the
payment of such postponed amounts of nonqualified deferred
compensation, only the amount of nonqualified deferred compensation
payable while Executive lived shall be delayed, and shall be paid
in a lump sum to Executive’s estate or, if applicable, to
Executive’s designated benefici
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