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As filed with the Securities and Exchange Commission on July 31, 2000
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPITAL BANK CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 56-2101930
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4901 Glenwood Avenue
Raleigh, North Carolina 27615
(Address of Principal Executive Offices) (Zip Code)
Capital Bank 401(k) Retirement Plan
(Full title of the plan)
James A. Beck, President and Chief Executive Officer
Capital Bank Corporation
4901 Glenwood Avenue
Raleigh, North Carolina 27615
(Name and address of agent for service)
(919) 645-6449
(Telephone number, including area code, of agent for service)
Copy to:
Caryn Coppedge McNeill, Esq.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
P.O. Box 2611
Raleigh, North Carolina 27602-2611
(919) 821-1220
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered per share (1) offering price Registration fee
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<S> <C> <C> <C> <C>
Common Stock, no par value per share 50,000 shares $8.3125 $415,625 $109.73
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Interests in the Plan (2)
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(1) This price is estimated solely for the purpose of calculating the
registration fee. Pursuant to Rule 457(c) and (h), shares that may be the
subject of the Plan are deemed to be offered at $8.3125, the average of the high
and low prices for the Company's Common Stock reported on the Nasdaq Small Cap
Market on July 26, 2000.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Employee Benefit Plan (the "Plan") described
herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
----------------
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this registration statement omits the information specified in
Part I (Items 1 and 2) of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plan as
required by Rule 428(b) under the Securities Act. Such documents are not being
filed with the Commission as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by the Company with the
Commission and are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
2000.
(c) The description of the Company's common stock contained in its
Registration Statement on Form S-4 (Reg. No. 333-65853) filed on
October 19, 1998.
All reports and other documents filed by the Company subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered under the plan have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified shall not be deemed to
constitute a part of this Registration Statement except as so modified, and any
statement so superseded shall not be deemed to constitute part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
North Carolina law permits a corporation to indemnify its directors,
officers, employees or agents under either or both a statutory or nonstatutory
scheme of indemnification. Under the statutory scheme, a corporation may, with
certain exceptions, indemnify a director, officer, employee or agent of the
corporation who was, is, or is threatened to be made, a party to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative, or investigative, because of the fact that such person was a
director, officer, agent or employee of the corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. This indemnity may include the obligation to
pay any judgment, settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan) and reasonable expenses incurred in
connection with a proceeding (including counsel fees), but no such
indemnification may be granted unless such director, officer, agent or employee
(1) conducted himself in good faith, (2) reasonably believed (a) that any action
taken in his official capacity with the corporation was in the best interest of
the corporation or (b) that in all other cases his conduct at least was not
opposed to the corporation's best interest, and (3) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful.
Whether a director has met the requisite standard of conduct for the type of
indemnification set forth above is determined by the board of directors, a
committee of directors, special legal counsel or the shareholders in accordance
with the statute. A corporation may not indemnify a director under the
statutory scheme in connection with a proceeding by or in the right of the
corporation in which the director
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was adjudged liable to the corporation or in connection with a proceeding in
which a director was adjudged liable on the basis of having received an improper
personal benefit.
In addition to, and separate and apart from the indemnification
described above under the statutory scheme, North Carolina law permits a
corporation to indemnify or agree to indemnify any of its directors, officers,
employees or agents against liability and expenses (including attorney's fees)
in any proceeding (including proceedings brought by or on behalf of the
corporation) arising out of their status as such or their activities in such
capacities, except for any liabilities or expenses incurred on account of
activities that were, at the time taken, known or believed by the person to be
clearly in conflict with the best interests of the corporation. The Bylaws of
Capital Bank Corporation provide for indemnification to the fullest extent
permitted under North Carolina law for persons who serve as directors or
officers of Capital Bank Corporation, or at the request of Capital Bank
Corporation serve as an officer, director, agent, partner, trustee,
administrator or employee for any other foreign or domestic entity, except to
the extent such activities were at the time taken known or believed by the
potential indemnities to be clearly in conflict with the best interests of
Capital Bank Corporation. Accordingly, Capital Bank Corporation may indemnify
its directors, officers or employees in accordance with either the statutory or
non-statutory standards.
In addition, North Carolina law requires a corporation, unless its
articles of incorporation provide otherwise, to indemnify a director or officer
who has been wholly successful, on the merits or otherwise, in the defense of
any proceeding to which such director or officer was a party. Unless prohibited
by the articles of incorporation, a director or officer also may make
application and obtain court-ordered indemnification if the court determines
that such director or officer is fairly and reasonably entitled to such
indemnification.
Finally, North Carolina law provides that a corporation may purchase
and maintain insurance on behalf of an individual who is or was a director,
officer, employee or agent of the corporation against certain liabilities
incurred by such persons, whether or not the corporation is otherwise authorized
by North Carolina law to indemnify such party. Capital Bank Corporation has
purchased a standard directors' and officers' liability policy which will,
subject to certain limitations, indemnify Capital Bank Corporation and its
officers and directors for damages they become legally obligated to pay as a
result of any negligent act, error, or omission committed by directors or
officers while acting in their capacity as such.
As permitted by North Carolina law, Article 5 of Capital Bank
Corporation's Articles limits the personal liability of directors for monetary
damages for breaches of duty as a director arising out of any legal action
whether by or in the right of Capital Bank Corporation or otherwise, provided
that such limitation will not apply to (1) acts or omissions that the director
at the time of such breach knew or believed were clearly in conflict with the
best interests of Capital Bank Corporation, (2) any liability for unlawful
distributors under North Carolina law, or (3) any transaction from which the
director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
The following exhibits are filed or incorporated by reference as a
part of this registration statement:
Exhibit Description
------- -----------
No.
---
4(1) Specimen Common Stock Certificate
5(2) Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P. (contained in the opinion submitted as Exhibit 5 hereto)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included as part of the signature page)
___________________________
(1) Exhibit to the Company's Registration Statement on Form S-4 (Reg. No. 333-
65853) filed with the Securities and Exchange Commission on October 19,
1998 and incorporated by reference herein.
(2) The undersigned registrant hereby undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service in a timely manner and
make all changes required by the Internal Revenue Service in order to
qualify the Plan.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
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otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue .
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Raleigh, State of North Carolina, on July 30,
2000.
CAPITAL BANK CORPORATION
By: /s/ James A. Beck
----------------------------------------
James A. Beck
President and Chief Executive Officer
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrator has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Raleigh, State of North Carolina on July 30, 2000.
CAPITAL BANK CORPORATION
By: /s/ James A. Beck
------------------------------------
James A. Beck
President and Chief Executive Officer
7
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James A. Beck and Allen T. Nelson, Jr. and each
of them, each with full power to act without the other, his or her true and
lawful attorneys-in-fact and agents, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments to this Registration Statement
on Form S-8 and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully for all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or their substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on July 30, 2000
in the capacities indicated.
Signature Title
--------- -----
/s/ James A. Beck President, Chief Executive Officer and Director
-------------------------
James A. Beck
/s/ Allen T. Nelson Senior Vice President and Chief Financial Officer
-------------------------
Allen T. Nelson, Jr.
/s/ Charles F. Atkins Director
-------------------------
Charles F. Atkins
Director
_________________________
Lamar Beach
/s/ Edwin Bridges Director
-------------------------
Edwin Bridges
Director
_________________________
William C. Burkhardt
/s/ L.I. Cohen, Jr. Director
-------------------------
L. I. Cohen, Jr.
/s/ David G. Gospodarek Director
-------------------------
David G. Gospodarek
/s/ John F. Grimes, III Director
-------------------------
John F. Grimes, III
/s/ Carolyn W. Grant Director
-------------------------
Carolyn W. Grant
Director
_________________________
Darleen M. Johns
/s/ Robert L. Jones Director
-------------------------
Robert L. Jones
/s/ Oscar A. Keller, III Chairman of the Board of Directors
-------------------------
Oscar A. Keller, III
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/s/ Oscar A. Keller, Jr. Director
---------------------------
Oscar A. Keller, Jr.
/s/ Vernon Malone Director
---------------------------
Vernon Malone
/s/ George R. Perkins, III Director
---------------------------
George R. Perkins, III
/s/ Donald W. Perry Director
---------------------------
Donald W. Perry
/s/ J. Rex Thomas Director
---------------------------
J. Rex Thomas
/s/ Bruce V. Wainright Director
---------------------------
Bruce V. Wainright
/s/ Samuel J. Wornom, III Director
---------------------------
Samuel J. Wornom, III
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EXHIBIT INDEX
Exhibit Description
------- -----------
No.
---
4(1) Specimen Common Stock Certificate
5(2) Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P. (contained in the opinion submitted as Exhibit 5 hereto)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included as part of the signature page)
___________________________
(1) Exhibit to the Company's Registration Statement on Form S-4 (Reg. No. 333-
65853) filed with the Securities and Exchange Commission on October 19,
1998 and incorporated by reference herein.
(2) The undersigned registrant hereby undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service in a timely manner and
make all changes required by the Internal Revenue Service in order to
qualify the Plan.
10
