Exhibit 10.41
AMENDED AND
RESTATED
HAMPTON ROADS BANKSHARES,
INC.
DIRECTORS’ DEFERRED
COMPENSATION PLAN
1. PLAN ADMINISTRATION AND
ELIGIBILITY.
1.1. PURPOSE AND PLAN FREEZE. The
Hampton Roads Bankshares, Inc. Directors’ Deferred
Compensation Plan (“Plan”) permitted the members of the
Board of Directors of the Hampton Roads Bankshares, Inc.
(“Company”) and its wholly owned subsidiary, Bank of
Hampton Roads, Inc. to defer their Fees (as defined below) into a
deferred cash account, restricted stock or into nonqualified stock
options. Effective December 31, 2007, this Plan was frozen;
fees deferred for 2007 and prior years will be paid according to
the terms of this Plan and executed deferral elections. There will
be no acceleration of the payment of deferred amounts. Effective
December 31, 2007, the Company shall establish a Deferred
Stock Account (as defined in Section 3) for Eligible Directors
(as defined in Section 1.2) holding restricted stock. The
Deferred Stock Account shall be credited with a number of shares of
common stock of the Company (“Shares”), including
fractional shares, equal to the restricted stock held by such
director.
1.2. ELIGIBILITY. Each member of the
Board of Directors of Hampton Roads Bankshares, Inc. and Bank of
Hampton Roads, Inc., its wholly owned subsidiary, is eligible to
participate in the Plan (“Eligible
Director”).
1.3. ADMINISTRATION. The Plan shall
be administered, construed and interpreted by the Board of
Directors of the Company (“Board”). Pursuant to such
authorization, the Board of Directors shall have the responsibility
for carrying out the terms of the Plan, including but not limited
to the determination of the amount and form of payment of annual or
monthly retainer and any additional fees payable by the Company or
a subsidiary to an Eligible Director for his or her services as a
director (the “Fees,” which shall not include
reimbursements or other payments not for services rendered). To the
extent permitted under the securities laws applicable to
compensation plans including, without limitation, the requirements
of Section 16(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) or under the Internal
Revenue Code of 1986, as amended (the “Code”), a
committee of the Board of Directors, or a subcommittee of any
committee, may exercise the discretion granted to the Board under
the Plan, provided that the composition of such committee or
subcommittee shall satisfy the requirements of Rule 16b-3 under the
Exchange Act (i.e., comprised of independent and/or non-executive
directors), or any successor rule or regulation. The Board of
Directors may also designate a plan administrator to manage the
record keeping and other routine administrative duties under the
Plan.
2. STOCK SUBJECT TO THE
PLAN.
2.1. SHARE PURCHASE. To satisfy the
requirements of Section 3, the Company shall direct the
trustees (“Trustees”) of the Hampton Roads Bankshares,
Inc. Executive Savings
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Plan Trust (the “ESP Trust”) to
receive shares of restricted stock contributed to such trust and to
purchase Shares on the open market or from the Company. The
purchase, holding and distribution of Shares by the Trustee
hereunder shall in all cases be conducted pursuant to applicable
law (including the rules and regulations of the U.S. Securities and
Exchange Commission) and any Company policies and procedures then
in effect.
2.2. GENERAL RESTRICTIONS. Delivery
of Shares under Section 3 of the Plan shall be subject to the
following:
(a) Notwithstanding any other
provision of the Plan, the Company shall have no liability to
deliver any Shares under the Plan or make any other distribution of
benefits under the Plan unless such delivery or distribution would
comply with all applicable laws (including, without limitation, the
requirements of the Securities Act of 1933), and the applicable
requirements of any securities exchange or similar
entity.
(b) To the extent that the Plan
provides for delivery of stock certificates, the delivery may be
effected on a non-certificated basis, to the extent not prohibited
by applicable law or the applicable rules of any stock
exchange.
2.3. TAX WITHHOLDING. The Board may
condition the delivery of any shares or other benefits under the
Plan on satisfaction of any applicable withholding obligations. The
Board, in its discretion, and subject to such requirements as the
Board may impose prior to the occurrence of such withholding, may
permit such withholding obligations to be satisfied through cash
payment by the participating Eligible Director
(“Participant”), through the surrender of Shares which
the Participant already owns, or through the surrender of Shares to
which the participant is otherwise entitled under the
Plan.
3. DEFERRED COMPENSATION.
3.1. DEFERRAL OF FEES.
For Fees earned and deferred prior
to December 31, 2007, an Eligible Director elected to defer in
either cash or Shares all or a portion of the Fees earned during
any calendar year by delivering a deferral election to the Company
not later than (i) December 31 of the year immediately
preceding the year to which the deferral election relates, or
(ii) with respect to an Eligible Director’s first year
or partial year of service as a director, thirty days following the
date on which such director first became a director, but only for
Fees earned after such election is made.
3.2. ACCOUNTS; INTEREST AND DIVIDEND
CREDITS. On the first day of each calendar year (the “Credit
Date”), an Eligible Director who elects to defer his or her
Fees shall receive a credit to his or her deferred compensation
accounts (the “Deferred Compensation Accounts”) under
the Plan as hereinafter provided. Any portion of a
Participant’s Fees which are deferred in cash shall be
credited to the Participant’s Cash Deferral Account. The
amount of the credit shall equal the amount of Fees deferred in
cash by the Participant during the immediately preceding year. Any
portion of a Participant’s Fees which are deferred in Shares
shall be credited
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to the Participant’s Deferred Stock
Account and such Fees shall be contributed to the ESP Trust. The
Trustee shall use the contributed Fees to purchase Shares in the
open market or from the Company and the Deferred Stock Account
shall be credited with the number of shares purchased by the
Trustee. Only whole shares shall be purchased and any residual Fees
which remain shall be held until the next Credit Date.
On the first day of each calendar
year, an amount shall be credited to each Participant’s Cash
Deferral Account equal to the Interest Rate (as hereinafter
defined) on the balance credited to the Cash Deferral Account
during the immediately preceding year. Interest shall accrue on the
balance of each Participant’s Cash Deferral Account
commencing with the date the first payment is credited thereto and
ending with the final payment therefrom. For this purpose,
“Interest Rate” shall mean the highest interest rate
paid on any outstanding certificate of deposit held by customers at
any of the Company’s subsidiary banks on the first day of the
calendar year.
Each time any dividend is paid on
the Stock, the funds from such dividend will be reinvested by the
Trustee on behalf of the Participant in additional Shares in
accordance with the terms of the Company’s dividend
reinvestment plan then in effect.
3.3 INVESTMENT CHANGE
Subject to the prior approval of the
Company and in its sole discretion, as of the first business day of
a calendar quarter, a Participant may direct the Company to
liquidate his Cash Deferral Account and invest such amount into a
Deferred Stock Account. The Trustee shall use the contributed Fees
to purchase Shares in the open market or from the Company and the
Deferred Stock Account shall be credited with the number of shares
purchased by the Trustee. Only whole shares shall be purchased and
any residual Fees which remain shall be held until the next Credit
Date. A Participant may not direct the Company to liquidate his
Deferred Stock Account.
3.4 DEEMED INVESTMENT.
Notwithstanding any provision of
this Plan that may be interpreted to the contrary, the Cash
Deferral and Deferred Stock Accounts are to be used for bookkeeping
purposes only, and a Participant’s election with respect to
his Deferred Compensation Accounts shall not be considered or
construed in any manner as an actual investmen
