exhibit10-1.htm


    Exhibit
      10.1

    CAPITAL
      BANK CORPORATION

    EQUITY
      INCENTIVE PLAN

    


    STOCK
      AWARD AGREEMENT

    


    


    THIS
      STOCK AWARD AGREEMENT (this
“Agreement”) is dated as of [date] (the “Grant Date”) by and
      between Capital Bank Corporation, a North Carolina corporation (the
“Corporation”), and [participant name] (the “Participant”)
      pursuant to the Capital Bank Corporation Equity Incentive Plan (the
“Plan”).  All capitalized terms not otherwise defined herein shall
      have the meanings set forth in the Plan.

    


    RECITALS:

    


    A.      
      Participant is an officer, employee or director of the Corporation and the
      Corporation, in consideration of the Participant’s prior and future services to
      the Corporation, considers it desirable to give Participant an added incentive
      to advance the interests of the Corporation and its shareholders.

    


    B.      
      The Corporation now desires to grant Participant shares of common stock of
      the
      Corporation, no par value (the “Shares”) in the form of restricted stock,
      pursuant to the terms and conditions of this Agreement and the Plan (the
“Restricted Stock”).

    


    AGREEMENT:

    


    NOW,
      THEREFORE, in consideration of the
      covenants hereinafter set forth, the parties agree as follows:

    


    1.      
      Grant of Restricted
      Stock.  The Corporation has granted Participant, and
      Participant hereby accepts, [number] Shares of Restricted Stock,
      having a fair market value (FMV) per Share of [price] on the
      Grant Date.  Pursuant to Section 10 of the Plan, the Restricted Stock
      is granted as a restricted stock award and Participant shall not be obligated
      to
      pay a purchase price for the Shares.  The Restricted Stock shall be
      subject to the terms and conditions stated in this Agreement and in the
      Plan.

    


    2.      
      Period of
      Restriction.  Subject to Participant continuing to provide
      continuous services to the Corporation, the restrictions set forth in this
      Agreement with respect to the Restricted Stock shall lapse with respect to
one third (1/3) of the Shares on each of the first,
      second and third
      anniversaries of the Grant Date, so that all the restrictions shall have lapsed
      three (3) years from the Grant Date (the “Period of
      Restriction”).  Participant acknowledges that prior to the expiration
      of the applicable portion of the Period of Restriction, the Restricted Stock
      may
      not be sold, transferred, pledged, assigned, encumbered, alienated, hypothecated
      or otherwise disposed of (whether voluntarily or involuntarily or by operation
      of law by judgment, levy, attachment, garnishment or any other legal or
      equitable proceedings (including bankruptcy)).  Upon the expiration of
      the applicable portion of the Period of Restriction, the restrictions set forth
      in this Agreement with respect to the Restricted Stock initially subject to
      such
      expired Period of Restriction shall lapse, except as may be provided in
      accordance with Section 9 hereof.

    


    3.      
      Ownership.  Participant
      agrees that Participant’s ownership of the Restricted Stock will be evidenced
      solely by a “book entry” (i.e., a computerized or manual entry) in the records
      of the Corporation or its designated stock transfer agent in Participant’s
      name.  Upon expiration of the applicable portion of the Period of
      Restriction, the Corporation shall transfer the vested shares to
      Participant.

     

    
      	
               

            	
              4.

            	
              Termination.
                

            


    

     

    
      	
               

            	
                (a)    Death
                or Disability.  If Participant’s termination of
                employment or other relationship with the Corporation is as a result
                of
                Participant’s death or Disability (as defined in Participant’s employment
                agreement or, if Participant has no employment agreement, within
                the
                meaning of Section 22(e)(3) of the Internal Revenue Code of 1986,
                as
                amended (the “Code”)), then the Period of Restriction shall immediately
                lapse, causing any restrictions which would otherwise remain on the
                Restricted Stock to immediately
                lapse.

            


    

    
      
      

       

      
        
          
          

        

        
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      	 	   (b)           
              Other
              Terminations.  If Participant’s Termination is by the
              Corporation or an affiliate of the Corporation or by Participant for
              any
              reason other than death or Disability, then all Restricted Stock for
              which
              the Period of Restriction had not lapsed prior to the date of such
              Termination shall be immediately
              forfeited.


    

     

    5.      
      Taxes and
      Withholdings.  Upon the expiration of the applicable portion of
      the Period of Restriction or such earlier dates as Participant elects pursuant
      to Section 83(b) of the Code, or as of which the value of any Shares of
      Restricted Stock first becomes includible in Participant’s gross income for
      income tax purposes, Participant shall notify the Corporation if Participant
      wishes to pay the Corporation in cash, check or with shares of Corporation
      common stock already owned for the satisfaction of any taxes of any kind
      required by law to be withheld with respect to such Shares; provided, however,
      that pursuant to any procedures, and subject to any limitations as the
      Compensation / Human Resources Committee of the Board of Directors of the
      Corporation (the “Committee”) may prescribe and subject to applicable law, if
      Participant does not notify the Corporation in writing at least fourteen (14)
      days prior to the applicable lapse of the Period of Restriction, then
      Participant will satisfy such withholding obligations by withholding Shares
      otherwise deliverable to Participant pursuant to the Restricted Stock (provided,
      however, that the amount of any Shares so withheld shall not exceed the amount
      necessary to satisfy required Federal, state, local and non-United States
      withholding obligations using the minimum statutory withholding rates for
      Federal, state, local and/or non-U.S. tax purposes, including payroll taxes,
      that are applicable to supplemental taxable income). Any such election made
      by
      Participant must be irrevocable, made in writing, signed by Participant, and
      shall be subject to any restrictions or limitations that the Committee, in
      its
      sole discretion, deems appropriate.  In the event that the Participant
      elects immediate Federal income taxation with respect to all or any portion
      of
      this award of Restricted Stock pursuant to Section 83(b) of the Code,
      Participant agrees to deliver a copy of such election to the Corporation within
      ten (10) days after filing such election with the Internal Revenue
      Service.

    


    6.      
      Rights as a
      Shareholder.  Participant shall have all rights of a
      shareholder (including, without limitation, dividend and voting rights) with
      respect to the Restricted Stock, for record dates occurring on or after the
      Grant Date and prior to the date any such Shares of Restricted Stock are
      forfeited in accordance with this Agreement, except that any dividends or
      distributions paid in Shares or other securities (including, without limitation,
      any change in the shares of Restricted Stock pursuant to Section 6 of the Plan)
      with respect to the Restricted Stock shall, during the Period of Restriction,
      be
      deposited with the Corporation or any holder appointed pursuant to Section
      3
      hereof, together with a stock power endorsed in blank or other appropriate
      instrument of transfer, or credited to Participant’s book-entry account
      established under Section 3 hereof, as applicable, and shall be subject to
      the
      same restrictions (including, without limitation, the Period of Restriction)
      as
      such Restricted Stock and otherwise considered to be such Restricted Stock
      for
      all purposes hereunder.

    


    7.      
      No Right to Continued
      Employment.  Neither the Restricted Stock nor any terms
      contained in this Agreement shall confer upon Participant any express or implied
      right to be retained in the employment or service of the Corporation or any
      affiliate for any period, nor restrict in anyway the right of the Corporation,
      which right is hereby expressly reserved, to terminate Participant’s employment
      or service at any time for any reason.  Participant acknowledges and
      agrees that any right to have restrictions on the Restricted Stock lapse is
      earned only by continuing in the service of the Corporation or an affiliate
      at
      the will of the Corporation or such affiliate, or satisfaction of any other
      applicable terms and conditions contained in the Plan and this Agreement, and
      not through the act of being hired, being granted the Restricted Stock or
      acquiring Shares hereunder.

    


    8.      
      The
      Plan.  This Agreement is subject to all the terms, provisions
      and conditions of the Plan which are incorporated herein by reference, and
      to
      such requirements as may from time to time be adopted by the
      Committee.  In the event of any conflict between the provisions of the
      Plan and this Agreement, the provisions of the Plan shall control, and this
      Agreement shall be deemed to be modified accordingly.  A copy of the
      Plan is available to Participant at the Corporation’s principal executive
      offices upon request and without charge.

    

      
        
          
          

        

        
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    9.      
      Compliance with
      Laws
      and Regulations.

    


    
      	
               

            	
                (a)    The
                Restricted
                Stock and the obligation of the Corporation to sell and deliver Shares
                hereunder shall be subject in all respects to (i) all applicable
                Federal
                and state laws, rules and regulations and (ii) any registration,
                qualification, approvals or other requirements imposed by any government
                or regulatory agency or body which the Committee shall, in its discretion,
                determine to be necessary or applicable. Moreover, the Corporation
                shall
                not deliver any certificates for Shares to Participant or any other
                person
                pursuant to this Agreement if doing so would be contrary to applicable
                law. If at any time the Corporation determines, in its discretion,
                that
                the listing, registration or qualification of Shares upon any national
                securities exchange or under any state or Federal law, or the consent
                or
                approval of any governmental regulatory body, is necessary or desirable,
                the Corporation shall not be required to deliver any certificates
                for
                Shares to Participant or any other person pursuant to this Agreement
                unless and until such listing, registration, qualification, consent
                or
                approval has been effected or obtained, or otherwise provided for,
                free of
                any conditions not acceptable to the Corporation.
                

            


    

    


    
      	
               

            	
                (b)    The
                Shares
                received upon the expiration of the applicable portion of the Period
                of
                Restriction shall have been registered under the Securities Act of
                1933,
                as amended (“Securities Act”).  If Participant is an “affiliate”
                of the Corporation, as that term is defined in Rule 144 under the
                Securities Act (“Rule 144”), Participant may not sell the Shares received
                except in compliance with Rule 144.  Certificates representing
                Shares issued to an “affiliate” of the Corporation may bear a legend
                setting forth such restrictions on the disposition or transfer of
                the
                Shares as the Corporation deems appropriate to comply with Federal
                and
                state securities laws. 

            


    

    


    
      	
               

            	
                (c)    If,
                at any
                time, the Shares are not registered under the Securities Act, and/or
                there
                is no current prospectus in effect under the Securities Act with
                respect
                to the Shares, Participant may be required to execute, prior to the
                delivery of any Shares to Participant by the Corporation pursuant
                to this
                Agreement, an agreement (in such form as the Corporation may specify)
                in
                which Participant represents and warrants that Participant is purchasing
                or acquiring the shares acquired under this Agreement for Participant’s
                own account, for investment only and not with a view to the sale
                or
                distribution thereof, and represents and agrees that any subsequent
                offer
                for sale or distribution of any kind of such Shares shall be made
                only
                pursuant to either (i) a registration statement on an appropriate
                form
                under the Securities Act, which registration statement has become
                effective and is current with regard to the Shares being offered
                or sold,
                or (ii) a specific exemption from the registration requirements of
                the
                Securities Act, but in claiming such exemption Participant shall,
                prior to
                any offer for sale of such Shares, obtain a prior favorable written
                opinion, in form and substance satisfactory to the Corporation, from
                counsel for or approved by the Corporation, as to the applicability
                of
                such exemption thereto. 

            


    

    


    10.           
      Notices.  All
      notices by Participant or Participant’s assignees shall be addressed to Capital
      Bank Corporation, 333 Fayetteville Street, Raleigh, North Carolina 27601,
      Attention: Human Resources, or such other address as the Corporation may from
      time to time specify.  All notices to Participant shall be addressed
      to Participant at Participant’s address in the Corporation’s
      records.

    


    11.           
      Other
      Plans.  Participant acknowledges that any income derived from
      the Restricted Stock shall not affect Participant’s participation in, or
      benefits under, any other benefit plan or other contract or arrangement
      maintained by the Corporation or any Affiliate.

    


    12.           
      Governing
      Law.  This Agreement shall be construed under and governed by
      the laws of the State of North Carolina without regard to the conflict of law
      provisions thereof.

    


    13.           
      Counterparts.  This
      Agreement may be executed in counterparts, each of which shall be deemed an
      original and both of which together shall be deemed one Agreement.

    


    


    [signature
      page follows]

    


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Corporation and
      Participant have executed this Agreement as of the date first above
      written.

    


    
      	
              ATTEST

            	 	
              CAPITAL
                BANK CORPORATION

            
	
                

            	 	
                

            
	 	 	 
	
              By: 

            	 	
              By: 

            
	
              Secretary

            	 	
              Chief
                Executive
                Officer

            
	 	 	 
	 	 	 
	
              [CORPORATE
                SEAL]

            	 	
              PARTICIPANT

            
	 	 	 
	 	 	 
	 	 	 
	 	 	
              Signature

            


    

    

      
        
          
          

        

        
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