Exhibit 10.39
SECOND AMENDMENT
TO
THE BANK OF HAMPTON
ROADS
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
THIS SECOND AMENDMENT
(“Amendment”) to The Bank of Hampton Roads Supplemental
Executive Retirement Plan (“Plan”) made effective as of
the 30th day of December 2008 by The Bank of Hampton Roads
(“Corporation”). All capitalized terms in this
Amendment not otherwise defined shall have their respective
meanings under the Plan.
WHEREAS, the Corporation wishes to
further 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 Corporation wishes to
amend the terms of the Plan to comply with the Emergency Economic
Stabilization Act of 2008,
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:
The term
“Change in Control” is hereby defined as the date that
(i) any one person, or more than one person, acting as a
group, acquires ownership of stock of Hampton Roads Bankshares,
Inc. 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 Hampton Roads Bankshares, Inc.,
(b) during any period of twelve consecutive months,
individuals who at the beginning of such period constituted the
Board and any new directors, whose election by the Board or
nomination for election by the Hampton Roads Bankshares,
Inc.’s stockholders was approved by a vote of at least
three-fourths ( 3 / 4 ths) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved, cease for any reason to constitute a majori
