As filed with the Securities and Exchange Commission on September 5, 2001
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 (I.R.S. Employer Identification No.)
incorporation or organization)
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 1999 Incentive Stock Option Plan
Crescent Financial Corporation 1999 Nonstatutory Stock Option Plan
(Full title of the plans)
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:
---------------
ANTHONY GAETA, JR. , ESQ.
ERIK GERHARD, ESQ.
GAETA & GLESENER, P.A.
808 SALEM WOODS DRIVE, SUITE 201
RALEIGH, NORTH CAROLINA 27615
(919) 845-2558
CALCULATION OF REGISTRATION FEE (1)
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Proposed Maximum Proposed
Title of Securities Amount to be Offering Price Maximum Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee (1)
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock 247,500 (1) $2,201,942.53 (1) $550.49
$1.00 Par Value
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
(1) The shares of Common Stock are being offered to eligible employees and
directors of Registrant and its direct and indirect subsidiaries pursuant to
options granted to them in accordance with the terms of the Crescent Financial
Corporation 1999 Incentive Stock Option Plan and the 1999 Nonstatutory Stock
Option Plan (the "Plans") adopted by Registrant in connection with the
reorganization of Crescent State Bank into a holding company form of
organization whereby Crescent State Bank became the wholly-owned subsidiary of
the Registrant. Pursuant to Rule 457(h), the Aggregate Offering Price and the
Registration Fee have been calculated on the basis of the maximum number of
shares to be issued under the Plans and an Offering Price equal to the price at
which the shares may be purchased pursuant to the Plans upon the exercise of the
options.
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 Plans 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 Form 8-K filed pursuant to Rule 12g-3, promulgated
under the Securities Act of 1933, as amended, on July 2, 2001;
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.
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
2
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 (filed herewith).
5.1 Opinion of Gaeta & Glesener, P.A. as to the legality of the securities
being registered (filed herewith).
23.1 Consent of Dixon Odom PLLC (filed herewith).
23.2 Consent of Gaeta & Glesener, P.A. (contained in the opinion filed
herewith as Exhibit 5).
24.1 Power of Attorney (filed herewith).
99.1 1999 Incentive Stock Option Plan (filed herewith).
99.2 1999 Nonstatutory Stock Option Plan (filed herewith).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sells
securities, a post-effective amendment to this Registration Statement to:
(i) Include any Prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) Reflect in the Prospectus any facts or
events which, individually or together,
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
3
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; and
(iii) Include any additional or changed material
information with respect to the plan of
distribution.
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, if the
Registrant offers the securities to existing security holders under warrants or
rights and the Registrant reoffers to the public any securities not taken by
security holders, with any modifications that suit the particular case, the
Registrant will supplement the Prospectus, after the end of the subscription
period, to include the results of the subscription offer, the transactions by
the underwriters during the subscription period, the amount of unsubscribed
securities that the underwriters will purchase and the terms of any later
reoffering. If the underwriters make any public offering of the securities on
terms different from those on the cover page of the prospectus, the Registrant
will file a post-effective amendment to state the terms of such offering.
4
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 4, 2001.
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 President and Chief Executive Officer
----------------------
Michael G. Carlton
/s/ Bruce W. Elder Chief Financial Officer
------------------
Bruce W. Elder
/s/ Brent D. Barringer * Director
------------------------
Brent D. Barringer
/s/ Joseph S. Colson, Jr. * Director
---------------------------
Joseph S. Colson, Jr.
/s/ Bruce I. Howell * Director and Chairman
---------------------
Bruce I. Howell
/s/ James A. Lucas * Director
--------------------
James A. Lucas
/s/ Kenneth A. Lucas * Director
----------------------
Kenneth A. Lucas
/s/ Sheila Hale Ogle * Director
----------------------
Sheila Hale Ogle
/s/ Larry W. Pegram * Director
---------------------
Larry W. Pegram
/s/ Jon S. Rufty * Director
------------------
Jon S. Rufty
/s/ Harry D. Stephenson * Director
-------------------------
Harry D. Stephenson
/s/ Stephen K. Zaytoun * Director
------------------------
Stephen K. Zaytoun
* By: /s/ Michael G. Carlton
-----------------------
Attorney-in-fact
5
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 Specimen of Registrant's Common Stock
5.1 Opinion of Gaeta & Glesener, P.A. as to the
legality of the securities being registered
23.1 Consent of Dixon Odom PLLC
23.2 Consent of Gaeta & Glesener, P.A. Included in Exhibit 5
24.1 Power of Attorney
99.1 1999 Incentive Stock Option Plan
99.2 1999 Nonstatutory Stock Option Plan
6