First Amendment To Employment Agreement
Exhibit
10.2
First
Amendment
To
THIS FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT (the “Amendment”) is made as of this 23rd day of July, 2008, by and
between THE BANK OF HAMPTON ROADS, INC. (“BHR”), a banking corporation organized
and existing under the laws of the Commonwealth of Virginia, its successors and
assigns, HAMPTON ROADS BANKSHARES, INC. (“HRB”), a Virginia corporation, its
successors and assigns (collectively BHR and HRB shall be the Bank or Employer
and otherwise deemed synonymous as the context may require);
and XXXXXXX XXXXXXX (the “Executive”).
WHEREAS, BHR and the Executive entered
into an Employment Agreement dated August 28, 2006, (as amended, the
“Agreement”); and
WHEREAS, HRB was incorporated on
February 28, 2001, and pursuant to a corporate reorganization (the
“Reorganization”) became the parent company of BHR; and
WHEREAS,
the Executive was elected an executive officer of both BHR and HRB by their
respective Boards of Directors on July 22, 2008; and
WHEREAS, the Bank and Executive now
desire to amend the Agreement to reflect the Executive’s employment relationship
with BHR and HRB and to amend certain other provisions of the
Agreement;
NOW,
THEREFORE, the parties agree as follows:
1. HRB
shall become a party to the Agreement and any reference in the Agreement to the
term “Bank” shall collectively refer to HRB and/or BHR as the context may
require.
2. Section
1 of the Agreement is deleted and replaced by the following:
1. EMPLOYMENT: The
Employer agrees to employ the Executive to perform services for the Employer and
the Executive agrees to serve the Employer upon the terms
and conditions herein provided. The Executive shall be an
executive officer of both HRB and BHR. She agrees to serve as the
Senior Vice President and Chief Financial Officer of BHR and as the Senior Vice
President and Chief Financial Officer, Principal Accounting Officer and
Principal Financial Officer of HRB. The Executive shall perform such
managerial duties and responsibilities as shall be assigned to her by the Chief
Executive Officers of each of HRB and BHR, consistent with her positions and
titles. The Executive shall devote her time and attention on a
full-time basis to the discharge of the duties undertaken by her
hereunder.
3. Section
3(b)(ii) of the Agreement is deleted and replaced by the following:
The
Officer shall be entitled to terminate his or her employment pursuant to this
Agreement if “a change of control” occurs with respect to the Bank, in which
event the Employer shall be obligated to pay the Officer and furnish him or her
the benefits provided in Section 4 hereof. For purposes of this
Agreement, the term “a change in control” shall mean (a) the date that any one
person, or more than one person, acting as a group, acquires ownership of stock
of HRB (the “Parent Company”) that, together with stock held by such person or
group constitutes more than 50% of the total fair market value or total voting
power of the stock of the Parent Company, (b) the date any one
person, or more than one person, acting as a group, acquires (or has acquired
ownership during the 12 month period ending on the date of the most recent
acquisition be such person) ownership of stock of the Company possessing
30% or more of the
total voting power of the stock, or (c) the date a majority of the members of
the Company’s Board is replaced during any twelve (12) month period by directors
whose appointment or election is not endorsed by a majority of the members of
the Parent Company’s Board before the date of the appointment or
election. The right herein conferred upon the Executive to terminate
her employment for good reason may be exercised by the Executive at any time
during the terms of this Agreement at her sole discretion, and any failure by
the Executive to exercise this right after she has “good reason” to do so shall
not be deemed a waiver of the right.
3. The
following is added at the end of Section 4(c) of the Agreement:
Any cash
reimbursement that the Company may make to the Executive with respect to the
Company’s obligation to provide substantially similar benefits, shall be paid
before the last day of the calendar year following the calendar year in which
the expense is incurred. The Executive may not exchange the right to
reimbursement or to an in–kind benefit for another reimbursement or benefit and
may not receive cash in lieu of an in–kind benefit or right to
reimbursement.
4. Current
Section 11 of the Agreement (“Miscellaneous”) is renumbered to be Section 12,
and new Section 11 is added to the Agreement as follows:
11. Provisions Regarding Section
409A of the Internal Revenue Code.
(a) Compliance with Section 409A
of the Internal Revenue Code (“Code”). Any benefit, payment or
other right provided by the Plan shall be provided or made in a manner, and at
such time, in such form and subject to such election procedures (if any), as
complies with the applicable requirements of Code section 409A to avoid a plan
failure described in Code section 409A(a)(1), including without limitation,
deferring payment until the occurrence of a specified payment event described in
Code section 409A(a)(2). Notwithstanding any other provision hereof
or document pertaining hereto, the Plan shall be so construed and interpreted to
meet the applicable requirements of Code section 409A to avoid a plan failure
described in Code section 409A(a)(1).
(b) Delay in
Distributions. To the extent required by Section 409A of the
Code, in the event the Executive is a “specified employee” as provided in
Section 409A(a)(2)B)(i) on his date of termination from employment, any amounts
payable hereunder shall be paid no earlier than the first business day after the
six month anniversary of the his date of termination. Whether the
Executive is a specified employee and whether an amount payable to the Executive
hereunder is subject to Section 409A of the Code shall be determined by the
Company.
(c) Gross-Up
Payments. The Agreement requires the Company to pay the
Executive a Gross-Up Payment in certain events. Notwithstanding any
contrary provision in Section 9, all Gross-Up Payments due to the Executive
shall be paid no later than the end of the calendar year next following the
calendar year in which the Executive remits the related taxes.
5. Except
as amended by this Amendment, the Agreement as originally adopted and amended is
hereby ratified and affirmed.
IN WITNESS WHEREOF, the parties have
executed this Amendment as of the day and year first above written.
THE BANK OF HAMPTON ROADS,
INC.
By: ____________________________
[SEAL]
Xxxx
X. Xxxxxx, President and
Chief Executive Officer
HAMPTON ROADS BANKSHARES,
INC.
By:____________________________[SEAL}
Xxxx
X. Xxxxxx, Vice Chairman,
President and Chief
Executive
Officer
EXECUTIVE:
___________________________________
Xxxxxxx Xxxxxxx
