exv10w2






Exhibit 10.2




AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     This AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Amendment”) is made and entered
into this 14th day of January, 2011 by and among CAPITAL BANK (the “Bank”), CAPITAL BANK
CORPORATION (“CBC”) and B. Grant Yarber (“Employee”). CBC, along with the Bank, sometimes
collectively referred to herein as the “Corporation”.



     WHEREAS, Employee is currently employed with the Corporation under an Amended and Restated
Employment Agreement dated September 17, 2008 (the “Employment Agreement”), pursuant to which he
currently serves as President and Chief Executive Officer of the Corporation;



     WHEREAS, pursuant to the Investment Agreement dated November 3, 2010 among North American
Financial Holdings, Inc., CBC and the Bank (the “Investment Agreement”), the Bank is permitted to
enter into this Amendment with Employee to provide for the amendment of the Employment Agreement in
order for the Employment Agreement to terminate on November 3, 2011; and



     WHEREAS, the parties to the Employment Agreement desire to amend the Employment Agreement as
provided in this Amendment.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Employment Agreement shall be amended as follows:



     1. NATURE OF EMPLOYMENT. The first sentence of Section 2 “Nature of Employment” is
deleted and the following sentences are inserted in lieu thereof:




“Term; Nature of Employment. Subject to the earlier termination
provisions set forth in Section 4, the term of this Agreement shall be for
the period of time commencing on September 17, 2008 and ending on November
3, 2011. Unless the term of this Agreement is extended by a written
amendment, this Agreement shall terminate at the close of business on
November 3, 2011 without any further obligation of CBC or any of its
affiliates under this Agreement. Following the term of this Agreement,
Employee shall be an at-will employee and shall be eligible to receive
separation benefits under any severance plan or policy applicable to
similarly situated senior executives of the Bank. Prior to the Closing as
defined in that certain Investment Agreement dated November 3, 2010 among
North American Financial Holdings, Inc., CBC and the Bank, Employee shall
serve as President and Chief Executive Officer of CBC and the Bank
(collectively, the “Corporation”) and shall have such responsibilities and
authority as may be reasonably assigned to him by the Corporation.
Immediately following such Closing, Employee shall cease to serve as
President and Chief Executive Officer of the Corporation and shall serve
as Market President for North Carolina of the Bank directly reporting to
the new Chief Executive Officer of the Bank and shall have such
responsibilities and authority as may be reasonably assigned to him in
this position by the new Chief Executive Officer that are commensurate
with Employee’s experience and education.”



     3. GOOD REASON. Section 4(d) is amended as follows:



          (a) the first sentence of Section 4(d) is deleted in its entirety and the following
sentence is inserted in lieu thereof:





 









 









“For purposes of Sections 4(c) and 5(b)(ii), Good Reason shall mean the occurrence of
any of the following events or conditions without the Employee’s prior written
consent:”




(b) the following sentence shall be added as the final sentence of Section 4(d):




“Notwithstanding anything contained herein to the contrary, the change in status,
title, position, or responsibilities (including reporting responsibilities) that is
effected upon the Closing as described in Section 2 above, the assignment of duties
and responsibilities to Employee consistent with the position of Market President for
North Carolina of the Bank in connection with such change, and the removal of
Employee from or failure to reappoint or re-elect him to any position, status or
title (including positions, titles and responsibilities with any affiliate) as a
result of such changes shall not constitute Good Reason entitling Employee to
terminate his employment and receive payments and benefits pursuant to this
Agreement.”



     4. CHANGE IN CONTROL DEFINITION. The following sentence shall be added as the final sentence
of Section 5(a):




“Notwithstanding anything to the contrary, in no event shall any of the events or
transactions set forth above constitute a Change in Control if the holders of 50% or
more of the equity interests of the Parent (as defined below) immediately prior to
such event or transaction own, directly or indirectly, 50% or more of the equity
interests of the Corporation or its successor immediately following such event or
transaction. For purposes of the preceding sentence, the “Parent” shall mean the
ultimate person or group (each as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) that together with their affiliates,
directly or indirectly, owns or controls, by share ownership, contract or otherwise,
a majority of the equity interests of the Corporation.”



     5. CHANGE IN CONTROL TERMINATION. The provisions of Section 5(b) “Change in Control
Termination” are amended as follows:



               (a) Section 5(b)(i) is deleted in its entirety and replaced with the following Section
5(b)(i):




“(i) if during the then remaining term of this Agreement (as set forth in Section 2)
after the occurrence of a Change in Control, the Bank terminates Employee’s
employment for any reason other than Cause, Disability, or death; or”



               (b) Section 5(b)(ii) is deleted in its entirety and replaced with the following Section
5(b)(ii):




“(ii) if during the then remaining term of this Agreement (as set forth in Section 2)
after the occurrence of a Change in Control, Employee terminates his employment with
the Bank for “Good Reason.” For purposes of this Section 5(b), “Good Reason” shall
have the definition set forth in Section 4(d), as amended.”



     6. COUNTERPARTS. This Amendment may be executed in counterparts, each of which shall be an
original, with the same effect as if the signatures affixed thereto were upon the same instrument.



 









 





     7. EFFECT OF AMENDMENT. Except as amended hereby, the Employment Agreement shall remain in
full force and effect and is hereby ratified and confirmed in all respects by the parties to the
Employment Agreement.



     IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year set forth
above.



	 	 	 	 	 	 	 

	Employee

	 	 	 	Capital Bank	 	 
	 
	 	 	 	 	 	 
	/s/ B. Grant Yarber

	 	By:
	 	/s/ O. A. Keller, III	 	 
	 

B. Grant Yarber

	 	 	 	 

O. A. Keller, III
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Capital Bank Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ O. A. Keller, III	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	O. A. Keller, III