exhibit10-2.htm


    
      Exhibit
        10.2

      EMPLOYMENT
        AGREEMENT

       

      
        
          
            This
              Employment Agreement
              (“Agreement”), dated as of January 31, 2008, is made and entered into between
Capital Bank
              (hereinafter the “Bank”), and Michael R. Moore (hereinafter
              “Employee”).

             

          

          The
            Bank
            desires to continue to employ Employee and Employee desires to accept
            such
            employment on the terms set forth below.

          


          In
            consideration of the mutual promises
            set forth below and other good and valuable con­sideration, the receipt and
            sufficiency of which the parties acknowledge, the Bank and Employee agree
            as
            follows:

          


          1. Employment.
The
            Bank employs
            Employee and Employee accepts employment on the terms and conditions
            set forth
            in this Agreement.

          


          2. Nature
            of
            Employment.
Employee
            shall serve as Executive Vice President and Chief Financial
            Officer and shall have such responsibilities and authority as may be
            reasonably
            assigned to him by the Bank. Employee shall also serve as Executive Vice
            President of Capital Bank Corporation (“CBC” and, along with the Bank, sometimes
            collectively referred to herein as the “Corporation”). Employee shall devote his
            full time and attention and best efforts to perform successfully his
            duties and
            advance the Bank’s and CBC’s interests. Employee shall abide by the Bank’s and
            CBC’s policies, procedures, and practices as they may exist from time to
            time.

          


          During
            this employment, Employee shall have no other employment of any nature
            whatsoever without the prior consent of the Bank; provided, however,
            this
            Agreement shall not prohibit Employee from personally owning and dealing
            in
            stocks, bonds, securities, real estate, commodities or other investment
            properties for his own benefit or those of his immediate family.

          


          3. Term.
Subject
            to the earlier
            termination provisions set forth in Section 5, the original term of this
            Agreement shall be one (1) year commencing as of the date set forth above.
            Upon
            expiration of the original term or any renewal term, the term shall be
            automatically renewed for an additional one (1) year period unless, at
            least
            thirty (30) days prior to the renewal date, either party gives notice
            of its
            intent not to continue the relationship. During any renewal term, the
            terms,
            conditions and provisions set forth in this Agreement shall remain in
            effect
            unless modified in accordance with Section 13.

          


          4. Compensation
            and
            Benefits.

          


          (a) Base
            Salary.
Employee’s initial
            annual base salary for all services rendered shall be
            One Hundred and Eighty Five and No/100 Dollars ($185,000.00) (less any
            applicable taxes and withholdings), payable in accordance with the Bank’s
            policies, procedures, and practices as they may exist from time to time.
            Employee’s salary periodically may be reviewed and adjusted at the Bank’s
            discretion in accordance with the Bank’s policies, procedures and practices as
            they may exist from time to time.

          


          (b) Incentive
            Plan. Employee
            shall be eligible to participate in the Capital Bank Corporation Equity
            Incentive Plan in accordance with the applicable terms, conditions, and
            eligibility requirements of that Plan, some of which are in the plan
            administrator’s discretion, as they may exist from time to time.

          


          (c) Benefits.
Employee
            may
            participate in any medical insurance or other employee benefit plans
            and
            programs which may be made available from time to time to other Bank
            or CBC
            employees at Employee’s level; provided, however, that Employee’s participation
            in such benefit plans and programs is subject to the applicable terms,
            conditions, and eligibility requirements of those plans and programs,
            some of
            which are within the plan administrator’s discretion, as they may exist from
            time to time.

          


          (d) Expenses.
Employee
            shall be
            reimbursed by the Bank for any reasonable and necessary business expenses
            incurred by Employee on behalf of the Bank or in connection with Employee’s
            performance of his duties hereunder. Such reimbursement shall be in accordance
            with the Bank’s practices or policies as they may exist from time to
            time.

          

            
              
                 

              

              
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          (e) Vacation.
Employee
            shall be
            entitled to four (4) weeks of vacation during calendar year 2008 and
            thereafter
            vacation entitlement shall be in accordance with the Bank’s policies. Such
            vacation shall be taken in accordance with the Bank’s policies and practices as
            they may exist from time to time.

          


          5. Termination
            of
            Employment and Post-Termination Compensation.

          


          (a) With
            Notice. Either
            the Bank or Employee may terminate this Agreement and the employment
            relationship created hereunder without cause at any time by giving thirty
            (30)
            days’ written notice to the other party.

          


          (b) Cause,
            Disability, or Death.
The Bank
            may terminate Employee’s employment immediately for
“Disability,” “Cause,” or in the event of Employee’s death. For purposes of this
            Agreement, Disability shall mean Employee’s mental or physical inability to
            perform the essential functions of his duties satisfactorily for a period
            of one
            hundred eighty (180) consecutive days or one hundred eighty (180) days
            within a
            365-day period as determined by the Bank in its reasonable discretion
            and in
            accordance with applicable law. For purposes of this Agreement, “Cause” shall
            mean: (i) any act
            of Employee involving dishonesty; (ii) any material
            violation by Employee of any Bank or CBC rule, regulation, or policy;
(iii) gross negligence
            committed by Employee; (iv) material failure
            of
            Employee to perform his duties hereunder; or (v) Employee’s breach of
            any of the express obligations of this Agreement.

          


          (c) Post-Termination
            Compensation.

          


          (i) In
            the
            event of termination for Cause, the Bank’s obligation to compensate Employee
            ceases on the date of termination except as to the amounts of salary
            due at that
            time.

          


          (ii) In
            the
            event of a termination for death or Disability, the Bank’s obligation to
            compensate Employee ceases on the date of termination, except as to any
            accrued
            compensation and any pro rata bonuses to which he may be entitled as
            of the date
            of termination. The Bank shall pay any such amounts to Employee or Employee’s
            estate.

          


          (iii) If
            there
            has been no Change in Control and the Bank terminates Employee’s employment
            without Cause, then Employee, upon his execution of an enforceable general
            release in a form prepared by the Bank, shall be entitled to (A) receive an amount
            equal to his then current annual base salary plus the amount of bonus
            paid to
            Employee, if any, in the prior bonus year (less any applicable taxes
            and
            withholdings), payable in substantially equal amounts over a twelve (12)
            month
            period in accordance with the payroll schedule applicable to Employee
            immediately prior to the termination of employment and beginning with
            the first
            month after the date of termination of employment (for purposes of Section
            409A
            of the Internal Revenue Code of 1986, as amended (the “Code”), as applicable,
            each installment payment shall be considered a separate payment); and
(B) for the period
            of
            time Employee receives payments pursuant to Section 5(c)(iii)(A), participate
            in
            all life insurance, health, accidental death and dismemberment, and disability
            plans paid by the Bank for Employee in which Employee participates immediately
            prior to the termination, provided that Employee’s continued participation is
            possible under the applicable terms, conditions and eligibility requirements
            of
            such plans and programs. Employee’s continued participation in such plans and
            programs shall be at no greater cost to Employee than the cost he bore
            for such
            participation immediately prior to termination. If Employee’s participation in
            any such plan or program is barred, the Bank shall arrange upon comparable
            terms, and at no greater cost to Employee than the cost he bore for such
            plans
            and programs prior to termination, to provide Employee with benefits
            substantially similar to, or greater than, those which he is entitled
            to receive
            under any such plan or program. Provided, however, no installment payments
            or
            benefits shall be provided until the required general release becomes
            effective.

          

            
              
                 

              

              
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          6. Non-Solicitation/Non-Compete.
Employee
            acknowledges
            that by virtue of Employee’s employment with the Bank, Employee shall have
            access to and control of confidential and proprietary information concerning
            the
            Corporation’s and/or its affiliates’ business and that the Corporation’s
            business depends to a considerable extent on the individual skills, efforts,
            and
            leadership of Employee. Additionally, Employee acknowledges that the
            covenants
            contained in this Section 6 are reasonably necessary to protect the legitimate
            business interests of the Corporation and are described with sufficient
            accuracy
            and definiteness to enable him to understand the scope of the restrictions
            imposed on him. Accordingly and in consideration of the Corporation’s
            commitments to Employee under this Agreement, Employee expressly covenants
            and
            agrees that Employee shall not, without the prior consent of the Bank,
            during
            his employment and, subject to Section 6(c) below, for one (1) year following
            the cessation of his employment regardless of the reason for the
            cessation,

          


          (a) on
            Employee’s own or another’s behalf, whether as an officer, director,
            stockholder, partner, associate, owner, employee, consultant or
            otherwise:

          


          (i) within
            any city, metropolitan area or county in which the Corporation does business
            or
            is located, engage in any business activity (or assist others to engage
            in any
            business activity) that directly competes with the Corporation;

          


          (ii) solicit
            or do business that is the same, similar to, or otherwise in competition
            with
            the business engaged in by the Corporation from or with persons or entities
            who
            are customers of the Corporation, who were customers of the Corporation
            at any
            time during the last year of Employee’s employment with the Bank, or to whom the
            Corporation made proposals for business at any time during the last year
            of
            Employee’s employment with the Bank; or

          


          (iii) employ,
            offer employment to, or otherwise solicit for employment, any employee
            or other
            person who is then currently an employee of the Corporation or who was
            employed
            by the Corporation during the last year of Employee’s employment with the
            Bank.

          


          (b) within
            any city, metropolitan area or county in which the Corporation does business
            or
            is located, be employed or otherwise engaged by any entity that engages
            in the
            same, similar or otherwise competitive business as the Corporation, to
            provide
            the same or similar services that Employee provided to the
            Corporation.

          


          (c) (i) If
(A) the
            Bank terminates
            Employee’s employment without Cause and (B) Employee waives
            in
            writing his right to receive payments pursuant to Section 5(c)(iii) hereof,
            the
            non-competition and non-solicitation restrictions contained in this Section
            6
            shall terminate on the later of (A) the cessation
            of
            Employee’s employment with the Bank or (B) the Bank’s receipt of
            Employee’s waiver described in this Section 6(c)(i). (ii) In the event
            that
            Employee’s employment terminates under any of the circumstances described in
            Section 8(b) (“Change in Control Termination”), the non-competition and
            non-solicitation restrictions contained in this Section 6 shall terminate
            six
            (6) months following cessation of Employee’s employment with the
            Bank.

          


          7. Proprietary
            Information and Property. Employee
            shall not, at any
            time during or following employment with the Bank, disclose or use, except
            in
            the course of his employment with the Bank or as may be required by law,
            any
            confidential or proprietary information of the Bank or CBC received by
            Employee
            while employed hereunder, whether such information is in Employee’s memory or
            embodied in writing or other physical form.

          


          Confidential
            or proprietary information
            is information which is not generally available to the general public,
            or the
            Bank’s or CBC’s competitors, or ascertainable through common sense or general
            business knowledge; including, but not limited to data, compilations,
            methods,
            financial data, financial plans, business plans, product plans, lists
            of actual
            or potential customers, and marketing information regarding executives
            and
            employees.

          

            
              
                 

              

              
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          All
            records, files or other objects
            maintained by or under the control, custody or possession of the Bank,
            CBC, or
            their agents in their capacity as agents shall be and remain the Bank’s or CBC’s
            property respectively. Upon termination of his employment or upon the
            Bank’s or
            CBC’s earlier request, Employee shall return to the Bank all property
            (including, but not limited to, credit cards, keys, company car, cell
            phones,
            computer hardware and software, records, files, manuals and other documents
            in
            whatever form they exist, whether electronic, hard copy or otherwise
            and all
            copies, notes or summaries thereof) which he received in connection with
            his
            employment. At the Bank’s request, Employee shall bring current all such
            records, files or documents before returning them.

          


          Upon
            notice of cessation of his
            employment with the Bank, Employee shall fully cooperate with the Bank
            in
            winding up his pending work and transferring his work to those individuals
            designated by the Bank.

          


          8. Change
            in
            Control.

          


          (a) Definition.
For
            purposes of this
            Agreement, “Change in Control” shall mean any of the following:

          


          (i) Any
            “person” (as such term is used in Section 13(d)(3) or 14(d)(2) of the Securities
            Exchange Act of 1934, as amended (the “Act”)) acquiring “beneficial ownership”
(as such term is used in Rule 13d-3 under the Act), directly or indirectly,
            of
            securities of CBC, the parent holding company of the Bank, representing
            fifty
            percent (50%) or more of the combined voting power of CBC’s then outstanding
            voting securities (the “Voting Power”), but excluding for this purpose an
            acquisition by CBC or an “affiliate” (as defined in Rule 12b-2 under the Act) or
            by an employee benefit plan of CBC or of an affiliate.

          


          (ii) The
            individuals who constitute the Board of Directors of CBC (“Board”) on the
            effective date hereof or their successors duly appointed in the ordinary
            course
            (collectively, the “Incumbent Directors”) cease to constitute at least a
            majority of the Board in any twelve (12) month period. Any director whose
            nomination is approved by a majority of the Incumbent Directors shall
            be
            considered an Incumbent Director; provided, however, that no Director
            whose
            initial assumption of office is in connection with an actual or threatened
            election contest relating to the election of the directors of CBC shall
            be
            considered an Incumbent Director.

          


          (iii) The
            shareholders of CBC approve a reorganization, share exchange, merger
            or
            consolidation related to CBC or the Bank following which the owners of
            the
            Voting Power of CBC immediately prior to the closing of such transaction
            do not
            beneficially own, directly or indirectly, more than fifty percent (50%)
            of the
            Voting Power of CBC.

          


          (iv) The
            shareholders of CBC approve a complete liquidation or dissolution of
            CBC, or a
            sale or other disposition of all or substantially all of the capital
            stock or
            assets of CBC, but excluding for this purpose any sale or disposition
            of all or
            substantially all of the capital stock or assets of CBC to an “affiliate” (as
            defined in Rule 12b-2 under the Act) of CBC.

          


          Change
            in
            Control shall not include a transaction, or series of transactions, whereby
            CBC
            or the Bank becomes a subsidiary of a holding company if the shareholders
            of the
            holding company are substantially the same as the shareholders of CBC
            prior to
            such transaction or series of series of transactions.

          


          (b) Change
            in
            Control Termination.
After
            the occurrence of a Change in Control, Employee shall be entitled
            to receive payments and benefits pursuant to this Agreement in the following
            circumstances:

          


          (i) if
            within
            the period beginning ninety (90) days prior to and ending three (3) years
            after
            the occurrence of a Change in Control, the Bank terminates Employee’s employment
            for any reason other than Cause, Disability, or death; or

          


          (ii) if
            within
            three (3) years after the occurrence of a Change in Control, Employee
            terminates
            his employment with the Bank for “Good Reason.” For purposes of this Section
            8(b), “Good Reason” shall mean the occurrence of any of the following events or
            conditions without Employee’s prior written consent:


          
            
               

            

            
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          (A) a
            change
            in Employee’s status, title, position, or responsibilities (including reporting
            responsibilities) which represents a material adverse change from his
            status,
            title, position, or responsibilities in effect immediately prior thereto;
            the
            assignment to Employee of any duties or responsibilities which are materially
            inconsistent with his status, title, position or responsibilities; or
            any
            removal of Employee from or failure to reappoint or re-elect him to any
            of such
            positions, status, or title (including positions, titles, and responsibilities
            with any affiliate), except in connection with the termination of his
            employment
            for Disability, Cause, or death, or by Employee other than for Good Reason;
            provided, however, that no such change, assignment, or removal shall
            constitute
            Good Reason so long as Employee suffers no reduction in Base Salary as
            a result
            of such change, assignment, or removal;

          


          (B) the
            Bank’s requiring Employee to be based at any place outside a thirty (30) mile
            radius from its headquarters at 333 Fayetteville Street, Raleigh, North
            Carolina, except for reasonably required travel on the Bank’s
            business;

          


          (C) any
            material breach by the Bank of any express provision of this Agreement;
            or

          


          (D) the
            failure of CBC to obtain an agreement, satisfactory to Employee, from
            any
            successor or assign of CBC to assume and agree to perform this
            Agreement.

          


          (c) Change
            in
            Control Benefits.
In the
            event that Employee’s employment with the Bank terminates under
            any of the circumstances described above in this Section 8 at any time,
            Employee
            shall be entitled to receive all accrued compensation and any pro rata
            bonuses
            to which he may be entitled and which Employee may have earned up to
            the date of
            termination and, upon Employee’s execution of an enforceable general release in
            a form prepared by the Bank, severance payments and benefits according
            to the
            following schedule and terms:

          


          (i) a
            severance payment equal to: 2.99 times the amount of Employee’s then current
            annual base salary plus the amount of bonus paid to Employee, if any,
            in the
            prior bonus year (less any applicable taxes and withholdings), in the
            event the
            termination occurs no later than twelve (12) months after the occurrence
            of a
            Change in Control; 2.0 times the amount of Employee’s then current annual base
            salary plus the amount of bonus paid to Employee, if any, in the prior
            bonus
            year (less any applicable taxes and withholdings), in the event the termination
            occurs more than twelve (12) months but within (up to and including)
            twenty-four
            (24) months after the occurrence of a Change in Control; or 1.0 times
            the amount
            of Employee’s then current annual base salary plus the amount of bonus paid to
            Employee, if any, in the prior bonus year (less any applicable taxes
            and
            withholdings), in the event the termination occurs more than twenty-four
            (24)
            months but within (up to and including) thirty-six (36) months after
            the
            occurrence of a Change in Control. The severance payment shall be paid
            in
            substantially equal monthly installments without interest, over a period
            of
            thirty-six (36), twenty-four (24), or twelve (12) months, respectively,
            in
            accordance with the payroll schedule applicable to Employee immediately
            prior to
            the termination of employment and beginning with the first month after
            the date
            of termination of employment (for purposes of Section 409A of the Code,
            as
            applicable, each installment payment shall be considered a separate payment);
            and

          


          (ii) a
            cash
            payment in an amount equal to the premiums that Employee would pay in
            order to
            secure COBRA continuation coverage for health insurance under the Bank’s medical
            plan and for the premiums Employee would pay for life insurance, accidental
            death and dismemberment and disability insurance to continue such insurance
            during the applicable severance periods following termination of employment
            (irrespective of whether COBRA otherwise would terminate prior to expiration
            of
            any such severance period) (“Premium Payment”); and the additional federal,
            state, and local income and other taxes that will result from the Premium
            Payment (the “Premium Tax Gross-up”). This Premium Payment and the Premium Tax
            Gross-up shall be paid in a single lump-sum cash payment, less any applicable
            taxes and withholdings, within thirty (30) days after the date of termination
            of
            employment.

          


          Provided,
            however, no installment payments or other cash payment shall be provided
            until
            the required general release becomes effective.

          

            
              
                 

              

              
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          (d) Limitation
            on Payments. To
            the extent that any of the payments and benefits provided for under this
            Agreement or otherwise payable to Employee constitute “parachute payments”
within the meaning of Section 280G of the Code, and but for this Section
            8 would
            be subject to the excise tax imposed by Section 4999 of the Code, the
            Bank shall
            reduce the aggregate amount of such payments and benefits such that the
            present
            value of such payment of benefits and any other “parachute payments” amounts (as
            determined under the Code and the applicable regulations) is equal to
            2.99 times
            Employee’s “base amount” as defined in Section 280G(b)(3) of the
            Code.

          


          9. Survival.
The
            terms and
            conditions of Sections 6 and 7 shall survive termination of this Agreement
            and/or Employee’s employment and shall not be affected by any change or
            modification of this Agreement unless specific reference is made to such
            sections.

          


          10. Remedies.
Employee
            agrees that
            his breach or threatened violation of Sections 6 and 7 will result in
            immediate
            and irreparable harm to the Bank or CBC for which legal remedies would
            be
            inadequate. Therefore, in addition to any legal or other relief to which
            the
            Bank or CBC may be entitled, (a) the Bank or
            CBC may
            seek legal and equitable relief, including but not limited to, preliminary
            and
            permanent injunctive relief, (b) the Bank will
            be
            released of its obligations under this Agreement to make any payments
            to
            Employee, including but not limited to, those payable pursuant to Sections
            5
            and/or 8, and (c) Employee will
            indemnify the Bank or CBC for all expenses, including attorneys’ fees, in
            seeking to enforce those Sections.

          


          11. Delayed
            Distribution to Key Employees. If the
            Bank determines in
            accordance with Sections 409A and 416(i) of the Code and the regulations
            promulgated thereunder, in the Bank’s sole discretion, that Employee is a Key
            Employee of the Bank on the date his employment with the Bank terminates
            and
            that a delay in benefits provided under this Agreement and not otherwise
            exempt
            from Section 409A is necessary to comply with Code Section 409A(a)(2)(B)(i),
            then any severance payments and any continuation of benefits or reimbursement
            of
            benefit costs provided by this Agreement shall be delayed for a period
            of six
            (6) months following Employee’s termination date (the “409A Delay Period”). In
            such event, any such severance payments and the cost of any such continuation
            of
            benefits provided under this Agreement that would otherwise be due and
            payable
            to Employee during the 409A Delay Period shall be paid to Employee in
            a lump sum
            cash amount in the month following the end of the 409A Delay Period.
            For
            purposes of this Section 11, “Key Employee” shall mean an employee who, on an
            Identification Date (“Identification Date” shall mean each December 31) is a key
            employee as defined in Section 416(i) of the Code without regard to paragraph
            (5) thereof. If Employee is identified as a Key Employee on an Identification
            Date, then Employee shall be considered a Key Employee for purposes of
            this
            Agreement during the period beginning on the first April 1 following
            the
            Identification Date and ending on the following March 31.

          


          12. Waiver
            of
            Breach. The
            Bank’s or Employee’s waiver of any breach of a provision of this Agreement shall
            not waive any subsequent breach by the other party.

          


          13. Entire
            Agreement. This
            Agreement: (i) supersedes all
            other
            understandings and agreements, oral or written, between the parties with
            respect
            to the subject matter of this Agreement; and (ii) constitutes
            the
            sole agreement between the parties with respect to this subject matter.
            Each
            party acknowledges that: (i) no representations,
            inducements, promises or agreements, oral or written, have been made
            by any
            party or by anyone acting on behalf of any party, which are not embodied
            in this
            Agreement; and (ii) no agreement,
            statement or promise not contained in this Agreement shall be valid.
            No change
            or modification of this Agreement shall be valid or binding upon the
            parties
            unless such change or modification is in writing and is signed by the
            parties.

          


          14. Severability.
If
            a court of
            competent jurisdiction holds that any provision or sub-part thereof contained
            in
            this Agreement is invalid, illegal or unenforceable, that invalidity,
            illegality
            or unenforceability shall not affect any other provision in this Agreement.
            Additionally, if any of the provisions, clauses or phrases set forth
            in Section
            6 or 7 of this Agreement are held unenforceable by a court of competent
            jurisdiction, then the parties desire that such provision, clause or
            phrase be
“blue-penciled” or rewritten by the court to the extent necessary to render it
            enforceable.

          

            
              
                 

              

              
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          15. Parties
            Bound. The
            terms, provisions, covenants and agreements contained in this Agreement
            shall
            apply to, be binding upon and inure to the benefit of the Bank’s successors and
            assigns. The Bank, at its discretion, may assign this Agreement. Employee
            may
            not assign this Agreement without the Bank’s prior written consent.

          


          16. Governing
            Law. This
            Agreement and the employment relationship created by it shall be governed
            by
            North Carolina law. The parties hereby consent to exclusive jurisdiction
            in
            North Carolina for the purpose of any litigation relating to this Agreement
            and
            agree that any litigation by or involving them relating to this Agreement
            shall
            be conducted in the court of Wake County or the federal court of the
            United
            States for the Eastern District of North Carolina.

          

            
              
                 

              

              
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          IN
            WITNESS WHEREOF, the
            parties have entered into this Agreement on the day and year written
            below.

          


          
            	 	
                    EMPLOYEE

                  	 	 
	 	 	 	 
	 	 	 	 
	 	
                    /s/
                      Michael R. Moore

                  	 	
                    January
                      31, 2008

                  
	 	
                    Michael
                      R. Moore

                  	 	
                    Date

                  
	 	 	 	 
	 	 	 	 
	 	
                    CAPITAL
                      BANK

                  	 	 
	 	 	 	 
	 	 	 	 
	 	
                    By:  /s/ B.
                      Grant Yarber

                  	 	
                    January
                      31, 2008

                  
	 	 	 	
                    Date

                  
	 	 	 	 
	 	 	 	 
	 	
                    CAPITAL
                      BANK CORPORATION

                  	 	 
	 	 	 	 
	 	 	 	 
	 	
                    By:  /s/  B.
                      Grant
                      Yarber

                  	 	
                    January
                      31, 2008

                  
	 	 	 	
                    Date

                  
	 	 	 	 
	 	 	 	 
	 	 	 	 


          

          

            
              
                 

              

              
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