As filed with the
Securities and Exchange Commission on February 27,
2009
Registration
Statement No. 333-157137
U.S. SECURITIES AND
EXCHANGE COMMISSION
THE SECURITIES ACT
OF 1933
CRESCENT
FINANCIAL CORPORATION
(Exact name of
registrant as specified in its charter)
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North Carolina
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56-2259050
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(State or other jurisdiction of
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(I.R.S. Employer ID No.)
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Incorporation or organization)
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Cary, North Carolina
27513-3586
(Address, including
zip code, and telephone number, including area code, of co-registrant’s
principal executive offices)
President and Chief Executive
Officer
Crescent
Financial Corporation
Cary, North Carolina
27513-3586
(Name, address,
including zip code, and telephone number, including area code, of agent for
service of each registrant)
8305
Falls of Neuse Road, Suite 203
Raleigh, North Carolina
27615
Approximate Date of Commencement of
Proposed Sale to the Public: From time to time after this
registration statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large accelerated
filer o
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Accelerated filer o
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Non-accelerated filer þ
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Smaller reporting company o
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(Do not check if a smaller reporting company)
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The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or
until the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
Information Not Required In
Prospectus
Item 14. Other
Expenses of Issuance and
Distribution
The
following table sets forth the estimated fees and expenses (all but the SEC fees
are estimates) payable by the registrant in connection with the filing of this
Form S-3 Registration Statement:
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SEC
Registration Fee
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$
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Printing
Costs
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*
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Listing
Fee
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*
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Transfer &
Disbursing Agent Fees
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*
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Legal
Fees and Expenses
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*
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Accounting
Fees and Expenses
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*
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Federal
Taxes
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State
Taxes and Fees
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Miscellaneous
Expenses
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*
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Total
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*
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* To
be filed by amendment or in a current report on Form 8-K
Item 15. Indemnification
of Directors and Officers
The North
Carolina Business Corporation Act permits, and in some cases requires,
corporations to indemnify officers, directors, agents and employees who have
been, or are threatened to be, made a party to litigation. The indemnification
applies to judgments, fines, settlements and reasonable expenses under certain
circumstances. Under the North Carolina Business Corporation Act, reasonable
expenses incurred by a director or officer may be paid or reimbursed by us
before a final conclusion of the proceeding, after we receive certain assurances
from the director or officer. Specifically, the director or officer must provide
to us a written statement of his or her good faith belief that he or she has met
the standard of conduct necessary for indemnification. The other assurance we
must receive is a written undertaking, by or on behalf of the director or
officer, to repay the amount reimbursed if it is ultimately determined that the
director or officer is not entitled to indemnification by us. If a director or
officer is wholly successful in defending the proceeding in which he or she is a
party, the North Carolina Business Corporation Act requires us to indemnify him
or her against reasonable expenses incurred in connection with the proceeding if
he or she is named as a defendant as a result of being one of our directors or
officers. Our Articles of Incorporation provide that we shall indemnify our
directors and executive officers to the fullest extent permitted by North
Carolina Business Corporation Act.
The North
Carolina Business Corporation Act allows a corporation to provide that its
directors shall not be personally liable for monetary damages for breach of
fiduciary duty as a director, except for (i) acts or omissions not made in
good faith that the director at the time of breach knew or believed were in
conflict with the best interests of the Corporation; (ii) any liability
under Section 55-8-33 of the Business Corporation Act (unlawful
distributions); or (iii) any transaction from which the director derived an
improper personal benefit (which does not include a director’s compensation or
other incidental benefit for or on account of his service as a director,
officer, employee, independent contractor, attorney, or consultant of the
Corporation). Our Articles of Incorporation include such a
provision.
The North
Carolina Business Corporation Act 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 the
North Carolina Business Corporation Act to indemnify such party. We have
purchased director and officer liability insurance that insures our directors
and officers against liabilities in connection with the performance of their
duties.
Crescent
Financial Corporation has purchased a standard directors’ and officers’
liability policy which will, subject to certain limitations, indemnify Crescent
Financial 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 V of the Registrant’s Articles of
Incorporation 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 the Registrant or otherwise, provided that such limitation will
not apply to (i) acts or omissions that the director at the time of such
breach knew or believed were clearly in conflict with the best interests of the
Registrant, (ii) any liability under Section 55-8-33 of the General
Statutes of North Carolina, or (iii) any transaction from which the
director derived an improper personal benefit (which does not include a
director’s reasonable compensation or other reasonable incidental benefit for or
on account of his service as a director, officer, employee, independent
contractor, attorney, or consultant of the Registrant,).
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Exhibit
No.
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Description
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3.1
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Articles
of Amendment of the Registrant (filed as exhibit 3.1 to the Registrant’s
Current Report on Form 8-K filed on January 14, 2009 and incorporated
herein by reference)
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4.1
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Warrant
dated January 9, 2009, to purchase 833,705 shares of the Registrant’s
common stock, $1.00 par value per share (filed as exhibit 4.1 to the
Registrant’s Current Report on Form 8-K filed on January 14, 2009 and
incorporated herein by reference)
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5.1
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Opinion
of Gaeta & Eveson, P.A. (previously filed)
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10.1
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Letter
Agreement, dated as of January 9, 2009, between the Registrant and the
United States Department of the Treasury (filed as exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed on January 14, 2009 and
incorporated herein by reference)
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12.1
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Computation
of Ratio of Earnings to Fixed Charges (previously filed)
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23.1
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Consent
of Dixon Hughes PLLC
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23.2
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Consent
of Gaeta & Eveson, P.A. (contained in Exhibit 5.1
hereto)
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24.1
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Power
of Attorney (previously filed)
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Item 17. Undertakings
(a) The
undersigned registrant hereby undertakes as follows:
(1) To
file, during any period in which offers or sales are being made, a post-
effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) 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;
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not
apply if the registration statement is on Form S-3 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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.
(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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such effective date, supersede or
modify
any statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
registrant pursuant to the foregoing provisions, or 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 of 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.
(d) The
undersigned registrant hereby undertakes that:
(1) For
the purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
(2) For
the purposes of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus 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.
SIGNATURES
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-3 and has duly caused this amended registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Cary, State of North Carolina on this 27th day of February
2009.
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Crescent Financial Corporation
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By:
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/s/ Michael G. Carlton
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Michael G. Carlton
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President and Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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SIGNATURE
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CAPACITY
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/s/
Michael G. Carlton
Michael
G. Carlton
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President,
Chief Executive Officer, and Director
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/s/
Bruce W. Elder
Bruce
W. Elder
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Vice
President, Secretary and Principal Financial and Accounting
Officer
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/s/
Brent D. Barringer*
Brent
D. Barringer
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Director
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/s/
William H. Cameron*
William
H. Cameron
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Director
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/s/
Bruce I. Howell*
Bruce
I. Howell
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Chairman
of the Board of Directors
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/s/
James A. Lucas, Jr.*
James
A. Lucas, Jr.
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Director
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/s/
Kenneth A. Lucas*
Kenneth
A. Lucas
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Director
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/s/
Sheila Hale Ogle*
Sheila
Hale Ogle
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Director
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/s/
Charles A. Paul, III*
Charles
A. Paul, III
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Director
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/s/
Francis R. Quis, Jr.*
Francis
R. Quis, Jr.
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Director
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/s/
Jon S. Rufty*
Jon
S. Rufty
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Director
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/s/
Jon T. Vincent*
Jon
T. Vincent
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Director
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/s/
Stephen K. Zaytoun*
Stephen
K. Zaytoun
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Director
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By
Michael G. Carlton, Attorney in
Fact
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/s/ Michael G. Carlton
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Michael G. Carlton
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Exhibit
No.
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Description
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3.1
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Articles
of Amendment of the Registrant (filed as exhibit 3.1 to the Registrant’s
Current Report on Form 8-K filed on January 14, 2009 and incorporated
herein by reference)
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4.1
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Warrant
dated January 9, 2009, to purchase 833,705 shares of the Registrant’s
common stock, $1.00 par value per share (filed as exhibit 4.1 to the
Registrant’s Current Report on Form 8-K filed on January 14, 2009 and
incorporated herein by reference)
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5.1
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Opinion
of Gaeta & Eveson, P.A. (previously filed)
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10.1
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Letter
Agreement, dated as of January 9, 2009, between the Registrant and the
United States Department of the Treasury (filed as exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed on January 14, 2009 and
incorporated herein by reference)
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12.1
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Computation
of Ratio of Earnings to Fixed Charges (previously filed)
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23.1
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Consent
of Dixon Hughes PLLC
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23.2
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Consent
of Gaeta & Eveson, P.A. (contained in Exhibit 5.1
hereto)
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24.1
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Power
of Attorney (previously
filed)
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