Exhibit 10.38
FIRST AMENDMENT
TO THE
BANK OF HAMPTON ROADS,
INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
THIS FIRST AMENDMENT
(“Amendment”) to the Bank of Hampton Roads, Inc.
Supplemental Executive Retirement Plan (“Plan”) made
effective as of the 30th day of December 2008 by Bank of Hampton
Roads, Inc. (“Corporation”). All capitalized terms in
this Amendment not otherwise defined shall have their respective
meanings under the Plan.
WHEREAS, the Corporation wishes to
amend and conform the written terms of the Plan to the requirements
of Section 409A of the Internal Revenue Code of 1986, as
amended (“Code”), and
WHEREAS, the Plan has operated in
good faith compliance with the requirements of Section 409A of
the Code for periods starting January 1, 2005 and through the
effective date of this Amendment,
NOW, THEREFORE, the Corporation
hereby adopts this Amendment upon the following terms and
conditions:
1. The definition of Change in
Control in Section 2(e) shall be replaced in its entirety with
the following definition:
Change in Control means (a) the
date that any one person, or more than one person, acting as a
group, acquires ownership of stock of the Parent Corporation 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 Corporation, (b) the date any one
person, or more than one person, acting as a group, acquires (or
has
