**UNITEDSTATES**

**SECURITIESAND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

 

**FORM 10-K/A**

**(Amendment No. 1)**

 

**(MarkOne)**

 
| x |   | **ANNUAL REPORT UNDER  SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 - For  the fiscal year ended December 31, 2009** |
|---|--------|---------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

Commission File Number: ** 000-26995**

 

**HCSBFINANCIAL CORPORATION**

(Name of small business Issuer in its charter)

 

| **South Carolina**

(State or other jurisdiction

of incorporation or organization)        |   | **57-1079444**

(I.R.S. Employer

Identification No.) |
|--------------------------------------------------------------------------------------------|--------|-------------------------------------------------------|
|                                                                                       |   |                                                  |
| **5201 Broad Street**

**Loris, South Carolina**

(Address of principal executive offices) |   | **29569**

(Zip Code)                                 |

 

Issuer’s telephone number: **(843) 756-6333**

 

Securitiesregistered under Section 12(b) of the Exchange Act:  None

 

Securities registered under Section 12(g) ofthe Exchange Act:  Common Stock

 

Indicateby check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405of the Securities Act.

Yes   o                  No   x

 

Indicateby check mark if the registrant is not required to file reports pursuant to Section 13or Section 15(d) of the Act.

Yes   o                  No   x

 

Indicate by check mark whether the registrant (1) has filed allreports required to be filed by Section 13 or 15(d) of the ExchangeAct of 1934 during the past 12 months (or for such shorter period that theregistrant was required to file such reports), and (2) has been subject tosuch filing requirements for the past 90 days.

Yes   x                  No   o

 

Indicateby check mark whether the registrant has submitted electronically and posted onits corporate Web site, if any, every Interactive Data File required to besubmitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 ofthis chapter) during the preceding 12 months (or for such shorter period thatthe registrant was required to submit and post such files).

Yes   o                  No   o

 

Indicateby check mark if disclosure of delinquent filers pursuant to Item 405 ofRegulation S-K (§229.405 of this chapter) is not contained herein, and will notbe contained, to the best of registrant’s knowledge, in definitive proxy orinformation statement incorporated by reference in Part III of this Form 10-Kor any amendment to this Form 10-K.  x

 

Indicateby check mark whether the registrant is a large accelerated filer, anaccelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large acceleratedfiler, “accelerated filer” and “smaller reporting company” in Rule 12b-2of the Exchange Act.

 
| Large accelerated filer  o |   | Non-accelerated filer  o            |   | Accelerated filer  o |   | Smaller reporting company  x |
|--------------------------------------|--------|-----------------------------------------------|--------|--------------------------------|--------|----------------------------------------|
|                                 |   | (Do not check if a smaller reporting company) |   |                           |   |                                   |

 

Indicateby check mark whether the registrant is a shell company (as defined in Rule 12b-2of the Act).

Yes   o                  No   x

 

 

 

 

 

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Theestimated aggregate market value of the Common Stock held by non-affiliates(shareholders holding less than 5% of an outstanding class of stock, excludingdirectors and executive officers) of the Company on June 30, 2009 was$65,826,720.**** This calculation is based upon an estimate ofthe fair market value of the Common Stock of $20.00 per share, which was theprice of the last several trades of which management is aware prior to thisdate. Because there is not an active trading market for the Common Stock, wehave used our book value of $12.41 as of June 30, 2009 to calculate ourpublic float.

 

The number of shares outstanding of the issuer’scommon stock, as of March 1, 2010 was 3,787,170.

 

**DOCUMENTS INCORPORATED BY REFERENCE**

 

 
| Annual  Report to Shareholders for the                  |   | Part II  (Items 5, 7-8)             |
|---------------------------------------------------------|--------|------------------------------------------|
| Year  Ended December 31, 2009                      |   |                                     |
|                                                    |   |                                     |
| Proxy  Statement for the Annual Meeting of Shareholders |   | Part III  (Portions of Items 10-14) |
| to be held on  April 22, 2010                      |   |                                     |

 

 

 

 

 

 

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**EXPLANATORYNOTE**

 

This Annual Report on Form 10-K/A(“Form 10-K/A”) is being filed as Amendment No. 1 (this “Amendment”)to the Registrant’s Annual Report on Form 10-K (“Form 10-K”) for thefiscal year ended December 31, 2009 filed with the Securities and ExchangeCommission on March 18, 2010. This Amendment is being filed to correct aninadvertent typographical error in the “Selected Financial Data” table of Exhibit 13,which incorrectly referred to net income — basic of $0.44 per share as opposedto net income — basic of $(0.44) per share.

 

Pursuant to Rule 12b-15promulgated under the Securities Exchange Act of 1934, filed with thisAmendment is Exhibit 13 with the corrected net income — basic of $(0.44)per share.  This Amendment does notaffect any other parts of, or exhibits to the Form 10-K, and thoseunaffected parts or exhibits are not included in this Amendment. Except asexpressly stated in this Amendment, the Form 10-K continues to speak as ofthe date of the original filing of the Form 10-K, and we have not updatedthe disclosure contained in the Amendment to reflect events that have occurredsince the filing of the Form 10-K. Accordingly, this Amendment must be read in conjunction with our otherfilings, if any, made with the Securities and Exchange Commission subsequent tothe filing of the Form 10-K, including amendments to those filings, ifany.

 

 

**PART IV**

** **
| **Item 15.** |   | **Exhibits**                                                                                                                                                                                                                                                                                                                           |
|--------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 3.1          |   | Articles of  Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s  Form 10-KSB for the fiscal year ended December 31, 1999).                                                                                                                                                                   |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 3.2          |   | Bylaws (incorporated by  reference to Exhibit 3.2 to the Company’s Form 10-KSB for the  fiscal year ended December 31, 1999).                                                                                                                                                                                      |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 3.3          |   | Articles of Amendment  to Authorize Preferred Shares, filed March 2, 2009 (incorporated by  reference to Exhibit 3.1 to the Company’s Form 8-K filed March 6,  2009).                                                                                                                                         |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 3.4          |   | Articles of Amendment  to the Company’s Restated Articles of Incorporation establishing the terms of  the Series T Preferred Stock (incorporated by reference to  Exhibit 3.1 to the Company’s Form 8-K filed March 10, 2009).                                                                           |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 4.1          |   | Warrant to Purchase up  to 91,714 shares of Common Stock (incorporated by reference to  Exhibit 4.1 to the Company’s Form 8-K filed March 10, 2009).                                                                                                                                                               |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 4.2          |   | Form of  Series T Preferred Stock Certificate (incorporated by reference to  Exhibit 4.2 to the Company’s Form 8-K filed March 10, 2009).                                                                                                                                                                |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 10.1         |   | HCSB Financial  Corporation Omnibus Stock Ownership and Long Term Incentive Plan  (incorporated by reference to Exhibit 10.1 to the Company’s  Form 10-KSB for the fiscal year ended December 31, 2003).*                                                                                                          |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 10.2         |   | Form of Restricted  Stock Option Agreement (incorporated by reference to Exhibit 10.2 to the  Company’s Form 10-KSB for the fiscal year ended December 31,  2004).*                                                                                                                                           |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 10.3         |   | Form of Incentive  Stock Option Agreement (incorporated by reference to Exhibit 10.3 to the  Company’s Form 10-KSB for the fiscal year ended December 31,  2004).*                                                                                                                                            |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 10.4         |   | Form of Director  Deferred Compensation Agreement adopted in 1997 by and between the Board of  Directors and Horry County State Bank (incorporated by reference to  Exhibit 10.4 to the Company’s Form 10-KSB for the fiscal year ended  December 31, 2006).*                                                 |
|         |   |                                                                                                                                                                                                                                                                                                                                   |
| 10.5         |   | Letter Agreement, dated  March 6, 2009, including Securities Purchase Agreement — Standard Terms  incorporated by reference therein, between the Company and the United States  Department of the Treasury (incorporated by reference to Exhibit 10.1 to  the Company’s Form 8-K filed March 10, 2009).* |

 

 

 

 

3

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| 10.6   |   | ARRA Side Letter  Agreement, dated March 6, 2009, between the Company and the United  States Department of the Treasury (incorporated by reference to  Exhibit 10.2 to the Company’s Form 8-K filed March 10, 2009).*                           |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                     |
| 10.7   |   | Form of Waiver,  executed by each of Messrs. James R. Clarkson, Edward L.  Loehr, Jr., and Glenn R. Bullard (incorporated by reference to  Exhibit 10.3 to the Company’s Form 8-K filed March 10, 2009).*                             |
|   |   |                                                                                                                                                                                                                                                                     |
| 10.8   |   | Form of Letter  Amendment, executed by each of Messrs. James R. Clarkson, Edward L.  Loehr, Jr., and Glenn R. Bullard with the Company (incorporated by  reference to Exhibit 10.4 to the Company’s Form 8-K filed  March 10, 2009).* |
|   |   |                                                                                                                                                                                                                                                                     |
| 10.9   |   | Form of Salary  Continuation Agreement adopted April 4, 2008 (incorporated by reference  to Exhibit 10.1 to the Company’s Form 8-K filed April 9,  2008).*                                                                                 |
|   |   |                                                                                                                                                                                                                                                                     |
| 13     |   | The Company’s 2009  Annual Report.                                                                                                                                                                                                                                  |
|   |   |                                                                                                                                                                                                                                                                     |
| 21     |   | Subsidiaries of  Registrant.**                                                                                                                                                                                                                                           |
|   |   |                                                                                                                                                                                                                                                                     |
| 24     |   | Power of Attorney  (contained on signature pages to our Annual Report on Form 10-K  filed March 18, 2010).                                                                                                                                                |
|   |   |                                                                                                                                                                                                                                                                     |
| 31.1   |   | Rule 13a-14(a) Certification  of the Chief Executive Officer.**                                                                                                                                                                                                |
|   |   |                                                                                                                                                                                                                                                                     |
| 31.2   |   | Rule 13a-14(a) Certification of the  Principal Financial Officer.**                                                                                                                                                                                            |
|   |   |                                                                                                                                                                                                                                                                     |
| 32     |   | Section 1350  Certifications.**                                                                                                                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                     |
| 99.1   |   | Certification of the  Chief Executive Officer Pursuant to Section 111(b)(4) of the  Emergency Economic Stabilization Act of 2008.**                                                                                                                            |
|   |   |                                                                                                                                                                                                                                                                     |
| 99.2   |   | Certification of the  Chief Financial Officer Pursuant to Section 111(b)(4) of the  Emergency Economic Stabilization Act of 2008.**                                                                                                                            |

 

 

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| *  |   | Management contract of  compensatory plan or arrangement required to be filed as an Exhibit to  this Annual Report on Form 10-K. |
|----|--------|--------------------------------------------------------------------------------------------------------------------------------------------|
| ** |   | Previously filed as an  exhibit to our Annual Report on Form 10-K filed March 18, 2010.                                          |

 

 

 

 

 

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**SIGNATURES**

 

Inaccordance with Section 13 or 15(d) of the Securities Exchange Act of1934, the registrant has duly caused this report to be signed on its behalf bythe undersigned, thereunto duly authorized.

 
| ** **                            | **HCSB FINANCIAL CORPORATION** |
|---------------------------------------|--------------------------------|
| ** **                            | ** **                     |
| ** **                            | ** **                     |
| Date:  March 25,  2010 | By:                            | /s/James  R. Clarkson |
|                                  |                           | James  R. Clarkson, President & |
|                                  |                           | Chief  Executive Officer |

 

 

 

 

 

 

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