exv4w5






Exhibit 4.5



THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT OR SUCH LAWS.




WARRANT

to purchase

3,923,426

Shares of Common Stock




of Hampton Roads Bankshares, Inc.



Issue Date: September 30, 2010



     1. Definitions. Unless the context otherwise requires, when used herein the following
terms shall have the meanings indicated.



     “Affiliate” means, with respect to any person, any person directly or indirectly controlling,
controlled by or under common control with, such other person. For purposes of this definition,
“control” (including, with correlative meanings, the terms “controlled by” and “under common
control with”) when used with respect to any person, means the possession, directly or indirectly,
of the power to cause the direction of management and/or policies of such person, whether through
the ownership of voting securities by contract or otherwise.



     “Appraisal Procedure” means a procedure whereby two independent appraisers, one chosen by the
Company and one by the Warrantholder, shall mutually agree upon the determinations then the subject
of appraisal. Each party shall deliver a notice to the other appointing its appraiser within 15
days after the Appraisal Procedure is invoked. If within 30 days after appointment of the two
appraisers they are unable to agree upon the amount in question, a third independent appraiser
shall be chosen within 10 days thereafter by the mutual consent of such first two appraisers. The
decision of the third appraiser so appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be appointed and the determination of
one appraiser is disparate from the middle determination by more than twice the amount by which the
other determination is disparate from the middle determination, then the determination of such
appraiser shall be excluded, the remaining two determinations shall be averaged and such average
shall be binding and conclusive upon the Company and the Warrantholder; otherwise, the average of
all three determinations shall be binding upon the Company and the Warrantholder. The costs of
conducting any Appraisal Procedure shall be borne by the Company.



     “Board of Directors” means the board of directors of the Company, including any duly
authorized committee thereof.



 









 





     “Business Combination” means a merger, consolidation, statutory share exchange or similar
transaction that requires the approval of the Company’s stockholders.



     “business day” means any day except Saturday, Sunday and any day on which banking institutions
in the State of New York generally are authorized or required by law or other governmental actions
to close.



     “CapGen Investor Letter” means the letter agreement dated August 11, 2010 between the Company
and CapGen Capital Group VI LP.



     “Capital Stock” means (A) with respect to any Person that is a corporation or company, any and
all shares, interests, participations or other equivalents (however designated) of capital or
capital stock of such Person and (B) with respect to any Person that is not a corporation or
company, any and all partnership or other equity interests of such Person.



     “Charter” means, with respect to any Person, its certificate or articles of incorporation,
articles of association, or similar organizational document.



     “Common Stock” means the common stock, par value $0.01 per share, of the Company.



     “Common Stock Issuance” has the meaning set forth in Section 13(B).



     “Company” means the Person whose name, corporate or other organizational form and jurisdiction
of organization is set forth in Item 1 of Schedule A hereto.



     “convertible securities” has the meaning set forth in Section 13(B).



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.



     “Exercise Price” means the amount set forth in Item 2 of Schedule A hereto.



     “Expiration Time” has the meaning set forth in Section 3.



     “Fair Market Value” means, with respect to any security or other property, the fair market
value of such security or other property as determined by the Board of Directors, acting in good
faith or, with respect to Section 14, as determined by the Warrantholder acting in good faith. For
so long as the Warrantholder holds this Warrant or any portion thereof, it may object in writing to
the Board of Directors’ calculation of fair market value within 10 days of receipt of written
notice thereof. If the Warrantholder and the Company are unable to agree on fair market value
during the 10-day period following the delivery of the Warrantholder’s objection, the Appraisal
Procedure may be invoked by either party to determine Fair Market Value by delivering written
notification thereof not later than the 30th day after delivery of the Warrantholder’s objection.



     “Initial Number” has the meaning set forth in Section 13(B)(1).



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     “Investment Agreements” means (i) that certain Second Amended and Restated Investment
Agreement dated August 11, 2010, by and between the Company, Carlyle Global Financial Services
Partners, L.P. and ACMO-HR, L.L.C., and (ii) that certain Amended and Restated Investment Agreement
dated August 11, 2010, by and between the Company and CapGen Capital Group VI LP, (capitalized
terms used in this Warrant and not otherwise defined herein shall have the meaning ascribed thereto
in the Investment Agreements).



     “Issue Date” means the date set forth in Item 3 of Schedule A hereto.



     “Market Price” means, with respect to the Common Stock, on any given date, the average VWAP
for the 5 consecutive trading day-period ending on the Trading Day immediately preceding such given
date. “Market Price” shall be determined without reference to after hours or extended hours
trading. If the Common Stock is not listed and traded in a manner that the quotations referred to
above are available for the period required hereunder, the Market Price per share of Common Stock
shall be deemed to be (i) in the event that any portion of the Warrant is held by the
Warrantholder, the fair market value per share of the Common Stock as determined in good faith by
the Warrantholder or (ii) in all other circumstances, the fair market value per share of the Common
Stock as determined in good faith by the Board of Directors in reliance on an opinion of a
nationally recognized independent investment banking corporation retained by the Company for this
purpose and certified in a resolution to the Warrantholder. For the purposes of determining the
Market Price of the Common Stock on the “trading day” preceding, on or following the occurrence of
an event, (i) that trading day shall be deemed to commence immediately after the regular scheduled
closing time of trading on the New York Stock Exchange or, if trading is closed at an earlier time,
such earlier time and (ii) that trading day shall end at the next regular scheduled closing time,
or if trading is closed at an earlier time, such earlier time (for the avoidance of doubt, and as
an example, if the Market Price is to be determined as of the last trading day preceding a
specified event and the closing time of trading on a particular day is 4:00 p.m. and the specified
event occurs at 5:00 p.m. on that day, the Market Price would be determined by reference to such
4:00 p.m. closing time).



     “Ordinary Cash Dividends” means a regular quarterly cash dividend on shares of Common Stock
out of surplus or net profits legally available therefor (determined in accordance with generally
accepted accounting principles in effect from time to time), provided that Ordinary Cash Dividends
shall not include any cash dividends paid subsequent to the Issue Date to the extent the aggregate
per share dividends paid on the outstanding Common Stock in any quarter exceed the amount set forth
in Item 4 of Schedule A hereto, as adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.



     “Permitted Transactions” has the meaning set forth in Section 13(B).



     “Person” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act.



     “Per Share Fair Market Value” has the meaning set forth in Section 13(C).



     “Pro Rata Repurchases” means any purchase of shares of Common Stock by the Company or any
Affiliate thereof pursuant to (A) any tender offer or exchange offer subject to



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Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (B) any
other offer available to substantially all holders of Common Stock, in the case of both (A) or (B),
whether for cash, shares of Capital Stock of the Company, other securities of the Company,
evidences of indebtedness of the Company or any other Person or any other property (including,
without limitation, shares of Capital Stock, other securities or evidences of indebtedness of a
subsidiary), or any combination thereof, effected while this Warrant is outstanding. The
“Effective Date” of a Pro Rata Repurchase shall mean the date of acceptance of shares of Common
Stock for purchase or exchange by the Company under any tender or exchange offer which is a Pro
Rata Repurchase or the date of purchase with respect to any Pro Rata Repurchase that is not a
tender or exchange offer.




     “Regulatory Approvals” with respect to the Warrantholder, means, to the extent applicable and
required to permit the Warrantholder to exercise this Warrant for shares of Common Stock and to own
such Common Stock without the Warrantholder being in violation of any applicable law, rule or
regulation, including, without limitation, the Bank Holding Company Act of 1956, as amended, and
the Change in Bank Control Act of 1978, as amended, and the receipt of any necessary approvals and
authorizations of, filings and registrations with, notifications to, or expiration or termination
of any applicable waiting period under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and any other applicable laws and the rules and regulations thereunder.



     “Sale Event” means any of the following:



     (i) any consolidation or merger of the Company with or into another Person;



     (ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of
the property and assets of the Company;



     (iii) the acquisition by any Person (other than CapGen) of “control” of the Company or any of
its subsidiaries for purposes of the Bank Holding Company Act of 1956, as amended, or the Code of
Virginia;



     (iv) the acquisition by any Person (including CapGen or any of its Affiliates) of beneficial
or record ownership, directly or indirectly, of (A) more than 50% of the outstanding shares of
Common Stock or (B) shares representing more than 50% of the ordinary voting power represented by
outstanding voting securities of the Company;



     (v) any reclassification or statutory or other exchange of outstanding shares of the Common
Stock into or for securities (including common stock of any other Person) other than Common Stock;



     (vi) the approval by the holders of the Company’s Capital Stock of any plan or proposal for
the liquidation or dissolution of the Company; or



     (vii) the replacement of a majority of the Board of Directors over a two-year period from the
directors who constituted the Board of Directors immediately following the completion of the
changes specified in Section 3.5 (Governance Matters) of the Investment Agreement, and such
replacement shall not (A) have been approved by a vote of at least a majority of the Board



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of Directors who either were members of the Board of Directors at the beginning of such period
or whose election as directors was previously so approved, or (B) are not replacing a prior
designee of Carlyle Global Financial Service Partners, L.P., ACMO-HR, L.L.C. or CapGen as the new
designee of such respective Investors.




     “SEC” means the U.S. Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.



     “Shares” has the meaning set forth in Section 2.



     “trading day” means (A) if the shares of Common Stock are not traded on any national or
regional securities exchange or association or over-the-counter market, a business day or (B) if
the shares of Common Stock are traded on any national or regional securities exchange or
association or over-the-counter market, a business day on which such relevant exchange or quotation
system is scheduled to be open for business and on which the shares of Common Stock (i) are not
suspended from trading on any national or regional securities exchange or association or
over-the-counter market for any period or periods aggregating one half hour or longer; and (ii)
have traded at least once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the shares of Common Stock.



     “U.S. GAAP” means United States generally accepted accounting principles.



     “VWAP” means the volume-weighted average trading price of a share of Common Stock as reported
by Bloomberg LP.



     “Warrant” means this Warrant, issued pursuant to the Investment Agreement, to purchase shares
of Common Stock.



     “Warrantholder” has the meaning set forth in Section 2.



     “Written Agreement” means the Written Agreement by the Company with the Federal Reserve and
the BFI as of June 9, 2010.



     2. Number of Shares; Exercise Price. This certifies that, for value received, CapGen
Capital Group VI LP and its successors and assigns (the “Warrantholder”) is entitled, upon the
terms and subject to the conditions hereinafter set forth, to acquire from the Company, in whole or
in part, after the receipt of all applicable Regulatory Approvals, if any, up to an aggregate of
the number of fully paid and nonassessable shares of Common Stock set forth in Item 5 of
Schedule A hereto, at a purchase price per share of Common Stock equal to the Exercise
Price. The number of shares of Common Stock (the “Shares”) and the Exercise Price are subject to
adjustment as provided herein, and all references to “Common Stock,” “Shares” and “Exercise Price”
herein shall be deemed to include any such adjustment or series of adjustments.



     3. Exercise of Warrant; Term.



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     (A) Subject to Section 2, to the extent permitted by applicable laws and regulations, the
right to purchase the Shares represented by this Warrant is exercisable, in whole or in part by the
Warrantholder, at any time or from time to time after the earlier of (1) the written stay,
modification, termination or suspension by the Board of Governors of the Federal Reserve System or
the Federal Reserve Bank of Richmond (the “Federal Reserve”) or its delegee and the Virginia Bureau
of Financial Institutions (the “BFI”) of the Written Agreement (a “Written Agreement Event”) and
(ii) the occurrence of a Sale Event, but in no event later than 5:00 p.m., New York City time on
September 30, 2020 (the “Expiration Time”), by (A) the surrender of this Warrant and Notice of
Exercise, in substantially the form set forth in Annex A attached hereto, duly completed
and executed on behalf of the Warrantholder, at the principal executive office of the Company
located at the address set forth in Item 6 of Schedule A hereto (or such other office or
agency of the Company in the United States as it may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the books of the Company), and (B)
payment of the Exercise Price for the Shares thereby purchased:




     (i) by having the Company withhold, from the shares of Common Stock that would
otherwise be delivered to the Warrantholder upon such exercise, shares of Common Stock
issuable upon exercise of the Warrant equal in value to the aggregate Exercise Price as to
which this Warrant is so exercised based on the Market Price of the Common Stock on the
trading day on which this Warrant is exercised and the Notice of Exercise is delivered to
the Company pursuant to this Section 3, or




     (ii) with the consent of both the Company and the Warrantholder, by tendering in cash,
by certified or cashier’s check payable to the order of the Company, or by wire transfer of
immediately available funds to an account designated by the Company.



     (B) The Company shall provide prompt notice to the Warrantholder, in the manner set forth in
Section 13(I), (1) within 1 business day after the receipt of notice of the occurrence of a Written
Agreement Event and (2) within 10 business days prior to the anticipated closing of a Sale Event.



     (C) If the Warrantholder does not exercise this Warrant in its entirety, the Warrantholder
will be entitled to receive from the Company within a reasonable time, and in any event not
exceeding three business days, a new warrant in substantially identical form for the purchase of
that number of Shares equal to the difference between the number of Shares subject to this Warrant
and the number of Shares as to which this Warrant is so exercised. Notwithstanding anything in
this Warrant to the contrary, the Warrantholder hereby acknowledges and agrees that its exercise of
this Warrant for Shares is subject to the condition that the Warrantholder will have first received
any applicable Regulatory Approvals.



     4. Issuance of Shares; Authorization; Listing. Certificates for Shares issued upon
exercise of this Warrant will be issued in such name or names as the Warrantholder may designate
and will be delivered to such named Person or Persons within a reasonable time, not to exceed three
business days after the date on which this Warrant has been duly exercised in accordance with the
terms of this Warrant. The Company hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of



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Section 3 will be duly and validly authorized and issued, fully paid and nonassessable and free from
all taxes, liens and charges (other than liens or charges created by the Warrantholder, income and
franchise taxes incurred in connection with the exercise of the Warrant or taxes in respect of any
transfer occurring contemporaneously therewith). The Company agrees that the Shares so issued will
be deemed to have been issued to the Warrantholder as of the close of business on the date on which
this Warrant and payment of the Exercise Price are delivered to the Company in accordance with the
terms of this Warrant, notwithstanding that the stock transfer books of the Company may then be
closed or certificates representing such Shares may not be actually delivered on such date. The
Company will at all times reserve and keep available, out of its authorized but unissued Common
Stock, solely for the purpose of providing for the exercise of this Warrant, the aggregate number
of shares of Common Stock then issuable upon exercise of this Warrant at any time. The Company
will (A) procure, at its sole expense, the listing of the Shares issuable upon exercise of this
Warrant at any time, subject to issuance or notice of issuance, on all principal stock exchanges on
which the Common Stock is then listed or traded and (B) maintain such listings of such Shares at
all times after issuance. The Company will use reasonable best efforts to ensure that the Shares
may be issued without violation of any applicable law or regulation or of any requirement of any
securities exchange on which the Shares are listed or traded.




     5. No Fractional Shares or Scrip. No fractional Shares or scrip representing
fractional Shares shall be issued upon any exercise of this Warrant. In lieu of any fractional
Share to which the Warrantholder would otherwise be entitled, the Warrantholder shall be entitled
to receive a cash payment equal to the Market Price of the Common Stock on the last trading day
preceding the date of exercise less the pro-rated Exercise Price for such fractional share.



     6. No Rights as Stockholders; Transfer Books. This Warrant does not entitle the
Warrantholder to any voting rights or other rights as a stockholder of the Company prior to the
date of exercise hereof. The Company will at no time close its transfer books against transfer of
this Warrant in any manner which interferes with the timely exercise of this Warrant.



     7. Charges, Taxes and Expenses. Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made without charge to the Warrantholder
for any issue or transfer tax or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company.



     8. Transfer/Assignment.



     (A) Subject to compliance with clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable and assignable, in whole or in part, upon the books of the Company by
the registered holder hereof in person or by duly authorized attorney, and a new warrant shall be
made and delivered by the Company, of the same tenor and date as this Warrant but registered in the
name of one or more transferees, upon surrender of this Warrant, duly endorsed, to the office or
agency of the Company described in Section 3. All expenses (other than stock transfer taxes) and
other charges payable in connection with the preparation, execution and delivery of the new
warrants pursuant to this Section 8 shall be paid by the Company.



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(B) The Warrantholder agrees that all certificates or other instruments representing the
Warrant and the Shares will bear a legend substantially to the following effect:



     “THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT OR SUCH LAWS.”



     9. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender
hereof by the Warrantholder to the Company, for a new warrant or warrants of like tenor and
representing the right to purchase the same aggregate number of Shares. The Company shall maintain
a registry showing the name and address of the Warrantholder as the registered holder of this
Warrant. This Warrant may be surrendered for exchange or exercise in accordance with its terms, at
the office of the Company, and the Company shall be entitled to rely in all respects, prior to
written notice to the contrary, upon such registry.



     10. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and in the case of any such loss, theft or destruction, upon receipt of a bond, indemnity
or security reasonably satisfactory to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company shall make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same aggregate number of Shares as provided for in such lost, stolen,
destroyed or mutilated Warrant.



     11. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not be a business day,
then such action may be taken or such right may be exercised on the next succeeding day that is a
business day.



     12. Rule 144 Information. The Company covenants that it will use its reasonable best
efforts to timely file all reports and other documents required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the request of any
Warrantholder, make publicly available such information as necessary to permit sales pursuant to
Rule 144 under the Securities Act), and it will use reasonable best efforts to take such further
action as any Warrantholder may reasonably request, in each case to the extent required from time
to time to enable such holder to, if permitted by the terms of this Warrant, sell this Warrant
without registration under the Securities Act within the limitation of the exemptions provided by
(A) Rule 144 under the Securities Act, as such rule may be amended from time to time, or (B) any
successor rule or regulation hereafter adopted by the SEC. Upon the written request of any
Warrantholder, the Company will deliver to such Warrantholder a written statement that it has
complied with such requirements.



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     13. Adjustments and Other Rights. The Exercise Price and the number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment from time to time as follows;
provided, that if more than one subsection of this Section 13 is applicable to a single event, the
subsection shall be applied that produces the largest adjustment and no single event shall cause an
adjustment under more than one subsection of this Section 13 so as to result in duplication:



     (A) Stock Splits, Subdivisions, Reclassifications or Combinations. If the Company
shall (i) declare and pay a dividend or make a distribution on its Common Stock in shares of Common
Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock into a greater number of
shares, or (iii) combine or reclassify the outstanding shares of Common Stock into a smaller number
of shares, the number of Shares issuable upon exercise of this Warrant at the time of the record
date for such dividend or distribution or the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the Warrantholder after such date shall
be entitled to purchase the number of shares of Common Stock which such holder would have owned or
been entitled to receive in respect of the shares of Common Stock subject to this Warrant after
such date had this Warrant been exercised immediately prior to such date. In such event, the
Exercise Price in effect at the time of the record date for such dividend or distribution or the
effective date of such subdivision, combination or reclassification shall be adjusted to the number
obtained by dividing (x) the product of (1) the number of Shares issuable upon the exercise of this
Warrant before such adjustment and (2) the Exercise Price in effect immediately prior to the record
or effective date, as the case may be, for the dividend, distribution, subdivision, combination or
reclassification giving rise to this adjustment by (y) the new number of Shares issuable upon
exercise of the Warrant determined pursuant to the immediately preceding sentence.



     (B) Certain Issuances of Common Shares or Convertible Securities. If the Company
shall issue shares of Common Stock (or rights or warrants or other securities exercisable or
convertible into or exchangeable for shares of Common Stock) (collectively, “convertible
securities”, and, such transaction, a “Common Stock Issuance”), other than in Permitted
Transactions (as defined below) or a transaction to which subsection (A) of this Section 13 is
applicable, without consideration or at a consideration per share of Common Stock (or having a
conversion price per share of Common Stock) that is less than the then applicable Exercise Price,
then:




     (1) the Exercise Price shall be adjusted to equal the consideration per share of Common
Stock received by the Company in connection with the Common Stock Issuance; and




     (2) the number of Shares issuable upon the exercise of this Warrant immediately prior
to the Common Stock Issuance (the “Initial Number”) shall be increased to the number
obtained by multiplying the Initial Number by a fraction (A) the numerator of which shall be
the Exercise Price in effect immediately prior to the Common Stock Issuance and (B) the
denominator of which shall be the consideration per share of Common Stock received by the
Company in connection with the Common Stock Issuance.



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     For purposes of the foregoing, the aggregate consideration receivable by the Company in
connection with a Common Stock Issuance shall be deemed to be equal to the sum of the net offering
price (including the Fair Market Value of any non-cash consideration and before deduction of any
related expenses payable to third parties) of all such securities plus the minimum aggregate
amount, if any, payable upon exercise or conversion of any such convertible securities into shares
of Common Stock; and “Permitted Transactions” shall mean issuances (i) as consideration for or to
fund the acquisition of businesses and/or related assets at Fair Market Value, (ii) in connection
with employee benefit plans and compensation related arrangements in the ordinary course and
consistent with past practice approved by the Board of Directors, (iii) in connection with a public
or broadly marketed offering and sale of Common Stock or convertible securities for cash conducted
by the Company or its affiliates pursuant to registration under the Securities Act or Rule 144A
thereunder on a basis consistent with capital raising transactions by comparable financial
institutions and (iv) in connection with the exercise of preemptive rights on terms existing as of
the Issue Date. Any adjustment made pursuant to this Section 13(B) shall become effective
immediately upon the date of such issuance.



     (C) Other Distributions. In case the Company shall fix a record date for the making
of a distribution to all holders of shares of its Common Stock of securities, evidences of
indebtedness, assets, cash, rights or warrants (excluding Ordinary Cash Dividends, dividends of its
Common Stock and other dividends or distributions referred to in Section 13(A)), in each such case,
the Exercise Price in effect prior to such record date shall be reduced immediately thereafter to
the price determined by multiplying the Exercise Price in effect immediately prior to the reduction
by the quotient of (x) the Market Price of the Common Stock on the last trading day preceding the
first date on which the Common Stock trades regular way on the principal national securities
exchange on which the Common Stock is listed or admitted to trading without the right to receive
such distribution, minus the amount of cash and/or the Fair Market Value of the securities,
evidences of indebtedness, assets, rights or warrants to be so distributed in respect of one share
of Common Stock (such amount and/or Fair Market Value, the “Per Share Fair Market Value”) divided
by (y) such Market Price on such date specified in clause (x); such adjustment shall be made
successively whenever such a record date is fixed. In such event, the number of Shares issuable
upon the exercise of this Warrant shall be increased to the number obtained by dividing (x) the
product of (1) the number of Shares issuable upon the exercise of this Warrant before such
adjustment, and (2) the Exercise Price in effect immediately prior to the distribution giving rise
to this adjustment by (y) the new Exercise Price determined in accordance with the immediately
preceding sentence. In the case of adjustment for a cash dividend that is, or is coincident with,
a regular quarterly cash dividend, the Per Share Fair Market Value would be reduced by the per
share amount of the portion of the cash dividend that would constitute an Ordinary Cash Dividend.
In the event that such distribution is not so made, the Exercise Price and the number of Shares
issuable upon exercise of this Warrant then in effect shall be readjusted, effective as of the date
when the Board of Directors determines not to distribute such shares, evidences of indebtedness,
assets, rights, cash or warrants, as the case may be, to the Exercise Price that would then be in
effect and the number of Shares that would then be issuable upon exercise of this Warrant if such
record date had not been fixed.



     (D) Certain Repurchases of Common Stock. In case the Company effects a Pro Rata
Repurchase of Common Stock, then the Exercise Price shall be reduced to the price determined by
multiplying the Exercise Price in effect immediately prior to the Effective Date of such Pro



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Rata Repurchase by a fraction of which the numerator shall be (i) the product of (x) the
number of shares of Common Stock outstanding immediately before such Pro Rata Repurchase and (y)
the Market Price of a share of Common Stock on the trading day immediately preceding the first
public announcement by the Company or any of its Affiliates of the intent to effect such Pro Rata
Repurchase, minus (ii) the aggregate purchase price of the Pro Rata Repurchase, and of which the
denominator shall be the product of (a) the number of shares of Common Stock outstanding
immediately prior to such Pro Rata Repurchase minus the number of shares of Common Stock so
repurchased and (b) the Market Price per share of Common Stock on the trading day immediately
preceding the first public announcement by the Company or any of its Affiliates of the intent to
effect such Pro Rata Repurchase. In such event, the number of shares of Common Stock issuable upon
the exercise of this Warrant shall be increased to the number obtained by dividing (x) the product
of (1) the number of Shares issuable upon the exercise of this Warrant before such adjustment, and
(2) the Exercise Price in effect immediately prior to the Pro Rata Repurchase giving rise to this
adjustment by (y) the new Exercise Price determined in accordance with the immediately preceding
sentence. For the avoidance of doubt, no increase to the Exercise Price or decrease in the number
of Shares issuable upon exercise of this Warrant shall be made pursuant to this Section 13(D).




     (E) Business Combinations. In case of any Business Combination or reclassification of
Common Stock (other than a reclassification of Common Stock referred to in Section 13(A)), the
Warrantholder’s right to receive Shares upon exercise of this Warrant shall be converted into the
right to exercise this Warrant to acquire the number of shares of stock or other securities or
property (including cash) which the Common Stock issuable (at the time of such Business Combination
or reclassification) upon exercise of this Warrant immediately prior to such Business Combination
or reclassification would have been entitled to receive upon consummation of such Business
Combination or reclassification; and in any such case, if necessary, the provisions set forth
herein with respect to the rights and interests thereafter of the Warrantholder shall be
appropriately adjusted so as to be applicable, as nearly as may reasonably be, to the
Warrantholder’s right to exercise this Warrant in exchange for any shares of stock or other
securities or property pursuant to this paragraph. In determining the kind and amount of stock,
securities or the property receivable upon exercise of this Warrant following the consummation of
such Business Combination, if the holders of Common Stock have the right to elect the kind or
amount of consideration receivable upon consummation of such Business Combination, then the
consideration that the Warrantholder shall be entitled to receive upon exercise shall be deemed to
be the types and amounts of consideration received by the majority of all holders of the shares of
common stock that affirmatively make an election (or of all such holders if none make an election).



     (F) Rounding of Calculations; Minimum Adjustments. All calculations under this
Section 13 shall be made to the nearest one-tenth (1/10th) of a cent or to the nearest
one-hundredth (1/100th) of a share, as the case may be. Any provision of this Section 13 to the
contrary notwithstanding, no adjustment in the Exercise Price or the number of Shares into which
this Warrant is exercisable shall be made if the amount of such adjustment would be less than $0.01
or one-tenth (1/10th) of a share of Common Stock, but any such amount shall be carried forward and
an adjustment with respect thereto shall be made at the time of and together with any subsequent
adjustment which, together with such amount and any other amount or



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amounts so carried forward, shall aggregate $0.01 or 1/10th of a share of Common Stock, or
more.




     (G) Timing of Issuance of Additional Common Stock upon Certain Adjustments. In any
case in which the provisions of this Section 13 shall require that an adjustment shall become
effective immediately after a record date for an event, the Company may defer until the occurrence
of such event (i) issuing to the Warrantholder of this Warrant exercised after such record date and
before the occurrence of such event the additional shares of Common Stock issuable upon such
exercise by reason of the adjustment required by such event over and above the shares of Common
Stock issuable upon such exercise before giving effect to such adjustment and (ii) paying to such
Warrantholder any amount of cash in lieu of a fractional share of Common Stock; provided, however,
that the Company upon request shall deliver to such Warrantholder a due bill or other appropriate
instrument evidencing such Warrantholder’s right to receive such additional shares, and such cash,
upon the occurrence of the event requiring such adjustment.



     (H) Other Events. For so long as the Warrantholder holds this Warrant or any portion
thereof, if any event occurs as to which the provisions of this Section 13 are not strictly
applicable or, if strictly applicable, would not, in the good faith judgment of the Board of
Directors of the Company, fairly and adequately protect the purchase rights of the Warrants in
accordance with the essential intent and principles of such provisions, then the Board of Directors
shall make such adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good faith opinion of the
Board of Directors, to protect such purchase rights as aforesaid. The Exercise Price or the number
of Shares into which this Warrant is exercisable shall not be adjusted in the event of a change in
the par value of the Common Stock or a change in the jurisdiction of incorporation of the Company.



     (I) Statement Regarding Adjustments. Whenever the Exercise Price or the number of
Shares into which this Warrant is exercisable shall be adjusted as provided in Section 13, the
Company shall forthwith file at the principal office of the Company a statement showing in
reasonable detail the facts requiring such adjustment and the Exercise Price that shall be in
effect and the number of Shares into which this Warrant shall be exercisable after such adjustment,
and the Company shall also cause a copy of such statement to be sent by mail, first class postage
prepaid, to each Warrantholder at the address appearing in the Company’s records.



     (J) Notice of Adjustment Event. In the event that the Company shall propose to take
any action of the type described in this Section 13 (but only if the action of the type described
in this Section 13 would result in an adjustment in the Exercise Price or the number of Shares into
which this Warrant is exercisable or a change in the type of securities or property to be delivered
upon exercise of this Warrant), the Company shall give notice to the Warrantholder, in the manner
set forth in Section 13(I), which notice shall specify the record date, if any, with respect to any
such action and the approximate date on which such action is to take place. Such notice shall also
set forth the facts with respect thereto as shall be reasonably necessary to indicate the effect on
the Exercise Price and the number, kind or class of shares or other securities or property which
shall be deliverable upon exercise of this Warrant. In the case of any action which would require
the fixing of a record date, such notice shall be given at least 10 days prior to the date so



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fixed, and in case of all other action, such notice shall be given at least 15 days prior to
the taking of such proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.




     (K) Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent to
the taking of any action which would require an adjustment pursuant to this Section 13, the Company
shall take any action which may be necessary, including obtaining regulatory, New York Stock
Exchange, NASDAQ Stock Market or other applicable national securities exchange or stockholder
approvals or exemptions, in order that the Company may thereafter validly and legally issue as
fully paid and nonassessable all shares of Common Stock that the Warrantholder is entitled to
receive upon exercise of this Warrant pursuant to this Section 13.



     (L) Adjustment Rules. Any adjustments pursuant to this Section 13 shall be made
successively whenever an event referred to herein shall occur.



     (M) Other Transactions. Notwithstanding anything to the contrary herein, for the
avoidance of doubt, the Exercise Price and the number of Shares issuable upon exercise of this
Warrant shall not be subject to adjustment pursuant to this Section 13 as a result of the
consummation of the Investment, the Other Private Placements, the TARP Exchange, the Exchange
Offers and the Rights Offering (all as defined in the Investment Agreements), in each case, at a
stated price per share of Common Stock equal to the Purchase Price (as defined in the Investment
Agreements).



     14. Exchange. At any time following the date on which the shares of Common Stock of
the Company are no longer listed or admitted to trading on a national securities exchange (other
than in connection with any Business Combination), the Warrantholder may cause the Company to
exchange all or a portion of this Warrant for an economic interest or security (to be determined by
the Warrantholder after consultation with the Company) of the Company classified as permanent
equity under U.S. GAAP having a value equal to the Fair Market Value of the portion of the Warrant
so exchanged. The Warrantholder shall calculate any Fair Market Value required to be calculated
pursuant to this Section 14, which shall not be subject to the Appraisal Procedure.



     15. [Reserved.]



     16. No Impairment. The Company will not, by amendment of its Charter or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in taking of all such action
as may be necessary or appropriate in order to protect the rights of the Warrantholder.



     17. Governing Law, etc. This Warrant and any claim, controversy or dispute arising
under or related to this Agreement, the relationship of the parties, and/or the interpretation and
enforcement of the rights and duties of the parties shall be enforced, governed and construed in
all respects (whether in contract or in tort) in accordance with the federal law of the United
States if and to the extent such law is applicable, and otherwise in accordance with the laws of



-13-









 




the State of New York applicable to contracts made and to be performed entirely within such
State. Each of the Company and the Warrantholder agrees (a) to submit to the exclusive
jurisdiction and venue of the United States District Court for the District of Columbia for any
civil action, suit or proceeding arising out of or relating to this Warrant or the transactions
contemplated hereby, and (b) that notice may be served upon the Company at the address in Section
21 below and upon the Warrantholder at the address for the Warrantholder set forth in the registry
maintained by the Company pursuant to Section 9 hereof. To the extent permitted by applicable law,
each of the Company and the Warrantholder hereby unconditionally waives trial by jury in any civil
legal action or proceeding relating to the Warrant or the transactions contemplated hereby or
thereby.




     18. Binding Effect. This Warrant shall be binding upon any successors or assigns of
the Company.



     19. Amendments. This Warrant may be amended and the observance of any term of this
Warrant may be waived only with the written consent of the Company and the Warrantholder.



     20. Prohibited Actions. The Company agrees that it will not take any action which
would entitle the Warrantholder to an adjustment of the Exercise Price if the total number of
shares of Common Stock issuable after such action upon exercise of this Warrant, together with all
shares of Common Stock then outstanding and all shares of Common Stock then issuable upon the
exercise of all outstanding options, warrants, conversion and other rights, would exceed the total
number of shares of Common Stock then authorized by its Charter.



     21. Notices. Any notice, request, instruction or other document to be given hereunder
by any party to the other will be in writing and will be deemed to have been duly given (a) on the
date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on
the second business day following the date of dispatch if delivered by a recognized next day
courier service. All notices hereunder shall be delivered as set forth in Item 7 of Schedule
A hereto, or pursuant to such other instructions as may be designated in writing by the party
to receive such notice.



     22. Entire Agreement. This Warrant, the forms attached hereto and Schedule A
hereto (the terms of which are incorporated by reference herein), the Investment Agreements
(including all documents incorporated therein) and the CapGen Investment Letter, contain the entire
agreement between the parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or undertakings with respect thereto.



[Remainder of page intentionally left blank]




-14-









 





     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a duly
authorized officer.


Dated: September 30, 2010




	 	 	 	 	 
	 	COMPANY: Hampton Roads Bankshares, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Attest:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Warrant]







 









 








ANNEX A




Form of Notice of Exercise



Date: [_________]




			
	TO:	 	Hampton Roads Bankshares, Inc.






			
	RE:	 	Election to Purchase Common Stock






     The undersigned, pursuant to the provisions set forth in the attached Warrant, hereby agrees
to subscribe for and purchase the number of shares of the Common Stock set forth below covered by
such Warrant. The undersigned, in accordance with Section 3 of the Warrant, hereby agrees to pay
the aggregate Exercise Price for such shares of Common Stock in the manner set forth below. A new
warrant evidencing the remaining shares of Common Stock covered by such Warrant, but not yet
subscribed for and purchased, if any, should be issued in the name set forth below.


Number of Shares of Common Stock



Method of Payment of Exercise Price (note if cashless exercise pursuant to Section 3(i) of the
Warrant or cash exercise pursuant to Section 3(ii) of the Warrant, with consent of the Company and
the Warrantholder): ____________________________



Aggregate Exercise Price: ____________________________




	 	 	 	 	 	 	 

	 
	 	Holder:	 	 	 	 
	 
	 	By:	 	 	 	 
	 
	 	Name:	 	 	 	 
	 
	 	Title:	 	 	 	 











Annex A-1









 








SCHEDULE A




Item 1




Name: Hampton Roads Bankshares, Inc.

Corporate or other organizational form: Corporation

Jurisdiction of organization: Virginia




Item 2




Exercise Price: $0.40




Item 3




Issue Date: September 30, 2010




Item 4




Amount of last dividend declared prior to the Issue Date: $0



Item 5



Number of shares of Common Stock: 3,923,426; provided, however, that the number of shares shall be
deemed automatically increased by the number of shares, if any, by which 0.5% of the shares of the
Common Stock outstanding immediately after giving effect to the Second Closing (as defined in the
Second Amended and Restated Investment Agreement dated August 11, 2010, by and between the Company,
Carlyle Global Financial Services Partners, L.P. and ACMO-HR, L.L.C., as may be amended from time
to time) (and all other transactions occurring prior to or simultaneously therewith) exceeds the
foregoing number of shares. If such an increase is effected pursuant to the foregoing proviso, the
Company shall give the Warrantholder written notice of the increased number of shares exercisable
pursuant to this Warrant and the number of shares referred to in this Item 5 shall be automatically
deemed to be amended to be that increased number of shares.




Item 6





			
	Company’s address:	 	Hampton Roads Bankshares, Inc.

999 Waterside Dr., Suite 200

Norfolk, VA 23510





Item 7





			
	Notice information:	 	Douglas J. Glenn

EVP and General Counsel

Hampton Roads Bankshares, Inc.

999 Waterside Drive, Suite 200

Norfolk, Virginia 23510

Phone: (757) 217-1000

Fax: (757) 217-3656






Sch. A-1