exv10w1






EXHIBIT 10.1




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



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incurred; and (iii) the right to reimbursement or right to in-kind
benefit shall not be subject to liquidation or exchange for another
benefit.”


          B. Section 4(a) is amended by the insertion of “a lump sum cash amount within thirty (30) days
following Executive’s separation from service” in place of “a lump sum”.


          C. The second sentence of Section 4(b) is deleted in its entirety and the following inserted
in place thereof:


“Upon Executive’s separation from service (within the meaning of Section
409A) by reason of such termination without cause, the Company shall,
within thirty (30) days following Executive’s separation from service,
pay a lump sum cash amount equal to three (3) times the highest annual
compensation (defined as Base Salary and Bonus under Section 3(a) above)
due to Executive over the three (3) years immediately preceding such
termination (the ‘Three Times Highest Pay Benefit’).”


          D. The second sentence of Section 4(d) is amended by the insertion of “cash amount” after “a
lump sum”.



          E. Section 4(f) is deleted in its entirety and the following inserted in place thereof:




“Change in Duties. In the event Executive voluntarily resigns from his
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 and Chief Executive Officer 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) or
Executive no longer reporting to the Board (or the board of directors of the
Ultimate Parent, if applicable)), (ii) material reduction in Base Salary or benefits
(excluding bonus) or (iii) relocation of his principal place of employment by more
than 25 miles from its location (“Change in Duties”), Executive shall be entitled to
the Three Times Highest Pay Benefit as defined by Paragraph 4(b) of this Agreement
and 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.”


          F. The following clause is added to the end of the second sentence of Section 4(g):


               “but not later than the last day of the year in which Executive’s separation from service
occurs.”


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          G. The following new Section 4(h) is added at the end of Section 4:





     “(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.”



          H. Section 5(c) is deleted in its entirety and the following inserted in place thereof:





“(c) Upon Executive’s “separation from service” (within the meaning of
Section 409A”) resulting from a Change In Control Benefit Trigger
pursuant Section 5(b), (i) the Company shall pay Executive, or in the
event of his subsequent death or disability, his beneficiary or
beneficiaries, or his estate, as the case may be, a cash lump sum equal
to three (3) times the highest annual compensation (defined as Base
Salary and Bonus under Section 3(a), above) due to the Executive over
the three years immediately preceding the Change in Control Benefit
Trigger, less all required and applicable withholding, and (ii) any
unvested stock options and related limited rights and unvested awards
granted to Executive under any stock option and similar plans shall
immediately vest and shall be exercisable within one (1) year.”



          I. Section 5(d) is deleted in its entirety and the following inserted in place thereof:





“(d) Upon the occurrence of a Change in Control followed by Executive’s
termination of employment or resignation (other than termination for
Cause), Company and its successors and assigns shall cause to be
continued for Executive life, medical and disability coverage
substantially identical to the coverage maintained by the Company for
Executive prior to Executive’s termination or resignation. Such
coverage and payments shall cease upon the expiration of thirty-six (36)
full calendar months from the date of the Executive’s separation from
service.



          J. The following new Section 5(f) is added at the end of Section 5:





     “(f) 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



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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.”



          K. The following new Section 6(e) is added at the end of Section 6:





     “(e) Notwithstanding the foregoing, any Gross-Up Payment pursuant
to this Section 6 shall be paid not later than the end of Executive’s
taxable year next following Executive’s taxable year in which the
related taxes are remitted to the taxing authorities.”



     5. TARP CPP Restrictions.



          The following Section 7 is added after Section 6 and the remaining Sections are renumbered
accordingly:





	 	“7. PAYMENT REDUCTION; ADDITIONAL TARP/CPP RESTRICTIONS; WAIVER AND RELEASE
	 
	 	(a)	 	Notwithstanding anything contained in this
Agreement, as amended, to the contrary or any other agreement
between Executive and the Company or its affiliates, acquirers or
successors, to the extent that any payment or distribution of any
type to or for Executive would be prohibited by Section 111(b) of
the Emergency Economic Stabilization Act of 2008, whether paid or
payable or distributed or distributable pursuant to the terms of
this Agreement, as amended, or otherwise (the “Payments”), then such
Payments shall be reduced if and to the minimum extent necessary so
that the Payments do not violate such prohibition. The
determination of whether the Payments shall be reduced as provided
in Section 7(a) and the amount of such reduction shall be made at
the Company’s expense by an accounting firm selected by the Company
(the “Accounting Firm”). The Accounting Firm shall provide its
determination (the “Determination”), together with detailed
supporting calculations and documentation, to the Company and
Executive within fifteen (15) days after such reduction is
triggered. The Payments will be reduced in accordance with an
ordering rule agreed to in writing by the Company and Executive not
later than December 31, 2008 and subject to the requirements of
Section 409A.”
	 
	 	(b)	 	Executive acknowledges and agrees that for so long
as the executive compensation restrictions of TARP and the CPP are




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	 	 	 	applicable to the Company, (i) no bonus or other incentive
compensation payable to Executive shall be based upon
arrangements that encourage unnecessary and/or excessive risks
that threaten the value of the Company, to the extent required by
Treasury and/or TARP and/or the CPP, and (ii) any bonus or other
incentive compensation paid to Executive that is based upon the
Company’s statement of earnings, gains, or other criteria that
are later proven to be materially inaccurate, must, to the extent
required by Treasury, and/or TARP and/or the CPP, be repaid by
Executive to the Company.”
	 
	 	(c)	 	Upon the Company’s request, Executive agrees to execute and
deliver all waivers and releases required by Treasury relating to TARP, CPP,
and the Company’s participation in the CPP, including, without limitation,
waivers and releases that release Treasury from any claims that Executive may
otherwise have as a result of Treasury’s issuance of regulations that modify or
eliminate provisions and terms of the Company’s employee benefit plans,
arrangements and agreements in which Executive participates or otherwise
receives benefits.”





     6. Ratification and Confirmation. In all respects not modified by this Amendment,
the Employment Agreement is hereby ratified and confirmed.



     7. Governing Law. Except to the extent preempted by federal law, this Amendment
shall be governed by the laws of the State of California, without regard to its principles of
conflict of law.



     8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed to be an original and all of which, taken together,
constitute one and the same agreement.



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     IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first
above written but on the actual dates indicated below.



	 	 	 	 	 
	 	 	UCBH HOLDINGS, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Godwin Wong
	 

	 	 	 	 
	 

	 	Title:
	 	Compensation Committee
of Board of Directors
	 
	 	 	 	 
	 

	 	Date:
	 	November 14, 2008
	 
	 	 	 	 
	 	 	UNITED COMMERCIAL BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Godwin Wong
	 

	 	 	 	 
	 

	 	Title:
	 	Compensation Committee
of Board of Directors
	 
	 	 	 	 
	 

	 	Date:
	 	November 14, 2008
	 
	 	 	 	 
	 	 	EXECUTIVE
	 
	 	 	 	 
	 

	 	Signature:
	 	/s/ Thomas S. Wu
	 

	 	 	 	 
	 

	 	 	 	Thomas S. Wu
	 
	 	 	 	 
	 

	 	Date:
	 	November 14, 2008







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