AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO
EMPLOYMENT AGREEMENT (“ Amendment ”) is executed
as of November 14, 2008, by and among UCBH HOLDINGS, INC., a
Delaware corporation, UNITED COMMERCIAL BANK, a California bank
(collective, the “ Company ”), and THOMAS S. WU,
an individual (the “ Executive ”).
WHEREAS, the
Company and Executive previously entered into an Employment
Agreement dated August 16, 2004 (the “ Employment
Agreement ”) that sets forth the terms and conditions of
Executive’s employment with the Company; and
WHEREAS, the
Company and Executive desire to amend the Employment Agreement to
comply with the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), and the
final regulations issued thereunder (“
Section 409A ”); and
WHEREAS, the
Company and Executive also desire to amend the Employment 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 1 of the Employment Agreement provides that the
Employment Agreement may be amended pursuant to a written agreement
between the Company and Executive; and
NOW, THEREFORE,
the Company and Executive hereby agree the Employment 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
Employment Agreement.
2.
Specified
Employee . Notwithstanding anything contained in the
Employment 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 payment 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 Employment 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 Termination 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 beneficiary within thirty (30) days after the date
of Executive’s death (with any amounts payable to Executive
after the Executive’s death to be paid in accordance with the
terms of the Employment Agreement).
3.
Reimbursements And In-Kind
Benefits . Notwithstanding any other provision of the
applicable plans and programs, all reimbursements and in-kind
benefits provided under the Employment Agreement, as amended, shall
be made or provided in accordance with the requirements of
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.
4.
Specific Section 409A
Provisions . The following specific Section 409A
amendments to the Employment Agreement shall be applicable on
January 1, 2009:
A. Section 3(c) is amended by the addition of the
following language at the end thereof:
“Notwithstanding anything contained herein
to the contrary, (i) the amount of expenses eligible for
reimbursement and the provision of in-kind benefits during any
calendar year shall not affect the amount of expenses eligible for
reimbursement or the provision of in-kind benefits in any other
calendar year; (ii) the reimbursement of an eligible expense
shall be made on or before December 31 of the calendar year
following the calendar year in which the expense was
- 2 -
incurred; and
(iii) the right to reimbursement or
|
