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Exhibit 10.1 EMPLOYMENT AGREEMENT This EMPLOYMENT
AGREEMENT ("Agreement") is made effective as of January 8th,
2009 by and between UCBH Holdings, Inc. (the "Holding Company"),
United Commercial Bank (the "Bank"), and Doreen Woo Ho
("Executive"). Any reference to "Company" herein shall be deemed to
include the Holding Company and the Bank.
A. The Company wishes to assure itself
of the services of Executive for the term provided in this
Agreement; and B. Executive is willing
to serve in the employ of the Company on a full-time basis for the
term of this Agreement. In consideration of the mutual covenants
herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as follows:
1. POSITION AND
RESPONSIBILITIES.
(a) During
the term of Executive’s employment hereunder, Executive
agrees to serve as President of Community Banking of the Company or
in any executive position mutually agreeable to Executive and
Company. Executive shall render services to the Company as are
customarily performed by persons in a similar executive capacity
and as directed by the Company’s Chief Executive Officer (the
"CEO") and the Board of Directors (the "Board"). Executive shall be
considered for a seat on the Board at the earliest reasonable
opportunity.
(b) The
Company shall provide Executive with a private office, executive
secretary, administrative assistants, office equipment, supplies
and other facilities and services, suitable to Executive’s
position and adequate for the performance of her duties.
2. TERM.
(a) The
period of Executive’s employment under this Agreement shall
be deemed to have commenced as of the date first above written and
shall continue for a period of thirty-six (36) full calendar months
thereafter. Commencing in January, 2010 and every anniversary date
thereafter, the Board may extend the Agreement for an additional
year. The Board will review the Agreement and Executive’s
performance annually for purposes of determining within its sole
discretion, whether to extend this Agreement, and the results
thereof shall be included in the minutes of the Board’s
meeting.
(b) During
the term of Executive’s employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation
periods, and reasonable leaves of absence, Executive shall devote
substantially all her business time, attention, skill, and efforts
to the faithful performance of her duties hereunder, including
activities and
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services related to the organization, operation and management
of the Company and its Subsidiaries and participation in community,
professional and civic organizations. Executive may serve, or
continue to serve, on the boards of directors of, and hold any
other offices or positions in organizations, which will not present
any conflict of interest with the Company or its Subsidiaries, or
require an unreasonable amount of time or materially adversely
affect the performance of Executive’s duties hereunder as
follows:
(i) For
non-profit entities/organizations, CEO approval is not required.
(ii) For
privately traded for profit companies, Executive will consult with
the CEO prior to accepting any such invitation.
(iii) For
publicly traded for profit companies, Executive will seek CEO
approval. Executive may not serve on more than three such
organizations at any given time.
(c) Notwithstanding
anything herein contained to the contrary, Executive’s
employment with the Company may be terminated by the Company or
Executive subject to the terms and conditions of this Agreement.
3. COMPENSATION AND
REIMBURSEMENT.
(a) Executive
shall be entitled to a salary from the Company of $500,000.00 per
year ("Base Salary") payable in accordance with the Company’s
normal payroll policies during her employment term. Base Salary
shall include any amounts of compensation deferred by Executive
under any qualified or unqualified plan maintained by the Company.
During the term of this Agreement, Executive’s Base Salary
shall be reviewed at least annually, no later than January 31
of the following year (commencing January 31, 2010). Such
annual review shall be conducted by the CEO. The CEO in
consultation with the Board may adjust Executive’s Base
Salary and may also award a bonus ("Bonus"). As a result of any
adjustment in Base Salary, the new Base Salary shall become the
"Base Salary" for purposes of this Agreement. In addition to the
Base Salary provided in this Section 3(a), the Company shall also
provide Executive, at no cost to Executive, with all such other
benefits as provided uniformly to permanent full-time employees of
the Company and its Subsidiaries including, but not limited to,
those set forth in Section 3(b) below.
(b) At
the time the Board approves this Agreement, Executive shall be
granted nonstatutory stock options to purchase up to three hundred
seventy-five thousand (375,000) shares of the Company’s
common stock. Such stock option shall be granted pursuant to the
terms and conditions of the UCBH Holdings, Inc. Amended and
Restated 2006 Equity Incentive Plan and the standard form of stock
option agreement.
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(c) Executive
shall be eligible to receive a sign-on bonus of one hundred fifty
thousand dollars ($150,000) payable on the Company’s first
payroll date following Executive’s successful completion of
ninety (90) days of employment.
(d) For
2009, Executive shall be subject to the Senior Executive Annual
Incentive Plan and her bonus threshold minimum shall be 36% of Base
Salary, the target shall be 60% of Base Salary and the maximum
shall be 90% of Base Salary based on performance measures
established by the CEO and the Compensation Committee of the Board
for the Senior Executive Annual Incentive Plan. If payments are not
made from the Senior Executive Annual Incentive Plan for the
calendar year of 2009, Executive shall receive a bonus payment of
one-hundred eighty thousand dollars ($180,000) to be paid within
two and one half (2 1 /2) months after the close of
calendar year 2009. During the term of this Agreement,
Executive’s threshold and target bonus amounts and the
corresponding performance measures under the Senior Executive
Annual Incentive Plan shall be reviewed at least annually, no later
than March 31 of the following year (commencing March 31,
2010) by the CEO or the Compensation Committee of the Board, and
may be adjusted by the CEO or the Compensation Committee of the
Board.
(e) Executive
shall be entitled to participate in or receive benefits under any
employee benefit plans and the Company and its Subsidiaries will
not, without Executive’s prior written consent, make any
changes in such plans, arrangements or perquisites which would
materially adversely affect Executive’s rights or benefits
thereunder, except to the extent that such changes are made
applicable to all Company employees eligible to participate in such
plans, arrangements and perquisites on a non-discriminatory basis.
Without limiting the generality of the foregoing provisions of this
Subsection (e), Executive shall be entitled to participate in or
receive benefits under any employee benefit plans including, but
not limited to, retirement plans, supplemental retirement plans,
pension plans, profit-sharing plans, health-and-accident plans,
medical coverage and any other employee benefit plan or arrangement
made available by the Company in the future to its senior
executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of
such plans and arrangements. Nothing paid to Executive under any
such plan or arrangement will be deemed to be in lieu of other
compensation to which Executive is entitled under this Agreement.
Executive waives participation in the Company’s medical,
dental and vision plans.
(f) Executive
will be reimbursed for financial planning services not to exceed
ten thousand dollars ($10,000) annually.
(g) In
addition to the Base Salary and Bonus and other benefits provided
for by paragraphs (a) through (e) of this Section 3, the
Company shall promptly pay or reimburse Executive for any and all
reasonable expenses incurred in promoting the business of the
Company and its Subsidiaries including, but not limited to
entertainment, gifts, travel, parking and club memberships. The
Company shall also provide the Executive the use of an automobile
for personal and business purposes including reasonable expenses
for insurance, fuel, maintenance, repair and registration of
such
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automobile or a comparable car allowance. Consistent with
Company policy, the CEO hereby pre-approves the Executive’s
use of business class for airline flights that exceed 2500 miles.
Notwithstanding any other provision of the applicable plans and
programs, all reimbursements and in-kind benefits provided under
this Agreement, as amended, shall be made or provided in accordance
with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended and the regulations promulgated thereunder
(collectively "Section 409A"), including, where applicable,
the requirement that (i) the amount of expenses eligible for
reimbursement and the provision of benefits in kind during a
calendar year shall not affect the expenses eligible for
reimbursement or the provision of in-kind benefits in any other
calendar year; (ii) the reimbursement for an eligible expense
will be made on or before the last day of the calendar year
following the calendar year in which the expense is incurred;
(iii) the right to reimbursement or right to in-kind benefit
is not subject to liquidation or exchange for another benefit; and
(iv) each reimbursement payment or provision of in-kind
benefit shall be one of a series of separate payments (and each
shall be construed as a separate identified payment) for purposes
of Section 409A. The Company and Executive acknowledge that
certain expenses described in this Section 3(c) may not be
specifically enumerated as reimbursable expenses pursuant to the
policies of the Company and its Subsidiaries. Notwithstanding such
policies, the Company and Executive acknowledge that the intent of
this Section 3(c) is to reimburse Executive for any and all
expenses reasonably incurred in the best interests of and in
promoting the business of the Company or its Subsidiaries, provided
that such reimbursement is otherwise in conformance with
Company’s policies such as, by way of example, with respect
to the provision of appropriate receipts for the expenses.
4. TERMINATION.
(a)
Cause . The term "Termination for Cause" shall mean
termination because of an act or acts of gross misconduct, willful
neglect of duties or the conviction of a felony or equivalent
violation of law or any other act or failure to act that materially
damages the reputation of the Company as determined by the Board in
its sole discretion after a good faith investigation. For the
purpose of this Section, no act or failure to act on
Executive’s part shall be "willful" unless done or omitted to
be done without the reasonable belief that the action or omission
was made in the best interests of the Company and its Subsidiaries.
Executive shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to her a Notice of
Termination (as provided in this subsection below) which shall
include a copy of a resolution duly adopted by the affirmative vote
of not less than seventy-five percent (75%) of the independent
members of the Board at a meeting of the Board called and held for
that purpose, finding that in the good faith opinion of at least
75% of the independent members of the Board, the Executive was
guilty of conduct justifying Termination for Cause and specifying
the relevant facts supporting the Termination for Cause. On such
date of Termination for Cause, (i) any unvested stock options
and related limited rights
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and any unvested awards shall become null and void and shall not
be exercisable by or delivered to Executive at any time subsequent
to such Termination for Cause; and (ii) the Company’s
sole liability shall be limited to the payment of Executive’s
Base Salary and benefits through such date of termination, which
shall be paid in a lump sum cash amount within thirty
(30) days following Executive’s separation from service.
The Date of Termination For Cause shall be determined to be the
date on which the Notice of Termination is delivered to Executive,
or in the event the Company is unable to reasonably locate
Executive, three (3) business days after delivery of such
Notice of Termination to the Executive’s last known address.
(b)
Without Cause . The Company may terminate this Agreement
without cause by giving not less than three (3) months prior
written notice to Executive pursuant to Section 9 of this
Agreement. Upon the effective date of such termination, Executive
shall be entitled to receive a sum equal to one and a half times
the highest annual compensation (defined as Base Salary and Bonus
under Section 3(a) and, if applicable, Section 3(d), above)
due to the Executive over the three years immediately preceding
such termination (the "One and a Half Times Highest Pay Benefit").
Executive shall be paid such amount in a lump sum within thirty
(30) days following Executive’s "separation from
service" (within the meaning of Code Section 409A). Also, on
the date of such termination, all stock options and/or restricted
stock awards and related limited rights and any unvested awards
shall immediately vest and be exercisable for one year after such
termination.
(c)
Disability .
(i) If
as a result of any physical or mental disability, Executive shall
be unable to perform her duties under this Agreement for three
(3) consecutive full calendar months, or for eighty percent
(80%) or more of the working days during four (4) consecutive
calendar months, the Company may upon three (3) months’
advance written notice to Executive, terminate Executive’s
employment under this Agreement (a "Termination Due to
Disability"). During such three (3) month notice period, the
Company may remove Executive from any and all of her positions, but
she shall continue to be an employee of the Company and to be paid
in accordance with this Agreement:
(ii) On
the expiration of such three (3) month notice period,
Executive’s employment under this Agreement shall terminate.
(iii) If
there should be a dispute between the parties hereto as to
Executive’s physical or mental disability for purposes of
this Agreement, the question shall be settled by the opinion of an
impartial reputable licensed physician or psychiatrist selected in
good faith by the CEO with recognized experience in the field
pertaining to the nature of the disability. Executive hereby agrees
to cooperate in the examination by any such person. The certificate
of such physician or psychiatrist shall be final and binding upon
the parties hereto.
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(iv) Upon
an event of Termination due to Disability, Company’s
liability to the Executive under the Agreement shall be limited to
that which is provided under Paragraph 4(d) (i) and
(ii) of this Agreement, below.
(d)
Death . In the event that the Executive should die during
the term hereof, this Agreement shall terminate effective on the
date of her death. In such event, Executive’s executor,
trustee or other personal representative ("Authorized
Representative") shall be entitled to receive the following
payments, which shall be paid in a lump sum cash amount:
(i) the
amount of the remaining payments of Base Salary (excluding bonus)
that the Executive would have earned if she had continued her
employment with the Company over the remaining term of this
Agreement (as defined in Section 2(a) above) at Executive’s
Base Salary as of the date of termination; and
(ii) the
amount equal to the annual contributions that would have been made
on Executive’s behalf to any employee benefit plans offered
by the Company during the remaining term of this Agreement based on
contributions made (on an annualized basis) as of the date of
termination. In addition, all stock options and/or restricted stock
awards and related limited rights and any unvested awards shall
immediately vest and be exercisable for one year after such
termination by the Authorized Representative.
(e)
Voluntary . Notwithstanding anything provided herein to the
contrary, Executive shall have the right at any time, for whatever
reason, to deliver to the Company three (3) months’
advance written notice of her election to terminate this Agreement.
During such three (3) month notice period, the Company may
remove Executive from any and all of her positions, but Executive
shall continue to be an employee of the Company and to be paid in
accordance with this Agreement, and shall perform all of her duties
herein or as otherwise directed by the CEO. On the expiration of
such three (3) month notice period, Executive’s
employment under this Agreement shall terminate. In such event,
Executive shall be entitled to receive her Base Salary earned and
benefits accrued through the date of termination.
(f)
Change in Duties . In the event Executive voluntarily
resigns from her regular employment following (i) any material
adverse change in or loss of title, office or significant authority
or responsibility (including, without limitation, Executive ceasing
to be President of Community Banking of the Company (or the
ultimate parent entity (the "Ultimate Parent"), if any, in the
event of any transaction that results in the Company ceasing to be
the Ultimate Parent), (ii) any material reduction in Base Salary,
or benefits (excluding bonus), (iii) any relocation of her
principal place of employment by more than 25 miles from its
location, (iv) an event which results in Executive reporting
to anyone other than the CEO as of the date of this Agreement (any
one of such events a "Change in Duties"), Executive shall be
entitled to receive a sum equal to three (3) times the highest
annual compensation (defined as Base Salary plus Bonus under
Section 3(a) and, if
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applicable, Section 3(d), above) due to the Executive over
the three years immediately preceding such termination (the "Three
Times Highest Pay Benefit"). Executive shall be paid such amount in
a lump sum within thirty (30) days following Executive’s
"separation from service" (within the meaning of Code
Section 409A). In addition, all of Executive’s stock
options and/or restricted stock awards and related limited rights
and any unvested awards shall immediately vest and be exercisable
for one year after such termination.
(g) Upon
termination of employment, the Executive shall have an option to
purchase any club membership(s) that were funded by the Company for
the Executive. This option must be exercised by the Executive in
writing within 6 months of the Date of Termination, but not
later than the last day of the year in which Executive’s
separation from service occurs. The purchase shall be at the same
purchase price paid by the Company originally to acquire such club
membership(s), unless otherwise agreed by the parties in writing.
(h) All
payments and benefits to be made to Executive upon
Executive’s termination of employment or resignation that are
subject to Section 409A may only be made upon a "separation
from service" (within the meaning of Section 409A) of
Executive. For purposes of Section 409A, (i) each payment
made under this Agreement shall be treated as a separate payment;
(ii) Executive may not, directly or indirectly, designate the
calendar year of payment; and (iii) no acceleration of the
time and form of payment of any nonqualified deferred compensation
to Executive or any portion thereof, shall be permitted.
5. CHANGE IN CONTROL.
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