UNITED STATES
 SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549
 
 FORM 10-Q
 
 þ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
 OF THE SECURITIES EXCHANGE ACT OF 1934
 
 For the Quarterly Period Ended September 30, 2010
 
 or
 
  ̈TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
 OF THE SECURITIES EXCHANGE ACT OF 1934
 
 For the Transition Period from  to
  
  CAPITAL BANK CORPORATION
 (Exact name of registrant as specified in its charter)
 
 North Carolina

000-30062

56-2101930(State or other jurisdiction of

incorporation or organization)

(Commission

File Number)

(I.R.S. Employer

Identification No.)
 
 333 Fayetteville Street, Suite 700
 Raleigh, North Carolina 27601
 (Address of principal executive offices)
 
 (919) 645-6400
 (Registrant’s telephone number, including area code)
 
 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.Yes  þ  No   ̈
 
 Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes  ̈No   ̈
 
 Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
 Large accelerated filer ̈
Accelerated filer ̈
Non-accelerated filer ̈
(Do not check here if a smaller reporting company)Smaller reporting company  þ
 
 Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes   ̈  No  þ
  As of November 12, 2010 there were 12,880,954 shares outstanding of the registrant’s common stock, no par value.


CAPITAL BANK CORPORATION
 Form 10-Q for the Quarterly Period Ended September 30, 2010
 
 
 INDEX
 
 PART I – FINANCIAL INFORMATION
Page No.Item 1.
Financial StatementsCondensed Consolidated Balance Sheets as of September 30, 2010 (Unaudited) and December 31, 2009
3Condensed Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2010 and 2009 (Unaudited)
4Condensed Consolidated Statements of Changes in Shareholders’ Equity and Comprehensive Income (Loss) for the Nine Months Ended September 30, 2010 and 2009 (Unaudited)
5Condensed Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2010 and 2009 (Unaudited)
6Notes to Condensed Consolidated Financial Statements (Unaudited)
7Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
20Item 3.
Quantitative and Qualitative Disclosures about Market Risk
42Item 4.
Controls and Procedures
42Item 4T.
Controls and Procedures
42PART II – OTHER INFORMATIONItem 1.
Legal Proceedings
43Item 1A.
Risk Factors
43Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
57Item 3.
Defaults upon Senior Securities
57Item 4.
(Removed and Reserved)
57Item 5.
Other Information
57Item 6.
Exhibits
58Signatures
  - 2 -
 Index


PART I – FINANCIAL INFORMATION
 
 Item 1.  Financial Statements
 
 CAPITAL BANK CORPORATION
 CONDENSED CONSOLIDATED BALANCE SHEETS
 September 30, 2010 and December 31, 2009
 September 30, 2010

December 31, 2009(Dollars in thousands)

(Unaudited)AssetsCash and cash equivalents:Cash and due from banks

$
18,086

$
25,002Interest-bearing deposits with banks


49,983


4,511Total cash and cash equivalents


68,069


29,513Investment securities:Investment securities – available for sale, at fair value


184,724


235,426Investment securities – held to maturity, at amortized cost


2,822


3,676Other investments


8,500


6,390Total investment securities


196,046


245,492Mortgage loans held for sale


8,528


–Loans:Loans – net of unearned income and deferred fees


1,324,932


1,390,302Allowance for loan losses


(36,249
)

(26,081
)Net loans


1,288,683


1,364,221Other real estate


17,865


10,732Premises and equipment, net


24,855


23,756Bank-owned life insurance


6,895


22,746Core deposit intangible, net


2,006


2,711Deferred income tax


15,152


12,096Other assets


21,600


23,401Total assets

$
1,649,699

$
1,734,668LiabilitiesDeposits:Demand, noninterest checking

$
125,438

$
141,069NOW accounts


183,014


175,084Money market deposit accounts


139,772


184,146Savings accounts


31,117


28,958Time deposits


880,010


848,708Total deposits


1,359,411


1,377,965Repurchase agreements and federal funds purchased


–


6,543Borrowings


129,000


167,000Subordinated debentures


34,323


30,930Other liabilities


10,862


12,445Total liabilities


1,533,596


1,594,883Shareholders’ EquityPreferred stock, $1,000 par value; 100,000 shares authorized; 41,279 shares issued and outstanding (liquidation preference of $41,279)


40,345


40,127Common stock, no par value; 50,000,000 shares authorized; 12,880,954 and 11,348,117 shares issued and outstanding


145,461


139,909Accumulated deficit


(73,955
)

(44,206
)Accumulated other comprehensive income


4,252


3,955Total shareholders’ equity


116,103


139,785Total liabilities and shareholders’ equity

$
1,649,699

$
1,734,668
 
 The accompanying notes are an integral part of these condensed consolidated financial statements.
 
 - 3 -
 Index
 CAPITAL BANK CORPORATION
 CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
 For the Three and Nine Months Ended September 30, 2010 and 2009
 (Unaudited)
 Three Months Ended
September 30,

Nine Months Ended
September 30,2010

2009

2010

2009(Dollars in thousands except per share data)Interest income:Loans and loan fees

$
17,357

$
18,720

$
52,080

$
52,224Investment securities:Taxable interest income


1,854


2,348


5,851


7,708Tax-exempt interest income


285


759


1,369


2,286Dividends


22


13


58


26Federal funds and other interest income


17


18


37


34Total interest income


19,535


21,858


59,395


62,278Interest expense:Deposits


4,683


6,797


16,438


21,596Borrowings and repurchase agreements


1,470


1,506


4,281


4,782Total interest expense


6,153


8,303


20,719


26,378Net interest income


13,382


13,555


38,676


35,900Provision for loan losses


6,763


3,564


38,534


11,242Net interest income after provision for loan losses


6,619


9,991


142


24,658Noninterest income:Service charges and other fees


746


990


2,468


2,901Bank card services


521


409


1,479


1,133Mortgage origination and other loan fees


442


410


1,108


1,520Brokerage fees


271


155


743


468Bank-owned life insurance


138


240


632


1,663Net gain on investment securities


244


148


641


164Other


138


155


474


488Total noninterest income


2,500


2,507


7,545


8,337Noninterest expense:Salaries and employee benefits


5,918


5,128


16,637


16,945Occupancy


1,460


1,471


4,418


4,192Furniture and equipment


867


771


2,312


2,340Data processing and telecommunications


488


555


1,530


1,759Advertising and public relations


435


394


1,464


940Office expenses


320


386


940


1,043Professional fees


626


358


1,785


1,171Business development and travel


363


268


937


843Amortization of core deposit intangible


235


287


705


862Other real estate and other loan-related losses


1,833


370


3,858


938Directors’ fees


236


295


828


1,131FDIC deposit insurance


712


474


2,028


1,882Other


717


341


1,738


1,081Total noninterest expense


14,210


11,098


39,180


35,127Net income (loss) before income taxes


(5,091
)

1,400


(31,493
)

(2,132
)Income tax expense (benefit)


3,975


(2,143
)

(3,510
)

(2,561
)Net income (loss)

$
(9,066
)
$
3,543

$
(27,983
)
$
429Dividends and accretion on preferred stock


588


590


1,766


1,764Net income (loss) attributable to common shareholders

$
(9,654
)
$
2,953

$
(29,749
)
$
(1,335
)Net income (loss) per common share – basic

$
(0.74
)
$
0.26

$
(2.34
)
$
(0.12
)Net income (loss) per common share – diluted

$
(0.74
)
$
0.26

$
(2.34
)
$
(0.12
)
 
 The accompanying notes are an integral part of these condensed consolidated financial statements.
 
 - 4 -
 Index
 CAPITAL BANK CORPORATION
 CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY AND COMPREHENSIVE INCOME (LOSS)
 For the Nine Months Ended September 30, 2010 and 2009
 (Unaudited)
 Preferred Stock

Common Stock

Other Comprehensive

AccumulatedShares

Amount

Shares

Amount

Income

Deficit

Total(Dollars in thousands except share data)Balance at January 1, 2009

41,279

$
39,839


11,238,085

$
139,209

$
886

$
(31,420
)
$
148,514Comprehensive income:Net income
















429


429Net unrealized gain on securities, net of tax of $3,778













6,022





6,022Net unrealized loss on cash flow hedge, net of tax benefit of $1,072













(1,709
)




(1,709
)Prior service cost recognized on SERP, net of amortization of $6













(48
)




(48
)Total comprehensive income



















4,694Accretion of preferred stock discount




216











(216
)

–Restricted stock awards







20,000


120








120Stock option expense










38








38Directors’ deferred compensation







42,284


417








417Dividends on preferred stock
















(1,548
)

(1,548
)Dividends on common stock ($0.24 per share)
















(2,710
)

(2,710
)Balance at September 30, 2009

41,279

$
40,055


11,300,369

$
139,784

$
5,151

$
(35,465
)
$
149,525Balance at January 1, 2010

41,279

$
40,127


11,348,117

$
139,909

$
3,955

$
(44,206
)
$
139,785Comprehensive loss:Net loss
















(27,983
)

(27,983
)Net unrealized gain on securities, net of tax of $182













291





291Amortization of prior service cost on SERP













6





6Total comprehensive loss



















(27,686
)Accretion of preferred stock discount




218











(218
)

–Issuance of common stock







1,468,770


5,065








5,065Restricted stock forfeiture







(400
)

(2
)







(2
)Stock option expense










37








37Directors’ deferred compensation







64,467


452








452Dividends on preferred stock
















(1,548
)

(1,548
)Balance at September 30, 2010

41,279

$
40,345


12,880,954

$
145,461

$
4,252

$
(73,955
)
$
116,103
 
 The accompanying notes are an integral part of these condensed consolidated financial statements.
 
 - 5 -
 Index
 CAPITAL BANK CORPORATION
 CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
 For the Nine Months Ended September 30, 2010 and 2009
 (Unaudited)
 Nine Months Ended September 30,2010

2009(Dollars in thousands)Cash flows from operating activities:Net (loss) income

$
(27,983
)
$
429Adjustments to reconcile net (loss) income to net cash provided by operating activities:Provision for loan losses


38,534


11,242Amortization of core deposit intangible


705


862Depreciation


1,939


2,271Stock-based compensation


581


546Gain on investment securities, net


(641
)

(164
)Amortization of premium/discount on investment securities, net


52


117Increase in mortgage loans held for sale


(8,528
)

–Write-down in value of other real estate


1,682


–Loss on disposal of premises, equipment and other real estate


299


79Increase in cash surrender value of bank-owned life insurance


(632
)

(203
)Deferred income tax (benefit) expense


(3,238
)

886Net decrease (increase) in accrued interest receivable and other assets


1,707


(746
)Net (decrease) increase in accrued interest payable and other liabilities


(669
)

118Net cash provided by operating activities


3,808


15,437Cash flows from investing activities:Decrease (increase) in loans, net


20,679


(118,709
)Additions to premises and equipment


(3,051
)

(2,710
)Proceeds from sales of premises, equipment and real estate owned


7,224


3,452Proceeds from surrender of bank-owned life insurance


16,483


–Purchases of FHLB stock, net


(1,980
)

(20
)Purchase of securities – available for sale


(66,035
)

(31,842
)Proceeds from principal repayments/calls/maturities of securities – available for sale


117,670


56,048Proceeds from principal repayments/calls/maturities of securities – held to maturity


853


1,300Net cash provided by (used in) investing activities


91,843


(92,481
)Cash flows from financing activities:(Decrease) increase in deposits, net


(18,554
)

69,936Decrease in repurchase agreements, net


(6,543
)

(5,546
)Proceeds from borrowings


189,000


120,000Principal repayments of borrowings


(227,000
)

(105,000
)Proceeds from issuance of subordinated debentures


3,393


–Proceeds from issuance of common stock


5,065


–Dividends paid


(2,456
)

(4,107
)Net cash (used in) provided by financing activities


(57,095
)

75,283Net change in cash and cash equivalents


38,556


(1,761
)Cash and cash equivalents at beginning of period


29,513


54,455Cash and cash equivalents at end of period

$
68,069

$
52,694Supplemental Disclosure of Cash Flow InformationTransfer of loans and premises to other real estate owned

$
16,325

$
10,605Cash paid (received) for:Income taxes

$
(248
)
$
(4,297
)Interest

$
20,832

$
27,412
 
 The accompanying notes are an integral part of these condensed consolidated financial statements.
 
 - 6 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)




1.  Significant Accounting Policies and Interim Reporting
 
 The accompanying unaudited condensed consolidated financial statements include the accounts of Capital Bank Corporation (the “Company”) and its wholly owned subsidiary, Capital Bank (the “Bank”). In addition, the Company has interests in three trusts, Capital Bank Statutory Trust I, II, and III (hereinafter collectively referred to as the “Trusts”). The Trusts have not been consolidated with the financial statements of the Company.The interim financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). They do not include all of the information and footnotes required by such accounting principles for complete financial statements, and therefore should be read in conjunction with the audited consolidated financial statements and accompanying footnotes in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.
 
 The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect reported amounts of assets and liabilities and the reported amounts of revenues and expenses during the reporting period. The more significant estimates that are particularly susceptible to significant change relate to the determination of the allowance for loan losses, other-than-temporary impairment on investment securities, income taxes, and impairment of long-lived assets, including intangible assets. Actual results could differ from those estimates.
 
 In the opinion of management, all adjustments necessary for a fair presentation of the financial position and results of operations for the periods presented have been included, and all significant intercompany transactions have been eliminated in consolidation. Certain amounts reported in prior periods have been reclassified to conform to the current presentation. Such reclassifications have no effect on total assets, net income or shareholders’ equity as previously reported. The results of operations for the nine months ended September 30, 2010 are not necessarily indicative of the results of operations that may be expected for the year ending December 31, 2010.
 
 The condensed consolidated balance sheet at December 31, 2009 has been derived from the audited consolidated financial statements contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.
 
 The accounting policies followed by the Company are as set forth in Note 1 of the Notes to Consolidated Financial Statements in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.
 
 Current Accounting Developments
 
 In July 2010, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) 2010-20, Disclosures about the Credit Quality of Financing Receivables and the Allowance for Credit Losses, to amend FASB Accounting Standards Codification (“ASC”) Topic 320, Receivables. The amendments in this update are intended to provide disclosures that facilitate financial statement users’ evaluation of the nature of credit risk inherent in the entity’s portfolio of financing receivables, how that risk is analyzed and assessed in arriving at the allowance for credit losses, and the changes and reasons for those changes in the allowance for credit losses. The disclosures as of the end of a reporting period are effective for interim and annual periods ending on or after December 15, 2010. The disclosures about activity that occurs during a reporting period are effective for interim and annual reporting periods beginning on or after December 15, 2010. Management does not anticipate that adoption of this update will have a material impact on the Company’s financial position or results of operations.
 
 In April 2010, the FASB issued ASU 2010-18, Effect of a Loan ModificationWhen the Loan Is Part of a Pool That Is Accounted for as a Single Asset, to amend ASC Topic 320, Receivables. The amendments in this update provide that for acquired troubled loans which meet the criteria to be accounted for within a pool, modifications to one or more of these loans does not result in the removal of the modified loan from the pool even if the modification would otherwise be considered a troubled debt restructuring. The pool of assets in which the loan is included will continue to be considered for impairment. The amendments do not apply to loans not meeting the criteria to be accounted for within a pool. These amendments were effective for modifications of loans accounted for within pools occurring in the first interim or annual period ending on or after July 15, 2010. Adoption of this update did not have a material impact on the Company’s financial position or results of operations.
 
 In February 2010, the FASB issued ASU 2010-09, Amendments to Certain Recognition and Disclosure Requirements, to amend ASC Topic 855, Subsequent Events. The amendments in this update removed the requirement to disclose the date through which subsequent events have been evaluated and became effective immediately upon issuance. Adoption of this update did not have a material impact on the Company’s financial position or results of operations.
 - 7 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 In January 2010, the FASB issued ASU 2010-06, Improving Disclosures about Fair Value Measurements, to amend ASC Topic 820, Fair Value Measurements and Disclosures. The amendments in this update require more robust disclosures about the different classes of assets and liabilities measured at fair value, the valuation techniques and inputs used, the activity in Level 3 fair value measurements, and the transfers between Levels 1, 2, and 3. The new disclosures and clarifications of existing disclosures are effective for interim and annual reporting periods beginning after December 15, 2009, except for the disclosures about purchases, sales, issuances, and settlements in the roll forward of activity in Level 3 fair value measurements. Those disclosures are effective for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal years. Management does not anticipate that adoption of this update will have a material impact on the Company’s financial position or results of operations.
 
 2.  Earnings (Loss) Per Share
 
 Basic earnings (loss) per share (“EPS”) excludes dilution and is computed by dividing income available to common shareholders by the weighted average number of common shares outstanding for the period. Diluted EPS assumes the conversion, exercise or issuance of all potential common stock instruments, such as stock options and warrants, unless the effect is to reduce a loss or increase earnings. Basic EPS is adjusted for outstanding stock options and warrants using the treasury stock method in order to compute diluted EPS. The weighted average number of shares outstanding for the three and nine months ended September 30, 2010 and 2009 were as follows:
 
 Three Months Ended September 30, 2010 and 2009
 
 2010

2009(Dollars in thousands)Net income (loss) attributable to common shareholders

$
(9,654
)
$
2,953Shares used in the computation of earnings per share:Weighted average number of shares outstanding – basic


13,060,739


11,469,064Incremental shares from assumed exercise of stock options and warrants


–


–Weighted average number of shares outstanding – diluted


13,060,739


11,469,064Net income (loss) per common share – basic

$
(0.74
)
$
0.26Net income (loss) per common share – diluted

$
(0.74
)
$
0.26
 
 For the three months ended September 30, 2010 and 2009, outstanding options to purchase 313,420 and 377,083 shares, respectively, of common stock were excluded from the diluted calculation because the option exercise prices exceeded the average fair market value of the associated shares of common stock. For both the three months ended September 30, 2010 and 2009, outstanding warrants to purchase 749,619 shares of common stock were excluded from the diluted calculation because the warrant exercise price exceeded the average fair market value of the associated shares of common stock. There were no dilutive stock options or warrants outstanding for the three months ended September 30, 2010 and 2009.
 
 Nine Months Ended September 30, 2010 and 2009
 
 2010

2009(Dollars in thousands)Net loss attributable to common shareholders

$
(29,749
)
$
(1,335
)Shares used in the computation of earnings per share:Weighted average number of shares outstanding – basic


12,702,625


11,450,640Incremental shares from assumed exercise of stock options and warrants


–


–Weighted average number of shares outstanding – diluted


12,702,625


11,450,640Net loss per common share – basic

$
(2.34
)
$
(0.12
)Net loss per common share – diluted

$
(2.34
)
$
(0.12
)
 - 8 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 For the nine months ended September 30, 2010 and 2009, outstanding options to purchase 313,420 and 377,083 shares, respectively, of common stock were excluded from the diluted calculation because the option price exceeded the average fair market value of the associated shares of common stock. For both the nine months ended September 30, 2010 and 2009, outstanding warrants to purchase 749,619 shares of common stock were excluded from the diluted calculation because the warrant exercise price exceeded the average fair market value of the associated shares of common stock. There were no dilutive stock options or warrants outstanding for the nine months ended September 30, 2010 and 2009.
 
 3.  Comprehensive Income (Loss)
 
 Comprehensive income (loss) represents the change in the Company’s equity during the period from transactions and other events and circumstances from non-owner sources. Total comprehensive income (loss) consists of net income (loss) and other comprehensive income (loss). The Company’s other comprehensive income (loss) and accumulated other comprehensive income (loss) are comprised of unrealized gains and losses on certain investments in debt securities and derivatives that qualify as cash flow hedges to the extent that the hedge is effective. Information concerning the Company’s other comprehensive income (loss) for the three and nine months ended September 30, 2010 and 2009 is as follows:
 
 Three Months Ended September 30, 2010 and 2009
 
 2010

2009(Dollars in thousands)Unrealized gain on securities – available for sale

$
65

$
7,556Unrealized loss on change in fair value of cash flow hedge


–


(1,125
)Amortization of prior service cost on SERP


2


1Income tax effect


(25
)

(2,479
)Other comprehensive income

$
42

$
3,953
 
 Nine Months Ended September 30, 2010 and 2009
 
 2010

2009(Dollars in thousands)Unrealized gain on securities – available for sale

$
473

$
9,800Unrealized loss on change in fair value of cash flow hedge


–


(2,781
)Prior service cost recognized on SERP, net of amortization


6


(48
)Income tax effect


(182
)

(2,706
)Other comprehensive income

$
297

$
4,265
 
 4.  Investment Securities
 
 Investment securities as of September 30, 2010 and December 31, 2009 are summarized as follows:
 - 9 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 Amortized Cost

Unrealized

Gains

Unrealized

Losses

Fair Value(Dollars in thousands)September 30, 2010Available for sale:U.S. agency obligations

$
35,012

$
273

$
–

$
35,285Municipal bonds


22,892


396


125


23,163Mortgage-backed securities issued by GSEs


110,336


6,960


–


117,296Non-agency mortgage-backed securities


6,248


37


362


5,923Other securities


3,252


8


203


3,057177,740


7,674


690


184,724Held to maturity:Municipal bonds


300


3


–


303Mortgage-backed securities issued by GSEs


1,219


79


–


1,298Non-agency mortgage-backed securities


1,303


2


42


1,2632,822


84


42


2,864Other investments


8,500


–


–


8,500Total

$
189,062

$
7,758

$
732

$
196,088December 31, 2009Available for sale:U.S. agency obligations

$
1,000

$
29

$
–

$
1,029Municipal bonds


72,556


1,006


668


72,894Mortgage-backed securities issued by GSEs


144,762


6,896


–


151,658Non-agency mortgage-backed securities


8,345


19


567


7,797Other securities


2,252


–


204


2,048228,915


7,950


1,439


235,426Held to maturity:Municipal bonds


300


7


–


307Mortgage-backed securities issued by GSEs


1,576


84


–


1,660Non-agency mortgage-backed securities


1,800


–


145


1,6553,676


91


145


3,622Other investments


6,390


–


–


6,390Total

$
238,981

$
8,041

$
1,584

$
245,438
 
 The following table summarizes the gross unrealized losses and fair value of the Company’s investments in an unrealized loss position for which other-than-temporary impairments have not been recognized in earnings, aggregated by investment category and length of time that individual securities have been in a continuous unrealized loss position, as of September 30, 2010 and December 31, 2009:
 
 Less than 12 Months

12 Months or Greater

Total(Dollars in thousands)

Fair Value

Unrealized

Losses

Fair Value

Unrealized

Losses

Fair Value

Unrealized

LossesSeptember 30, 2010Available for sale:Municipal bonds

$
1,647

$
18

$
2,734

$
107

$
4,381

$
125Non-agency mortgage-backed securities


–


–


4,148


362


4,148


362Other securities


–


–


797


203


797


2031,647


18


7,679


672


9,326


690Held to maturity:Non-agency mortgage-backed securities


–


–


745


42


745


42Total

$
1,647

$
18

$
8,424

$
714

$
10,071

$
732
 - 10 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 Less than 12 Months

12 Months or Greater

Total(Dollars in thousands)

Fair Value

Unrealized

Losses

Fair Value

Unrealized

Losses

Fair Value

Unrealized

LossesDecember 31, 2009Available for sale:Municipal bonds

$
21,194

$
448

$
2,382

$
220

$
23,576

$
668Non-agency mortgage-backed securities


3,711


93


2,791


474


6,502


567Other securities


–


–


1,546


204


1,546


20424,905


541


6,719


898


31,624


1,439Held to maturity:Non-agency mortgage-backed securities


–


–


1,655


145


1,655


145Total

$
24,905

$
541

$
8,374

$
1,043

$
33,279

$
1,584
 
 At the end of each quarter, the Company makes an assessment to determine whether there have been any events or economic circumstances to indicate that a marketable security on which there is an unrealized loss is impaired on an other-than-temporary basis. The Company considers many factors, including the severity and duration of the impairment and recent events specific to the issuer or industry, including any changes in credit ratings.
 
 Unrealized losses on the Company’s investments in non-agency mortgage-backed securities, or private label mortgage securities, are related to five different securities. These losses are due to a combination of changes in credit spreads and other market factors. These mortgage securities are not issued and guaranteed by an agency of the federal government but are instead issued by private financial institutions and therefore carry an element of credit risk. Management closely monitors the performance of these securities and the underlying mortgages, which includes a detailed review of credit ratings, prepayment speeds, delinquency rates, default rates, current loan-to-values, geography of collateral, remaining terms, interest rates, loan types, etc. The Company has engaged a third party expert to provide a quarterly “stress test” of each private label mortgage security through a model using assumptions to simulate certain credit events and recessionary conditions and their impact on the performance of each mortgage security.
 
 Unrealized losses on the Company’s investments in municipal bonds are related to six different securities. These losses are primarily related to concerns in the marketplace regarding credit quality of certain municipalities in light of the recent economic recession and high unemployment rates as well as expectations of future market interest rates. Management monitors the underlying credit of these bonds by reviewing the financial strength of the issuers and the sources of taxes and other revenues available to service the debt. Unrealized losses on other securities relate to an investment in subordinated debt of one corporate financial institution. Management monitors the financial strength of this institution by reviewing its quarterly financial reports and considers its capital, liquidity and earnings in this review.
 
 As of September 30, 2010, two investment securities remained in an other-than-temporarily impaired position. The first of these investments was a private label mortgage security with a book value and unrealized loss of $723,000 and ($331,000), respectively, as of September 30, 2010. This impairment determination was initially made at December 31, 2009 and was based on the extent and duration of the unrealized loss as well as recent credit rating downgrades from rating agencies to below investment grade. Based on its analysis of expected cash flows, management expects to receive all contractual principal and interest from this security and therefore did not consider any of the unrealized loss to represent credit impairment. The second of these investments was subordinated debt of a private financial institution with a book value and unrealized loss of $1.0 million and ($203,000), respectively, as of September 30, 2010. This impairment determination was initially made at December 31, 2009 and was based on the extent of the unrealized loss as well as adverse economic and market conditions for financial institutions in general. Based on its review of capital, liquidity and earnings of this institution, management expects to receive all contractual principal and interest from this security and therefore did not consider any of the unrealized loss to represent credit impairment. Unrealized losses from these two investments were related to factors other than credit and were recorded to other comprehensive income.
 
 The securities in an unrealized loss position as of September 30, 2010 not determined to be other-than-temporarily impaired are all still performing and are expected to perform through maturity, and the issuers have not experienced significant adverse events that would call into question their ability to repay these debt obligations according to contractual terms. Further, because the Company does not intend to sell these investments and it is not more likely than not that the Company will be required to sell the investments before recovery of their amortized cost bases, which may be maturity, the Company does not consider such securities to be other-than-temporarily impaired as of September 30, 2010.
  - 11 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
  Other investment securities primarily include an investment in Federal Home Loan Bank (“FHLB”) stock, which has no readily determinable market value and is recorded at cost. As of September 30, 2010 and December 31, 2009, the Company’s investment in FHLB stock totaled $8.0 million and $6.0 million, respectively. Based on its quarterly evaluation, management has concluded that the Company’s investment in FHLB stock was not impaired as of September 30, 2010 and that ultimate recoverability of the par value of this investment is probable. During the nine months ended September 30, 2009, the Company recorded an investment loss of $320,000 related to an equity investment in Silverton Bank, a correspondent financial institution that was closed by the Office of the Comptroller of the Currency in 2009. The loss represented the full amount of the Company’s investment in Silverton Bank and was recorded as a reduction to noninterest income on the Condensed Consolidated Statements of Operations.
 
 The amortized cost and estimated market values of debt securities as of September 30, 2010 by final contractual maturities are summarized in the table below. Expected maturities will differ from contractual maturities because borrowers may have the right to call or prepay obligations with or without call or prepayment penalties.
 
 Available for Sale

Held to Maturity(Dollars in thousands)

Amortized Cost

Fair Value

Amortized Cost

Fair ValueDebt securities:Due within one year

$
–

$
–

$
300

$
303Due after one year through five years


29,906


30,196


–


–Due after five years through ten years


13,365


13,441


811


869Due after ten years


132,719


139,329


1,711


1,692Total debt securities


175,990


182,966


2,822


2,864Total equity securities


1,750


1,758


–


–Total investment securities

$
177,740

$
184,724

$
2,822

$
2,864
 
 During the nine months ended September 30, 2010, the Company recognized gross gains and (losses) of $519,000 and ($8,000), respectively, on sales of available-for-sale investment securities. These gains and losses are included in net gain on investment securities in the Condensed Consolidated Statements of Operations. Also included in net gain on investment securities for the nine months ended September 30, 2010 was $130,000 of appreciation on the fair value of a publicly traded equity security that was marked-to-market through the Condensed Consolidated Statement of Operations. During the nine months ended September 30, 2009, the Company recognized gross gains of $484,000 on sales of available-for-sale investment securities. Included as a reduction to net gain on investment securities for the nine months ended September 30, 2009 was a $320,000 loss on an equity investment in Silverton Bank. Proceeds received from sales of available-for-sale investment securities totaled $77.6 million and $20.5 million in the nine months ended September 30, 2010 and 2009, respectively.
 
 5.  Loans and Allowance for Loan Losses
 
 The composition of the loan portfolio by loan classification as of September 30, 2010 and December 31, 2009 was as follows:
 
 September 30, 2010

December 31, 2009(Dollars in thousands)Commercial real estate:Construction and land development

$
391,749

$
452,120Commercial non-owner occupied


274,635


245,674Total commercial real estate


666,384


697,794Consumer real estate:Residential mortgage


171,792


165,374Home equity lines


92,944


97,129Total consumer real estate


264,736


262,503Commercial owner occupied


178,920


194,359Commercial and industrial


165,526


183,733Consumer


6,683


9,692Other loans


41,601


41,8511,323,850


1,389,932Deferred loan fees and origination costs, net


1,082


370$
1,324,932

$
1,390,302
 - 12 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 A summary of activity in the allowance for loan losses for the nine months ended September 30, 2010 and 2009 is as follows:
  2010

2009(Dollars in thousands)Balance at beginning of period

$
26,081

$
14,795Loans charged off


(29,104
)

(6,654
)Recoveries of loans previously charged off


738


128Net charge-offs


(28,366
)

(6,526
)Provision for loan losses


38,534


11,242Balance at end of period

$
36,249

$
19,511
 The allowance for credit losses includes the allowance for loan losses, detailed above, and the reserve for unfunded lending commitments, which is included in other liabilities on the Condensed Consolidated Balance Sheets. As of September 30, 2010 and December 31, 2009, the reserve for unfunded lending commitments totaled $475,000 and $351,000, respectively.
 
 The following is a summary of information related to nonperforming assets as of September 30, 2010 and December 31, 2009:
 
 September 30, 2010

December 31, 2009(Dollars in thousands)Nonperforming assets:Nonaccrual loans

$
68,757

$
39,512Accruing loans greater than 90 days past due


1,169


–Total nonperforming loans


69,926


39,512Other real estate


17,865


10,732Total nonperforming assets

$
87,791

$
50,244
 
 For the nine months ended September 30, 2010 and 2009, no interest income was recognized on loans while in nonaccrual status. Cumulative interest payments collected on active nonaccrual loans and applied as a reduction to the principal balance of the respective loans totaled $510,000 and $366,000 as of September 30, 2010 and December 31, 2009, respectively.
 
 6.  Stock-Based Compensation
 
 The Company uses the following forms of stock-based compensation as an incentive for certain employees and non-employee directors: stock options, restricted stock, and stock issued through a deferred compensation plan for non-employee directors.
 
 Stock Options
 
 Pursuant to the Capital Bank Corporation Equity Incentive Plan (“Equity Incentive Plan”), the Company has a stock option plan providing for the issuance of options for the purchase of up to 1,150,000 shares of the Company’s common stock to officers and directors. As of September 30, 2010, options for 293,600 shares of common stock were outstanding and options for 598,859 shares of common stock remained available for future issuance. In addition, options for 566,071 shares of common stock were assumed by the company under various plans from previously acquired financial institutions, of which options for 19,820 shares remain outstanding. Grants of options are made by the Board of Directors or the Compensation/Human Resources Committee of the Board. All grants must be made with an exercise price at no less than fair market value on the date of grant, must be exercised no later than 10 years from the date of grant, and may be subject to certain vesting provisions.
 
 The following table summarizes the activity in the Company’s stock option plans, including the weighted average exercise price (“WAEP”), during the nine months ended September 30, 2010:
 - 13 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 Number

of Shares

Weighted Average

Exercise Price

Weighted Average

Remaining Contractual

Term in Years

Aggregate

Intrinsic ValueOutstanding at beginning of period


366,583

$
11.76Granted


19,250


4.38Exercised


–


–Forfeited and expired


(72,413
)

8.53Outstanding at end of period


313,420

$
12.05


4.73

$
–Options exercisable at end of period


225,870

$
13.74


3.37

$
–
 
 The following table summarizes information about the Company’s stock options as of September 30, 2010:
 
 Exercise Price

Number

Outstanding

Weighted Average

Remaining Contractual

Life in Years

Number

Exercisable

Intrinsic

Value$3.85 – $6.00


79,250


8.57


12,000

$
–$6.01 – $9.00


10,040


0.25


10,040


–$9.01 – $12.00


74,880


1.45


73,380


–$12.01 – $15.00


20,000


5.88


12,000


–$15.01 – $18.37


129,250


4.44


118,450


–313,420


4.73


225,870

$
–
 
 The fair values of options granted are estimated on the date of the grants using the Black-Scholes option pricing model. Option pricing models require the use of highly subjective assumptions, including expected stock price volatility, which when changed can materially affect fair value estimates. The expected life of the options used in this calculation is the period the options are expected to be outstanding. Expected stock price volatility is based on the historical volatility of the Company’s common stock for a period approximating the expected life; the expected dividend yield is based on the Company’s historical annual dividend payout; and the risk-free rate is based on the implied yield available on U.S. Treasury issues. The following weighted-average assumptions were used in determining fair value for options granted in the nine months ended September 30, 2010 and 2009:
  September 30, 2010

September 30, 2009Dividend yield
0.0%

–Expected volatility
33.0%

–Risk-free interest rate
3.1%

–Expected life
7 years

–
 The weighted average fair value of the 19,250 options granted in the nine months ended September 30, 2010 was $1.80 per option. There were no options granted in the nine months ended September 30, 2009.
 
 As of September 30, 2010, the Company had unamortized compensation expense related to unvested stock options of $102,000, which is expected to be fully amortized over the next four years. For the nine months ended September 30, 2010 and 2009, the Company recorded compensation expense of $37,000 and $38,000, respectively, related to stock options.
 
 Restricted Stock
 
 Pursuant to the Equity Incentive Plan, the Board of Directors may grant restricted stock to certain employees and Board members at its discretion. There have been no restricted stock grants since 2008. Nonvested shares are subject to forfeiture if employment terminates prior to the vesting dates. The Company expenses the cost of the stock awards, determined to be the fair value of the shares at the date of grant, ratably over the period of the vesting. Nonvested restricted stock for the nine months ended September 30, 2010 is summarized in the following table:
  - 14 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
  Shares

Weighted Average

Grant Date

Fair ValueNonvested at beginning of period


24,000

$
8.08Granted


–


–Vested


–


–Forfeited


(400
)

6.00Nonvested at end of period


23,600

$
8.12
 As of September 30, 2010, the Company had 23,600 shares of nonvested restricted stock grants, which represents unrecognized compensation expense of $102,000 to be recognized over the remaining vesting period of the respective grants. Total compensation expense related to these restricted stock awards for the nine months ended September 30, 2010 and 2009 totaled $92,000 and $91,000, respectively.
 
 Deferred Compensation for Non-employee Directors
 
 The Company administers the Capital Bank Corporation Deferred Compensation Plan for Outside Directors (“Deferred Compensation Plan”). Eligible directors may elect to participate in the Deferred Compensation Plan by deferring all or part of their directors’ fees for at least one calendar year, in exchange for common stock of the Company. If a director does not elect to defer all or part of his fees, then he is not considered a participant in the Deferred Compensation Plan. The amount deferred is equal to 125% of total director fees. Each participant is fully vested in his account balance. The Deferred Compensation Plan provides for payment of share units in shares of common stock of the Company after the participant ceases to serve as a director for any reason. For the nine months ended September 30, 2010 and 2009, the Company recognized compensation expense of $452,000 and $417,000, respectively, related to the Deferred Compensation Plan.
  7.   Derivative Instruments
 
 The Company enters into interest rate lock commitments with customers and commitments to sell mortgages to investors. The period of time between the issuance of a mortgage loan commitment and the closing and sale of the mortgage loan is generally less than 60 days. Interest rate lock commitments and forward loan sale commitments represent derivative instruments which are carried at fair value. These derivative instruments do not qualify for hedge accounting. The fair values of the Company’s interest rate lock commitments and forward loan sales commitments are based on current secondary market pricing and are included on the Condensed Consolidated Balance Sheets in mortgage loans held for sale and on the Condensed Consolidated Statements of Operations in mortgage origination and other loan fees.
 
 As of September 30, 2010, the Company had $16.0 million of commitments outstanding to originate mortgage loans held for sale at fixed rates and $24.5 million of forward commitments under best efforts contracts to sell mortgages to four different investors. The fair value adjustments of the interest rate lock commitments and forward loan sales commitments were not considered material as of September 30, 2010. Thus, there was no impact to the Condensed Consolidated Statements of Operations for the three or nine months ended September 30, 2010. There were no such commitments outstanding as of December 31, 2009 or September 30, 2009.
 
 8.  Commitments and Contingencies
 
 To meet the financial needs of its customers, the Company is party to financial instruments with off-balance-sheet risk in the normal course of business. These financial instruments are comprised of various types of commitments to extend credit, including unused lines of credit and overdraft lines, as well as standby letters of credit. These instruments involve, to varying degrees, elements of credit risk in excess of the amount recognized in the balance sheet.
 
 The Company’s exposure to credit loss in the event of nonperformance by the other party is represented by the contractual amount of those instruments. The Company uses the same credit policies in making these commitments as it does for on-balance-sheet instruments. The amount of collateral obtained, if deemed necessary by the Company, upon extension of credit is based on management’s credit evaluation of the borrower. Collateral held varies but may include trade accounts receivable, property, plant and equipment, and income-producing commercial properties. Since many unused lines of credit expire without being drawn upon, the total commitment amounts do not necessarily represent future cash requirements.
 - 15 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 The Company’s exposure to off-balance-sheet credit risk as of September 30, 2010 and December 31, 2009 is as follows:
 
 September 30, 2010

December 31, 2009(Dollars in thousands)Commitments to extend credit

$
179,254

$
231,691Standby letters of credit


9,866


9,144Total commitments

$
189,120

$
240,835
 
 The Company has limited partnership investments in two related private investment funds which totaled $1.8 million as of both September 30, 2010 and December 31, 2009. These investments are recorded on the cost basis and were included in other assets on the Condensed Consolidated Balance Sheets. Remaining capital commitments to these investment funds totaled $1.6 million as of September 30, 2010.
 
 9.  Fair Value Measurement
 
 The Company utilizes fair value measurements to record fair value adjustments to certain assets and liabilities and to determine fair value disclosures. Investment securities, available for sale, and derivatives are recorded at fair value on a recurring basis. Additionally, the Company may be required to record at fair value other assets on a nonrecurring basis, such as loans held for sale, impaired loans and certain other assets. These nonrecurring fair value adjustments typically involve application of lower of cost or market accounting or write-downs of individual assets. The following is a description of valuation methodologies used for assets and liabilities recorded at fair value.
 
 Investment securities, available for sale, are recorded at fair value on a recurring basis. Fair value measurement is based upon quoted prices, if available. If quoted prices are not available, fair values are measured using independent pricing models or other model-based valuation techniques such as the present value of future cash flows, adjusted for the security’s credit rating, prepayment assumptions and other factors such as credit loss assumptions. Level 1 securities include those traded on an active exchange, such as the New York Stock Exchange, U.S. Treasury securities that are traded by dealers or brokers in active over-the-counter markets and money market funds. Level 2 securities include mortgage-backed securities issued by government sponsored entities and corporate entities as well as municipal bonds. Securities classified as Level 3 include corporate debt instruments that are not actively traded.
 
 Mortgage loans held for sale are carried at the lower of cost or market value. The fair values of mortgage loans held for sale are based on commitments on hand from investors within the secondary market for loans with similar characteristics. As such, the fair value adjustment for mortgage loans held for sale is classified as nonrecurring Level 2.
 
 Loans are not recorded at fair value on a recurring basis. However, from time to time, a loan is considered impaired, and a valuation allowance is established based on the estimated value of the loan. The fair value of impaired loans that are collateral dependent is based on collateral value. For impaired loans that are not collateral dependent, estimated value is based on either an observable market price, if available, or the present value of expected future cash flows. Those impaired loans not requiring an allowance represent loans for which the estimated fair value exceeds the recorded investments in such loans. When the fair value of an impaired loan is based on an observable market price or a current appraised value, the Company records the impaired loan as nonrecurring Level 2. When an appraised value is not available, or management determines the fair value of the collateral is further impaired below the appraised value, and there is no observable market price, the Company classifies the impaired loan as nonrecurring Level 3.
 
 Other real estate, which includes foreclosed assets, is adjusted to fair value upon transfer of loans and premises to other real estate. Subsequently, other real estate is carried at the lower of carrying value or fair value. Fair value is based upon independent market prices, appraised values of the collateral or management’s estimation of the value of the collateral. When the fair value of the collateral is based on an observable market price or a current appraised value, the Company records other real estate as nonrecurring Level 2. When an appraised value is not available, or management determines the fair value of the collateral is further impaired below the appraised value, and there is no observable market price, the Company classifies other real estate as nonrecurring Level 3.
 
 Assets and liabilities measured at fair value on a recurring basis as of September 30, 2010 and December 31, 2009 are summarized below:
  - 16 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
  Quoted Prices in

Active Markets

(Level 1)

Significant Other

Observable

Inputs

(Level 2)

Significant

Unobservable

Inputs

(Level 3)

Total(Dollars in thousands)September 30, 2010Investment securities – available for sale:U.S. agency obligations

$
–

$
35,285

$
–

$
35,285Municipal bonds


–


23,163


–


23,163Mortgage-backed securities issued by GSEs


–


117,296


–


117,296Non-agency mortgage-backed securities


–


5,923


–


5,923Other securities


1,757


–


1,300


3,057Total

$
1,757

$
181,667

$
1,300

$
184,724December 31, 2009Investment securities – available for sale:U.S. agency obligations

$
–

$
1,029

$
–

$
1,029Municipal bonds


–


72,894


–


72,894Mortgage-backed securities issued by GSEs


–


151,658


–


151,658Non-agency mortgage-backed securities


–


7,797


–


7,797Other securities


748


–


1,300


2,048Total

$
748

$
233,378

$
1,300

$
235,426
 
 The table below presents a reconciliation and income statement classification of gains and losses for all assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the nine months ended September 30, 2010:
 
 Level 3(Dollars in thousands)Balance at beginning of period

$
1,300Total unrealized losses included in:Net income


–Other comprehensive income


–Purchases, sales and issuances, net


–Transfers in and (out) of Level 3


–Balance at end of period

$
1,300
 
 Assets and liabilities measured at fair value on a nonrecurring basis as of September 30, 2010 and December 31, 2009 are summarized below:
 
 Quoted Prices in

Active Markets

(Level 1)

Significant Other

Observable

Inputs

(Level 2)

Significant

Unobservable

Inputs

(Level 3)

Total(Dollars in thousands)September 30, 2010Impaired loans

$
–

$
67,501

$
4,359

$
71,860Other real estate


–


17,865


–


17,865December 31, 2009Impaired loans

$
–

$
36,972

$
34,181

$
71,153Other real estate


–


10,732


–


10,732
 - 17 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 10.  Fair Value of Financial Instruments
 
 Due to the nature of the Company’s business, a significant portion of its assets and liabilities consist of financial instruments. Accordingly, the estimated fair values of these financial instruments are disclosed. Quoted market prices, if available, are utilized as an estimate of the fair value of financial instruments. Because no quoted market prices exist for a significant part of the Company’s financial instruments, the fair value of such instruments has been derived based on management’s assumptions with respect to future economic conditions, the amount and timing of future cash flows and estimated discount rates. Different assumptions could significantly affect these estimates. Accordingly, the net amounts ultimately collected could be materially different from the estimates presented below. In addition, these estimates are only indicative of the values of individual financial instruments and should not be considered an indication of the fair value of the Company taken as a whole.
 
 Fair values of cash and due from banks and federal funds sold are equal to the carrying value due to the liquid nature of the financial instruments. Estimated fair values of investment securities are based on quoted market prices, if available, or model-based values from pricing sources for mortgage-backed securities and municipal bonds. Fair value of the net loan portfolio has been estimated using the present value of future cash flows, discounted at an interest rate giving consideration to estimated prepayment risk. The credit risk component of the loan portfolio has been set at the recorded allowance for loan losses balance for purposes of estimating fair value. Thus, there is no difference between the carrying amount and estimated fair value attributed to credit risk in the portfolio. Carrying amounts for accrued interest approximate fair value given the short-term nature of interest receivable and payable.
 
 Fair values of time deposits and borrowings are estimated by discounting the future cash flows using the current rates offered for similar deposits and borrowings with the same remaining maturities. Fair value of subordinated debt is estimated based on current market prices for similar trust preferred issues of financial institutions with equivalent credit risk. The estimated fair value for the Company’s subordinated debt is significantly lower than carrying value since credit spreads (i.e., spread to LIBOR) on similar trust preferred issues are currently much wider than when these securities were originally issued. Interest-bearing deposit liabilities and repurchase agreements with no stated maturities are predominately at variable rates and, accordingly, the fair values have been estimated to equal the carrying amounts (the amount payable on demand).
 
 The carrying values and estimated fair values of the Company’s financial instruments as of September 30, 2010 and December 31, 2009 are as follows:
 
 September 30, 2010

December 31, 2009(Dollars in thousands)

Carrying

Amount

Estimated

Fair Value

Carrying

Amount

Estimated

Fair ValueFinancial Assets:Cash and cash equivalents

$
68,069

$
68,069

$
29,513

$
29,513Investment securities


196,046


196,088


245,492


245,438Mortgage loans held for sale


8,528


8,528


–


–Loans


1,288,683


1,283,521


1,364,221


1,368,233Accrued interest receivable


6,120


6,120


6,590


6,590Financial Liabilities:Non-maturity deposits

$
479,401

$
479,401

$
529,257

$
529,257Time deposits


880,010


888,071


848,708


861,378Repurchase agreements


–


–


6,543


6,543Borrowings


129,000


137,540


167,000


171,278Subordinated debentures


34,323


15,593


30,930


12,200Accrued interest payable


1,710


1,710


1,824


1,824
 
 There was no material difference between the carrying amount and estimated fair value of off-balance-sheet commitments totaling $189.1 million and $240.8 million as of September 30, 2010 and December 31, 2009, respectively, which are primarily comprised of unfunded loan commitments and standby letters of credit. The Company’s remaining assets and liabilities are not considered financial instruments.
 - 18 -
 Index
 Capital Bank Corporation – Notes to Condensed Consolidated Financial Statements (Unaudited)
 11.  Private Placement Offering
 
 On March 18, 2010, the Company sold 849 investment units (“Units”) for gross proceeds of $8.5 million. Each Unit was priced at $10,000 and consisted of a $3,996.90 subordinated promissory note and a number of shares of the Company’s common stock valued at $6,003.10. The offering and sale of the Units was limited to accredited investors. As a result of the sale of the Units, the Company sold $3.4 million in aggregate principal amount of subordinated promissory notes due March 18, 2020 (the “Notes”) and 1,468,770 shares of the Company’s common stock valued at $5.1 million. The Notes were recorded in subordinated debentures on the Condensed Consolidated Balance Sheets. The Company is obligated to pay interest on the Notes at 10% per annum payable in quarterly installments commencing on the third month anniversary of the date of issuance of the Notes. The Company may prepay the Notes at any time after March 18, 2015 subject to approval by the Federal Reserve and compliance with applicable law.
 
 The Company’s obligation to repay the Notes is subordinate to all indebtedness owed by the Company to its current and future secured creditors and general creditors, including the Federal Reserve and the Federal Deposit Insurance Corporation, and certain other financial obligations of the Company.
 
 12.  Subsequent Events
 
 On October 28, 2010, the Company entered into an informal Memorandum of Understanding (“MOU”) with the Federal Depository Insurance Corporation and the North Carolina Commissioner of Banks. An MOU is characterized by regulatory authorities as an informal action that is not published or publicly available and that is used when circumstances warrant a milder form of action than a formal supervisory action, such as a formal written agreement or order. In accordance with the terms of the MOU, the Company has agreed to, among other things, (i) increase regulatory capital to achieve and maintain a minimum Tier 1 leverage capital ratio of at least 8% and a total risk-based capital ratio of at least 12%, (ii) monitor and reduce its commercial real estate concentration, (iii) timely identify and reduce its overall level of problem loans, (iv) establish and maintain an adequate allowance for loan losses, and (v) ensure adherence to loan policy guidelines. The MOU will remain in effect until modified, terminated, lifted, suspended or set aside by the regulatory authorities.
 
 On November 4, 2010, the Company announced its entry into an Investment Agreement whereby North American Financial Holdings, Inc. (“NAFH”) has agreed to purchase 71.0 million shares of the Company’s common stock for a purchase price of $2.55 per share, for a total investment of approximately $181 million. NAFH also agreed to issue a non-transferable contingent value right that will attach to each share of the Company’s common stock outstanding as of a specified record date (other than shares of common stock held by NAFH) that will provide existing shareholders with the opportunity to receive up to $0.75 per share five years from the closing date of the proposed transaction, depending on the level of loan charge-offs during that five-year period. After giving effect to the NAFH investment, NAFH would own approximately 85% of the Company’s outstanding shares of common stock. The Company also intends to conduct a rights offering to legacy shareholders of rights to purchase up to 5.0 million shares of common stock at a price of $2.55 per share. Further, NAFH would have the right to conduct a tender offer at any time to purchase up to 5.25 million shares of the Company’s common stock at a price not less than $2.55 per share. Upon closing of the investment, R. Eugene Taylor, NAFH’s CEO, and Christopher G. Marshall, NAFH’s CFO, will be added to the management team as the Company’s CEO and CFO and members of the Company’s Board of Directors upon closing of the investment transaction. B. Grant Yarber and Michael R. Moore are expected to remain in senior executive roles at Capital Bank. The Company’s Board of Directors will be reconstituted with a combination of two existing members and new NAFH-designated Board members.
 
 The investment is subject to satisfaction or waiver of certain closing conditions, including shareholder approval of the terms of the investment and an increase in our authorized shares of common stock under our Articles of Incorporation, reaching an agreement with the U.S. Department of the Treasury to repurchase the preferred stock and warrant issued under the Troubled Asset Relief Program Capital Purchase Program on terms acceptable to NAFH, and the receipt by NAFH and the Company of the requisite governmental and regulatory approvals.
  - 19 -
 Index
 Item 2.Management’s Discussionand Analysis of Financial Condition and Results of Operations
 
 The following discussion presents an overview of the unaudited financial statements for the three and nine months ended September 30, 2010 and 2009 for Capital Bank Corporation, or the Company, and its wholly owned subsidiary, Capital Bank, or the Bank. This discussion and analysis is intended to provide pertinent information concerning financial condition, results of operations, liquidity, and capital resources for the periods covered and should be read in conjunction with the unaudited financial statements and related footnotes contained in Part I, Item 1 of this report.
 
 Information set forth below contains various forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, which statements represent the Company’s judgment concerning the future and are subject to risks and uncertainties that could cause the Company’s actual operating results to differ materially. Such forward-looking statements can be identified by the use of forward-looking terminology, such as “may,” “will,” “expect,” “anticipate,” “estimate,” “believe,” or “continue,” or the negative thereof or other variations thereof or comparable terminology. The Company cautions that such forward-looking statements are further qualified by important factors that could cause the Company’s actual operating results to differ materially from those in the forward-looking statements, as well as the factors set forth in Part II, Item 1A of this report, and the Company’s periodic reports and other filings with the Securities and Exchange Commission, or SEC.
 
 Overview
 
 Capital Bank Corporation is a financial holding company incorporated under the laws of North Carolina on August 10, 1998. The Company’s primary wholly-owned subsidiary is Capital Bank, a state-chartered banking corporation. The Bank was incorporated under the laws of the State of North Carolina on May 30, 1997 and commenced operations on June 20, 1997. As of September 30, 2010, the Company conducted no business other than holding stock in the Bank and in three trusts, Capital Bank Statutory Trust I, II, and III.
 
 Capital Bank is a community bank engaged in the general commercial banking business and operates through four North Carolina regions: Triangle, Sandhills, Triad and Western. As of September 30, 2010, the Bank had assets of approximately $1.6 billion, with gross loans and deposits outstanding of approximately $1.3 billion and $1.4 billion, respectively. The Bank operates 32 branch offices in North Carolina: five in Raleigh, four in Asheville, four in Fayetteville; three in Burlington, three in Sanford, two in Cary, and one each in Clayton, Graham, Hickory, Holly Springs, Mebane, Morrisville, Oxford, Pittsboro, Siler City, Wake Forest and Zebulon.
 
 The Bank offers a full range of banking services, including the following: checking accounts; savings accounts; NOW accounts; money market accounts; certificates of deposit; individual retirement accounts; loans for real estate, construction, businesses, agriculture, personal use, home improvement and automobiles; equity lines of credit; mortgage loans; credit loans; consumer loans; credit cards; safe deposit boxes; bank money orders; internet banking; electronic funds transfer services including wire transfers and remote deposit capture; traveler’s checks; and free notary services to all Bank customers. In addition, the Bank provides automated teller machine access to its customers for cash withdrawals through nationwide ATM networks. Through a partnership between the Bank’s financial services division and Capital Investment Companies, an unaffiliated Raleigh, North Carolina-based broker-dealer, the Bank also makes available a complete line of uninsured investment products and services. The securities involved in these services are not deposits or other obligations of the Bank and are not insured by the Federal Deposit Insurance Corporation, or the FDIC.
 
 The Bank’s business consists principally of attracting deposits from the general public and investing these funds in loans secured by commercial real estate, secured and unsecured commercial and consumer loans, single-family residential mortgage loans and home equity lines. As a community bank, the Bank’s profitability depends primarily upon its levels of net interest income, which is the difference between interest income from interest-earning assets and interest expense on interest-bearing liabilities. When interest-earning assets approximate or exceed interest-bearing liabilities, any positive interest rate spread will generate net interest income.
 
 The Bank’s profitability is also affected by its provision for loan losses, noninterest income and other operating expenses. Noninterest income primarily consists of service charges and ATM fees, debit card transaction fees, fees generated from originating mortgage loans, commission income generated from brokerage activity, and the increase in cash surrender value of bank-owned life insurance, or BOLI. Operating expenses primarily consist of employee compensation and benefits, occupancy related expenses, depreciation and maintenance expenses on furniture and equipment, data processing and telecommunications, advertising and public relations, professional fees, other real estate and loan-related losses, FDIC deposit insurance and other noninterest expenses.
 - 20 -
 Index
 The Bank’s operations are influenced significantly by local economic conditions and by policies of financial institution regulatory authorities. The Bank’s cost of funds is influenced by interest rates on competing investments and by rates offered on similar investments by competing financial institutions in our market area, as well as general market interest rates. Lending activities are affected by the demand for financing, which in turn is affected by the prevailing interest rates.
 
 As a financial holding company, the Company is subject to the supervision of the Board of Governors of the Federal Reserve System, or Federal Reserve. The Company is required to file with the Federal Reserve reports and other information regarding its business operations and the business operations of its subsidiaries. As a North Carolina chartered bank, the Bank is subject to primary supervision, periodic examination and regulation by the North Carolina Commissioner of Banks, or NC Commissioner, and by the FDIC, as its primary federal regulator.
 
 Critical Accounting Policies and Estimates
 
 The following discussion and analysis of the Company’s financial condition and results of operations are based on the Company’s condensed consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States, or U.S. GAAP. The preparation of these financial statements requires the Company to make estimates and judgments regarding uncertainties that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. The Company bases its estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. However, because future events and their effects cannot be determined with certainty, actual results may differ from these estimates under different assumptions or conditions, and the Company may be exposed to gains or losses that could be material.
 
 The Company has identified the following accounting policies as being critical in terms of significant judgments and the extent to which estimates are used: allowance for loan losses, other-than-temporary impairment on investment securities, income taxes, and impairment of long-lived assets. These policies are important in understanding management’s discussion and analysis. For more information on the Company’s critical accounting policies, refer to Part II, Item 7 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.
 
 Executive Summary
 
 The following is a summary of the Company’s significant results of operations and changes in financial position for the three and nine months ended September 30, 2010:
 
 •
Regulatory capital ratios remained in excess of “well capitalized” levels as of September 30, 2010.•
Net loss attributable to common shareholders was $9.7 million, or $0.74 per share, in the third quarter of 2010 compared with net income available to common shareholders of $3.0 million, or $0.26 per share, in the third quarter of 2009. For the year-to-date period, net loss attributable to common shareholders was $29.7 million, or $2.34 per share, in the first nine months of 2010 compared with net loss attributable to common shareholders of $1.3 million, or $0.12 per share, in the first nine months of 2009.•
Net interest margin improved to 3.48% in the third quarter of 2010 from 3.25% in the second quarter of 2010 and 3.41% in the third quarter of 2009. For the year-to-date period, net interest margin improved to 3.30% in the first nine months of 2010 from 3.11% in the first nine months of 2009.•
Nonperforming assets, including restructured loans, were 5.69% of total assets as of September 30, 2010 compared with 5.76% as of June 30, 2010 and 4.87% as of December 31, 2009.•
Allowance for loan losses increased to 2.74% of total loans as of September 30, 2010 from 2.65% as of June 30, 2010 and 1.88% as of December 31, 2009.•
Provision for loan losses fell to $6.8 million in the third quarter of 2010 from $20.0 million in the second quarter of 2010 but increased from $3.6 million in the third quarter of 2009. For the year-to-date period, provision for loan losses increased to $38.5 million in the first nine months of 2010 from $11.2 million in the first nine months of 2009.•
The valuation allowance recorded against deferred tax assets increased to $8.8 million as of September 30, 2010 from $3.3 million as of June 30, 2010.
 - 21 -
 Index
 Results of Operations
 
 Quarter ended September 30, 2010 compared to quarter ended September 30, 2009
 
 Net loss attributable to common shareholders was $9.7 million, or $0.74 per share, in the third quarter of 2010 compared with net income available to common shareholders of $3.0 million, or $0.26 per share, in the third quarter of 2009. Results of operations in the third quarter of 2010 compared with the same quarter last year primarily reflect an increase in provision for loan losses, an increase in noninterest expense and higher tax expense.
 
 Net Interest Income
 
 Net interest income decreased from $13.6 million for the quarter ended September 30, 2009 to $13.4 million for the quarter ended September 30, 2010. Average interest-earning assets declined from $1.63 billion for the quarter ended September 30, 2009 to $1.58 billion for the quarter ended September 30, 2010, a decrease of 3.3%. Average interest-bearing liabilities declined from $1.41 billion for the quarter ended September 30, 2009 to $1.40 billion for the quarter ended September 30, 2010, a decrease of 0.9%. On a fully tax equivalent basis, net interest spread was 3.28% and 3.10% for the quarters ended September 30, 2010 and 2009, respectively. Net interest margin on a tax equivalent basis increased to 3.48% for the quarter ended September 30, 2010 from 3.41% for the quarter ended September 30, 2009. The yield on average interest-earning assets was 5.04% and 5.43% for the quarters ended September 30, 2010 and 2009, respectively, while the interest rate paid on average interest-bearing liabilities for those periods was 1.76% and 2.33%, respectively.
 
 The increase in the net interest margin was primarily due to the significant decline in funding costs through disciplined pricing controls and a declining interest rate environment.Partially offsetting declining funding costs was a significant increase in nonaccrual loans over the past year and the expiration of an interest rate swap on prime-indexed commercial loans.
 
 The following two tables set forth certain information regarding the Company’s yield on interest-earning assets and cost of interest-bearing liabilities and the component changes in net interest income. The first table, Average Balances, Interest Earned or Paid, and Interest Yields/Rates, reflects the Company’s effective yield on earning assets and cost of funds. Yields and costs are computed by dividing income or expense for the year by the respective daily average asset or liability balance. Changes in net interest income from year to year can be explained in terms of fluctuations in volume and rate. The second table, Rate and Volume Variance Analysis, presents further information on those changes. For each category of interest-earning asset and interest-bearing liability, we have provided information on changes attributable to:
 
 •
changes in volume, which are changes in average volume multiplied by the average rate for the previous period;•
changes in rates, which are changes in average rate multiplied by the average volume for the previous period;•
changes in rate/volume, which are changes in average rate multiplied by the changes in average volume; and•
total change, which is the sum of the previous columns.
 - 22 -
 Index
 CAPITAL BANK CORPORATION
 Average Balances, Interest Earned or Paid, and Interest Yields/Rates
 For the Three Months Ended September 30, 2010, June 30, 2010 and September 30, 2009
 Tax Equivalent Basis1
 
 September 30, 2010

June 30, 2010

September 30, 2009(Dollars in thousands)

Average Balance

Amount Earned

Average Rate

Average Balance

Amount Earned

Average Rate

Average Balance

Amount Earned

Average RateAssetsLoans 2

$
1,342,835

$
17,512


5.23
%
$
1,373,613

$
17,465


5.10
%
$
1,330,199

$
18,809


5.61
%Investment securities 3


211,547


2,309


4.37


224,366


2,722


4.85


263,513


3,512


5.33Interest-bearing deposits


23,859


17


0.29


25,300


10


0.16


38,995


18


0.18Total interest-earning assets


1,578,241

$
19,838


5.04
%

1,623,279

$
20,197


4.99
%

1,632,707

$
22,339


5.43
%Cash and due from banks


17,285








17,819








8,256Other assets


108,461








111,383








83,589Allowance for loan losses


(38,012
)







(33,241
)







(19,262
)Total assets

$
1,665,975







$
1,719,240







$
1,705,290Liabilities and EquitySavings accounts

$
31,594

$
10


0.13
%
$
30,721

$
10


0.13
%
$
29,267

$
11


0.15
%Interest-bearing demand deposits


323,242


634


0.79


326,706


648


0.80


366,632


1,095


1.18Time deposits


859,968


4,039


1.88


891,645


4,946


2.22


845,311


5,691


2.67Total interest-bearing deposits


1,214,804


4,683


1.55


1,249,072


5,604


1.80


1,241,210


6,797


2.17Borrowed funds


150,478


1,156


3.08


153,264


1,146


3.00


130,098


1,260


3.84Subordinated debt


34,323


314


3.67


34,323


298


3.48


30,930


240


3.08Repurchase agreements


-


-


-


1,590


2


0.50


10,646


6


0.22Total interest-bearing liabilities


1,399,605

$
6,153


1.76
%

1,438,249

$
7,050


1.97
%

1,412,884

$
8,303


2.33
%Noninterest-bearing deposits


130,758








133,455








134,721Other liabilities


10,509








10,587








12,198Total liabilities


1,540,872








1,582,291








1,559,803Shareholders’ equity


125,103








136,949








145,487Total liabilities and shareholders’ equity

$
1,665,975







$
1,719,240







$
1,705,290Net interest spread 4








3.28
%







3.02
%







3.10
%Tax equivalent adjustment




$
303







$
403







$
481Net interest income and net interest margin 5




$
13,685


3.48
%



$
13,147


3.25
%



$
14,036


3.41
%
 
 1
The tax equivalent basis is computed using a federal tax rate of 34%.2
Loans include mortgage loans held for sale in addition to nonaccrual loans for which accrual of interest has not been recorded.3
The average balance for investment securities excludes the effect of their mark-to-market adjustment, if any.4
Net interest spread represents the difference between the average yield on interest-earning assets and the average cost of interest-bearing liabilities.5
Net interest margin represents net interest income divided by average interest-earning assets.
 - 23 -
 Index
 Rate and Volume Variance Analysis
 Tax Equivalent Basis 1
 Three Months Ended

September 30, 2010 vs. 2009(Dollars in thousands)

Rate

Variance

Volume

Variance

Total

VarianceInterest income:Loans

$
(1,208
)
$
(89
)
$
(1,297
)Investment securities


(636
)

(567
)

(1,203
)Federal funds sold


10


(11
)

(1
)Total interest income


(1,834
)

(667
)

(2,501
)Interest expense:Savings and interest-bearing demand deposits and other


(366
)

(96
)

(462
)Time deposits


(1,659
)

7


(1,652
)Borrowed funds


(247
)

143


(104
)Subordinated debt


46


28


74Repurchase agreements and federal funds purchased


(6
)

–


(6
)Total interest expense


(2,232
)

82


(2,150
)Increase (decrease) in net interest income

$
398

$
(749
)
$
(351
)
 
 1
The tax equivalent basis is computed using a federal tax rate of 34%.
 
 Interest income on loans decreased from $18.7 million for the quarter ended September 30, 2009 to $17.4 million for the quarter ended September 30, 2010, a decrease of 7.3%. This decrease was primarily due to lower loan yields, partially offset by growth in the loan portfolio. Average loan balances, which yielded 5.23% and 5.61% for the quarters ended September 30, 2010 and 2009, respectively, increased from $1.33 billion in the third quarter of 2009 to $1.34 billion in the third quarter of 2010.The Company’s interest rate swap on prime-indexed commercial loans, which expired in October 2009, increased loan interest income by $1.1 million in the third quarter of 2009, representing a benefit to net interest margin of 0.27% in that quarter. The Company received no such benefit in the third quarter of 2010.
 
 Interest income on investment securities decreased from $3.1 million for the quarter ended September 30, 2009 to $2.2 million for the quarter ended September 30, 2010, a decline of 30.7%. This decrease was due to a decline in the size of the investment portfolio coupled with lower fixed income investment yields. Average investment balances, at book value, decreased from $263.5 million for the quarter ended September 30, 2009 to $211.5 million for the quarter ended September 30, 2010, and the tax equivalent yield on investment securities decreased from 5.33% to 4.37% over the same period. The decrease in average investment balances partially reflects management’s efforts to reduce the duration of the portfolio to mitigate exposure to a potential future rising interest rate environment. Additionally, yields have fallen as prepayments on higher yielding mortgage-backed securities and sales of certain long-dated municipal bonds have been re-invested generally at lower rates in shorter-dated U.S. government agency debt and other high quality bonds.
 
 Interest expense on deposits decreased from $6.8 million for the quarter ended September 30, 2009 to $4.7 million for the quarter ended September 30, 2010, a decline of 31.1%. The decline is partially due to falling interest-bearing deposit rates from 2.17% for the quarter ended September 30, 2009 to 1.55% for the quarter ended September 30, 2010. For time deposits, which represented 70.8% and 68.1% of total average interest-bearing deposits for the quarters ended September 30, 2010 and 2009, respectively, the average rate decreased from 2.67 % for the quarter ended September 30, 2009 to 1.88% for the quarter ended September 30, 2010, reflecting disciplined pricing controls and re-pricing of maturing time deposits in a low interest rate environment. Interest expense on borrowingsremained relatively flat, totaling $1.5 million in both quarters ended September 30, 2010 and 2009. The average rate paid on average borrowings, including subordinated debt and repurchase agreements, decreased from 3.48% for the quarter ended September 30, 2009 to 3.19% for the quarter ended September 30, 2010.
 
 Provision for Loan Losses
 
 Provision for loan losses for the quarter ended September 30, 2010 totaled $6.8 million, an increase from $3.6 million for the quarter ended September 30, 2009 and a decrease from $20.0 million for the quarter ended June 30, 2010. The loan loss provision remains elevated compared to the same quarter last year due to significantly higher levels of nonperforming assets as well as increased charge-off rates as the Company continues making progress resolving problem loans. On a linked-quarter basis, however, the loan loss provision declined as charge-offs were reduced and nonperforming assets fell.
 - 24 -
 Index
 Net charge-offs totaled $6.3 million, or 1.87% of average loans, in the third quarter of 2010, an increase from $2.7 million, or 0.80% of average loans, in the third quarter of 2009 and a decrease from $13.4 million, or 3.91% of average loans, in the second quarter of 2010.Nonperforming assets, which include nonperforming loans and other real estate, totaled 5.32% of total assets as of September 30, 2010, a decrease from 5.37% as of June 30, 2010 and an increase from 2.90% as of December 31, 2009. Nonperforming assets, including restructured loans, totaled 5.69% of total assets as of September 30, 2010, a decrease from 5.76% as of June 30, 2010 and an increase from 4.87% as of December 31, 2009. Further, loans past due more than 30 days, excluding nonperforming loans, increased to 1.00% of total loans as of September 30, 2010 compared to 0.72% of total loans as of June 30, 2010 and 0.67% as of December 31, 2009.
 
 The elevated provision for loan losses, net charge-offs and nonperforming assets reflect the economic climate in the Company’s primary markets and consistent application of the Company’s policy to recognize losses as they occur. Given significant volatility and rapid changes in current market conditions, management cannot predict its provision or nonperforming loan levels into the future but anticipates that credit losses and problem loans may remain elevated, or even increase, throughout the remainder of 2010 and early 2011 as the Company continues working to resolve problem loans in these challenging market conditions.
 
 Noninterest Income
 
 Noninterest income remained relatively flat on a quarterly basis, totaling $2.5 million in both quarters ended September 30, 2010 and 2009.The following table presents the detail of noninterest income and related changes for the quarters ended September 30, 2010 and 2009:
 
 Three Months Ended
September 30,2010


2009


$ Change


% Change(Dollars in thousands)Noninterest income:Service charges and other fees

$
746

$
990

$
(244
)

(24.6
)%Bank card services


521


409


112


27.4Mortgage origination and other loan fees


442


410


32


7.8Brokerage fees


271


155


116


74.8Bank-owned life insurance


138


240


(102
)

(42.5
)Net gain on investment securities


244


148


96


64.9Other


138


155


(17
)

(11.0
)Total noninterest income

$
2,500

$
2,507

$
(7
)

(0.3
)%
  Bank card services income increased by $112 thousand from a higher volume of debit card transactions. Brokerage fees increased by $116 thousand as a result of improved sales efforts. Further, net gains on investment securities, including sales of debt securities as well as appreciation in fair market value of an equity investment, increased by $96 thousand. Mortgage origination and other loan fees increased primarily due to increased residential mortgage refinancing activity in the third quarter of 2010 compared to the same quarter last year.
 
 Offsetting these increases in noninterest income, service charges and other fees declined by $244 thousand due to a reduction in the volume of overdrawn accounts and non-sufficient funds transactions. Additionally, bank owned life insurance, or BOLI, income fell by $102 thousand after the Company surrendered certain BOLI contracts in the third quarter of 2010. Other income decreased primarily due to lower sublease income.
 Noninterest Expense
 
 Noninterest expense increased from $11.1 million for the quarter ended September 30, 2009 to $14.2 million for the quarter ended September 30, 2010, an increase of 28.0%.The following table presents the detail of noninterest expense and related changes for the quarters ended September 30, 2010 and 2009:
 - 25 -
 Index
 Three Months Ended

September 30,2010


2009


$ Change


% Change(Dollars in thousands)Noninterest expense:Salaries and employee benefits

$
5,918

$
5,128

$
790


15.4
%Occupancy


1,460


1,471


(11
)

(0.7
)Furniture and equipment


867


771


96


12.5Data processing and telecommunications


488


555


(67
)

(12.1
)Advertising and public relations


435


394


41


10.4Office expenses


320


386


(66
)

(17.1
)Professional fees


626


358


268


74.9Business development and travel


363


268


95


35.4Amortization of core deposit intangible


235


287


(52
)

(18.1
)Other real estate and other loan-related losses


1,833


370


1,463


395.4Directors’ fees


236


295


(59
)

(20.0
)FDIC deposit insurance


712


474


238


50.2Other


717


341


376


110.3Total noninterest expense

$
14,210

$
11,098

$
3,112


28.0
%
 The increase in noninterest expense was primarily due to a $1.5 million increase in other real estate and loan-related costs, of which $1.0 million was related to valuation adjustments to and losses on the sale of other real estate with the remaining increase representing higher loan workout, appraisal and foreclosure costs to resolve problem assets. Additionally, salaries and employee benefits expense increased by $790 thousand due to lower deferred loan costs, which decrease expense, and increased employee health insurance expense.
 
 Further, furniture and equipment expense increased by $96 thousand due to higher depreciation charges and equipment maintenance expense. Advertising and public relations expense increased by $41 thousand due in part from radio and television ads promoting the Company’s special financing program for home buyers. Professional fees increased by $268 thousand due to higher legal and audit expense. Business development and travel expenses increased primarily due to employee travel costs associated with the Company’s recently withdrawn public stock offering. FDIC deposit insurance expense increased by $238 thousand with higher deposit insurance assessment rates and growth in insured deposit accounts. Other noninterest expense increased by $376 thousand primarily due to legal fees and other professional fees associated with the Company’s recent public stock offering and withdrawn registration statement.
 
 Partially offsetting the increases in noninterest expense, data processing and telecommunications costs fell by $67 thousand as the Company realized cost savings through renegotiation of certain vendor contracts. In addition, office expenses decreased by $66 thousand primarily due to cost savings initiatives within the Company’s branch network and operations areas, which particularly lowered printing costs. Core deposit intangible amortization decreased by $52 thousand as intangible assets acquired in previous acquisitions are amortized on an accelerated method over the expected benefit of the core deposit premium. Directors’ fees decreased by $59 thousand due in part to the board reduction and reorganization in late 2009. Lastly, occupancy expense remained relatively consistent in the period under comparison.
 
 Income Taxes
 
 Income taxes recorded in the three months ended September 30, 2010 were primarily impacted by net losses before income taxes, which created tax benefits, offset by valuation allowances recorded against deferred tax assets. The valuation allowance recorded against deferred tax assets increased by $5.5 million in the third quarter of 2010, from $3.3 million as of June 30, 2010 to $8.8 million as of September 30, 2010. There was no valuation allowance recorded against deferred tax assets in the third quarter of 2009.
 
 Deferred tax assets represent timing differences in the recognition of certain tax benefits for accounting and income tax purposes, including the expected value of future tax savings that will be available to the Company to offset future taxable income through the carry forward of net operating losses. A valuation allowance is provided when it is more likely than not that some portion of the deferred tax asset will not be realized. In future periods, the Company may be able to reduce some or all of the valuation allowance upon a determination that it will be able to realize such tax savings.
 - 26 -
 Index
 Nine months ended September 30, 2010 compared to nine months ended September 30, 2009
 
 Net loss attributable to common shareholders was $29.7 million, or $2.34 per share, for the nine months ended September 30, 2010 compared with net loss attributable to common shareholders of $1.3 million, or $0.12 per share, for the nine months ended September 30, 2009. Results of operations for the nine months ended September 30, 2010 compared with the same period last year primarily reflect a significant increase in provision for loan losses and an increase in noninterest expense, partially offset by improved net interest income.
 
 Net Interest Income
 
 Net interest income increased from $35.9 million for the nine months ended September 30, 2009 to $38.7 million for the nine months ended September 30, 2010. Average interest-earning assets rose from $1.60 billion for the nine months ended September 30, 2009 to $1.61 billion for the nine months ended September 30, 2010, an increase of 0.9%. Average interest-bearing liabilities rose from $1.39 billion for the nine months ended September 30, 2009 to $1.43 billion for the nine months ended September 30, 2010, an increase of 2.9%. On a fully tax equivalent basis, net interest spread was 3.08% and 2.77% for the nine months ended September 30, 2010 and 2009, respectively. Net interest margin on a tax equivalent basis increased to 3.30% for the nine months ended September 30, 2010 from 3.11% for the nine months ended September 30, 2009. The yield on average interest-earning assets was 5.02% and 5.31% for the nine months ended September 30, 2010 and 2009, respectively, while the interest rate paid on average interest-bearing liabilities for those periods was 1.94% and 2.54%, respectively.
 
 The increase in the net interest margin was primarily due to the significant decline in funding costs through disciplined pricing controls and a declining interest rate environment.Partially offsetting declining funding costs was a significant increase in nonaccrual loans over the past year and the expiration of an interest rate swap on prime-indexed commercial loans. The following two tables set forth certain information regarding the Company’s yield on interest-earning assets and cost of interest-bearing liabilities and the component changes in net interest income:
  - 27 -
 Index
 CAPITAL BANK CORPORATION
 Average Balances, Interest Earned or Paid, and Interest Yields/Rates
 For the Nine Months Ended September 30, 2010 and 2009
 Tax Equivalent Basis1
 
 September 30, 2010

September 30, 2009(Dollars in thousands)

Average Balance

Amount Earned

Average Rate

Average Balance

Amount Earned

Average RateAssetsLoans 2

$
1,369,688

$
52,539


5.13
%
$
1,293,974

$
52,313


5.41
%Investment securities 3


220,525


7,987


4.83


276,649


11,200


5.40Interest-bearing deposits


23,142


37


0.21


28,001


34


0.16Total interest-earnings assets


1,613,355

$
60,563


5.02
%

1,598,624

$
63,547


5.31
%Cash and due from banks


18,177








15,171Other assets


107,411








80,917Allowance for loan losses


(33,136
)







(17,731
)Total assets

$
1,705,807







$
1,676,981Liabilities and EquitySavings accounts

$
30,445

$
30


0.13
%
$
29,225

$
37


0.17
%Interest-bearing demand deposits


330,596


2,168


0.88


362,724


3,449


1.27Time deposits


874,331


14,240


2.18


814,328


18,110


2.97Total interest-bearing deposits


1,235,372


16,438


1.78


1,206,277


21,596


2.39Borrowed funds


158,158


3,446


2.91


138,945


3,923


3.77Subordinated debt


33,304


830


3.33


30,930


839


3.63Repurchase agreements


2,068


5


0.32


12,156


20


0.22Total interest-bearing liabilities


1,428,902

$
20,719


1.94
%

1,388,308

$
26,378


2.54
%Noninterest-bearing deposits


132,058








130,061Other liabilities


10,585








11,963Total liabilities


1,571,545








1,530,332Shareholders’ equity


134,262








146,649Total liabilities and shareholders’ equity

$
1,705,807







$
1,676,981Net interest spread 4








3.08
%







2.77
%Tax equivalent adjustment




$
1,168







$
1,269Net interest income and net interest margin 5




$
39,844


3.30
%



$
37,169


3.11
%
 
 1
The tax equivalent basis is computed using a federal tax rate of 34%.2
Loans include mortgage loans held for sale and nonaccrual loans for which accrual of interest has not been recorded.3
The average balance for investment securities excludes the effect of their mark-to-market adjustment, if any.4
Net interest spread represents the difference between the average yield on interest-earning assets and the average cost of interest-bearing liabilities.5
Net interest margin represents net interest income divided by average interest-earning assets.
 - 28 -
 Index
 Rate and Volume Variance Analysis
 Tax Equivalent Basis 1
  Nine Months Ended

September 30, 2010 vs. 2009(Dollars in thousands)

Rate

Variance

Volume

Variance

Total

VarianceInterest income:Loans

$
(2,607
)
$
2,833

$
226Investment securities


(1,180
)

(2,033
)

(3,213
)Federal funds sold


11


(8
)

3Total interest income


(3,776
)

792


(2,984
)Interest expense:Savings and interest-bearing demand deposits and other


(1,078
)

(210
)

(1,288
)Time deposits


(4,847
)

977


(3,870
)Borrowed funds


(896
)

419


(477
)Subordinated debt


(68
)

59


(9
)Repurchase agreements and federal funds purchased


9


(24
)

(15
)Total interest expense


(6,880
)

1,221


(5,659
)Increase in net interest income

$
3,104

$
(429
)
$
2,675
 1
The tax equivalent basis is computed using a federal tax rate of 34%.
 
 Interest income on loans decreased from $52.2 million for the nine months ended September 30, 2009 to $52.1 million for the nine months ended September 30, 2010, a decrease of 0.3%. This decrease was primarily due to lower loan yields, partially offset by growth in the loan portfolio. Average loan balances, which yielded 5.13% and 5.41% in the nine months ended September 30, 2010 and 2009, respectively, increased from $1.29 billion in the nine months ended September 30, 2009 to $1.37 billion in the nine months ended September 30, 2010.The Company’s interest rate swap on prime-indexed commercial loans, which expired in October 2009, increased loan interest income by $3.4 million in the nine months ended September 30, 2009, representing a benefit to net interest margin of 0.28% during the period. The Company received no such benefit in the nine months ended September 30, 2010. A significant increase in loans placed on nonaccrual status during the nine months ended September 30, 2010 also negatively affected loan interest income during the period when compared with the same period one year ago. When loans are placed on nonaccrual status, any accrued but unpaid interest is immediately reversed and has a direct impact on net interest income and net interest margin.
 
 Interest income on investment securities decreased from $10.0 million for the nine months ended September 30, 2009 to $7.3 million for the nine months ended September 30, 2010, a decline of 27.4%. This decrease was due to a decline in the size of the investment portfolio coupled with lower fixed income investment yields. Average investment balances, at book value, decreased from $276.6 million for the nine months ended September 30, 2009 to $220.5 million for the nine months ended September 30, 2010, and the tax equivalent yield on investment securities decreased from 5.40% to 4.83% over the same period. The decrease in average investment balances partially reflects management’s efforts to reduce the duration of the portfolio to mitigate exposure to a potential future rising interest rate environment. Additionally, yields have fallen as prepayments on higher yielding mortgage-backed securities and sales of certain long-dated municipal bonds have been re-invested at lower rates in shorter-dated U.S. government agency debt and other high quality bonds.
 
 Interest expense on deposits decreased from $21.6 million for the nine months ended September 30, 2009 to $16.4 million for the nine months ended September 30, 2010, a decline of 23.9%. The decline is partially due to falling interest-bearing deposit rates from 2.39% for the nine months ended September 30, 2009 to 1.78% for the nine months ended September 30, 2010. For time deposits, which represented 70.8% and 67.5% of total average interest-bearing deposits for the nine months ended September 30, 2010 and 2009, respectively, the average rate decreased from 2.97% for the nine months ended September 30, 2009 to 2.18% for the nine months ended September 30, 2010, reflecting disciplined pricing controls and re-pricing of maturing time deposits in a low interest rate environment. Interest expense on borrowings decreased from $4.8 million for the nine months ended September 30, 2009 to $4.3 million for the nine months ended September 30, 2010, a decline of 10.5%. The average rate paid on average borrowings, including subordinated debt and repurchase agreements, decreased from 3.51% for the nine months ended September 30, 2009 to 2.96% for the nine months ended September 30, 2010.
 - 29 -
 Index
 Provision for Loan Losses
 
 Provision for loan losses for the nine months ended September 30, 2010 totaled $38.5 million, an increase from $11.2 million for the nine months ended September 30, 2009. The loan loss provision has increased compared to the same period last year due to significantly higher levels of nonperforming assets as well as increased charge-off rates as the Company continues making progress resolving problem loans.
 
 Net charge-offs increased from $6.5 million, or 0.67% of average loans, in the first nine months of 2009 to $28.4 million, or 2.76% of average loans, in the first nine months of 2010.Nonperforming assets, which include nonperforming loans and other real estate, increased to 5.32% of total assets as of September 30, 2010 from 2.90% as of December 31, 2009 and from 1.55% as of September 30, 2009. Nonperforming assets, including restructured loans, increased to 5.69% of total assets as of September 30, 2010 from 4.87% as of December 31, 2009 and from 3.23% as of September 30, 2009. Loans past due more than 30 days, excluding nonperforming loans, totaled 1.00% of total loans as of September 30, 2010, an increase from 0.67% as of December 31, 2009 and a decrease from 1.20% as of September 30, 2009.
 
 Noninterest Income
 
 Noninterest income decreased from $8.3 million for the nine months ended September 30, 2009 to $7.5 million for the nine months ended September 30, 2010, a decline of 9.5%.The following table presents the detail of noninterest income and related changes for the nine months ended September 30, 2010 and 2009:
 
 Nine Months Ended
September 30,2010


2009


$ Change


% Change(Dollars in thousands)Noninterest income:Service charges and other fees

$
2,468

$
2,901

$
(433
)

(14.9
)%Bank card services


1,479


1,133


346


30.5Mortgage origination and other loan fees


1,108


1,520


(412
)

(27.1
)Brokerage fees


743


468


275


58.8Bank-owned life insurance


632


1,663


(1,031
)

(62.0
)Net gain on investment securities


641


164


477


290.9Other


474


488


(14
)

(2.9
)Total noninterest income

$
7,545

$
8,337

$
(792
)

(9.5
)%
 
 This decrease in noninterest income was primarily related to a nonrecurring BOLI gain of $913 thousand in the nine months ended September 30, 2009. In addition, service charges and other fees declined by $433 thousand due to a reduction in the volume of overdrawn accounts and non-sufficient funds transactions. Mortgage origination and other loan fees declined by $412 thousand primarily due to fewer prepayment penalties recognized on commercial loans in the nine months ended September 30, 2010, partially offset by increased residential mortgage refinancing activity. Other noninterest income remained relatively unchanged in the period under comparison.
 
 Partially offsetting the decline in noninterest income was an increase of $477 thousand in net gains on investment securities, including sales of debt securities as well as appreciation in fair market value of an equity investment. Additionally, bank card services increased by $346 thousand from a higher volume of debit card transactions. Brokerage fees increased by $275 thousand as a result of improved sales efforts.
 
 Noninterest Expense
 
 Noninterest expense increased from $35.1 million for the nine months ended September 30, 2009 to $39.2 million for the nine months ended September 30, 2010, an increase of 11.5%.The following table presents the detail of noninterest expense and related changes for the nine months ended September 30, 2010 and 2009:
 - 30 -
 Index
 Nine Months EndedSeptember 30,2010


2009


$ Change


% Change(Dollars in thousands)Noninterest expense:Salaries and employee benefits

$
16,637

$
16,945

$
(308
)

(1.8
)%Occupancy


4,418


4,192


226


5.4Furniture and equipment


2,312


2,340


(28
)

(1.2
)Data processing and telecommunications


1,530


1,759


(229
)

(13.0
)Advertising and public relations


1,464


940


524


55.7Office expenses


940


1,043


(103
)

(9.9
)Professional fees


1,785


1,171


614


52.4Business development and travel


937


843


94


11.2Amortization of core deposit intangible


705


862


(157
)

(18.2
)Other real estate and other loan-related losses


3,858


938


2,920


311.3Directors’ fees


828


1,131


(303
)

(26.8
)FDIC deposit insurance


2,028


1,882


146


7.8Other


1,738


1,081


657


60.8Total noninterest expense

$
39,180

$
35,127

$
4,053


11.5
%
 The increase in noninterest expense was primarily due to a $2.9 million increase in other real estate and loan-related costs, of which $1.9 million was related to valuation adjustments to and losses on the sale of other real estate with the remaining increase representing higher loan workout, appraisal and foreclosure costs to resolve problem assets. Occupancy expense increased by $226 thousand primarily due to additional overhead costs incurred as new branches were opened in the Triangle region during the third quarter of 2009.
 
 Further, advertising and public relations expense increased by $524 thousand due in part from radio and television ads promoting the Company’s special financing program for home buyers. Professional fees increased by $614 thousand due to higher legal and audit expense. Business development and travel expenses increased primarily due to marketing efforts associated with the Company’s recently withdrawn public stock offering. FDIC deposit insurance expense rose by $146 thousand with higher deposit insurance assessment rates and growth in insured deposit accounts partially offset by the FDIC’s special assessment on all insured depository institutions in the second quarter of 2009. Other noninterest expense increased by $657 thousand primarily due to legal fees and other professional fees associated with the Company’s recent public stock offering and withdrawn registration statement.
 
 Partially offsetting the increases in noninterest expense, salaries and employee benefits expense decreased by $308 thousand partially due to the suspension of the Company’s 401(k) employer matching contributions in 2009 and partially due to higher levels of deferred loan costs, which decrease expense. Data processing and telecommunications costs dropped by $229 thousand as the Company realized cost savings through renegotiation of certain vendor contracts. Office expense decreased by $103 thousand primarily due to cost savings initiatives within the Company’s branch network and operations areas. Core deposit intangible amortization decreased by $157 thousand as intangible assets acquired in previous acquisitions are amortized on an accelerated method over the expected benefit of the core deposit premium. Directors’ fees decreased by $303 thousand due to acceleration of benefit payments on a retirement plan upon the death of a former director in 2009 and in part due to the board reduction and reorganization in late 2009. Lastly, furniture and equipment expense remained relatively consistent in the period under comparison.
 
 Income Taxes
 
 Income taxes recorded in the nine months ended September 30, 2010 were primarily impacted by net losses before income taxes, which created income tax benefits, offset by valuation allowances recorded against deferred tax assets. The valuation allowance recorded against deferred tax assets totaled $8.8 million in the first nine months of 2010 while there was no valuation allowance recorded against deferred tax assets in the first nine months of 2009.
 - 31 -
 Index
 Analysis of Financial Condition
 
 Overview
 
 The Company’s financial condition is measured in terms of its asset and liability composition as well as asset quality. The fluctuation and composition of the balance sheet during the nine months ended September 30, 2010 reflects a decline in the loan portfolio as the Company focuses on resolving problem loans and capital preservation.
 
 Total assets as of September 30, 2010 were $1.65 billion, a decrease of $85.0 million from $1.73 billion as of December 31, 2009. Earning assets, which represented 95.7% and 94.6% of total assets as of September 30, 2010 and December 31, 2009, respectively, decreased from $1.64 billion as of December 31, 2009 to $1.58 billion as of September 30, 2010. Loans declined from $1.39 billion as of December 31, 2009 to $1.32 billion as of September 30, 2010, a decrease of 4.7%.The declining loan portfolio reflects an effort by the Company to de-leverage its balance sheet to preserve capital and reduce its exposure to certain sectors of the commercial real estate market. Allowance for loan losses was $36.2 million as of September 30, 2010 compared to $26.1 million as of December 31, 2009, representing approximately 2.74% and 1.88%, respectively, of total loans.
 
 Total investment securities decreased by $49.4 million in the first nine months of 2010 as management has continued to sell certain municipal bonds to reduce the duration of its fixed income portfolio and to mitigate its exposure to a potential future rising interest rate environment. The Company’s portfolio has also experienced relatively high levels of paydowns on U.S. government sponsored mortgage-backed securities. The cash surrender value of BOLI policies decreased by $15.9 million in the first nine months of 2010 after the Company surrendered certain BOLI contracts on former employees and directors in the third quarter of 2010 for the purpose of repositioning the BOLI portfolio for capital, liquidity and tax planning purposes.
 
 Total deposits declined from $1.38 billion as of December 31, 2009 to $1.36 billion as of September 30, 2010, a decrease of 1.4%. Savings accounts and time deposits increased by $2.2 million and $31.3 million, respectively, during the nine months ended September 30, 2010 while checking accounts and money market accounts decreased by $7.7 million and $44.4 million, respectively, in the same period. Time deposits represented 64.7% of total deposits at September 30, 2010 compared to 61.6% at December 31, 2009.Borrowings and repurchase agreements decreased by $44.5 million in the first nine months of 2010 as the Company paid off certain short-term borrowings with increased liquidity from paydowns on loans and investment securities as well as the surrender of certain BOLI contracts. Subordinated debt increased from $30.9 million as of December 31, 2009 to $34.3 million as of September 30, 2010 from the private placement offering in the first quarter of 2010.
 
 Total shareholders’ equity decreased from $139.8 million as of December 31, 2009 to $116.1 million as of September 30, 2010. The Company’s accumulated deficit increased by $29.8 million in the first nine months of 2010, reflecting a $28.0 million net loss and dividends and accretion on preferred stock of $1.8 million. Common stock increased primarily due to $5.1 million of proceeds from the issuance of shares of the Company’s common stock as part of the private placement offering. Accumulated other comprehensive income, which includes unrealized gains and losses on available-for-sale investment securities, net of tax, increased from $4.0 million as of December 31, 2009 to $4.3 million as of September 30, 2010.
 
 Nonperforming Assets and Impaired Loans
 
 Loans are generally classified as nonaccrual if they are past due as to maturity or payment of principal or interest for a period of more than 90 days, unless such loans are well secured and in the process of collection. If a loan or a portion of a loan is classified as doubtful or as partially charged off, the loan is generally classified as nonaccrual. Loans that are on a current payment status or past due less than 90 days may also be classified as nonaccrual if repayment in full of principal and/or interest is in doubt. Loans may be returned to accrual status when all principal and interest amounts contractually due (including arrearages) are reasonably assured of repayment within an acceptable period of time, and there is a sustained period of repayment performance of interest and principal by the borrower in accordance with the contractual terms.
 
 The following table presents an analysis of nonperforming assets as of September 30, 2010 and December 31, 2009:
 - 32 -
 Index
 September 30, 2010

December 31, 2009(Dollars in thousands)Nonperforming assets:Nonaccrual loans:Commercial real estate

$
54,770

$
25,593Consumer real estate


4,824


3,330Commercial owner occupied


5,194


6,607Commercial and industrial


3,164


3,974Consumer


24


8Other loans


781


–Total nonaccrual loans


68,757


39,512Accruing loans greater than 90 days past due


1,169


–Total nonperforming loans


69,926


39,512Other real estate:Construction, land development, and other land


10,313


2,8631-4 family residential properties


2,764


2,0601-4 family residential properties sold with 100% financing


1,749


3,314Commercial properties


2,121


1,199Closed branch office


918


1,296Total other real estate


17,865


10,732Total nonperforming assets


87,791


50,244Performing restructured loans


6,066


34,177Total nonperforming assets and restructured loans

$
93,857

$
84,421Selected asset quality ratios:Nonperforming loans to total loans


5.28
%

2.84
%Nonperforming assets to total assets


5.32
%

2.90
%Nonperforming assets and restructured loans to total assets


5.69
%

4.87
%Allowance for loan losses to total loans


2.74
%

1.88
%Allowance to nonperforming loans


0.52
X

0.66
XAllowance to nonperforming loans, net of loans charged down to fair value


4.01
X

1.15
X
 
 Other real estate, which includes foreclosed assets and other real property held for sale, increased to $17.9 million as of September 30, 2010 from $10.7 million as of December 31, 2009. As of September 30, 2010, other real estate included $0.9 million of real estate from a closed branch office held for sale and included $1.7 million of residential properties sold to individuals prior to September 30, 2010 where the Company financed 100% of the purchase price of the home at closing. These financed properties will remain in other real estate until regular payments are made by the borrowers that total at least 5% of the original purchase price, at which time the property will be moved out of other real estate and into the performing mortgage loan portfolio.
 
 The increase in other real estate was primarily due to the repossession of commercial and residential construction and land development properties in the first nine months of 2010. The Company is actively marketing all of its foreclosed properties. Such properties are adjusted to fair value upon transfer of the loans or premises to other real estate. Subsequently, these properties are carried at the lower of carrying value or updated fair value. The Company obtains updated appraisals and/or internal evaluations for all other real estate. The Company considers all other real estate to be classified as Level 2 fair value estimates since values are established based on recent independent appraisals.
 
 Impaired loans primarily consist of nonperforming loans and troubled debt restructurings, or TDRs, but can include other loans identified by management as being impaired. Impaired loans totaled $74.9 million and $77.3 million as of September 30, 2010 and December 31, 2009, respectively. The increase in impaired loans is primarily due to weakness experienced in the local economy and real estate markets from the recent economic recession.
 - 33 -
 Index
 The following table summarizes the Company’s impaired loans and TDRs as of September 30, 2010 and December 31, 2009:
 
 September 30, 2010

December 31, 2009(Dollars in thousands)Impaired loans:Impaired loans with related allowance for loan losses

$
14,043

$
60,490Impaired loans for which the full loss has been charged off


60,882


16,775Total impaired loans


74,925


77,265Allowance for loan losses related to impaired loans


(3,065
)

(6,112
)Net carrying value of impaired loans

$
71,860

$
71,153Performing TDRs:Commercial real estate

$
1,045

$
27,532Consumer real estate


199


598Commercial owner occupied


4,359


4,633Commercial and industrial


285


1,288Consumer


178


126Total performing TDRs

$
6,066

$
34,177
 
 Loans are classified as TDRs by the Company when certain modifications are made to the loan terms and concessions are granted to the borrowers due to financial difficulty experienced by those borrowers. The Company only restructures loans for borrowers in financial difficulty that have designed a viable business plan to fully pay off all obligations, including outstanding debt, interest, and fees, either by generating additional income from the business or through liquidation of assets. Generally, these loans are restructured to provide the borrower additional time to execute upon their plans. With respect to restructured loans, the Company grants concessions by (1) reduction of the stated interest rate for the remaining original life of the debt or (2) extension of the maturity date at a stated interest rate lower than the current market rate for new debt with similar risk. The Company does not generally grant concessions through forgiveness of principal or accrued interest. Restructured loans where a concession has been granted through extension of the maturity date generally include extension of payments in an interest only period, extension of payments with capitalized interest and extension of payments through a forbearance agreement. These extended payment terms are also combined with a reduction of the stated interest rate in certain cases. Success in restructuring loan terms has been mixed but it has proven to be a useful tool in certain situations to protect collateral values and allow certain borrowers additional time to execute upon defined business plans. In situations where a TDR is unsuccessful and the borrower is unable to follow through with terms of the restructured agreement, the loan is placed on nonaccrual status and continues to be written down to the underlying collateral value.
 
 The Company’s policy with respect to accrual of interest on loans restructured in a TDR follows relevant supervisory guidance. That is, if a borrower has demonstrated performance under the previous loan terms and shows capacity to perform under the restructured loan terms, continued accrual of interest at the restructured interest rate is likely. If a borrower was materially delinquent on payments prior to the restructuring but shows the capacity to meet the restructured loan terms, the loan will likely continue as nonaccrual going forward. Lastly, if the borrower does not perform under the restructured terms, the loan is placed on nonaccrual status. The Company will continue to closely monitor these loans and will cease accruing interest on them if management believes that the borrowers may not continue performing based on the restructured note terms. If a loan is restructured a second time, after previously being classified as a TDR, that loan is automatically placed on nonaccrual status. The Company’s policy with respect to nonperforming loans requires the borrower to make a minimum of six consecutive payments in accordance with the loan terms before that loan can be placed back on accrual status. Further, the borrower must show capacity to continue performing into the future prior to restoration of accrual status. Through September 30, 2010, the Company had not restored any nonaccrual loan classified as a TDR to accrual status.
 
 All TDRs are considered to be impaired and are evaluated as such in the quarterly allowance calculation. As of September 30, 2010, allowance for loan losses allocated to performing TDRs totaled $1.5 million. Outstanding nonperforming TDRs and their related allowance for loan losses totaled $19.9 million and $0.9 million, respectively, as of September 30, 2010.
 - 34 -
 Index
 Allowance for Loan Losses
 
 Determining the allowance for loan losses is based on a number of factors, many of which are subject to judgments made by management. At the origination of each commercial loan, management assesses the relative risk of the loan and assigns a corresponding risk grade. To ascertain that the credit quality is maintained after the loan is booked, a loan review officer performs an annual review of all unsecured loans over a predetermined loan amount, a sampling of loans within a lender’s authority, and a sampling of the entire loan pool. Loans are reviewed for credit quality, sufficiency of credit and collateral documentation, proper loan approval, covenant, policy and procedure adherence, and continuing accuracy of the loan grade. The Loan Review Officer reports directly to the Chief Credit Officer and the Audit Committee of the Company’s Board of Directors.
 
 The allowance for loan losses represents management’s best estimate of probable credit losses that are inherent in the loan portfolio at the balance sheet date and is determined by management through quarterly evaluations of the loan portfolio. The allowance calculation consists of specific and general reserves. Specific reserves are applied to individually impaired loans. A loan is considered impaired, based on current information and events, if it is probable that the Company will be unable to collect the scheduled payments of principal and interest when due according to the contractual terms of the loan agreement. Specific reserves on impaired loans that are collateral dependent are based on the fair value of the underlying collateral while specific reserves on loans that are not collateral dependent are based on either an observable market price, if available, or the present value of expected future cash flows discounted at the historical effective interest rate. Management evaluates loans that are classified as doubtful, substandard or special mention to determine whether or not they are impaired. This evaluation includes several factors, including review of the loan payment status and the borrower’s financial condition and operating results such as cash flows, operating income or loss, etc. General reserves are determined by applying loss percentages to pools of loans that are grouped according to loan type and internal risk ratings. Loss percentages are based on the Company’s historical default and charge-off experience in each pool and management’s consideration of environmental factors such as changes in economic conditions, credit quality trends, collateral values, concentrations of credit risk, and loan review as well as regulatory exam findings.
 
 Impaired loans on borrower relationships over $750 thousand totaled $62.0 million and $69.4 million as of September 30, 2010 and December 31, 2009, respectively, with specific reserves of $1.9 million and $5.7 million, respectively. Specific reserves represented 3.1% and 8.2% of impaired loan balances as of September 30, 2010 and December 31, 2009, respectively. Specific reserves represented 24.3% and 10.6% of impaired loan balances, net of impaired loans charged down to estimated market value, as of September 30, 2010 and December 31, 2009, respectively. These loans were evaluated for impairment and valued individually. Given the Company’s concentration in real estate lending, the vast majority of impaired loans are collateral dependent and are therefore valued based on underlying collateral values. In the case of unsecured loans that become impaired, principal balances are fully charged off. For impaired loans where legal action has been taken to foreclose, the loan is charged down to estimated fair value, and a specific reserve is not established.
 
 For impaired loans on borrower relationships less than $750 thousand where legal action has been taken to foreclose, impairment is evaluated on an individual basis and the loan is charged down to estimated fair value. Impaired loans on relationships less than $750 thousand charged down to estimated fair value totaled $6.6 million and $3.1 million as of September 30, 2010 and December 31, 2009, respectively. For impaired loans on borrower relationships less than $750 thousand classified as TDRs, impairment is evaluated on an individual basis and a specific reserve is established for each relationship. Impaired loans less than $750 thousand classified as a TDR totaled $2.4 million as of September 30, 2010, with associated reserves of $0.5 million.
 
 For most impaired loans evaluated individually, the fair value of underlying collateral is generally estimated based on a current independent appraised value, adjusted for estimated holding and selling costs. These are considered Level 2 fair value estimates. For certain impaired loans where appraisals are aged or where market conditions have significantly changed since the appraisal date, a further reduction is made to appraised value to arrive at the fair value of collateral. These are considered Level 3 fair value estimates. In other situations, management will use broker price opinions, internal valuations or other valuation sources. These are also considered Level 3 fair value estimates. Of the $71.9 million in estimated fair value of impaired loans evaluated and valued on an individual basis as of September 30, 2010, $67.5 million were valued based on current independent appraisals and $4.4 million were valued based on a combination of internal valuations and other valuation sources. Internal valuations are used primarily for equipment valuations or for certain real estate valuations where recent home sales data was used to estimate value for similar fully or partially built houses. For any impaired loan where a specific reserve has previously been established, or where a partial charge-off has been recorded, an updated appraisal that reflects a further decline in value will result in an additional reserve or partial charge-off during the current period.
 
 Impaired loans on borrower relationships less than $750 thousand not evaluated individually for impairment totaled $3.9 million and $4.8 million as of September 30, 2010 and December 31, 2009, respectively, with associated reserves of $0.7 million and $0.4 million, respectively. Reserves on these loans were based on loss percentages applied to pools of loans stratified by common risk rating and loan type.
 - 35 -
 Index
 General reserves are determined by applying loss percentages to pools of loans that are grouped according to loan type and internal risk ratings. Loss percentages are based on the Company’s historical default and charge-off experience in each pool and management’s consideration of environmental factors. As of September 30, 2010, the Company used two years of charge-off history for purposes of calculating general reserve rates. Nonperforming loans and net charge-offs have significantly increased over recent quarters, particularly in the commercial real estate portfolio. Such increases have directly impacted loss percentages and the resulting allowance for loan losses for each loan pool.
 
 The allowance is established through a provision for loan losses charged to expense. Loans are charged against the allowance for loan losses when management believes that the collectability of the principal is unlikely. The following table presents an analysis of changes in the allowance for loan losses for the three and nine month periods ended September 30, 2010 and 2009:
 
 Three Months Ended
September 30,

Nine Months Ended
September 30,2010

2009

2010

2009(Dollars in thousands)Allowance for loan losses, beginning of period

$
35,762

$
18,602

$
26,081

$
14,795Net charge-offs:Loans charged off:Commercial real estate


2,244


978


17,568


3,217Consumer real estate


236


137


2,522


1,345Commercial owner occupied


287


495


2,173


668Commercial and industrial


4,078


920


6,420


1,202Consumer


18


145


212


222Other loans


–


–


209


–Total charge-offs


6,863


2,675


29,104


6,654Recoveries of loans previously charged off:Commercial real estate


503


1


598


11Consumer real estate


22


–


50


14Commercial owner occupied


10


–


10


–Commercial and industrial


44


1


61


62Consumer


8


18


19


41Other loans


–


–


–


–Total recoveries


587


20


738


128Total net charge-offs


6,276


2,655


28,366


6,526Provision for loan losses


6,763


3,564


38,534


11,242Allowance for loan losses, end of period

$
36,249

$
19,511

$
36,249

$
19,511Net charge-offs to average loans (annualized)


1.87
%

0.80
%

2.76
%

0.67
%
 
 The evaluation of the allowance for loan losses is inherently subjective, and management uses the best information available to establish this estimate. However, if factors such as economic conditions differ substantially from assumptions, or if amounts and timing of future cash flows expected to be received on impaired loans vary substantially from the estimates, future adjustments to the allowance for loan losses may be necessary. In addition, various regulatory agencies, as an integral part of their examination process, periodically review the Company’s allowance for loan losses. Such agencies may require the Company to recognize additions to the allowance for loan losses based on their judgments about all relevant information available to them at the time of their examination. Any adjustments to original estimates are made in the period in which the factors and other considerations indicate that adjustments to the allowance for loan losses are necessary.
 - 36 -
 Index
 Supplemental Commercial Real Estate Analysis
 
 Residential Acquisition, Development and Construction Loan Analysis by Type:
 Residential Land /

Development

Residential

Construction

Total(Dollars in thousands)September 30, 2010Loans outstanding

$
122,147

$
86,529

$
208,676Nonaccrual loans


38,179


2,259


40,438Allowance for loan losses


4,594


3,640


8,234YTD net charge-offs


12,221


2,902


15,123Loans outstanding to total loans


9.22
%

6.53
%

15.75
%Nonaccrual loans to loans in category


31.26


2.61


19.38Allowance to loans in category


3.76


4.21


3.95YTD net charge-offs to average loans in category (annualized)


11.44


4.13


8.54December 31, 2009Loans outstanding

$
162,733

$
100,724

$
263,457Nonaccrual loans


16,935


7,102


24,037Allowance for loan losses


7,569


1,707


9,276Loans outstanding to total loans


11.70
%

7.24
%

18.95
%Nonaccrual loans to loans in category


10.41


7.05


9.12Allowance to loans in category


4.65


1.69


3.52
   Residential Acquisition, Development and Construction Loan Analysis by Region:
  Loans

Outstanding

Percent of

Total Loans

Outstanding

Nonaccrual

Loans

Nonaccrual

Loans

to Loans

Outstanding

Allowance

for Loan

Losses

Allowance

to Loans

Outstanding(Dollars in thousands)September 30, 2010Triangle

$
156,527


75.01
%
$
34,410


21.98
%
$
6,176


3.95
%Sandhills


24,907


11.94


977


3.92


870


3.49Triad


4,676


2.24


–


–


217


4.64Western


22,566


10.81


5,051


22.38


971


4.30Total

$
208,676


100.00
%
$
40,438


19.38
%
$
8,234


3.95
%December 31, 2009Triangle

$
185,319


70.34
%
$
14,349


7.74
%
$
7,325


3.95
%Sandhills


31,257


11.86


–


–


412


1.32Triad


5,509


2.09


106


1.92


86


1.56Western


41,372


15.71


9,582


23.16


1,453


3.51Total

$
263,457


100.00
%
$
24,037


9.12
%
$
9,276


3.52
%
 
 - 37 -
 Index
 Other Commercial Real Estate Loan Analysis by Type:
  Commercial Land /

Development

Commercial

Construction

Multifamily

Other Non-

Residential CRE

Total(Dollars in thousands)September 30, 2010Loans outstanding

$
121,996

$
61,077

$
40,545

$
234,090

$
457,708Nonaccrual loans


9,761


–


–


4,571


14,332Allowance for loan losses


3,420


1,439


581


4,808


10,248YTD net charge-offs


1,537


(1
)

10


301


1,847Loans outstanding to total loans


9.21
%

4.61
%

3.06
%

17.67
%

34.55
%Nonaccrual loans to loans in category


8.00


–


–


1.95


3.13Allowance to loans in category


2.80


2.36


1.43


2.05


2.24YTD net charge-offs to average loans in category (annualized)


1.63


0.00


0.03


0.18


0.83December 31, 2009Loans outstanding

$
128,745

$
59,918

$
43,379

$
202,295

$
434,337Nonaccrual loans


529


–


325


702


1,556Allowance for loan losses


1,732


462


474


3,043


5,711Loans outstanding to total loans


9.26
%

4.31
%

3.12
%

14.55
%

31.24
%Nonaccrual loans to loans in category


0.41


–


0.75


0.35


0.36Allowance to loans in category


1.35


0.77


1.09


1.50


1.31
   Other Commercial Real Estate Loan Analysis by Region:
  Loans

Outstanding

Percent of

Total Loans

Outstanding

Nonaccrual

Loans

Nonaccrual

Loans

to Loans

Outstanding

Allowance

for Loan

Losses

Allowance

to Loans

Outstanding(Dollars in thousands)September 30, 2010Triangle

$
293,894


64.21
%
$
13,633


4.64
%
$
6,597


2.24
%Sandhills


66,326


14.49


610


0.92


1,843


2.78Triad


40,623


8.88


–


–


854


2.10Western


56,865


12.42


89


0.16


954


1.68Total

$
457,708


100.00
%
$
14,332


3.13
%
$
10,248


2.24
%December 31, 2009Triangle

$
281,664


64.85
%
$
361


0.13
%
$
3,653


1.30
%Sandhills


60,593


13.95


605


1.00


937


1.55Triad


35,987


8.29


41


0.11


576


1.60Western


56,093


12.91


549


0.98


545


0.97Total

$
434,337


100.00
%
$
1,556


0.36
%
$
5,711


1.31
%
 
 The Company utilizes interest reserves on certain commercial real estate loans to fund the interest payments which are funded from loan proceeds. The decision to establish a loan-funded interest reserve upon origination of a loan is based on the feasibility of the project, the creditworthiness of the borrower and guarantors and the protection provided by the real estate and other collateral. For the lender, an interest reserve may provide an effective means for addressing the cash flow characteristics of a properly underwritten acquisition, development and construction loan. Similarly, for the borrower, interest reserves may provide the funds to service the debt until the property is developed, and cash flow is generated from the sale or lease of the developed property.
 - 38 -
 Index
 Although potentially beneficial to the lender and the borrower, the use of interest reserves carries certain risks. Of particular concern is the possibility that an interest reserve may not accurately reflect problems with a borrower’s willingness or ability to repay the debt consistent with the terms and conditions of the loan obligation. For example, a project that is not completed in a timely manner or falters once completed may appear to perform if the interest reserve keeps the loan current. In some cases, a lender may extend, renew or restructure the term of certain loans, providing additional interest reserves to keep the loan current. As a result, the financial condition of the project may not be apparent and developing problems may not be addressed in a timely manner. Consequently, a lender may end up with a matured loan where the interest reserve has been fully advanced, and the borrower’s financial condition has deteriorated. In addition, the project may not be complete, its sale or lease-up may not be sufficient to ensure timely repayment of the debt or the value of the collateral may have declined, exposing the lender to increasing credit losses.
 
 To mitigate risks related to the use of interest reserves, the Company follows an interest reserve policy approved by its Board of Directors which sets underwriting standards for loans with interest reserves. These policies include loan-to-value, or LTV, limits as well as guarantor strength and equity requirements. Additionally, strict monitoring requirements are followed. LTV limits have been established based on regulatory guidelines for each loan type, and any loan with an LTV (using an updated independent appraisal) exceeding those limits are immediately placed on nonaccrual status.
 
 As of September 30, 2010, the Company had a total of 28 loans funded by an interest reserve with total outstanding balances of $63.4 million, representing approximately 5% of total outstanding loans. Total commitments on these loans equaled $74.6 million with total remaining interest reserves of $2.0 million, representing a weighted average term of approximately eight months of remaining interest coverage. The following table summarizes the Company’s residential and commercial acquisition, development and construction, or ADC, loans with active interest reserves 1 as of September 30, 2010 and December 31, 2009:
 
 Outstanding

Balance

Committed

Balance

Number

of Loans

Remaining

Reserves(Dollars in thousands)September 30, 2010Residential

$
28,138

$
29,102


14

$
584Commercial


35,281


45,487


14


1,448Total

$
63,419

$
74,589


28

$
2,032December 31, 2009Residential

$
69,698

$
75,068


31

$
1,449Commercial


72,565


103,734


19


3,547Total

$
142,263

$
178,802


50

$
4,996
 
 1
Excludes loans where interest reserves have previously been depleted and the borrower is paying from other sources.
 
 Capital Resources
 
 Management of equity is a critical aspect of capital management in any business. The determination of the appropriate amount of equity is affected by a wide number of factors. The primary factor for a regulated financial institution is the amount of capital needed to meet regulatory requirements, although other factors, such as the “risk equity” the business requires and balance sheet leverage, also affect the determination.
 
 To be categorized as well capitalized, the Company and the Bank each must maintain minimum capital amounts and ratios. The Company’s and the Bank’s actual capital amounts and ratios as of September 30, 2010and the minimum requirements to be well capitalized are presented in the following table:
  - 39 -
 Index
  Actual

Minimum Requirements

To Be Well Capitalized(Dollars in thousands)

Amount


Ratio

Amount


RatioCapital Bank Corporation:Total capital (to risk-weighted assets)

$
145,645


10.50
%
$
138,647


10.00
%Tier I capital (to risk-weighted assets)


124,678


8.99


83,188


6.00Tier I capital (to average assets)


124,678


7.56


82,435


5.00Capital Bank:Total capital (to risk-weighted assets)

$
143,973


10.40
%
$
138,481


10.00
%Tier I capital (to risk-weighted assets)


123,026


8.88


83,088


6.00Tier I capital (to average assets)


123,026


7.47


82,388


5.00
 
 Total shareholders’ equity decreased from $139.8 million as of December 31, 2009 to $116.1 million as of September 30, 2010. The Company’s accumulated deficit increased by $29.8 million in the first nine months of 2010, reflecting a $28.0 million net loss and dividends and accretion on preferred stock of $1.8 million. Common stock increased primarily due to $5.1 million of proceeds from the issuance of shares of the Company’s common stock as part of the private placement offering. Accumulated other comprehensive income, which includes unrealized gains and losses on available-for-sale investment securities, net of tax, increased from $4.0 million as of December 31, 2009 to $4.3 million as of September 30, 2010.
 
 As of September 30, 2010, the Company had a leverage ratio of 7.56%, a Tier 1 capital ratio of 8.99%, and a total risk-based capital ratio of 10.50%. These ratios exceed the federal regulatory minimum requirements for a “well capitalized” bank. The Company’s tangible equity to tangible assets ratio decreased from 7.91% as of December 31, 2009 to 6.92% as of September 30, 2010, and its tangible common equity to tangible assets ratio declined from 5.53% as of December 31, 2009 to 4.42% as of September 30, 2010.
 
 Recent Items Impacting Capital Resources
 
 On December 12, 2008, the Company entered into a Securities Purchase Agreement with the U.S. Treasury Department pursuant to which, among other things, the Company sold to the Treasury for an aggregate purchase price of $41.3 million, 41,279 shares of Series A Fixed Rate Cumulative Perpetual Preferred Stock of the Company, or Series A Preferred Stock, and warrants to purchase up to 749,619 shares of common stock of the Company. The Series A Preferred Stock ranks senior to the Company’s common shares and pays a compounding cumulative dividend, in cash, at a rate of 5% per annum for the first five years, and 9% per annum thereafter on the liquidation preference of $1,000 per share. The Company is prohibited from paying any dividend with respect to shares of common stock or repurchasing or redeeming any shares of the Company’s common shares unless all accrued and unpaid dividends are paid on the Series A Preferred Stock for all past dividend periods (including the latest completed dividend period). The Series A Preferred Stock is non-voting, other than class voting rights on matters that could adversely affect the Series A Preferred Stock. The Series A Preferred Stock is callable at par after three years. The Treasury may also transfer the Series A Preferred Stock to a third party at any time.
 
 On February 1, 2010, the Company announced that its Board of Directors voted to suspend payment of the Company’s quarterly cash dividend to its common shareholders.
 
 On March 18, 2010, the Company sold 849 investment units, or the Units, for gross proceeds of $8.5 million. Each Unit was priced at $10,000 and consisted of a $3,996.90 subordinated promissory note and a number of shares of the Company’s common stock valued at $6,003.10. The offering and sale of the Units was limited to accredited investors. As a result of the sale of the Units, the Company sold $3.4 million in aggregate principal amount of subordinated promissory notes due March 18, 2020, or the Notes, and 1,468,770 shares of the Company’s common stock valued at $5.1 million. The Company is obligated to pay interest on the Notes at 10% per annum payable in quarterly installments commencing on the third month anniversary of the date of issuance of the Notes. The Company may prepay the Notes at any time after March 18, 2015 subject to approval by the Federal Reserve and compliance with applicable law.
 
 On July 30, 2010, the Company announced its intention to commence a public offering of 34.5 million shares of its common stock. On September 30, 2010, the Company announced that the public offering and the related registration statement had been withdrawn in order to pursue certain other alternatives.
 - 40 -
 Index
 On October 28, 2010, the Company entered into an informal Memorandum of Understanding (“MOU”) with the Federal Depository Insurance Corporation and the North Carolina Commissioner of Banks. An MOU is characterized by regulatory authorities as an informal action that is not published or publicly available and that is used when circumstances warrant a milder form of action than a formal supervisory action, such as a forma written agreement or order. In accordance with the terms of the MOU, the Company has agreed to, among other things, (i) increase regulatory capital to achieve and maintain a minimum Tier 1 leverage capital ratio of at least 8% and a total risk-based capital ratio of at least 12%, (ii) monitor and reduce its commercial real estate concentration, (iii) timely identify and reduce its overall level of problem loans, (iv) establish and maintain an adequate allowance for loan losses, and (v) ensure adherence to loan policy guidelines. The MOU will remain in effect until modified, terminated, lifted, suspended or set aside by the regulatory authorities.
 
 In 2009, we began pursuing capital raising opportunities including the withdrawn public offerings and private placements summarized above in an attempt to inject additional capital into the Bank and to maintain compliance with required regulatory capital ratios. On November 4, 2010, the Company announced its entry into an Investment Agreement whereby North American Financial Holdings, Inc. (“NAFH”) has agreed to purchase 71.0 million shares of the Company’s common stock for a purchase price of $2.55 per share, for a total investment of approximately $181 million. NAFH also agreed to issue a non-transferable contingent value right that will attach to each share of the Company’s common stock outstanding as of a specified record date (other than shares of common stock held by NAFH) that will provide existing shareholders with the opportunity to receive up to $0.75 per share five years from the closing date of the proposed transaction, depending on the level of loan charge-offs during that five-year period. After giving effect to the NAFH investment, NAFH would own approximately 85% of the Company’s outstanding shares of common stock. The Company also intends to conduct a rights offering to legacy shareholders of rights to purchase up to 5.0 million shares of common stock at a price of $2.55 per share. Further, NAFH would have the right to conduct a tender offer at any time to purchase up to 5.25 million shares of the Company’s common stock at a price not less than $2.55 per share. Upon closing of the investment, R. Eugene Taylor, NAFH’s CEO, and Christopher G. Marshall, NAFH’s CFO, will be added to the management team as the Company’s CEO and CFO and members of the Company’s Board of Directors upon closing of the investment transaction. B. Grant Yarber and Michael R. Moore are expected to remain in senior executive roles at Capital Bank. The Company’s Board of Directors will be reconstituted with a combination of two existing members and new NAFH-designated Board members.
 
 The investment is subject to satisfaction or waiver of certain closing conditions, including shareholder approval of the terms of the investment and an increase in our authorized shares of common stock under our Articles of Incorporation, reaching an agreement with the U.S. Department of the Treasury to repurchase the preferred stock and warrant issued under the Troubled Asset Relief Program Capital Purchase Program on terms acceptable to NAFH, and the receipt by NAFH and the Company of the requisite governmental and regulatory approvals. While the NAFH investment is expected to close in the firstquarter of 2011, there is no assurance it will close during such quarter, or ever. At this time, all the applications required to be filed with regulatory agencies have been filed and we have not reached an agreement on the significant terms on the repurchase of the Preferred Stock and warrant issued to the Treasury under the TARP Capital Purchase Program. Upon consummation of the investment it is estimated that both the Company and the Bank will be well capitalized and the Bank will be in compliance with the required capital ratios under the MOU.
 
 If the investment by NAFH is not consummated, the Board of Directors and management team intend to seek other strategic alternatives including but not limited to the sale of certain assets, a private or public offering, the sale of all or a portion of the Company, or seeking a complementary partner in a merger of equals or where the Company is acquired. There is no assurance the Company will be successful in entering into any agreement or closing such an alternative transaction, and there is no assurance that the Company will be able to comply with the terms of the MOU.
 
 Liquidity Management
 
 Liquidity management involves the ability to meet the cash flow requirements of depositors desiring to withdraw funds or borrowers needing assurance that sufficient funds will be available to meet their credit needs. To ensure the Company is positioned to meet immediate and future cash demands, management relies on internal analysis of its liquidity, knowledge of current economic and market trends and forecasts of future conditions. Regulatory agencies set certain minimum liquidity standards, including the setting of a reserve requirement by the Federal Reserve. The Company must submit weekly reports to the Federal Reserve to ensure compliance with those requirements. As of September 30, 2010, the Company met all of its regulatory liquidity requirements.
 
 The Company had $68.1 million in its most liquid assets, cash and cash equivalents, as of September 30, 2010. The Company’s principal sources of funds are loan repayments, deposits, short-term borrowings, capital and, to a lesser extent, investment repayments. Core deposits (total deposits less certificates of deposits in the amount of $100 thousand or more), one of the most stable sources of liquidity, together with equity capital funded $1.15 billion, or 69.8%, of total assets as of September 30, 2010 compared to $1.18 billion, or 67.8%, of total assets as of December 31, 2009.
  - 41 -
 Index
 Additional sources of liquidity are available to the Company through the Federal Reserve Bank, or FRB, and through membership in the Federal Home Loan Bank, or FHLB, system. As of September 30, 2010, the Company had a maximum and available borrowing capacity of $105.2 million and $6.5 million, respectively, through the FHLB. These funds can be made available with various maturities and interest rate structures. Borrowings with the FHLB are collateralized by a blanket lien on certain qualifying assets. The Company also maintains a credit line at the FRB’s discount window that is used for short-term funding needs and as an additional source of available liquidity. As of September 30, 2010, the Company had a maximum and available borrowing capacity of $96.2 million at the discount window. Available credit at the discount window is collateralized by eligible commercial construction and commercial and industrial loans. The Company also maintains off-balance sheet liquidity from other sources such as federal funds lines, repurchase agreement lines and through brokered deposit sources.
 
 Item 3.Quantitative and QualitativeDisclosures about Market Risk
 
 As described in more detail in Part II, Item 7A of our Annual Report on Form 10-K for the year ended December 31, 2009, asset/liability management involves the evaluation, monitoring and management of interest rate risk, liquidity and funding. While the Board of Directors has overall responsibility for the Company’s asset/liability management policies, the Bank’s Asset and Liability Committee monitors loan, investment, and liability portfolios to ensure comprehensive management of interest rate risk and adherence to the Bank’s policies.The Company has not experienced any material change in the risk of its portfolios of interest-earning assets and interest-bearing liabilities from December 31, 2009 to September 30, 2010.
 
 Item 4.Controls and Procedures
 
 The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that such information is accumulated and communicated to the Company’s management, including its Chief Executive Officer, or CEO, and Chief Financial Officer, or CFO, as appropriate, to allow timely decisions regarding disclosure. Management necessarily applies its judgment in assessing the costs and benefits of such controls and procedures, which, by their nature, can provide only reasonable assurance regarding management’s control objectives.
 
 As required by paragraph (b) of Rule 13a-15 under the Exchange Act, an evaluation was carried out under the supervision and with the participation of the Company’s management, including the CEO and CFO, of the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by this report. Based upon that evaluation, the CEO and CFO concluded that, as of the end of the period covered by the report, the Company’s disclosure controls and procedures are effective in that they provide reasonable assurances that the information the Company is required to disclose in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods required by the SEC’s rules and forms.
 
 Changes in Internal Control over Financial Reporting
 
 There were no changes in the Company’s internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that occurred during the period covered by this report that have materially affected or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
 
 Item 4T.Controlsand Procedures
 
 Not applicable.
  - 42 -
 Index
 PART II – OTHER INFORMATION
 
 Item 1.LegalProceedings
 
 There are no material pending legal proceedings to which the Company or its subsidiaries is a party or to which any of the Company’s or its subsidiaries’ property is subject. In addition, the Company is not aware of any threatened litigation, unasserted claims or assessments that could have a material adverse effect on the Company’s business, operating results or condition.
 
 Item 1A.Risk Factors
 
 The following discussion addresses some of the risks and uncertainties that could cause, or contribute to causing, actual results to differ materially from expectations. In evaluating our business, you should pay particular attention to the descriptions of risks and uncertainties described below. If any of the events described below occur, the Company’s business, financial condition, or results of operations could be materially adversely affected. In that event, the trading price of the Company’s common stock may decline, in which case the value of your investment may decline as well. References herein to “we”, “us”, and “our” refer to Capital Bank Corporation, a North Carolina corporation, and its subsidiaries, unless the context otherwise requires.
 
 Risks Related to Our Business
 
 U.S. and international credit markets and economic conditions could adversely affect our liquidity, financial condition and profitability.
 
 Global market and economic conditions continue to be disruptive and volatile and the disruption has particularly had a negative impact on the financial sector. The possible duration and severity of this adverse economic cycle is unknown. Although we remain well capitalized and have not suffered any significant liquidity problems as a result of these recent events, the cost and availability of funds may be adversely affected by illiquid credit markets. Continued turbulence in U.S. and international markets and economies may also adversely affect our liquidity, financial condition and profitability.
 
 Legislative and regulatory actions taken now or in the future to address the current liquidity and credit crisis in the financial industry may significantly affect our liquidity or financial condition.
 
 The Federal Reserve, U.S. Congress, the Treasury, the FDIC and others have taken numerous actions to address the current liquidity and credit situation in the financial markets. These measures include actions to encourage loan restructuring and modification for homeowners; the establishment of significant liquidity and credit facilities for financial institutions and investment banks; and coordinated efforts to address liquidity and other weaknesses in the banking sector. The Emergency Economic Stabilization Act of 2008, or EESA, which established the Troubled Asset Relief Program, or TARP, was enacted on October 3, 2008. As part of the TARP, the Treasury created the Capital Purchase Program, or CPP, which authorizes the Treasury to invest up to $250 billion in senior preferred stock of U.S. banks and savings associations or their holding companies for the purpose of stabilizing and providing liquidity to the U.S. financial markets.
 
 On February 17, 2009, the American Recovery and Reinvestment Act, or ARRA, was enacted as a sweeping economic recovery package intended to stimulate the economy and provide for extensive infrastructure, energy, health and education needs. We participated in the CPP and sold $41.3 million of our Series A Preferred Stock, and a warrant to purchase 749,619 shares of our common stock to the Treasury. Future participation in this or similar programs may subject us to additional restrictions and regulation. There can be no assurance as to the actual impact that EESA or its programs, including the CPP, and ARRA or its programs, will have on the national economy or financial markets. The failure of these significant legislative measures to help stabilize the financial markets and a continuation or worsening of current financial market conditions could materially and adversely affect our financial condition, results of operations, liquidity or stock price.
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 On July 21, 2010, President Obama signed into law the Dodd-Frank Act, which was intended primarily to overhaul the financial regulatory framework following the global financial crisis and will impact all financial institutions including our holding company and Capital Bank. The Dodd-Frank Act contains provisions that will, among other things, establish a Bureau of Consumer Financial Protection, establish a systemic risk regulator, consolidate certain federal bank regulators and impose increased corporate governance and executive compensation requirements. While many of the provisions in the Dodd-Frank Act are aimed at financial institutions significantly larger than us, it will likely increase our regulatory compliance burden and may have a material adverse effect on us, including by increasing the costs associated with our regulatory examinations and compliance measures. However, it is too early for us to fully assess the impact of the Dodd-Frank Act and subsequent regulatory rulemaking processes on our business, financial condition or results of operations.
 
 Further, the U.S. Congress and state legislatures and federal and state regulatory authorities continually review banking laws, regulations and policies for possible changes. Changes to statutes, regulations or regulatory policies, including interpretation and implementation of statutes, regulation or policies, including EESA, ARRA, TARP and the Dodd-Frank Act, could affect us in substantial and unpredictable ways, including limiting the types of financial services and products we may offer or increasing the ability of non-banks to offer competing financial services and products. While we cannot predict the regulatory changes that may be borne out of the current economic crisis, and we cannot predict whether we will become subject to increased regulatory scrutiny by any of these regulatory agencies, any regulatory changes or scrutiny could increase or decrease the cost of doing business, limit or expand our permissible activities, or affect the competitive balance among banks, credit unions, savings and loan associations and other institutions. We cannot predict whether additional legislation will be enacted and, if enacted, the effect that it, or any regulations, would have on our business, financial condition or results of operations.
 
 Changes in local economic conditions could lead to higher loan charge-offs and reduce our net income and growth.
 
 Our business is subject to periodic fluctuations based on local economic conditions in central and western North Carolina. These fluctuations are not predictable, cannot be controlled and may have a material adverse impact on our operations and financial condition even if other favorable events occur. Our operations are locally oriented and community-based. Accordingly, we expect to continue to be dependent upon local business conditions as well as conditions in the local residential and commercial real estate markets we serve. For example, an increase in unemployment, a decrease in real estate values or increases in interest rates, as well as other factors, could weaken the economies of the communities we serve.
 
 Weakness in our market areas could depress our earnings and consequently our financial condition because:
 
 •
customers may not want or need our products or services;•
borrowers may not be able to repay their loans;•
the value of the collateral securing loans to borrowers may decline; and•
the quality of our loan portfolio may decline.
 
 Any of the latter three scenarios could require us to charge off a higher percentage of loans and/or increase provisions for credit losses, which would reduce our net income.
 
 Because the majority of our borrowers are individuals and businesses located and doing business in Wake, Granville, Lee, Cumberland, Johnston, Chatham, Alamance, Buncombe and Catawba Counties, North Carolina, our success will depend significantly upon the economic conditions in those and the surrounding counties. Unfavorable economic conditions or a continued increase in unemployment rates in those and the surrounding counties may result in, among other things, a deterioration in credit quality or a reduced demand for credit and may harm the financial stability of our customers. Due to our limited market areas, these negative conditions may have a more noticeable effect on us than would be experienced by a larger institution that is able to spread these risks of unfavorable local economic conditions across a large number of diversified economies.
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 Index
 We are exposed to risks in connection with the loans we make.
 
 A significant source of risk for us arises from the possibility that losses will be sustained because borrowers, guarantors and related parties may fail to perform in accordance with the terms of their loans. We have underwriting and credit monitoring procedures and credit policies, including the establishment and review of the allowance for loan losses, that we believe are appropriate to minimize this risk by assessing the likelihood of nonperformance, tracking loan performance and diversifying our loan portfolio. Such policies and procedures, however, may not prevent unexpected losses that could adversely affect our results of operations. Loan defaults result in a decrease in interest income and may require the establishment of or an increase in loan loss reserves. Furthermore, the decrease in interest income resulting from a loan default or defaults may be for a prolonged period of time as we seek to recover, primarily through legal proceedings, the outstanding principal balance, accrued interest and default interest due on a defaulted loan plus the legal costs incurred in pursuing our legal remedies. No assurance can be given that recent market conditions will not result in our need to increase loan loss reserves or charge off a higher percentage of loans, thereby reducing net income.
 
 A significant portion of our loan portfolio is secured by real estate, and events that negatively impact the real estate market could hurt our business.
 
 A significant portion of our loan portfolio is secured by real estate. As of September 30, 2010, approximately 84% of our loans had real estate as a primary or secondary component of collateral. The real estate collateral in each case provides an alternate source of repayment in the event of default by the borrower and may deteriorate in value during the time the credit is extended. A continued weakening of the real estate market in our primary market areas could continue to result in an increase in the number of borrowers who default on their loans and a reduction in the value of the collateral securing their loans, which in turn could have an adverse effect on our profitability and asset quality. If we are required to liquidate the collateral securing a loan to satisfy the debt during a period of reduced real estate values, our earnings and shareholders’ equity could be adversely affected. The declines in home prices in the markets we serve, along with the reduced availability of mortgage credit, also may result in increases in delinquencies and losses in our portfolio of loans related to residential real estate construction and development. Further declines in home prices coupled with a deepened economic recession and continued rises in unemployment levels could drive losses beyond that which is provided for in our allowance for loan losses. In that event, our earnings could be adversely affected.
 
 Additionally, recent weakness in the secondary market for residential lending could have an adverse impact on our profitability. Significant ongoing disruptions in the secondary market for residential mortgage loans have limited the market for and liquidity of most mortgage loans other than conforming Fannie Mae and Freddie Mac loans. The effects of ongoing mortgage market challenges, combined with the ongoing correction in residential real estate market prices and reduced levels of home sales, could result in further price reductions in single family home values, adversely affecting the value of collateral securing mortgage loans held, mortgage loan originations and gains on sale of mortgage loans. Continued declines in real estate values and home sales volumes, and financial stress on borrowers as a result of job losses or other factors, could have further adverse effects on borrowers that result in higher delinquencies and greater charge-offs in future periods, which could adversely affect our financial condition or results of operations.
 
 Our real estate and land acquisition and development loans are based upon estimates of costs and the value of the complete project.
 
 We extend real estate land loans, construction loans, and acquisition and development loans to builders and developers, primarily for the construction/development of properties. We originate these loans on a presold and speculative basis and they include loans for both residential and commercial purposes. As of September 30, 2010, these loans totaled $391.7 million, or 30% of our total loan portfolio. Approximately $86.5 million of this amount was for construction of residential properties and $61.1 million was for construction of commercial properties. Additionally, approximately $163.6 million was for acquisition and development loans for both residential and commercial properties. Land loans, which are loans made with raw land as security, totaled $80.5 million, or 6% of our portfolio, as of September 30, 2010.
 
 In general, construction and land lending involves additional risks because of the inherent difficulty in estimating a property’s value both before and at completion of the project. Construction costs may exceed original estimates as a result of increased materials, labor or other costs. In addition, because of current uncertainties in the residential and commercial real estate markets, property values have become more difficult to determine than they have been historically. Construction and land acquisition and development loans often involve the repayment dependent, in part, on the ability of the borrower to sell or lease the property. These loans also require ongoing monitoring. In addition, speculative construction loans to a residential builder are often associated with homes that are not presold, and thus pose a greater potential risk than construction loans to individuals on their personal residences. As of September 30, 2010, $71.0 million of our residential construction loans were for speculative construction loans. Slowing housing sales have been a contributing factor to an increase in nonperforming loans as well as an increase in delinquencies.
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 Nonperforming real estate land loans, construction loans and acquisition and development loans totaled $50.2 million and $24.6 million as of September 30, 2010 and December 31, 2009, respectively.
 
 Our non-owner occupied commercial real estate loans may be dependent on factors outside the control of our borrowers.
 
 We originate non-owner occupied commercial real estate loans for individuals and businesses for various purposes, which are secured by commercial properties. These loans typically involve repayment dependent upon income generated, or expected to be generated, by the property securing the loan in amounts sufficient to cover operating expenses and debt service. This may be adversely affected by changes in the economy or local market conditions. Non-owner occupied commercial real estate loans expose a lender to greater credit risk than loans secured by residential real estate because the collateral securing these loans typically cannot be liquidated as easily as residential real estate. If we foreclose on a non-owner occupied commercial real estate loan, our holding period for the collateral typically is longer than a 1-4 family residential property because there are fewer potential purchasers of the collateral. Additionally, non-owner occupied commercial real estate loans generally have relatively large balances to single borrowers or related groups of borrowers. Accordingly, charge-offs on non-owner occupied commercial real estate loans may be larger on a per loan basis than those incurred with our residential or consumer loan portfolios.
 
 As of September 30, 2010, our non-owner occupied commercial real estate loans totaled $274.6 million, or 21% of our total loan portfolio. Nonperforming non-owner occupied commercial real estate loans totaled $4.6 million and $1.0 million as of September 30, 2010 and December 31, 2009, respectively.
 
 Repayment of our commercial business loans is dependent on the cash flows of the borrower, which may be unpredictable, and the collateral securing these loans may fluctuate in value.
 
 We offer different types of commercial loans to a variety of small to medium-sized businesses. The types of commercial loans offered are owner-occupied term real estate loans, business lines of credit and term equipment financing. Commercial business lending involves risks that are different from those associated with non-owner occupied commercial real estate lending. Our commercial business loans are primarily underwritten based on the cash flow of the borrower and secondarily on the underlying collateral, including real estate. The borrowers’ cash flow may be unpredictable, and collateral securing these loans may fluctuate in value. Some of our commercial business loans are collateralized by equipment, inventory, accounts receivable or other business assets, and the liquidation of collateral in the event of default is often an insufficient source of repayment because accounts receivable may be uncollectible and inventories may be obsolete or of limited use.
 
 As of September 30, 2010, our commercial business loans totaled $345.5 million, or 26% of our total loan portfolio. Of this amount, $180.0 million was secured by owner-occupied real estate and $165.5 million was secured by business assets. Nonperforming commercial business loans totaled $8.4 million and $10.6 million as of September 30, 2010 and December 31, 2009, respectively.
 
 A portion of our commercial real estate loan portfolio utilizes interest reserves which may not accurately portray the financial condition of the project and the borrower’s ability to repay the loan.
 
 Some of our commercial real estate loans utilize interest reserves to fund the interest payments and are funded from loan proceeds. Our decision to establish a loan-funded interest reserve upon origination of a loan is based on the feasibility of the project, the creditworthiness of the borrower and guarantors and the protection provided by the real estate and other collateral. When applied appropriately, an interest reserve can benefit both the lender and the borrower. For the lender, an interest reserve provides an effective means for addressing the cash flow characteristics of a properly underwritten acquisition, development and construction loan. Similarly, for the borrower, interest reserves provide the funds to service the debt until the property is developed, and cash flow is generated from the sale or lease of the developed property.
 
 Although potentially beneficial to the lender and the borrower, our use of interest reserves carries certain risks. Of particular concern is the possibility that an interest reserve may not accurately reflect problems with a borrower’s willingness or ability to repay the debt consistent with the terms and conditions of the loan obligation. For example, a project that is not completed in a timely manner or falters once completed may appear to perform if the interest reserve keeps the loan current. In some cases, we may extend, renew or restructure the term of certain loans, providing additional interest reserves to keep the loan current. As a result, the financial condition of the project may not be apparent and developing problems may not be addressed in a timely manner. Consequently, we may end up with a matured loan where the interest reserve has been fully advanced, and the borrower’s financial condition has deteriorated. In addition, the project may not be complete, its sale or lease-up may not be sufficient to ensure timely repayment of the debt or the value of the collateral may have declined, exposing us to increasing credit losses.
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 As of September 30, 2010, we had a total of 28 active residential and commercial acquisition, development and construction loans funded by an interest reserve with a total outstanding balance of $63.4 million, representing approximately 5% of our total outstanding loans. Total commitments on these loans equaled $74.6 million with total remaining interest reserves of $2.0 million, representing a weighted average term of approximately eight months of remaining interest coverage.
 
 Our allowance for loan losses may prove to be insufficient to absorb losses in our loan portfolio.
 
 Lending money is a substantial part of our business, and each loan carries a certain risk that it will not be repaid in accordance with its terms or that any underlying collateral will not be sufficient to assure repayment. This risk is affected by, among other things:
 
 •
cash flow of the borrower and/or the project being financed;•
the changes and uncertainties as to the future value of the collateral, in the case of a collateralized loan;•
the duration of the loan;•
the credit history of a particular borrower; and•
changes in economic and industry conditions.
 
 We maintain an allowance for loan losses, which is a reserve established through a provision for loan losses charged to expense, which we believe is appropriate to provide for probable losses in our loan portfolio. The amount of this allowance is determined by our management through periodic reviews and consideration of several factors, including, but not limited to:
 
 •
our general reserve, based on our historical default and loss experience and certain macroeconomic factors based on management’s expectations of future events; and•
our specific reserve, based on our evaluation of impaired loans and their underlying collateral.
 
 The determination of the appropriate level of the allowance for loan losses inherently involves a high degree of subjectivity and requires us to make significant estimates of current credit risks and future trends, all of which may undergo material changes. Continuing deterioration in economic conditions affecting borrowers, new information regarding existing loans, identification of additional problem loans and other factors, both within and outside of our control, may require an increase in the allowance for loan losses. In addition, bank regulatory agencies periodically review our allowance for loan losses and may require an increase in the provision for probable loan losses or the recognition of further loan charge-offs, based on judgments different than those of management. In addition, if charge-offs in future periods exceed the allowance for loan losses, we will need additional provisions to increase the allowance for loan losses. Any increases in the allowance for loan losses will result in a decrease in net income and, possibly, capital, and may have a material adverse effect on our financial condition and results of operations.
 
 If our allowance for loan losses is not adequate, we may be required to make further increases in our provisions for loan losses and to charge off additional loans, which could adversely affect our results of operations.
 
 For the nine months ended September 30, 2010, we recorded a provision for loan losses of $38.5 million compared to $11.2 million for the nine months ended September 30, 2009, an increase of $27.3 million. We also recorded net loan charge-offs of $28.4 million for the nine months ended September 30, 2010 compared to $6.5 million for the nine months ended September 30, 2009. As of September 30, 2010 and December 31, 2009, our allowance for loan losses totaled $36.2 million and $26.1 million, respectively, which represented 52% and 66% of nonperforming loans, respectively. Generally, our nonperforming loans and assets reflect operating difficulties of individual borrowers resulting from weakness in the local economy; however, more recently the deterioration in the general economy has become a significant contributing factor to the increased levels of delinquencies and nonperforming loans.
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 Slower sales and excess inventory in the housing market has been the primary cause of the increase in delinquencies and foreclosures for residential construction loans, which represented 3% of our nonperforming loans as of September 30, 2010. In addition, slowing housing sales have been a contributing factor to the increase in nonperforming loans as well as the increase in delinquencies. We are experiencing increasing loan delinquencies and credit losses. As of September 30, 2010, our total nonperforming loans increased to $69.9 million, or 5.28% of total loans, compared to $18.5 million, or 1.36% of total loans, as of September 30, 2009. As of September 30, 2010, our total past due loans, excluding nonperforming loans, increased to $13.2 million, or 1.00% of total loans, compared to $9.3 million, or 0.67% of total loans, as of December 31, 2009 and decreased from $16.3 million, or 1.20% of total loans, as of September 30, 2009. If current trends in the housing and real estate markets continue, we expect that we will continue to experience higher than normal delinquencies and credit losses. Moreover, until general economic conditions improve, we may continue to experience increased delinquencies and credit losses. As a result, we may be required to make additional provisions for loan losses and to charge off additional loans in the future, which could materially adversely affect our financial condition and results of operations.
 
 We have extended the maturity date and terms of a large amount of loans, which could increase the level of our troubled debt restructured loans.
 
 A significant portion of our loans are renewed, or extended, upon maturity. As a prudent risk management strategy, in certain situations we prefer to fund loans with a relatively short maturity date, which provides us with the flexibility of reviewing the borrower’s financial condition and the appropriateness of loan terms on a more frequent basis. Upon renewal, loans are underwritten in the same manner and pursuant to the same approval process as a new loan origination. As of September 30, 2010, December 31, 2009, and September 30, 2009, loans outstanding totaling $720.4 million, $708.6 million, and $709.3 million, respectively, had been renewed or had terms extended at a previous maturity date.
 
 While this practice provides certain benefits and flexibility to us as the lender, the extension or renewal of loans carries certain risks. If interest rates or other terms are modified upon extension of credit or if loan terms are renewed in situations where the borrower is experiencing financial difficulty and a concession is granted, the modification or renewal may require classification as a TDR.
 
 In accordance with accounting standards, we classify loans as TDRs when certain modifications are made to the loan terms and concessions are granted to the borrowers due to their financial difficulty. Our practice is to only restructure loans for borrowers in financial difficulty that have designed a viable business plan to fully pay off all obligations, including outstanding debt, interest, and fees, either by generating additional income from the business or through liquidation of assets. Generally, these loans are restructured to provide the borrower additional time to execute their business plans. With respect to restructured loans, we grant concessions by (1) reduction of the stated interest rate for the remaining original life of the debt or (2) extension of the maturity date at a stated interest rate lower than the current market rate for new debt with similar risk. Restructured loans where a concession has been granted through extension of the maturity date generally include extension of payments in an interest only period, extension of payments with capitalized interest and extension of payments through a forbearance agreement. These extended payment terms are also combined with a reduction of the stated interest rate in certain cases. In situations where a TDR is unsuccessful and the borrower is unable satisfy the terms of the restructured agreement, the loan is placed on nonaccrual status and is written down to the underlying collateral value. As of September 30, 2010, December 31, 2009, and September 30, 2009, performing and nonperforming TDRs totaled $26.0 million, $50.3 million, and $38.1 million, respectively. As of September 30, 2010, December 31, 2009, and September 30, 2009, performing TDRs totaled $6.1 million, $34.2 million, and $29.0 million, respectively.
 
 We continue to hold and acquire a significant amount of other real estate, which has led to increased operating expenses and vulnerability to additional declines in real property values.
 
 We foreclose on and take title to the real estate serving as collateral for many of our loans as part of our business. Real estate owned by the Bank and not used in the ordinary course of its operations is referred to as “other real estate” or “ORE” property. At September 30, 2010, we had ORE with an aggregate book value of $17.9 million, compared to $10.7 million at December 31, 2009 and $8.4 million at September 30, 2009. Increased ORE balances have led to greater expenses as we incur costs to manage and dispose of the properties. We expect that our earnings in 2010 will continue to be negatively affected by various expenses associated with ORE, including personnel costs, insurance and taxes, completion and repair costs, valuation adjustments, and other expenses associated with property ownership, as well as by the funding costs associated with assets that are tied up in ORE. Any further decrease in real estate market prices may lead to additional ORE write downs, with a corresponding expense in our statement of operations. We evaluate ORE properties periodically and write down the carrying value of the properties if the results of our evaluation require it. The expenses associated with ORE and any further property write downs could have a material adverse effect on our financial condition and results of operations.
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 Future losses may result in an increase to the valuation allowance on our deferred tax assets.
 
 As of September 30, 2010, we had deferred tax assets of $15.2 million, net of an $8.8 million valuation allowance. A valuation allowance is provided when it is more likely than not that some portion of the deferred tax asset will not be realized. In management’s opinion, as of September 30, 2010, it was more likely than not that the results of future operations will generate sufficient taxable income to recognize the deferred tax assets not covered by the valuation allowance. This opinion was based on forecasted levels of pre-tax book income over a three-year period. However, we reached a cumulative three-year pre-tax loss position (excluding a goodwill impairment charge in 2008) during the first quarter of 2010. A cumulative loss position makes it more difficult for management to rely on future earnings as a reliable source of future taxable income to realize deferred tax assets. Future losses and a continuing cumulative loss period may result in an increase to the partial valuation allowance or even a full valuation allowance on our deferred tax assets in future periods, which will negatively impact results of operations.
 
 We are subject to environmental liability risk associated with lending activities.
 
 A significant portion of our loan portfolio is secured by real property. During the ordinary course of business, we may foreclose on and take title to properties securing certain loans. In doing so, there is a risk that hazardous or toxic substances could be found on these properties. If hazardous or toxic substances are found, we may be liable for remediation costs, as well as for personal injury and property damage. Environmental laws may require us to incur substantial expenses to address unknown liabilities and may materially reduce the affected property’s value or limit our ability to use or sell the affected property. In addition, future laws or more stringent interpretations or enforcement policies with respect to existing laws may increase our exposure to environmental liability. Although we have policies and procedures to perform an environmental review before initiating any foreclosure action on nonresidential real property, these reviews may not be sufficient to detect all potential environmental hazards. The remediation costs and any other financial liabilities associated with an environmental hazard could have a material adverse effect on our financial condition and results of operations.
 
 Changes in interest rates may have an adverse effect on our profitability.
 
 Our earnings and financial condition are dependent to a large degree upon net interest income, which is the difference between interest earned from loans and investments and interest paid on deposits and borrowings. Approximately 58% of our loans were variable rate loans as of September 30, 2010, which means that our interest income will generally decrease in lower interest rate environments and rise in higher interest rate environments. Our net interest income will be adversely affected if market interest rates change such that the interest we earn on loans and investments decreases faster than the interest we pay on deposits and borrowings. We cannot predict with certainty or control changes in interest rates. Regional and local economic conditions and the policies of regulatory authorities, including monetary policies of the Board of Governors of the Federal Reserve, affect interest income and interest expense. We have ongoing policies and procedures designed to manage the risks associated with changes in market interest rates. However, changes in interest rates still may have an adverse effect on our earnings and financial condition.
 
 The fair value of our investments could decline.
 
 The majority of our investment portfolio as of September 30, 2010 has been designated as available-for-sale. Unrealized gains and losses in the estimated value of the available-for-sale portfolio must be “marked to market” and reflected as a separate item in shareholders’ equity (net of tax) as accumulated other comprehensive income. As of September 30, 2010, we maintained $184.7 million, or 94%, of our total investment securities as available-for-sale. Shareholders’ equity will continue to reflect the unrealized gains and losses (net of tax) of these investments. The fair value of our investment portfolio may decline, causing a corresponding decline in shareholders’ equity.
 
 Management believes that several factors affect the fair values of our investment portfolio. These include, but are not limited to, changes in interest rates or expectations of changes, changes to the credit ratings and financial condition of security issuers, the degree of volatility in the securities markets, inflation rates or expectations of inflation, and the slope of the interest rate yield curve. The yield curve refers to the differences between shorter-term and longer-term interest rates; a positively sloped yield curve means shorter-term rates are lower than longer-term rates. These and other factors may impact specific categories of the portfolio differently, and we cannot predict the effect these factors may have on any specific category.
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 Government regulations may prevent or impact our ability to pay dividends, engage in acquisitions or operate in other ways.
 
 Current and future legislation and the policies established by federal and state regulatory authorities will affect our operations. Banking regulations, designed primarily for the protection of depositors, may limit our growth and the return to our current and/or potential investors by restricting certain of our activities, such as:
 
 •
payment of dividends to our shareholders;•
possible mergers with, or acquisitions of or by, other institutions;•
our desired investments;•
loans and interest rates on loans;•
interest rates paid on our deposits;•
the possible expansion of our branch offices; and/or•
our ability to provide securities or trust services.
 
 We cannot predict what changes, if any, will be made to existing federal and state legislation and regulations or the effect that such changes may have on our future business and earnings prospects. Many of these regulations are intended to protect depositors, the public and the FDIC, not shareholders. The cost of compliance with regulatory requirements including those imposed by the SEC may adversely affect our ability to operate profitably.
 
 Specifically, federal and state governments could pass additional legislation responsive to current credit conditions, such as the Dodd-Frank Act and the regulations expected to be promulgated under the Dodd-Frank Act in the near future. We could experience higher credit losses because of legislation or regulatory action that reduces the amounts borrowers are contractually required to pay under existing loan contracts or that limits our ability to foreclose on property or other collateral or makes foreclosure less economically feasible.
 
 We have entered into an MOU, and failure to comply with the terms of the MOU may result in adverse consequences.
 
 On October 28, 2010, the Company entered into an informal Memorandum of Understanding (“MOU”) with the Federal Depository Insurance Corporation and the North Carolina Commissioner of Banks. An MOU is characterized by regulatory authorities as an informal action that is not published or publicly available and that is used when circumstances warrant a milder form of action than a formal supervisory action, such as a formal written agreement or order. Regulatory oversight and actions are on the rise as a result of the current severe economic conditions and the related impact on the banking industry, specifically real estate loans.
 
 In accordance with the terms of the MOU, the Company has agreed to, among other things, (i) increase regulatory capital to achieve and maintain a minimum Tier 1 leverage capital ratio of at least 8% and a total risk-based capital ratio of at least 12%, (ii) monitor and reduce its commercial real estate concentration, (iii) timely identify and reduce its overall level of problem loans, (iv) establish and maintain an adequate allowance for loan losses, and (v) ensure adherence to loan policy guidelines. The MOU will remain in effect until modified, terminated, lifted, suspended or set aside by the regulatory authorities. The MOU may limit our ability to commit capital resources as we are required to preserve capital to meet the MOU’s requirements.
 
 We are committed to expeditiously addressing and resolving all the issues raised in the MOU, and our Board of Directors and management have already initiated actions to comply with its provisions, including entering into a definitive agreement with NAFH to raise capital. A material failure to comply with the terms of the MOU, including the failure of our transaction with NAFH to close, could subject us to additional regulatory actions, including a cease and desist order or other action, and further regulation, which may have a material adverse effect on our future business, results of operations and financial condition.
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 We are subject to examination and scrutiny by a number of regulatory authorities, and, depending upon the findings and determinations of our regulatory authorities, we may be required to make adjustments to our business, operations or financial position and could become subject to formal or informal regulatory orders.
 
 We are subject to examination by federal and state banking regulators. Federal and state regulators have the ability to impose substantial sanctions, restrictions and requirements on us and our banking subsidiaries if they determine, upon conclusion of their examination or otherwise, violations of laws with which we or our subsidiaries must comply or weaknesses or failures with respect to general standards of safety and soundness, including, for example, in respect of any financial concerns that the regulators may identify and desire for us to address. Such enforcement may be formal or informal and can include directors’ resolutions, memoranda of understanding, cease and desist orders, civil money penalties and termination of deposit insurance and bank closures. Enforcement actions may be taken regardless of the capital levels of the institutions, and regardless of prior examination findings. In particular, institutions that are not sufficiently capitalized in accordance with regulatory standards may also face capital directives or prompt corrective actions. Enforcement actions may require certain corrective steps (including staff additions or changes), impose limits on activities (such as lending, deposit taking, acquisitions or branching), prescribe lending parameters (such as loan types, volumes and terms) and require additional capital to be raised, any of which could adversely affect our financial condition and results of operations. The imposition of regulatory sanctions, including monetary penalties, may have a material impact on our financial condition and results of operations, damage our reputation and/or cause us to lose our financial holding company status. In addition, compliance with any such action could distract management’s attention from our operations, cause us to incur significant expenses, restrict us from engaging in potentially profitable activities and limit our ability to raise capital.
 
 The terms governing the issuance of the Series A Preferred Stock to the Treasury may be changed, the effect of which may have an adverse effect on our operations.
 
 The terms of the Securities Purchase Agreement, which we entered into with the Treasury, provide that the Treasury may unilaterally amend any provision of the Securities Purchase Agreement to the extent required to comply with any changes in applicable federal law that may occur in the future. We have no control over such changes in the terms of the Securities Purchase Agreement that may occur in the future. Such changes may place restrictions on our business or results of operations, which may adversely affect the market price of our common stock.
 
 There are potential risks associated with future acquisitions and expansions.
 
 We intend to continue to explore expanding our branch system through selective acquisitions of existing banks or bank branches in the Research Triangle area and other markets in North Carolina, South Carolina and Virginia, at this time particularly through FDIC-assisted transactions. We cannot say with any certainty that we will be able to consummate, or if consummated, successfully integrate, future acquisitions, or that we will not incur disruptions or unexpected expenses in integrating such acquisitions. In the ordinary course of business, we evaluate potential acquisitions that would bolster our ability to cater to the small business, individual and residential lending markets in our target markets. In attempting to make such acquisitions, we anticipate competing with other financial institutions, many of which have greater financial and operational resources. The process of identifying acquisition opportunities, negotiating potential acquisitions, obtaining the required regulatory approvals, and integrating new operations and personnel requires a significant amount of time and expense and may divert management’s attention from our existing business. In addition, since the consideration for an acquired bank or branch may involve cash, notes or the issuance of shares of common stock, existing shareholders could experience dilution in the value of their shares of our common stock in connection with such acquisitions. Any given acquisition, if and when consummated, may adversely affect our results of operations or overall financial condition. In addition, we may expand our branch network through de novo branches in existing or new markets. These de novo branches will have expenses in excess of revenues for varying periods after opening, which could decrease our reported earnings.
 
 Our ability to raise additional capital could be limited, could affect our liquidity and could be dilutive to existing shareholders.
 
 We may be required or choose to raise additional capital, including for strategic, regulatory or other reasons. Current conditions in the capital markets are such that traditional sources of capital may not be available to us on reasonable terms if we need to raise additional capital, and the inability to access the capital markets could impair our liquidity, which is important to our business. In such case, there is no guarantee that we will be able to successfully raise additional capital at all or on terms that are favorable or otherwise not dilutive to existing shareholders.
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 We are dependent on our key personnel, including our senior management and directors, and our inability to hire and retain key personnel may adversely affect our operations and financial performance.
 
 We are, and for the foreseeable future will be, dependent on the services of our senior management and directors. Members of our senior management have extensive and long-standing ties within our market area and substantial experience with our operations, which have contributed significantly to our growth. Should the services of a member of our senior management team become unavailable, our operations and growth may be disrupted, and there can be no assurance that a suitable successor could be retained upon the terms and conditions that we would offer. In December 2008, we entered into the Securities Purchase Agreement in connection with the CPP pursuant to which we sold the Treasury 41,279 shares of our Series A Preferred Stock and a warrant to purchase up to 749,619 shares of our common stock for an aggregate purchase price of $41.3 million. Our participation in the CPP restricts our ability to provide certain types of compensation to certain senior executive officers and employees. The inability to make certain types of compensation available to certain senior executive officers and employees may reduce our ability to retain key personnel.
 
 Further, as we continue to grow our operations both in our current markets and other markets that we may target, we expect to continue to be dependent on our senior management and their relationships in such markets. Our inability to attract or retain additional personnel could materially adversely affect our business or growth prospects in one or more markets.
 
 We compete with larger companies for business.
 
 The banking and financial services business in our market areas continues to be a competitive field and is becoming more competitive as a result of:
 
 •
changes in regulations;•
changes in technology and product delivery systems; and•
the accelerating pace of consolidation among financial services providers.
 
 We may not be able to compete effectively in our markets, and our results of operations could be adversely affected by the nature or pace of change in competition. We compete for loans, deposits and customers with various bank and nonbank financial services providers, many of which have substantially greater resources, including higher total assets and capitalization, greater access to capital markets and a broader offering of financial services.
 
 The failure of other financial institutions could adversely affect us.
 
 Our ability to engage in routine transactions, including, for example, funding transactions, could be adversely affected by the actions and potential failures of other financial institutions. We have exposure to many different industries and counterparties, and we routinely execute transactions with a variety of counterparties in the financial services industry. As a result, defaults by, or even rumors or concerns about, one or more financial institutions with which we do business, or the financial services industry generally, have led to market-wide liquidity problems and could lead to losses or defaults by us or by others. In addition, our credit risk may be exacerbated when the collateral we hold cannot be sold at prices that are sufficient for us to recover the full amount of our exposure. Any such losses could materially and adversely affect our financial condition and results of operations.
 
 Consumers may decide not to use banks to complete their financial transactions, which could limit our revenue.
 
 Technology and other changes are allowing parties to complete financial transactions through alternative methods that historically have involved banks. For example, consumers can now maintain funds in brokerage accounts or mutual funds that would have historically been held as bank deposits. Consumers can also complete transactions such as paying bills and/or transferring funds directly without the assistance of banks through the use of various electronic payment systems. The process of eliminating banks as intermediaries could result in the loss of fee income, as well as the loss of customer deposits and the related income generated from those deposits. The loss of these revenue streams and the lower cost deposits as a source of funds could have a material adverse effect on our financial condition and results of operations.
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 Index
 Technological advances impact our business.
 
 The banking industry is undergoing rapid technological changes with frequent introductions of new technology-driven products and services. In addition to improving customer services, the effective use of technology increases efficiency and enables financial institutions to reduce costs. Our future success will depend, in part, on our ability to address the needs of our customers by using technology to provide products and services that will satisfy customer demands for convenience as well as to create additional efficiencies in our operations. Many of our competitors have substantially greater resources than we do to invest in technological improvements. We may not be able to effectively implement new technology-driven products and services or successfully market such products and services to our customers.
 
 Our information systems, or those of our third party contractors, may experience an interruption or breach in security.
 
 We rely heavily on our communications and information systems, and those of third party contractors, to conduct our business. Any failure, interruption or breach in security of these systems could result in failures or disruptions in our customer relationship management, general ledger, deposit, loan and other systems. While we have policies and procedures designed to prevent or limit the effect of the failure, interruption or security breach of our information systems, there can be no assurance that we can prevent any such failures, interruptions or security breaches of our information systems, or those of our third party contractors, or, if they do occur, that they will be adequately addressed. The occurrence of any failures, interruptions or security breaches of such information systems could damage our reputation, result in a loss of customer business, subject us to additional regulatory scrutiny, or expose us to civil litigation and possible financial liability, any of which could have a material adverse effect on our financial condition and results of operations.
 
 Our controls and procedures may fail or be circumvented.
 
 Management regularly reviews and updates our internal controls, disclosure controls and procedures and corporate governance policies and procedures. Any system of controls, however well designed and operated, is based in part on certain assumptions and can provide only reasonable, not absolute, assurances that the objectives of the system are met. Any failure or circumvention of our controls and procedures or failure to comply with regulations related to controls and procedures could have a material adverse effect on our business, results of operations and financial condition.
 
 Risks Related to Proposed Investment by NAFH
 
 The NAFH investment is subject to closing conditions, which if not satisfied or waived, will result in the investment not being completed, which may result in adverse consequences.
 
 The NAFH investment agreement is subject to closing conditions that, if not satisfied, will prevent the investment from being completed. A summary discussion of the most significant of such conditions is as follows:
 
 •
Certain retail deposits of the Bank shall not have decreased by more than 20% from the amount thereof as of September 30, 2010.•
Charge-offs shall not exceed $30,000,000 for any completed calendar quarter and shall not exceed an amount equal to $30,000,000 pro-rated by the number of days in the interim quarterly period for the interim quarterly period ending five calendar days prior to closing.•
We are required to enter into an agreement with the Treasury to redeem all shares of the Series A Preferred and all the Warrants issued to the Treasury on terms specified in the investment agreement.•
Our shareholders are required to approve the transaction under NASDAQ rules and are required to approve an amendment to our Articles of Incorporation to increase the number of shares of common stock authorized for issuance.•
NAFH must receive the requisite approvals and consents for the investment from governmental agencies. NAFH has filed applications seeking these approvals and consents.•
Our representation and warranties must be true and correct, except where the failure to be true and correct, individually or in the aggregate, has not had or would not reasonably be expected to have a material adverse effect.•
We are required to perform in all material respects, our pre-closing obligations under the investment agreement.•
We shall not have experienced any events which caused a material adverse effect.
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 Index
 The agreement is also subject to other conditions that may prevent, delay or otherwise materially adversely affect the consummation of the investment. We cannot predict whether or when these conditions of closing will be satisfied, and a failure to consummate the investment may result in material adverse consequences to our business, results of operations and financial condition.
 
 Regulatory approvals for the NAFH investment may not be received, may take longer that expected or may impose burdensome conditions or conditions that cannot be met.
 
 Before the NAFH transaction may be completed, various approvals or consents must be obtained from the North Carolina Commissioner of Banks and the Federal Reserve. These governmental agencies may impose conditions on the investment or require changes to the terms of the agreement. Although we do not currently expect that any such conditions or changes would be imposed, there can be no assurance that they will not be, and such conditions or changes could have the effect of delaying or precluding the closing of the investment or imposing additional costs, any of which might impose burdensome conditions which may not be agreeable.
 
 The NAFH investment agreement limits our ability to pursue other capital raising alternatives.
 
 The NAFH investment agreement contains provisions limiting our ability to solicit or negotiate any acquisition proposals other than the transactions under this agreement. Violation of this provision could result in the obligation for us to pay an expense reimbursement up to $500,000 and a termination fee equal to $5 million. These provisions could discourage other entities from trying to invest in or acquire us even though those entities might be willing to invest or acquire us under more favorable terms than those offered by NAFH.
 
 Risks Related to Ownership of Our Common Stock
 
 The trading volume in our common stock has been low, which could make it difficult to sell shares of our common stock.
 
 Our common stock is currently traded on the NASDAQ Global Select Market. Our common stock is thinly traded and has substantially less liquidity than the average trading market for many other publicly traded companies. Thinly traded stocks can be more volatile than stock trading in an active public market. Our stock price has been volatile in the past and several factors could cause the price to fluctuate substantially in the future. These factors include but are not limited to changes in analysts’ recommendations or projections, our announcement of developments related to our business, operations and stock performance of other companies deemed to be peers, news reports of trends, concerns, irrational exuberance on the part of investors and other issues related to the financial services industry. Recently, the stock market has experienced a high level of price and volume volatility, and market prices for the stock of many companies, including those in the financial services sector, have experienced wide price fluctuations that have not necessarily been related to operating performance. Our stock price may fluctuate significantly in the future, and these fluctuations may be unrelated to our performance. General market declines or market volatility in the future, especially in the financial institutions sector of the economy, could adversely affect the price of our common stock, and the current market price may not be indicative of future market prices. Therefore, our shareholders may not be able to sell their shares at the volume, prices or times that they desire.
 
 We may issue additional shares of common stock or convertible securities that will dilute the percentage ownership interest of existing shareholders and may dilute the book value per share of our common stock and adversely affect the terms on which we may obtain additional capital.
 
 Our authorized capital includes 50,000,000 shares of common stock. As of September 30, 2010, we had 12,880,954 shares of common stock outstanding and had reserved for issuance 313,420 shares underlying options that are or may become exercisable at an average price of $12.05 per share. In addition, as of September 30, 2010, we had the ability to issue 598,859 shares of common stock pursuant to options and restricted stock that may be granted in the future under our existing equity compensation plans. Subject to applicable NASDAQ Listing Rules, our Board of Directors generally has the authority, without action by or vote of the shareholders, to issue all or part of any authorized but unissued shares of common stock for any corporate purpose, including issuance of equity-based incentives under or outside of our equity compensation plans. We may seek additional equity capital in the future as we develop our business and expand our operations. Any issuance of additional shares of common stock or convertible securities will dilute the percentage ownership interest of our shareholders and may dilute the book value per share of our common stock.
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 Index
 Our current shareholders will have a reduced ownership and voting interest after the investment and will exercise less influence over management.
 
 Under the terms of the NAFH agreement, we agreed to sell 71.0 million shares of our common stock to NAFH at a price of $2.55 per share for an aggregate investment of approximately $181 million. After giving effect to the NAFH investment it is expected that NAFH would own approximately 85% of our outstanding shares of common stock. Accordingly, our current shareholders will have less influence on our management due to a dilution of their ownership percentage. We can give no assurance that the issuance of such substantial amounts of stock will not cause the price of our common stock to decline.
 
 The Bank’s ability to pay dividends is subject to regulatory limitations, which may affect our ability to pay our obligations and dividends.
 
 We are a separate legal entity from the Bank and our other subsidiaries, and we do not have significant operations of our own. We have historically depended on the Bank’s cash and liquidity as well as dividends to pay our operating expenses. Various federal and state statutory provisions limit the amount of dividends that subsidiary banks can pay to their holding companies without regulatory approval. The Bank is also subject to limitations under state law regarding the payment of dividends, including the requirement that dividends may be paid only out of undivided profits and only if the Bank has surplus of a specified level. In addition to these explicit limitations, it is possible, depending upon the financial condition of the Bank and other factors, that the federal and state regulatory agencies could take the position that payment of dividends by the Bank would constitute an unsafe or unsound banking practice. In the event the Bank is unable to pay dividends sufficient to satisfy our obligations or is otherwise unable to pay dividends to us, we may not be able to service our obligations as they become due or to pay dividends on our common stock or Series A Preferred Stock. Consequently, the inability to receive dividends from the Bank could adversely affect our financial condition, results of operations, cash flows and prospects.
 
 In addition, holders of our common stock are only entitled to receive such dividends as our Board of Directors may declare out of funds legally available for such payments. Although we have historically paid cash dividends on our common stock, we are not required to do so and our Board of Directors voted in the first quarter of 2010 to suspend the payment of our quarterly cash dividend. This may continue to adversely affect the market price of our common stock. Also, we are a financial holding company and our ability to declare and pay dividends depends on certain federal regulatory considerations, including the guidelines of the Federal Reserve regarding capital adequacy and dividends.
 
 The Treasury’s investment in us imposes restrictions and obligations limiting our ability to pay dividends and repurchase common stock.
 
 Under the Securities Purchase Agreement and the rights of the Series A Preferred Stock set forth in our Articles of Incorporation, our ability to declare or pay dividends on any of our shares is restricted. Specifically, we may not declare dividend payments on common, junior preferred or pari passu preferred shares if we are in arrears on the dividends on the Series A Preferred Stock. Furthermore, prior to December 12, 2011, unless we have redeemed all of the Series A Preferred Stock, or the Treasury has transferred all of the Series A Preferred Stock to a third party, the consent of the Treasury will be required for us to, among other things, increase common stock dividends or effect repurchases of common stock (with certain exceptions, including the repurchase of our common stock to offset share dilution from equity-based employee compensation awards).
 
 Holders of Series A Preferred Stock have certain voting rights that may adversely affect our common shareholders, and the holders of Series A Preferred Stock may have different interests from, and vote their shares in a manner deemed adverse to, our common shareholders.
 
 In the event that we fail to pay dividends on shares of Series A Preferred Stock for an aggregate of at least six quarterly dividend periods (whether or not consecutive), the Treasury will have the right to appoint two directors to our Board of Directors until all accrued but unpaid dividends have been paid; otherwise, except as required by law, holders of Series A Preferred Stock have limited voting rights. So long as shares of Series A Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or our Articles of Incorporation, the vote or consent of holders owning at least 66 2/3% of the shares of Series A Preferred Stock outstanding is required for:
 
 •
any amendment or alteration of our Articles of Incorporation to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock ranking senior to the Series A Preferred Stock with respect to payment of dividends and/or distribution of assets on our liquidation, dissolution or winding up;
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 Index
 •
any amendment, alteration or repeal of any provision of our Articles of Incorporation so as to adversely affect the rights, preferences, privileges or voting powers of the Series A Preferred Stock; or•
any consummation of a binding share exchange or reclassification involving the Series A Preferred Stock or of a merger or consolidation of us with another entity, unless (i) the shares of Series A Preferred Stock remain outstanding following any such transaction or, if we are not the surviving or resulting entity, such shares are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (ii) such remaining outstanding shares of Series A Preferred Stock or preference securities, as the case may be, have rights, preferences, privileges and voting powers, and limitations and restrictions thereof, that are not materially less favorable than the rights, preferences, privileges and voting powers, and limitations and restrictions thereof, of the Series A Preferred Stock prior to such consummation, taken as a whole. Holders of Series A Preferred Stock could block such a transaction, even where considered desirable by, or in the best interests of, holders of our common stock.
 
 In addition, the shares of common stock that are issuable upon the exercise of the warrant held by the Treasury will enjoy voting rights identical to those of our other outstanding shares of common stock. Although the Treasury has agreed not to vote the shares of common stock it would receive upon any exercise of the warrant, a transferee of any portion of the warrant or any of the shares of common stock it acquires upon exercise of the warrant is not bound by this limitation.
 
 There can be no assurance when the Series A Preferred Stock may be redeemed and the warrant held by the Treasury may be repurchased.
 
 There can be no assurance when the Series A Preferred Stock may be redeemed and the warrant may be repurchased. In addition, the Series A Preferred Stock may only be redeemed upon the express approval of the Federal Reserve. Until such time as the Series A Preferred Stock is redeemed and the warrant is repurchased, we will remain subject to the terms and conditions set forth in the Securities Purchase Agreement, the warrant and the rights of the Series A Preferred Stock as set forth in the Articles of Incorporation.
 
 The holders of our subordinated debentures have rights that are senior to those of our shareholders.
 
 We have issued $34.3 million of subordinated debentures, which are senior to our shares of common stock. As a result, we must make payments on the subordinated debentures (and the trust preferred securities related to a portion of the subordinated debentures) before any dividends can be paid on our common stock and, in the event of bankruptcy, dissolution or liquidation, the holders of the debentures must be satisfied before any distributions can be made to the holders of common stock.
  Certain “control” acquisitions of our common stock could require an acquiring entity to be subject to regulation as a “bank holding company” or an acquiring entity or person to obtain the prior approval of the Federal Reserve.
 
 Any company owning, controlling or having the power to vote 25% or more of our outstanding common stock, or 5% or more if such holder otherwise exercises a “controlling influence” over our management and policies or those of the Bank, may be subject to regulation as a “bank holding company” in accordance with the Bank Holding Company Act of 1956, as amended. Becoming a bank holding company imposes certain statutory and regulatory restrictions and obligations, such as providing managerial and financial strength for its bank subsidiaries. Regulation as a bank holding company could require the holder to divest all or a portion of the holder’s investment in our common stock or such non-banking investments that may be deemed impermissible or incompatible with bank holding company status, such as a material investment in a company unrelated to banking. In addition, (1) any bank holding company or foreign bank with a U.S. presence may be required to obtain the approval of the Federal Reserve to acquire or retain 5% or more of our outstanding common stock and (2) any person may be required to obtain the approval of the Federal Reserve to acquire or retain 10% or more of our outstanding common stock.
 An investment in our common stock is not an insured deposit.
 
 Our common stock is not a bank deposit and, therefore, is not insured against loss by the FDIC, any other deposit insurance fund or by any other public or private entity. Investment in our common stock is inherently risky for the reasons described in this “Risk Factors” section and elsewhere in this report and is subject to the same market forces that affect the price of common stock in any company. As a result, our shareholders may lose some or all of their investment in our common stock.
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 Item 2.Unregistered Salesof Equity Securities and Use of Proceeds
 
 There were no repurchases (both open market and private transactions) during the three months ended September 30, 2010 of any of the Company’s securities registered under Section 12 of the Exchange Act, by or on behalf of the Company, or any affiliated purchaser of the Company.
 
 The Company has not completed any unregistered sales of equity securities during the three months ended September 30, 2010.
 
 Item 3.Defaultsupon Senior Securities
 
 None
 
 Item 4.  (Removed and Reserved)
 
 Item 5.  Other Information
 
 None
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 Item 6.  Exhibits
 
 Exhibit No.

DescriptionExhibit 4.1

In accordance with Item 601(b)(4)(iii)(A) of Regulation S-K, certain instruments respecting long-term debt of the registrant have been omitted but will be furnished to the Commission upon request.Exhibit 31.1

Certification of B. Grant Yarber pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002Exhibit 31.2

Certification of Michael R. Moore pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002Exhibit 32.1

Certification of B. Grant Yarber pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002Exhibit 32.2

Certification of Michael R. Moore pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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 Signatures
 
 Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in Raleigh, North Carolina, on the 15th day of November 2010.
 
 CAPITAL BANK CORPORATIONBy:
/s/ Michael R. MooreMichael R. MooreChief Financial Officer(Authorized Officer and Principal Financial Officer)
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 Exhibit Index
 
 Exhibit No.

DescriptionExhibit 4.1

In accordance with Item 601(b)(4)(iii)(A) of Regulation S-K, certain instruments respecting long-term debt of the registrant have been omitted but will be furnished to the Commission upon request.Exhibit 31.1

Certification of B. Grant Yarber pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002Exhibit 31.2

Certification of Michael R. Moore pursuant to Rule 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002Exhibit 32.1

Certification of B. Grant Yarber pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002Exhibit 32.2

Certification of Michael R. Moore pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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