exv10w1






Exhibit 10.1




FIRST AMENDMENT TO INVESTMENT AGREEMENT




     THIS FIRST AMENDMENT TO INVESTMENT AGREEMENT (this “First Amendment”) is made and
dated as of January 14, 2011 by and among Capital Bank Corporation, a corporation organized under
the laws of the State of North Carolina (the “Company”), Capital Bank, a North Carolina
state-chartered banking corporation and a banking subsidiary of the Company (the “Bank”),
and North American Financial Holdings, Inc., a Delaware corporation (“Purchaser”). The
Company, the Bank and Purchaser are collectively referred to herein as the “Parties”.



RECITALS




     WHEREAS, the Parties entered into an Investment Agreement dated as of November 3, 2010 (the
“Investment Agreement”; capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Investment Agreement); and



     WHEREAS, the Parties now desire to amend the Investment Agreement.



     NOW, THEREFORE, in consideration of the premises, covenants and agreements set forth herein
and of other good and valuable consideration, the receipt and legal sufficiency of which they
hereby acknowledge, and intending to be legally bound hereby, the Parties hereby agree as follows:



          1. Amendments to Investment Agreement. The Investment Agreement shall be, and it
hereby is, amended as follows:




               (a) Section 4.5 of the Investment Agreement is hereby amended and restated in its entirety to
read as follows:



                    “4.5 Officers, Employees and Benefit Plans.




               “(a) It is the intention of Purchaser to maintain in place the management team
of the Bank, subject to the establishment of, and acceptance of, performance
criteria in accordance with Purchaser’s anticipated business plan. Notwithstanding
the foregoing, nothing in this Agreement, including this Section 4.5, shall be
construed to guarantee or extend any offer of employment to, or to prevent the
termination of employment of any employee or the amendment or termination of any
particular Benefit Plan to the extent permitted by its terms.




               (b) The Company and the Bank shall, prior to the Closing Date, take all
necessary actions (including obtaining the consents of the affected participants, as
applicable) to (i) amend the Capital Bank Defined Benefit Supplemental Executive
Retirement Plan (the “SERP”) to, with respect to unvested amounts
(determined as of immediately prior to the Closing Date) only, waive any “change in
control” provision and corresponding entitlement to change



 









 







in control benefits with respect to the transactions contemplated by this
Agreement or any subsequent transaction or series of transactions (including a
reorganization, share exchange, merger or consolidation) that result in the
ownership of the outstanding voting securities of the Company or total voting power
of the Company being transferred to or acquired by an entity that is an affiliate of
Purchaser and that would otherwise be considered a change in control for purposes of
the SERP, and (ii) subject to Purchaser’s written consent replace the SERP (which
may be accomplished by amending the SERP), with respect to unvested amounts
(determined as of immediately prior to the Closing Date) only, with a substantially
identical Benefit Plan to be effective immediately following the Closing;
provided, however, that the new Benefit Plan or the amended SERP, as
applicable, will not provide for enhanced benefits or accelerated vesting upon a
“change in control” that are triggered by a transaction or series of transactions
(including a reorganization, share exchange, merger or consolidation) that result in
the ownership of the outstanding voting securities of the Company or total voting
power of the Company being transferred to or acquired by any entity that is an
affiliate of Purchaser.




               (c) Purchaser, the Company and the Bank agree, subject to any legal or
regulatory restrictions or limitations, immediately following the Closing to pay the
change in control payments described in Section 4.5(c) of the Company Disclosure
Schedule; it being understood and agreed that in no event will the amounts payable
in respect of previously vested and accrued SERP benefits exceed the amounts set
forth on such Schedule, except for any change in amounts solely due to a change in
discount rate or valuation date of the previously vested and accrued SERP benefits
or solely due to any additional vesting pursuant to the requirements of the SERP in
the event of a delay in the Closing Date to a date after January 31, 2010. In
addition, Purchaser and the Company acknowledge and agree that, at Closing, all
options to purchase Company common stock and all Company restricted stock awards
shall fully vest pursuant to their terms to the extent permitted by Sections 111 and
302 of EESA or other applicable law.”



               (b) Section 2.2(s)(1)(A) of the Company Disclosure Schedule is hereby amended by adding the
following thereto:




     “28. Amendment to the Amended and Restated Employment Agreement with B.
Grant Yarber, dated as of January 14, 2011




     29. Amendment to the Employment Agreement with Michael Moore, dated as
of January 14, 2011




     30. Amendment to the Amended and Restated Employment Agreement with
Mark Redmond, dated as of January 14, 2011




     31. Amendment to the Employment Agreement with David Morgan, dated as
of January 14, 2011”








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               (c) Section 4.5(c) of the Company Disclosure Schedule is hereby amended and restated in its
entirety to read as provided on Schedule 4.5(c) hereto.



               (d) Section 6.11 of the Investment Agreement is hereby amended and restated in its entirety to
read as follows:




     “6.11 No Third Party Beneficiaries. Nothing contained in this
Agreement, express or implied, including Section 4.5(a) hereof, is intended to
confer upon any person other than the parties hereto, any benefit, right or
remedies, except that the provisions of Sections 3.6, 4.1(b), 4.1(c), 4.5(b) and
4.5(c) shall inure to the benefit of the persons referred to in such Sections.”



               (e) Exhibit B to the Investment Agreement is hereby amended by deleting the words “in exchange
for an aggregate cash purchase price equal to fifty percent (50%) (or such greater amount as
Purchaser, in its sole discretion, may consent in writing) of the sum of (i) the aggregate
liquidation value of the outstanding Series A Preferred and (ii) the amount of accrued but unpaid
dividends on the Series A Preferred” therein.



     2. Reference to and Effect on the Investment Agreement.



               (a) From and after the effective date hereof each reference in the Investment Agreement to
“this Agreement”, “hereunder”, “hereof” or words of like import referring to the Investment
Agreement, and each reference in any agreement to be delivered in connection with the Closing under
the Investment Agreement to the “Investment Agreement”, “Agreement”, “thereunder”, “thereof” or
words of like import referring to the Investment Agreement, shall mean and be a reference to the
Investment Agreement as amended hereby.



               (b) Except as specifically amended above, the Investment Agreement shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed.



          3. Execution in Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.




          4. Governing Law. This First Amendment shall be governed by, construed and enforced
in accordance with the laws of the State of North Carolina without regard to any applicable
conflicts of law.




[Signature page follows]









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     IN WITNESS WHEREOF, the Parties have caused this First Amendment to be signed by their
respective officers thereunto duly authorized as of the date first written above.



	 	 	 	 	 
	 	CAPITAL BANK CORPORATION

 	 
	 	By:  	/s/ B. Grant Yarber
 	 
	 	 	Name:  	B. Grant Yarber 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	CAPITAL BANK

 	 
	 	By:  	/s/ B. Grant Yarber
 	 
	 	 	Name:  	B. Grant Yarber 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	NORTH AMERICAN FINANCIAL HOLDINGS, INC.

 	 
	 	By:  	/s/ Christopher G. Marshall
 	 
	 	 	Name:  	Christopher G. Marshall 	 
	 	 	Title:  	Chief Financial Officer