exv4w11






Exhibit 4.11




SUBSCRIPTION AGENT AGREEMENT




     THIS SUBSCRIPTION AGENT AGREEMENT (“Agreement”) between HAMPTON ROADS BANKSHARES, INC., a
Virginia corporation (the “Company”), and REGISTRAR AND TRANSFER COMPANY, a New Jersey corporation
(the “Registrar and Transfer”), is dated as of November 10, 2010.



     1. Appointment.




     (a) The Company is distributing to its shareholders of record at the close of business
on September 29, 2010 (the “Record Date”), non-transferable subscription rights (the
“Rights”) to purchase (the “Rights Offering”) up to an aggregate of one hundred million
(100,000,000) shares of the Company’s common stock, par value $0.01 per share (the “Common
Stock”) at a purchase price of $0.40 per Right (the “Subscription Price”). The term
“Subscribed” shall mean submitted for purchase from the Company by a shareholder in
accordance with the terms of the Rights Offering, and the term “Subscription” shall mean any
such submission.




     (b) The Rights Offering will expire on December 10, 2010 at 5:00 p.m. New York City Time
(the “Expiration Time”), unless the Company shall have extended the period of time for which
the Rights Offering is open, in its sole discretion, in which event the term “Expiration
Time” shall mean the latest time and date at which the Rights Offering, as so extended by the
Company from time to time, shall expire.




     (c) The Company filed a Registration Statement on Form S-1 (File No. 333-169980)
relating to the Rights Offering with the United States Securities and Exchange Commission
(the “SEC”) under the Securities Act of 1933, as amended, on October 18, 2010 (the
“Registration Statement”). The terms of the Rights Offer are more fully described in the
Prospectus (the “Prospectus”) forming part of the Registration Statement at the time such
Registration Statement may be declared effective by the SEC. A copy of the Prospectus is
attached hereto as Exhibit 1. All terms used and not defined herein shall have the
same meaning as in the Prospectus. Registrar and Transfer has provided the Company with a
list of holders of Common Stock as of the Record Date (the “Record Shareholders List”) that
is attached hereto as Exhibit 2.




     (d) The Company hereby appoints Registrar and Transfer to act as subscription agent (the
“Subscription Agent”) for the Rights Offering in accordance with and subject to the following
terms and conditions.



     2. Subscription of Rights.




     (a) The Rights are evidenced by subscription rights certificates (the “Certificates”),
a copy of the form of which is attached hereto as Exhibit 3. The Certificates
entitle the holders to subscribe, upon payment of the Subscription Price, for shares of
Common Stock at the rate stated on the Certificate (the “Basic Subscription Right”). No
fractional shares will be issued.




     (b) The Rights Offering includes an over-subscription privilege entitling the
subscribing shareholders who exercise their Basic Subscription Right in full to subscribe
and pay the Subscription Price for additional shares of Common Stock to the extent not
subscribed by other



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eligible shareholders (the “Over-Subscription Privilege”). Reference is made to the
Prospectus for a complete description of the Basic Subscription Right and the
Over-Subscription Privilege and the allocation thereof.




3. Duties of Subscription Agent. As Subscription Agent, Registrar and Transfer is
authorized and directed to:




     (a) Immediately issue the Certificates in accordance with this Agreement in the names
of the holders of the Common Stock of record or other nominees on the Record Date, keep such
records as are necessary for the purpose of recording such issuance, and furnish a copy of
such records to the Company. The Certificates may be signed on behalf of the Subscription
Agent by the manual or facsimile signature of a Vice President or Assistant Vice President
of the Subscription Agent, or by the manual signature of any of its other authorized
officers.




     (b) If requested by the Company, print copies of all documents sent to Registrar and
Transfer by the Company that are to accompany the Prospectus and Rights Certificates being
mailed by Registrar and Transfer to holders of Common Stock (listed in sections (3)(c)(i)
and (ii) of this agreement), including those documents being mailed to the Company’s 401(k)
participants (listed in section (3)(c)(iii) of this agreement).




     (c) Promptly after execution hereof:




     (i) mail or cause to be mailed, by first class mail, or deliver (which delivery may
be done electronically through the facilities of the Depository Trust Company (“DTC”) or
otherwise) to each holder of Common Stock of record on the Record Date, (1) a Certificate
evidencing the Rights to which such shareholder is entitled under the Rights Offering,
(2) a copy of the Prospectus, (3) a suitable cover letter in the form supplied by the
Company, (4) instructions as to the use of the Hampton Roads Bankshares, Inc.
Certificate, (5) notice of tax information, and (6) a return envelope addressed to the
Subscription Agent.




     (ii) mail or cause to be mailed, by air mail, or deliver (which delivery may be done
electronically through the facilities of the Depository Trust Company (“DTC”) or
otherwise) to each Security Dealer, Commercial Bank, Trust Companies and Other Nominee,
(1) a form of letter that may be sent to their clients for whose accounts they hold
shares of Common Stock registered in their name or the name of their nominee, with an
attached form of instructions, (2) a Beneficial Owner Election Form, and (3) a Nominee
Holder Certification, in addition to the mailing or delivery of the documents listed in
paragraph (3)(b)(i) above.




     (iii) if requested by the Company, mail or cause to be mailed, by first class mail,
or deliver (which delivery may be done electronically through the facilities of the
Depository Trust Company (“DTC”) or otherwise) to each holder of Common Stock through the
Company’s 401(k) plans, (1) a copy of the Prospectus, (2) a suitable cover letter in the
form supplied by the Company, (3) a Q&A letter explaining the election for 401(k) plan
participants to participate in the Rights Offering, (4) an Rights Offering Election Form,
and (6) a return envelope addressed to the 401(k) plan administrator. A list of 401(k)
plan participants and addresses will be provided to



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Registrar and Transfer from the Company at least two (2) business days prior to the
expected mailing date.




     (d) Mail or deliver (which delivery may be done electronically through the facilities
of DTC or otherwise) a copy of the Prospectus with certificates for shares of Common Stock
when such are issued to persons other than the registered holder of the Certificate.




     (e) Accept Subscriptions upon the due exercise (including payment of the Subscription
Price) on or prior to the Expiration Time of Rights in accordance with the terms of the
Certificates and the Prospectus.




     (f) Subject to the next sentence, accept Subscriptions from shareholders whose
Certificates are alleged to have been lost, stolen or destroyed upon receipt by Registrar
and Transfer of an affidavit of theft, loss or destruction and a bond of indemnity in form
and substance reasonably satisfactory to Registrar and Transfer, accompanied by payment of
the Subscription Price for the total number of Rights Subscribed for. Upon receipt of such
affidavit and bond of indemnity and compliance with any other applicable requirements, stop
orders shall be placed on said Certificates and Registrar and Transfer shall withhold
delivery of the Rights Subscribed for until after the Certificates have expired and it has
been determined that the Rights evidenced by the Certificates have not otherwise been
purported to have been exercised or otherwise surrendered.




     (g) Accept Subscriptions, without further authorization or direction from the Company,
without procuring supporting legal papers or other proof of authority to sign (including
without limitation proof of appointment of a fiduciary or other person acting in a
representative capacity), and without signatures of co-fiduciaries, co-representatives or
any other person:




     (i) if the Certificate is registered in the name of a fiduciary and is executed by,
and the Rights are to be issued in the name of, such fiduciary;




     (ii) if the Certificate is registered in the name of joint tenants and is executed
by one of the joint tenants, provided the certificate representing the Rights is issued
in the names of, and is to be delivered to, such joint tenants;




     (iii) if the Certificate is registered in the name of a corporation or other entity
and is executed by a person in a manner which appears or purports to be done in the
capacity of an officer, or agent thereof, provided the Rights are to be issued in the
name of such corporation or entity; or




     (iv) if the Certificate is registered in the name of an individual and is executed
by a person purporting to act as such individual’s executor, administrator or personal
representative, provided, the Rights are to be registered in the name of the subscriber
as executor or administrator of the estate of the deceased registered holder and there is
no evidence indicating the subscriber is not the duly authorized representative that he
purports to be. The signature of the person purporting to act as such individual’s
executor, administrator or personal representative must be Medallion Signature
Guaranteed.



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     (h) Accept Subscriptions not accompanied by Certificates if submitted by a broker,
commercial bank or trust company that held the rights in street name (electronically through
the facilities of DTC) having an office in the United States and accompanied by proper
payment for the total number of Rights Subscribed for.




     (i) Refer to the Company, for specific instructions as to acceptance or rejection,
Subscriptions received after the Expiration Time, Subscriptions not authorized to be
accepted, and Subscriptions otherwise failing to comply with the requirements of the
Prospectus and the terms and conditions of the Certificates.




4. Acceptance of Subscriptions. Upon acceptance of a Subscription, Registrar and
Transfer shall from time to time during the offering:




     (a) Hold all monies received in a dedicated, non-interest bearing account for the
benefit of the Company. Promptly following the Expiration Time, Registrar and Transfer shall
distribute to the Company the funds from exercise of the Basic Subscription Rights and
Over-Subscription Rights in such account and following the Expiration Date issue (in
physical form or electronically through the facilities of DTC, in each case in a manner
approved by the Company) certificates for shares of Common Stock issuable with respect to
Subscriptions that have been accepted. Registrar and Transfer will not be obligated to
calculate or pay interest to any holder or any other party claiming through a holder or
otherwise.




     (b) Advise the Company weekly by facsimile transmission and confirm by letter to the
attention of Douglas J. Glenn (the “Company Representative”) as to the total number of
shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for
and the amount of funds received, with cumulative totals for each; and in addition advise
the Company Representative, by telephone at (757) 217-3634, confirmed by facsimile
transmission, of the amount of funds received identified in accordance with (a) above,
deposited, available or transferred in accordance with (a) above, with cumulative totals;
and




     (c) As promptly as possible but in any event on or before 3:30 p.m., New York City
Time, on the first full business day following the Expiration Time, advise the Company
Representative in accordance with (b) above of the number of shares Subscribed for and the
number of shares of Common Stock unsubscribed for.




5. Completion of Rights Offering. Upon completion of the Rights Offering, at the
Company’s direction:




     (a) Registrar and Transfer shall promptly issue (in physical form, via DRS book entry
or electronically through the facilities of DTC, in each case in a manner approved by the
Company) certificates for the Common Stock for which Subscriptions have been received.




     (b) The Certificates may be physical certificates but may, as instructed by the Company
be issued electronically by DRS book entry or through the facilities of DTC.



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     (c) For so long as this Agreement shall be in effect, the Company will reserve for
issuance and keep available free from preemptive rights a sufficient number of shares of
Common Stock to permit the exercise in full of all Rights issued pursuant to the Rights
Offering.




     (d) The Company shall take any and all action, including without limitation obtaining
the authorization, consent, lack of objection, registration or approval of any governmental
authority, or the taking of any other action under the laws of the United States of America
or any political subdivision thereof, to insure that all shares of Common Stock issuable
upon the exercise of the Certificates at the time of delivery of the certificates therefor
(subject to payment of the Subscription Price) will be duly and validly issued and fully
paid and non-assessable shares of Common Stock, free from all preemptive rights and taxes,
liens, charges and security interests created by or imposed upon the Company with respect
thereto.




     (e) The Company shall from time to time take all action necessary or appropriate to
obtain and keep effective all registrations, permits, consents and approvals of the SEC and
any other governmental agency or authority and make such filings under Federal and state
laws which may be necessary or appropriate in connection with the issuance and delivery of
Certificates or the issuance, sale, transfer and delivery of Common Stock issued upon
exercise of Certificates.



     6. Procedure for Discrepancies. Registrar and Transfer shall follow its regular
procedures to attempt to reconcile any discrepancies between the number of shares of Common Stock
that any Certificate may indicate are to be issued to a shareholder and the number that may be
issued to such shareholder. In any instance where Registrar and Transfer cannot reconcile such
discrepancies by following such procedures, Registrar and Transfer will consult with the Company
for instructions as to the number of shares of Common Stock, if any, it is authorized to issue. In
the absence of such instructions, Registrar and Transfer is authorized not to issue any shares of
Common Stock to such shareholder.



     7. Procedure for Deficient Items. Registrar and Transfer shall examine the
Certificates received by it as Subscription Agent to ascertain whether they appear to have been
properly completed and executed. In the event Registrar and Transfer determines that any
Certificate does not appear to have been properly completed or executed, or where the Certificates
do not appear to be in proper form for Subscription, or any other irregularity in connection with
the Subscription appears to exist, Registrar and Transfer shall follow, where possible, its regular
procedures to attempt to cause such irregularity to be corrected. Registrar and Transfer is not
authorized to waive any irregularity in connection with the Subscription, unless Registrar and
Transfer shall have received from the Company the Certificate which was delivered, duly dated and
signed by an authorized officer of the Company, indicating that any irregularity in such
Certificate has been cured or waived and that such Certificate has been accepted by the Company. If
any such irregularity is neither corrected nor waived, Registrar and Transfer will return to the
subscribing shareholder (at its option by either first class mail under a blanket surety bond or
insurance protecting Registrar and Transfer and the Company from losses or liabilities arising out
of the non-receipt or nondelivery of Certificates or by registered mail insured separately for the
value of such Certificates) to such shareholder’s address as set forth in the Subscription any
Certificates surrendered in connection therewith and any other documents received with such
Certificates, and a letter of notice to be furnished by the Company explaining the reasons for the
return of the Certificates and other documents.



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     8. Date/Time Stamp. Each document received by Registrar and Transfer relating to its
duties hereunder shall be dated and time stamped when received.



     9. Transfer Procedures. If certificates representing shares of Common Stock are to be
delivered by Registrar and Transfer to a person other than the person in whose name a surrendered
Certificate is registered, Registrar and Transfer shall issue no certificate for Common Stock until
the Certificate so surrendered has been properly endorsed (or otherwise put in proper form for
transfer).



     10. Tax Reporting. Should any issue arise regarding federal income tax reporting or
withholding, Registrar and Transfer shall take such action as the Company reasonably instructs in
writing.



     11. Termination. The Company may terminate this Agreement at any time by so notifying
Registrar and Transfer in writing. Registrar and Transfer may terminate this Agreement upon 60
days’ prior written notice to the Company. Upon any such termination, Registrar and Transfer shall
be relieved and discharged of any further responsibilities with respect to its duties hereunder.
Upon payment of all Registrar and Transfer’s outstanding fees and expenses, Registrar and Transfer
shall forward to the Company or its designee promptly any Certificate or other document relating to
Registrar and Transfer’s duties hereunder that Registrar and Transfer may receive after its
appointment has so terminated. Sections 12, 13, 14 and 19 of this Agreement shall survive any
termination of this Agreement.



     12. Authorizations and Protections. As agent for the Company, Registrar and Transfer:




     (a) shall have no duties or obligations other than those specifically set forth herein
or as may subsequently be agreed to in writing by Registrar and Transfer and the Company;




     (b) shall have no obligation to issue any shares of Common Stock unless the Company
shall have provided a sufficient number of certificates for such Common Stock;




     (c) shall be regarded as making no representations and having no responsibilities as to
the validity, sufficiency, value, or genuineness of any Certificates surrendered to
Registrar and Transfer hereunder or shares of Common Stock issued in exchange therefor, and
will not be required to or be responsible for and will make no representations as to, the
validity, sufficiency, value or genuineness of the Rights Offering;




     (d) shall not be obligated to take any legal action hereunder; if, however, Registrar
and Transfer determines to take any legal action hereunder, and where the taking of such
action might, in Registrar and Transfer’s judgment, subject or expose it to any expense or
liability, Registrar and Transfer shall not be required to act unless it shall have been
furnished with an indemnity reasonably satisfactory to it;




     (e) may rely on and shall be fully authorized and protected in acting or failing to act
upon any certificate, instrument, opinion, notice, letter, telegram, telex, facsimile
transmission or other document or security delivered to Registrar and Transfer and believed
by it to be genuine and to have been signed by the proper party or parties;



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     (f) shall not be liable or responsible for any recital or statement contained in the
Prospectus or any other documents relating thereto;




     (g) shall not be liable or responsible for any failure on the part of the Company to
comply with any of its covenants and obligations relating to the Rights Offering, including
without limitation obligations under applicable securities laws;




     (h) may rely on and shall be fully authorized and protected in acting or failing to act
upon the written, telephonic or oral instructions of officers of the Company with respect to
any matter relating to Registrar and Transfer acting as Subscription Agent covered by this
Agreement (or supplementing or qualifying any such actions);




     (i) may consult with counsel satisfactory to Registrar and Transfer, including internal
counsel, and the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered, or omitted by Registrar and Transfer
hereunder in good faith and in reliance upon the advice of such counsel; and




     (j) are not authorized, and shall have no obligation, to pay any brokers, dealers, or
soliciting fees to any person.



     13. Indemnification. The Company agrees to indemnify Registrar and Transfer for, and
hold it harmless from and against, any loss, liability, claim or expense (“Loss”) arising out of or
in connection with Registrar and Transfer’s performance of its duties under this Agreement or this
appointment, including the costs and expenses of defending itself against any Loss or enforcing
this Agreement, except to the extent that such Loss shall have been determined by a court of
competent jurisdiction to be a result of Registrar and Transfer’s negligence or intentional
misconduct.



     14. Limitation of Liability.




     (a) In the absence of negligence or intentional misconduct on its part, Registrar and
Transfer shall not be liable for any action taken, suffered, or omitted by it or for any
error of judgment made by it in the performance of its duties under this Agreement. Anything
in this agreement to the contrary notwithstanding, in no event shall Registrar and Transfer
be liable for special, indirect, incidental or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if Registrar and Transfer has
been advised of the likelihood of such damages and regardless of the form of action. Any
liability of Registrar and Transfer will be limited to the amount of fees paid by the
Company hereunder.




     (b) In the event any question or dispute arises with respect to the proper
interpretation of this Agreement or Registrar and Transfer’s duties hereunder or the rights
of the Company or of any holders surrendering certificates for shares of Common Stock
pursuant to the Rights Offering, Registrar and Transfer shall not be required to act and
shall not be held liable or responsible for refusing to act until the question or dispute
has been judicially settled (and Registrar and Transfer may, if it deems it advisable, but
shall not be obligated to, file a suit in interpleader or for a declaratory judgment for
such purpose) by final judgment rendered by a court of competent jurisdiction, binding on
all parties interested in the matter which is no longer subject to review or



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appeal, or settled by a written document in form and substance satisfactory to
Registrar and Transfer and executed by the Company and each such shareholder and party. In
addition, Registrar and Transfer may require for such purpose, but shall not be obligated to
require, the execution of such written settlement by all the shareholders and all other
parties that may have an interest in the settlement.



     15. Representations, Warranties and Covenants. The Company represents, warrants and
covenants that (a) it is duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation, (b) the making and consummation of the Rights Offering and the
execution, delivery and performance of all transactions contemplated thereby (including without
limitation this Agreement) have been duly authorized by all necessary corporate action and will not
result in a breach of or constitute a default under the articles of incorporation or bylaws of the
Company or any indenture, agreement or instrument to which either is a party or is bound, (c) this
Agreement has been duly executed and delivered by the Company and constitutes a legal, valid,
binding obligation of the Company, enforceable against the Company in accordance with its terms,
(d) the Rights Offering will comply in all material respects with all applicable requirements of
law, and (e) to the best of their knowledge, there is no litigation pending or threatened as of the
date hereof in connection with the Rights Offering.



     16. Notices. All notices, demands and other communications given pursuant to the terms
and provisions hereof shall be in writing, shall (except as provided for in Section 18 hereof) be
deemed effective on the date of receipt, and may be sent by facsimile, overnight delivery services,
or by certified or registered mail, return receipt requested to:


If to the Company:



Hampton Roads Bankshares, Inc.

999 Waterside Dr., Suite 200

Norfolk, Virginia 23510

Attn: Douglas J. Glenn, Esq.

Telephone: (757) 217-3634

Fax: (757) 217-3656



with a copy to:



Williams Mullen

999 Waterside Dr., Suite 1700

Norfolk, Virginia 23510

Attn: William A. Old, Jr.

Telephone: (757) 629-0613

Fax: (757) 629-0660



If to Registrar and Transfer:



Registrar and Transfer Company

10 Commerce Drive

Cranford, NJ 07016-3572

Attention: Reorg/Exchange Department






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     17. Specimen Signatures. Set forth in Exhibit 3 hereto is a list of the names
and specimen signatures of the persons authorized to act for the Company under this Agreement. The
Secretary of the Company shall, from time to time, certify to Registrar and Transfer the names and
signatures of any other persons authorized to act for the Company, as the case may be, under this
Agreement.



     18. Instructions. Any instructions given to Registrar and Transfer orally, as
permitted by any provision of this Agreement, shall, upon the request of Registrar and Transfer, be
confirmed in writing by the Company (which for these purposes only may be undertaken by e-mail
transmission) as soon as practicable. Registrar and Transfer shall not be liable or responsible and
shall be fully authorized and protected for acting, or failing to act, in accordance with any oral
instructions which do not conform with the written confirmation received in accordance with this
Section.



     19. Fees. Whether or not any Certificates are surrendered to Registrar and Transfer,
for its services as Subscription Agent hereunder, the Company shall pay to Registrar and Transfer
those fees set forth on Schedule A, together with reimbursement for reasonable
out-of-pocket expenses. All amounts owed to Registrar and Transfer hereunder are due upon receipt
of the invoice.



     20. Force Majeure. Registrar and Transfer shall not be liable for any failure or delay
arising out of conditions beyond its reasonable control including, but not limited to, work
stoppages, fires, civil disobedience, riots, rebellions, storms, electrical, mechanical, computer
or communications facilities failures, acts of God or similar occurrences.



     21. Miscellaneous.




     (a) This Agreement shall be governed by and construed in accordance with the laws of
the State of New Jersey without giving effect to conflict of laws, rules or principles.




     (b) No provision of this Agreement may be amended, modified or waived, except in
writing signed by all of the parties hereto.




     (c) Except as expressly set forth elsewhere in this Agreement, all notices,
instructions and communications under this Agreement shall be in writing, shall be effective
upon receipt and shall be addressed as provided in Section 16 to such other address as a
party hereto shall notify the other parties in writing.




     (d) In the event that any claim of inconsistency between this Agreement and the terms
of the Rights Offering arise, as they may from time to time be amended, the terms of the
Rights Offering shall control, except with respect to Registrar and Transfer’s duties,
liabilities and rights, including without limitation compensation and indemnification, which
shall be controlled by the terms of this Agreement.




     (e) If any provision of this Agreement shall be held illegal, invalid, or unenforceable
by any court, this Agreement shall be construed and enforced as if such provision had not
been contained herein and shall be deemed an Agreement among the parties hereto to the full
extent permitted by applicable law.



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     (f) This Agreement shall be binding upon, inure to the benefit of, and be enforceable
by, the respective successors and assigns of the parties hereto.




     (g) This Agreement may not be assigned by any party without the prior written consent
of all parties.




     (h) Sections 12, 13, 14 and 19 hereof shall survive termination of this Agreement.




     (i) This Agreement may be executed in counterparts, each of which, when taken together,
shall constitute one and the same agreement, and each of which may be delivered by the
parties by facsimile or other electronic transmission, which shall not impair the validity
of such counterparts.



(Signature page follows)



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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
officers as of the day and year above written.




	 	 	 	 	 
	 	HAMPTON ROADS BANKSHARES, INC.

 	 
	 	By:  	/s/ Douglas J. Glenn
 	 
	 	 	Name:  	Douglas J. Glenn 	 
	 	 	Title:  	Executive Vice President,
General Counsel and Chief Operating Officer 	 
	 
	 	REGISTRAR AND TRANSFER COMPANY, as Subscription Agent

 	 
	 	By:  	/s/ Nicola Glancaspro
 	 
	 	 	Name:  	Nicola Glancaspro 	 
	 	 	Title:  	Vice President, Stock Transfer Operations 	 
	 



Exhibit 1: Prospectus

Exhibit 2: Record Date Shareholders List

Exhibit 3: Form of Subscription Rights Certificate

Exhibit 4: List of Authorized Representatives



Schedule A: Subscription Agent Fees





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