Attached files
file | filename |
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10-K - FORM 10-K 123109 - CAPITAL BANK CORP | form10-k.htm |
EX-31.2 - EXHIBIT 31.2 - CAPITAL BANK CORP | ex31_2.htm |
EX-31.1 - EXHIBIT 31.1 - CAPITAL BANK CORP | ex31_1.htm |
EX-32.1 - EXHIBIT 32.1 - CAPITAL BANK CORP | ex32_1.htm |
EX-99.1 - EXHIBIT 99.1 - CAPITAL BANK CORP | ex99_1.htm |
EX-32.2 - EXHIBIT 32.2 - CAPITAL BANK CORP | ex32_2.htm |
EX-10.14 - EXHIBIT 10.14 - CAPITAL BANK CORP | ex10_14.htm |
Exhibit 99.02
Certification
Pursuant To
Section
111(b)(4) of the
Emergency
Economic Stabilization Act of 2008
and
31 C.F.R. § 30.15
I,
Michael R. Moore, Chief Financial Officer of Capital Bank Corporation (“Capital
Bank”), certify, based on my knowledge, that:
(i)
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The
compensation committee of Capital Bank has discussed, reviewed, and
evaluated with senior risk officers, as defined in the regulations and
guidance established under Section 111 of the Emergency Economic
Stabilization Act of 2008 (“EESA”), at least every six months during the
period beginning on the later of September 14, 2009, or ninety days after
the closing date of the agreement between Capital Bank and the U.S.
Department of the Treasury (“Treasury”) and ending with the last day of
Capital Bank’s fiscal year containing that date (the “Applicable Period”),
the senior executive officer (“SEO”) compensation plans and the employee
compensation plans, each as defined in the regulations and guidance
established under Section 111 of EESA, and the risks these plans pose to
Capital Bank;
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(ii)
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The
compensation committee of Capital Bank has identified and limited during
the Applicable Period any features of the SEO compensation plans that
could lead SEOs, as defined in the regulations and guidance established
under Section 111 of EESA, to take unnecessary and excessive risks that
could threaten the value of Capital Bank, and during that same Applicable
Period has identified any features of the employee compensation plans that
pose risks to Capital Bank and has limited those features to ensure that
Capital Bank is not unnecessarily exposed to
risks;
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(iii)
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The
compensation committee of Capital Bank has reviewed, at least every six
months during the Applicable Period, the terms of each employee
compensation plan and identified any features of the plan that could
encourage the manipulation of reported earnings of Capital Bank to enhance
the compensation of an employee, and has limited any such
features;
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(iv)
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The
compensation committee of Capital Bank will certify to the reviews of the
SEO compensation plans and employee compensation plans required under
paragraphs (i) and (iii) above;
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(v)
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The
compensation committee of Capital Bank will provide a narrative
description of how it limited during any part of the most recently
completed fiscal year that included a TARP period, as defined in the
regulations and guidance established under Section 111 of EESA, the
features in:
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(A)
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SEO
compensation plans that could lead SEOs to take unnecessary and excessive
risks that could threaten the value of Capital
Bank;
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(B)
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Employee
compensation plans that unnecessarily expose Capital Bank to risks;
and
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(C)
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Employee
compensation plans that could encourage the manipulation of reported
earnings of Capital Bank to enhance the compensation of an
employee;
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(vi)
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Capital
Bank has required that bonus payments, as defined in the regulations and
guidance established under Section 111 of EESA, of the SEOs and twenty
next most highly compensated employees, as defined in the regulations and
guidance established under Section 111 of EESA, be subject to a recovery
or “clawback” provision during any part of the most recently completed
fiscal year that was a TARP period if the bonus payments were based on
materially inaccurate financial statements or any other materially
inaccurate performance metric
criteria;
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(vii)
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Capital
Bank has prohibited any golden parachute payment, as defined in the
regulations and guidance established under Section 111 of EESA, to an SEO
or any of the next five most highly compensated employees during the
period beginning on the later of the closing date of the agreement between
Capital Bank and Treasury or June 15, 2009 and ending with the last day of
Capital Bank’s fiscal year containing that
date;
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(viii)
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Capital
Bank has limited bonus payments to its applicable employees in accordance
with Section 111 of EESA and the regulations and guidance established
thereunder during the period beginning on the later of the closing date of
the agreement between Capital Bank and Treasury or June 15, 2009 and
ending with the last day of Capital Bank’s fiscal year containing that
date;
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(ix)
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The
board of directors of Capital Bank has established an excessive or luxury
expenditures policy, as defined in the regulations and guidance
established under Section 111 of EESA, by the later of September 14, 2009,
or ninety days after the closing date of the agreement between Capital
Bank and Treasury; this policy has been provided to Treasury and its
primary regulatory agency; Capital Bank and its employees have complied
with this policy during the Applicable Period; and any expenses that,
pursuant to this policy, required approval of the board of directors, a
committee of the board of directors, an SEO, or an executive officer with
a similar level of responsibility, were properly
approved;
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(x)
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Capital
Bank will permit a non-binding shareholder resolution in compliance with
any applicable Federal securities rules and regulations on the disclosures
provided under the Federal securities laws related to SEO compensation
paid or accrued during the period beginning on the later of the closing
date of the agreement between Capital Bank and Treasury or June 15, 2009
and ending with the last day of Capital Bank’s fiscal year containing that
date;
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(xi)
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Capital
Bank will disclose the amount, nature, and justification for the offering
during the period beginning on the later of the closing date of the
agreement between Capital Bank and Treasury or June 15, 2009 and ending
with the last day of Capital Bank’s fiscal year containing that date of
any perquisites, as defined in the regulations and guidance established
under Section 111 of EESA, whose total value exceeds $25,000 for any
employee who is subject to the bonus payment limitations identified in
paragraph (viii);
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(xii)
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Capital
Bank will disclose whether Capital Bank, the board of directors of Capital
Bank, or the compensation committee of Capital Bank has engaged during the
period beginning on the later of the closing date of the agreement between
Capital Bank and Treasury or June 15, 2009 and ending with the last day of
Capital Bank’s fiscal year containing that date, a compensation
consultant; and the services the compensation consultant or any affiliate
of the compensation consultant provided during this
period;
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(xiii)
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Capital
Bank has prohibited the payment of any gross-ups, as defined in the
regulations and guidance established under Section 111 of EESA, to the
SEOs and the next twenty most highly compensated employees during the
period beginning on the later of the closing date of the agreement between
Capital Bank and Treasury or June 15, 2009 and ending with the last day of
Capital Bank’s fiscal year containing that
date;
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(xiv)
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Capital
Bank has substantially complied with all other requirements related to
employee compensation that are provided in the agreement between Capital
Bank and Treasury, including any
amendments;
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(xv)
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Capital
Bank has submitted to Treasury a complete and accurate list of the SEOs
and the twenty next most highly compensated employees for the current
fiscal year and the most recently completed fiscal year, with the non-SEOs
ranked in descending order of level of annual compensation, and with the
name, title and employer of each SEO and most highly compensated employee
identified; and
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(xvi)
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I
understand that a knowing and willful false or fraudulent statement made
in connection with this certification may be punished by fine,
imprisonment, or both. (See, for example, 18 USC
1001.)
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Date:
March 10, 2010
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CAPITAL
BANK CORPORATION
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By:
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/s/
Michael R. Moore
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Michael
R. Moore
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Chief
Financial Officer
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