EMPLOYMENT AGREEMENT
---------------------
THIS EMPLOYMENT AGREEMENT, ("Agreement"), made this 11th day of, October,
2001, by and between THE BANK OF HAMPTON ROADS, INC., a banking association
--------------------------------
organized under the laws of the Commonwealth of Virginia (the "Bank" or
"Employer"), and XXXXXXX X. XXXXXXXX (the "Officer");
-------------------
W I T N E S S E T H :
---------------------
WHEREAS, the Officer currently is rendering valuable services to the
Employer and it is the desire of the Employer to have the benefit of the
Officer's continued loyalty, service and counsel; and
WHEREAS, the Officer wishes to continue in the employ of the Employer;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties covenant and agree as follows:
1. EMPLOYMENT: The Employer agrees to continue to employ the Officer to
-----------
perform services for the Employer and the Officer agrees to continue to serve
the Employer upon the terms and conditions herein provided. The Officer agrees
to perform such managerial duties and responsibilities as shall be assigned to
him by the Board of Directors of the Employer, which duties and responsibilities
shall be substantially those functions of the Officer on the date of this
Agreement and the commencement date hereof. The Officer shall devote his time
and attention on a full-time basis to the discharge of the duties undertaken by
him hereunder.
2. TERMS AND COMPENSATION:
-----------------------
(a) Term of Employment. The term of employment hereunder shall
-------------------
commence as of the date of this agreement and shall continue to the first to
occur of (i) except as otherwise provided in Section 3 hereof, the end of the
sixtieth consecutive month, following the commencement date aforesaid (ii) the
Officer's death, or (iii) except as provided in Paragraph (d) of this Section 2,
the Officer's disability. In the event the Officer is not informed, in writing,
prior to the last day of the forty-eighth consecutive month following the
commencement date of employment as aforesaid that this Agreement will not be
renewed, this Agreement will automatically renew itself for an additional period
of sixty months from the anniversary date established by the commencement of
employment as aforesaid.
1
(b) Compensation. During the term of employment hereunder, the
-------------
Officer shall receive for his services a basic salary and incentive or bonus
compensation in amounts determined by the Board of Directors or an appropriate
committee of the Employer in accordance with the salary administration program
of the Employer as the same may from time to time be in effect, but in no event
shall such basis salary be less than the Officer's basic salary at the date
hereof.
(c) Benefits. The Officer shall be eligible for participation in any
---------
additional plans, programs or forms of compensation or benefits that the
Employer's Board of Directors might hereinafter provide to the class of
employees that includes the Officer.
(d) Disability. In the event of the physical or mental disability of
-----------
the Officer by reason of which the Officer is unable to perform the duties of
his employment hereunder, the Employer shall continue to pay or provide to the
Officer the compensation and benefits provided under Paragraphs (b) and (c) of
this Section 2 for the first six months of such disability. If, however, the
disability continues beyond such six-month period, the Employer may, at its
election, terminate the Officer's employment under this Agreement, in which case
the Officer shall receive any disability benefits payable under the Employer's
plans in effect at that time.
(e) Death. In the event that the Officer's death should occur during
------
the term of this Agreement, this Agreement shall terminate and the Officer or
his estate or beneficiaries, as the case may be, shall be entitled only to any
and all retirement or death benefits payable under the Employer's plans in
effect at that time and no further compensation will be paid under this
Agreement.
3. TERMINATION:
------------
(a) Termination by the Employer. Nothing herein contained shall
----------------------------
prevent the Employer from terminating the services of the Officer at any time
prior to the expiration of this Agreement.
(1) If such termination is effective prior to the time "a change
in control" (as defined in part (b) of this Paragraph (3) occurs with respect to
the Bank, and prior to the time the Employer enters into negotiations which
result in such change of control, then unless the termination is "for good cause
" as hereinafter defined, the Employer shall pay the Officer a termination
allowance in 12 equal monthly payments commencing on the last day of the month
in which the date of actual termination occurs, the total amount of which will
equal the base salary plus director's fees, if any, but not including any
bonuses paid to the Officer by the Bank in the 12 months next preceding the
Notice of Termination. Except as provided in this
2
Paragraph 3(a)(1), upon the termination herein described, the compensation and
benefits of the Officer will cease as of the Date of Termination as defined in
Paragraph 3(d).
(2) Termination of employment "for good cause" means a dismissal
of the Officer because of (i) the material failure of the Officer, after written
notice, for reasons other than disability, to render services to the Employer as
provided herein, (ii) the Officer's gross or willful neglect of duty, or (iii)
illegal or intentional acts by the Officer demonstrating bad faith toward the
Employer. If the Employer shall terminate the Officer's employment for good
cause, the Officer shall be entitled only to receive his basic salary in respect
of services performed through the Date of Termination.
(b) Termination by the Officer. The Officer shall be entitled to
---------------------------
terminate his employment for good reason, in which event the Employer shall be
obligated to pay the Officer and furnish him the benefits provided in Section 4
hereof. By way of illustration and not limitation, the following circumstances
shall constitute "good reason" and shall be deemed to be a breach of this
Agreement by the Employer:
(i) the Officer is assigned any duties or responsibilities that
are inconsistent with his positions, duties, responsibilities and status with
the Employer in effect at the date of this Agreement; or
(ii) a change in control occurs with respect to the Bank.
For purposes of this Agreement, the term "a change in control" shall
mean (a) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934) who is, or who has entered into a definite
agreement with the Bank to become, the beneficial owner, directly or indirectly,
of securities of the Bank representing more than 50% of the combined voting
power of the then outstanding securities of the Bank; or (b) a change in the
composition of a majority of the Board of Directors of the Bank within twelve
months after any person (as defined above) is or becomes the beneficial owner,
directly or indirectly, of securities of the Bank representing 25% of the
combined voting power of the then outstanding securities of the Bank. The right
herein conferred upon the Officer to terminate his employment for good reason
may be exercised by the Officer at any time during the terms of this Agreement
at his sole discretion, and any failure by the Officer to exercise this right
after he has "good reason" to do so shall not be deemed a waiver of the right.
In the event the Officer terminates his employment without "good reason"
then he shall be entitled to no termination allowance and no severance allowance
and no further compensation after the "Date of Termination" as defined in part
(d) of this Paragraph 3.
(c) Notice of Termination. Any termination of the Officer's
----------------------
employment by the Employer or by the Officer shall be communicated by a written
Notice of Termination to the other
3
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination.
(d) Date of Termination. "Date of Termination" shall mean (i) if the
--------------------
Agreement is terminated by the Officer , the date on which the Notice of
Termination is delivered, (ii) if the Agreement is terminated by the Employer
because of the Officer's disability, thirty days after the Notice of Termination
is given, or (iii) if the Officer's employment is terminated by the Employer for
any other reason, the date on which a Notice of Termination is given, unless
within thirty days thereafter the Officer notifies the Employer that a dispute
exists concerning the termination, in which case the Date of Termination shall
be the date on which the dispute is finally determined, whether by mutual
written agreement of the parties or by a final judgement, order or decree of a
court of competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been perfected).
4. Compensation Upon Termination. Except as provided in Paragraph 3(a)(1)
------------------------------
above, if, without good cause, the Employer terminates the services of the
Officer prior to the expiration of this Agreement or if the Officer terminates
his employment for good reason, then:
(a) Accrued But Unpaid Compensation. The Employer shall pay the
--------------------------------
Officer's full base salary through the Date of Actual Termination at the rate
then in effect and the amount, if any, of awards theretofore made which have not
yet been paid.
(b) Severance Allowance. The Employer shall pay the Officer a
--------------------
severance allowance in 60 equal monthly payments commencing on the last day of
the month in which the date of actual termination occurs, the total amount of
which will equal and will not exceed the present value of three times the base
amount minus $1.00 plus the present value of any other payments in the nature of
compensation within the meaning of Section 280G(b)(2)(A)(ii) of the Internal
Revenue Code of 1954, as amended (Code).
For purposes of this Paragraph 4(b), the following definitions shall apply:
(i) Base Amount - The term "base amount" means the Officer's average
annualized includible compensation for the base period.
(ii) Annualized Includible Compensation for the Base Period - The term
"annualized includible compensation for the base period" means the average
annual compensation paid by the Bank, which was includible in the gross income
of the officer for federal income tax purposes for taxable years in the base
period.
(iii) Base Period - The term "base period" means the period consisting of
the most recent five taxable years ending before the date on which termination
occurs, except for
4
termination as a result of the operation of Paragraph 3(b)(ii) above in which
case the date of termination shall be deemed to be the date a change in control
occurs with respect to the Bank.
(iv) Present Value - Present value shall be determined in accordance with
Section 1274(b)(2) of the Code.
(c) Employee Benefits. The Employer shall maintain in full force and
------------------
effect, for the Officer's continued benefit until the earlier of the third
anniversary of the Date of Termination or the date the Officer becomes a
participant in similar plans, programs or arrangements provided by a subsequent
employer, all life, accident, medical and dental insurance benefit plans and
programs or arrangements in which the Officer was entitled to participate
immediately prior to the Date of Termination, provided that the Officer's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that the Officer's participation in any
such plan or program is barred, the Employer shall arrange to provide the
Officer with benefits substantially similar to those which the Officer is
entitled to receive under such plans and programs. At the end of the period of
coverage, the Officer shall have the option to have assigned to him at no cost
and with no apportionment of prepaid premiums, any assignable insurance policy
owned by the Employer, or any one of them, and relating specifically to the
Officer.
(d) No Duty to Mitigate. The Officer shall not be required to
--------------------
mitigate the amount of any payment provided for in this Section 4 by seeking
other employment or otherwise, nor shall the amount of any payment provided for
in this Section 4 be reduced by any compensation earned by the Officer as the
result of employment by another employer after the Date of Termination, or
otherwise.
5. MISCELLANEOUS:
--------------
(a) Waiver. A waiver by any party of any of the terms and conditions
-------
of this Agreement in any instance shall not be deemed or construed to be a
waiver of such terms and conditions for the future, or of any subsequent breach
thereof.
(b) Severability. If any provision of this Agreement, as applied to
-------------
any circumstances, shall be adjudged by a court to be void and unenforceable,
the same shall in no way affect any other provision of this Agreement or the
applicability of such provision to any other circumstances.
(c) Amendment. This Agreement may not be varied, altered, modified,
----------
changed, or in any way amended except by an instrument in writing, executed by
the parties hereto or their legal representatives.
(d) Nonassignability. Neither the Officer nor his estate shall have
-----------------
any right to commute, sell, assign, transfer or otherwise convey the right to
receive any payments
5
hereunder, which payments and the right thereto are expressly declared to be
nonassignable and nontransferable.
(e) Binding Effect. This Agreement shall be binding upon and inure to
---------------
the benefit of the Officer (and his personal representative), the Bank and any
successor organization or organizations which shall succeed to substantially all
of the business and property of the Bank, whether by means of merger,
consolidation, acquisition of all or substantially all of the assets of the Bank
or otherwise, including by operation of law.
(f) Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the Laws of the Commonwealth of Virginia, whether statutory
or decisional, applicable to agreements made and entirely to be performed within
such state and such provisions of federal law as may be applicable.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
The Bank of Hampton Roads, Inc.
/s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx, Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, Officer
6
