Exhibit 10.21
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT ("Second Amendment") is
made and entered into this 31st day of December, 2002, by and between BANK OF
HAMPTON ROADS, INC., a banking corporation organized under the laws of the
Commonwealth of Virginia (the "Bank") and XXXXX X. XXXXXXXX, (the "Executive").
R E C I T A L S:
1. The Bank and the Executive entered into an Employment Agreement
(the"Agreement") dated December 31, 2002.
2. The Agreement was amended by the First Amendment to Employment
Agreement dated December 31, 2002.
3. The Bank and the Executive wish to further amend the Agreement.
4. The Bank and the Executive agree that this Second Amendment to
Employment Agreement shall apply to termination for any reason, except where
termination is effective prior to the time "a change in control" (as defined in
Paragraph 3, part (b) of the Employment Agreement) occurs, or prior to the time
the Employer enters into negotiations which result in such change of control, or
where termination is due to or the result of a change in control.
NOW, THEREFORE, in consideration of the Executive's continued employment
with the Bank and in recognition of the fact that as an employee of the Bank,
the Executive has access to the Bank's customers and to confidential and
valuable business and proprietary information of the Bank, it is further agreed
as follows:
1. RETURN OF BANK'S PROPERTY
When the Executive's employment with the Bank ends, the
Executive agrees to immediately deliver to the Bank all documents, including,
but not limited to, address and telephone records of customers, listings of
customer names and/or account numbers, and any other items or records in the
Executive's possession, or subsequently coming into the Executive's possession
pertaining to the business of the Bank, including without limitation,
confidential and proprietary information which the Executive would not possess
but for his employment relationship with the Bank.
2. PROHIBITION OF COMPETITIVE ACTIVITIES
a. During the Executive's employment with the Bank and for a
period of two (2) years following the Executive's termination, the Executive
agrees that he/she will not, either directly or indirectly, on his/her own
behalf, or on behalf of any other person or entity, or in any capacity call
upon, solicit, divert, take away, or attempt to solicit, divert, or take away
the business or patronage of any client or customer of the Bank.
b. During the Executive's employment with the Bank and following
termination of employment with the Bank, the Executive will preserve the
confidentiality of, and will not reveal for any reason, or use to the detriment
of the Bank, trade secrets, or other confidential, business, or proprietary
information which the Executive has received in the course of the Executive's
employment with the Bank.
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c. During the period of the Executive's employment and for a
period of two (2) years after employment ends, the Executive agrees that he/she
will not either directly or indirectly, on his/her own behalf or on behalf of
any person or entity, in any capacity, recruit or hire or assist others in
recruiting or hiring any person who is, or was during the period of the
Executive's employment with the Bank, an employee or consultant with the Bank.
3. NOTICE OF SUBSEQUENT EMPLOYMENT
For a period of two (2) years after the Executive's employment
with the Bank ends, the Executive agrees to notify the Bank of the name and
address of the Executive's employer and the Executive hereby authorizes the Bank
to contact any such employer during that period for the limited purpose of
making the employer aware of this Second Amendment to Employment Agreement and
protection against any disclosure of confidential and proprietary information,
or unfair competition.
4. REMEDIES
The Executive acknowledges that if he/she breaches or threatens
to breach this Second Amendment to Employment Agreement, in addition to any and
all other rights and remedies it may have, the Bank shall be entitled to
injunctive relief, both pendente lite and permanent, against the Executive, as
the Executive recognizes that a remedy at law would be inadequate and
insufficient. The Bank shall be entitled to recover from the Executive all costs
and expenses, including but not limited to reasonable attorney's fees and court
costs, incurred by the Bank as a result of or arising out of any breach of
threatened breach under or pursuant to this Second Amendment to Employment
Agreement in addition to such other rights and remedies as the Bank may have
under this Second Amendment to Employment Agreement or any other agreement, at
law or in equity.
Except as modified by this Second Amendment to Employment
Agreement, the Employment Agreement as previously modified by the Amendment to
Employment Agreement, is ratified and affirmed.
WITNESS the following signatures and seals as of the day and
year first above written.
BANK OF HAMPTON ROADS, INC.
By: /s/ Xxxx X. Xxxxx (SEAL)
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Xxxx X. Xxxxx, Chairman of the Board
/s/ Xxxxx X. Xxxxxxxx (SEAL)
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Xxxxx X. Xxxxxxxx, Executive
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