Crescent Financial

As filed with the Securities and Exchange Commission on September 11, 2006

Registration No. 333-            

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

CRESCENT FINANCIAL CORPORATION

(Exact Name of Registrant as Specified in its Charter)

 

 

NORTH CAROLINA   56- 2259050

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

1005 HIGH HOUSE ROAD

CARY, NORTH CAROLINA 27513

(919) 460-7770

(Address, including ZIP Code, and telephone number, including area code, of registrant’s principal executive offices)

 

CRESCENT FINANCIAL CORPORATION

PCCB INCENTIVE STOCK OPTION PLAN

PCCB NON-STATUTORY STOCK OPTION PLAN

(Full title of the plan)

 

MICHAEL G. CARLTON

PRESIDENT AND CHIEF EXECUTIVE OFFICER

CRESCENT FINANCIAL CORPORATION

1005 HIGH HOUSE ROAD

CARY, NORTH CAROLINA 27513

(919) 460-7770

(Name and address of agent for service)

 

WITH COPIES TO:

PHILLIP B. KENNEDY, ESQ.

GAETA & EVESON, P.A.

8305 FALLS OF NEUSE ROAD, SUITE 203

RALEIGH, NORTH CAROLINA 27615

(919) 845-2558

 

CALCULATION OF REGISTRATION FEE (1)

 

Title of Securities to be Registered   

Amount to be

Registered

    

Proposed Maximum

Offering Price

Per Share

    

Proposed

Maximum Aggregate

Offering Price

    

Amount of

Registration Fee (1)

Common Stock $1.00 Par Value Per Share

    454,413 (1)   $ 12.78 (2)   $ 5,807,398.14 (2)   $ 621.40
(1) The shares of common stock are being offered to holders of options granted in accordance with the terms of the Crescent Financial Corporation Port City Capital Bank Incentive and Non-Statutory Stock Option Plans (the “Plans”), which were assumed by Registrant in connection with its acquisition of Port City Capital Bank.
(2) Pursuant to Rule 457(c) and Rule 457(h), the Aggregate Offering Price and the Registration Fee have been calculated on the basis of the maximum number of shares of common stock to be issued under the Plans and an Offering Price equal to the average of the high and low prices reported on September 7, 2006.

 

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 of 1933 (“Securities Act”). Such documents are not being filed with the Commission as part of this Registration Statement or prospectuses or prospectus supplements pursuant to Rule 424.

PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Certain Documents by Reference

The following documents filed by Registrant with the Commission under the Securities Act are incorporated herein by reference:

 

  (i) Registrant’s Annual Report of Form 10-K for the year ended December 31, 2005 as filed with the Commission on March 28, 2006;

 

  (ii) Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006 and June 30, 2006 as filed with the Commission on May 12, 2006 and August 14, 2006, respectively; and

 

  (iii) Registrant’s Current Reports on Form 8-K as filed with the Commission on April 11, 2006, April 28, 2006, July 25, 2006 and September 1, 2006.

In addition, all documents subsequently filed with the Commission by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) after the date hereof prior to the filing of a post-effective amendment which indicates that all securities being offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the dates of filing of such documents.

Item 4. Description of Securities

Not applicable.

Item 5. Interests of Named Experts and Counsel

Not applicable.

Item 6. Indemnification of Directors and Officers

Registrant is incorporated under the laws of the State of North Carolina. North Carolina’s Business Corporation Act (the “BCA”) contains provisions prescribing the extent to which directors and officers of a corporation shall or may be indemnified.

The BCA permits a corporation, with certain exceptions, to indemnify a current or former officer or director against liability if he acted in good faith and he reasonably believed (i) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests, (ii) in all other cases, that his conduct was at least not opposed to its best interests and (iii) with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

A corporation may not indemnify him in connection with a proceeding by or in the right of the corporation in which he was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he as adjudged liable on the basis that personal benefit was improperly received by him unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for such reasonable expenses incurred which the court shall deem proper.

 

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The BCA requires a corporation to indemnify an officer or director in the defense of any proceeding to which he was a party against reasonable expenses to the extent that he is wholly successful on the merits or otherwise in his defense. Indemnification under the BCA generally shall be made by the corporation only upon a determination that indemnification of the director or officer was proper under the circumstances because he met the applicable standard of conduct. Such determination may be made by (i) the Board of Directors by a majority vote of a quorum consisting of directors who are not parties to such proceeding, (ii) if such a quorum is not obtainable, by majority vote of a committee duly designated by the Board of Directors consisting solely of two or more directors not at the time party to such proceeding; (iii) if such quorum is not obtainable, or, even if obtainable if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iv) by the stockholders of the corporation.

The BCA permits a corporation to provide for indemnification of directors and officers in its Articles of Incorporation or Bylaws or by contract or otherwise, against liability in various proceedings, and to purchase and maintain insurance policies on behalf of these individuals. The Articles of Incorporation of the Registrant provide for the elimination of the personal liability for monetary damages for certain breaches of fiduciary duty and the Bylaws of the Registrant provide for the indemnification of directors and officers to the maximum extent permitted by North Carolina law.

Item 7. Exemption From Registration Claimed

Not applicable.

Item 8. Exhibits

The following exhibits are filed herewith or incorporated herein by reference as a part of the Registration Statement.

 

Exhibit

Number

  

Description

4.1  

Specimen of Registrant’s Common Stock certificate*

5.1  

Opinion of Gaeta & Eveson, P.A. as to the legality of the securities being registered (filed herewith)

23.1  

Consent of Dixon Hughes PLLC (filed herewith)

23.2  

Consent of Gaeta & Eveson, P.A. (contained in the opinion filed herewith as Exhibit 5.1)

24.1  

Power of Attorney (filed herewith)

99.1  

Crescent Financial Corporation PCCB Incentive Stock Option Plan (filed herewith)

99.2  

Crescent Financial Corporation PCCB Non-Statutory Stock Option Plan (filed herewith)

* Incorporated by reference to Exhibit 4.1 to Registrant’s Registration Statement on Form S-8 (Reg. No. 333-68990) as filed with the Commission on September 5, 2001.

Item 9. Undertakings

 

  (a) 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:

 

  (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

  (ii) To reflect in the prospectus any facts or events arising after the effective

 

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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) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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.

(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.

(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 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 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.

 

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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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cary, State of North Carolina, on September 11, 2006.

 

CRESCENT FINANCIAL CORPORATION
By:  

/s/ Michael G. Carlton

  Michael G. Carlton
  President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

SIGNATURE

       

CAPACITY

/s/ Michael G. Carlton

Michael G. Carlton

     President, Chief Executive Officer and Director

/s/ Bruce W. Elder

Bruce W. Elder

     Vice President (principal financial officer and principal accounting officer)

/s/ Brent D. Barringer*

Brent D. Barringer

     Director

/s/ Joseph S. Colson, Jr.*

Joseph S. Colson, Jr.

     Director

/s/ Bruce I. Howell*

Bruce I. Howell

     Director and Chairman

/s/ James A. Lucus*

James A. Lucas

     Director

/s/ Kenneth A. Lucas*

Kenneth A. Lucas

     Director

/s/ Sheila Hale Ogle*

Sheila Hale Ogle

     Director

/s/ Francis R. Quis, Jr.

Francis R. Quis, Jr.

     Director

/s/ Jon S. Rufty*

Jon S. Rufty

     Director

/s/ Stephen K. Zaytoun*

Stephen K. Zaytoun*

     Director

 

  By:  

/s/ Michael G. Carlton

    Attorney-in-Fact

 

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EXHIBIT INDEX

 

EXHIBIT

NUMBER

  

DESCRIPTION OF EXHIBIT

4.1  

Specimen of Registrant’s Common Stock*

5.1  

Opinion of Gaeta & Eveson, P.A. as to the legality of the securities being registered

23.1  

Consent of Dixon Hughes PLLC

23.2  

Consent of Gaeta & Eveson, P.A.**

24.1  

Power of Attorney

99.1  

Crescent Financial Corporation PCCB Incentive Stock Option Plan

99.2  

Crescent Financial Corporation PCCB Non-Statutory Stock Option Plan

* Incorporated by reference
** Contained in Exhibit 5.1

 

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