ex10_3.htm


    
      

    

    
      Exhibit
        10.3

      


      FORM
        OF

      FREEDOM
        BANCSHARES, INC.

      NON-QUALIFIED
        STOCK OPTION AGREEMENT

      


      


      THIS
        AGREEMENT is made as of February
        17, 2004 (the “Grant Date”), by and between FREEDOM BANCSHARES, INC (the
“Company”) and _______________ (the “Optionee”).

      


      WITNESSETH

      


      WHEREAS,
        the Optionee performs services
        as [a consultant][an organizer] for the
        Company;

      


      WHEREAS,
        the Company desires to grant
        to the Optionee a non-qualified stock option to purchase shares of the common
        stock of the Company; and

      


      WHEREAS,
        the Company and the Optionee
        wish to confirm the terms and conditions of the option.

      


      NOW,
        THEREFORE, in consideration for
        the Optionee’s services as [a consultant] [an organizer] for
        the Company, it is hereby agreed between the parties hereto as
        follows:

      


      


      SECTION
        I

      GRANT
        OF OPTION

      


      1.1           Grant
        of Option.  Subject to the terms, restrictions, limitations and
        conditions stated herein, the Company hereby grants to the Optionee a
        non-qualified stock option (the “Option”) to purchase all or any part of _____
        shares (the “Option Shares”) of the Company’s $1.00 par value common stock (the
“Common Stock”). The exercise price for each share of Common Stock is $10.00 per
        share (the “Exercise Price”), subject to adjustment as provided in Section 3.1
        hereof.  The Exercise Price is equal to the Fair Market Value of a
        share of Common Stock on the Grant Date.

      


      1.2           Exercise
        of Option.

      


      (a)           The
        Option shall be exercisable as to all or any portion of the Option Shares
        during
        the Option Period (as defined in Section 1.4 hereof).

      


      (b)   The
        Option may be exercised with respect to all or any portion of the Option
        Shares
        at any time during the Option Period by the delivery to the Company, at its
        principal place of business, of a written notice of exercise in substantially
        the form attached hereto as Exhibit 1, which shall be actually
        delivered to the Company no earlier than thirty (30) days and no later than
        ten
        (10) days prior to the date upon which Optionee desires to exercise all or
        any
        portion of the Option; and

      


      (c)   payment
        to the Company of the Exercise Price , multiplied by the number
        of  Option Shares being purchased (the “Purchase Price”), as
        provided in Section 1.3.

      


      (d)           Notwithstanding
        any other provision of this Agreement, in the event that the capital of the
        Company falls below the minimum requirements determined by the primary federal
        regulator of the Company (the “Regulator”), the Regulator may direct the Company
        to require the Optionee to exercise, or otherwise forfeit, the Option in
        whole
        or in part.  If the Regulator gives such direction, the Company will
        notify the Optionee within forty-five (45) days from the date the Regulator
        notifies the Company in writing that the Optionee must exercise, or otherwise
        forfeit, the Option in whole or in part.  If the Optionee does not
        exercise the Option in accordance with the Company’s direction within twenty-one
        (21) days of the Company’s notification to the Optionee, the Company may provide
        for the cancellation of the Option.

      

        
          
            
            

          

          
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        Exhibit
          10.3

        


        Upon
          acceptance of such notice and receipt of payment in full of the Purchase
          Price,
          the Company shall cause to be issued a certificate representing the Option
          Shares purchased.

        


        1.3           Purchase
          Price.  Payment of the Purchase Price for all or any part of the
          Option Shares purchased pursuant to the exercise of an Option shall be
          made in
          cash or certified check.

        


        1.4           Term
          and Termination of Option. The term of the Option (the “Option Period”)
          shall commence on the Grant Date and end on the tenth (10th) anniversary
          of
          the Grant Date.  Upon the expiration of the Option Period, the Option
          and all unexercised rights granted to Optionee hereunder shall terminate,
          and
          thereafter be null and void.

        


        1.5           Vesting
          Provisions.  The Option
          Shares
          shall be fully vested as of the Grant Date.

        


        1.6           Rights
          as Shareholder.  Until the stock certificates reflecting the
          Option Shares accruing to the Optionee upon exercise of the Option are
          issued to
          the Optionee, the Optionee shall have no rights as a shareholder with respect
          to
          such Option Shares.  The Company shall make no adjustment for any
          dividends or distributions or other rights on or with respect to Option
          Shares
          for which the record date is prior to the issuance of that stock
          certificate.

        


        1.7           Special
          Limitation on Exercise.  No purported exercise of the Option shall
          be effective without the approval of the Company, which may be withheld
          to the
          extent that the exercise, either individually or in the aggregate together
          with
          the exercise of other previously exercised stock options and/or offers
          and sales
          pursuant to any prior or contemplated offering of securities, would, in
          the sole
          and absolute judgment of the Company, require the filing of a registration
          statement with the United States Securities and Exchange Commission or
          with the
          securities commission of any state.  If a registration statement is
          not in effect under the Securities Act of 1933 or any applicable state
          securities law with respect to shares of Common Stock purchasable or otherwise
          deliverable under the Option, the Optionee (a) shall deliver to the Company,
          prior to the exercise of the Option or as a condition to the delivery of
          Common
          Stock pursuant to the exercise of an Option, such information, representations
          and warranties as the Company may reasonably request in order for the Company
          to
          be able to satisfy itself that the Option Shares are being acquired in
          accordance with the terms of an applicable exemption from the securities
          registration requirements of applicable federal and state securities laws
          and
          (b) shall agree that the shares of Common Stock so acquired will not be
          disposed
          of except pursuant to an effective registration statement, unless the Company
          shall have received an opinion of counsel that such disposition is exempt
          from
          such requirement under the Securities Act of 1933 and any applicable state
          securities law.


        
          
            
            

          

          
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        Exhibit
          10.3

        


        SECTION
          2

        RESTRICTIONS
          ON TRANSFER OF OPTION SHARES

        


        2.1           Restrictions
          on Transfer.  The Option evidenced hereby is nontransferable other
          than by will or the laws of descent and distribution and shall be exercisable
          during the lifetime of the Optionee only by the Optionee (or in the event
          of his
          Disability, by his personal representative) and after his death, only by
          his
          legatee or the executor of his estate.

        


        2.2           Legend.  Certificates
          evidencing the Option Shares, to the extent appropriate at the time, shall
          have
          noted conspicuously on the certificates a legend intended to give all persons
          full notice of the existence of the conditions, restrictions, rights and
          obligations set forth herein, such as those below:

         

        
          TRANSFER
            IS RESTRICTED

           

        

        
          
            THE
              SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
              ON
              TRANSFER SET FORTH IN A NON-QUALIFIED STOCK OPTION AWARD DATED FEBRUARY
              17,
              2004.  A COPY OF WHICH IS AVAILABLE FROM THE COMPANY.

            


            THE
              SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
              THE
              SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
              ASSIGNED
              OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION UNDER
              SUCH ACT
              COVERING SUCH SECURITIES, (2) THE TRANSFER IS MADE IN COMPLIANCE WITH
              RULE 144
              PROMULGATED UNDER SUCH ACT, OR (3) THE ISSUER RECEIVES AN OPINION OF
              COUNSEL,
              REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
              ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
              OF SUCH
              ACT.

             

             

          

        

        SECTION
          3

        GENERAL
          PROVISIONS

        


        
          	
                	
                  3.1

                	
                  Changes
                    in Capitalization.

                


        

        


        (a)            If
          the number of shares of Common Stock shall be increased or decreased by
          reason
          of a subdivision or combination of shares of Common Stock, the payment
          of a
          stock dividend in shares of Common Stock or any other increase or decrease
          in
          the number of shares of Common Stock outstanding effected without receipt
          of
          consideration by the Company, an appropriate adjustment shall be made by
          the
          Company, in a manner determined in its sole discretion, in the number and
          kind
          of Option Shares and in the Exercise Price.

        


        (b)   If
          the
          Company shall be the surviving corporation in any merger, consolidation,
          reorganization, extraordinary dividend, spin-off, or other change in capital
          structure of the Company or its Common Stock, the Optionee shall be entitled
          to
          purchase the number and class of securities to which a holder of the number
          of
          shares of Common Stock subject to the Option at the time of the transaction
          would have been entitled to receive as a result of such transaction, and
          a
          corresponding adjustment, where appropriate, shall be made in the Exercise
          Price.  In the event of a Change in Control or other corporate
          transaction pursuant to which the Company is not the surviving entity,
          the
          Company may provide for the assumption of the Option by the surviving entity
          or
          the substitution of a new option, adjusted in a manner similar to that
          contemplated by the immediately preceding sentence; however, if the surviving
          entity does not agree to the assumption or substitution of the Option,
          the
          Company may elect to terminate the Option Period as of the effective date
          of the
          Change in Control in consideration of the payment to the Optionee of the
          sum of
          the difference between the then Fair Market Value of the Common Stock and
          the
          Exercise Price for each vested Option Share which has not been exercised
          as of
          the effective date of the Change in Control.  A dissolution or
          liquidation of the Company shall cause the Option to terminate as to any
          portion
          thereof not exercised as of the effective date of the dissolution or
          liquidation.


        
          
            
            

          

          
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        Exhibit
          10.3

        


        (c)           The
          existence of the Plan and the Option granted pursuant to this Agreement
          shall
          not affect in any way the right or power of the Company to make or authorize
          any
          adjustment, reclassification, reorganization or other change in its capital
          or
          business structure, any merger or consolidation of the Company, any issue
          of
          debt or equity securities having preferences or priorities as to the Common
          Stock or the rights thereof, the dissolution or liquidation of the Company,
          any
          sale or transfer of all or any part of its business or assets, or any other
          corporate act or proceeding. Any adjustment pursuant to this Section may
          provide, in the Company’s discretion, for the elimination without payment
          therefor of any fractional shares that might otherwise become subject to
          any
          Option.

        


        3.2           Governing
          Laws.  This Agreement shall be construed, administered and
          enforced according to the laws of the State of Georgia.

        


        3.3           Successors.  This
          Agreement shall be binding upon and inure to the benefit of the heirs,
          legal
          representatives, successors and permitted assigns of the Optionee and the
          Company.

        


        3.4           Notice.  Except
          as otherwise specified herein, all notices and other communications under
          this
          Agreement shall be in writing and shall be deemed to have been given if
          personally delivered or if sent by registered or certified United States
          mail,
          return receipt requested, postage prepaid, addressed to the proposed recipient
          at the last known address of the recipient.  Any party may designate
          any other address to which notices shall be sent by giving notice of the
          address
          to the other parties in the same manner as provided herein.

        


        3.5           Severability.  In
          the event that any one or more of the provisions or portion thereof contained
          in
          this Agreement shall for any reason be held to be invalid, illegal or
          unenforceable in any respect, the same shall not invalidate or otherwise
          affect
          any other provisions of this Agreement, and this Agreement shall be construed
          as
          if the invalid, illegal or unenforceable provision or portion thereof had
          never
          been contained herein.

        


        3.6           Entire
          Agreement.  This Agreement expresses the entire understanding of
          the parties with respect to the Option.

        


        3.7           Headings.  Section
          headings used herein are for convenience of reference only and shall not
          be
          considered in construing this.

        


        3.8           Specific
          Performance.  In the event of any actual or threatened default in,
          or breach of, any of the terms, conditions and provisions of this Agreement,
          the
          party or parties who are thereby aggrieved shall have the right to specific
          performance and injunction in addition to any and all other rights and
          remedies
          at law or in equity, and all such rights and remedies shall be
          cumulative.


        
          
            
            

          

          
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        Exhibit
          10.3

        


        SECTION
          4

        DEFINITIONS

        


        4.1           “Bank”
          means Freedom Bancshares, Inc.

        


        4.2           “Board
          of Directors” means the board of directors of the Company.

        


        4.3           “Change
          in Control” means any one of the following events which may occur after the
          Grant Date:

        


        (a)           the
          acquisition by any individual, entity or “group”. within the meaning of Section
          13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as
          amended,
          (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3
          promulgated under the Securities Exchange Act of 1934) of voting securities
          of
          the Company or the Bank where such acquisition causes any such Person to
          own
          fifty percent (50%) or more of the combined voting power of the then outstanding
          voting securities entitled to vote generally in the election of
          directors;

        


        (b)   within
          any twelve-month period, the persons who were directors of the Company
          or the
          Bank immediately before the beginning of such twelve-month period (the
          “Incumbent Directors”) shall cease to constitute at least a majority of the
          Board of Directors; provided, that any director who was not a director
          as of the
          Grant Date shall be deemed to be an Incumbent Director if that director
          was
          elected to the Board of Directors by, or on the recommendation of or with
          the
          approval of, at least two-thirds of the directors who then qualified as
          Incumbent Directors; and provided further, that no director whose initial
          assumption of office is in connection with an actual or threatened election
          contest relating to the election of directors of the Company shall be deemed
          to
          be an Incumbent Director;

        


        (c)   a
          reorganization, merger or consolidation with respect to which the persons
          who
          were the stockholders of the Company or the Bank immediately prior to such
          reorganization, merger or consolidation do not, immediately thereafter,
          own at
          least fifty percent (50%) of the combined voting power entitled to vote
          in the
          election of directors of the reorganized, merged or consolidated company’s then
          outstanding voting securities; or

        


        (d)   the
          sale,
          transfer or assignment of all or substantially all of the assets of the
          Company
          or the Bank to any third party.

        


        4.4           “Disability”
          has the same meaning as provided in the long-term disability plan or policy
          maintained or, if applicable, most recently maintained, by the Company
          or an
          affiliate of the Company for the Optionee.  If no long-term disability
          plan or policy was ever maintained on behalf of the Optionee, Disability
          shall
          mean that condition described in Section 22(e)(3) of the Internal Revenue
          Code
          of 1986, as amended from time to time.  In the event of a dispute, the
          determination of Disability shall be made by the Board of Directors and
          shall be
          supported by advice of a physician competent in the area to which such
          Disability relates.

        


        
          	
                   

                	
                  4.5

                	
                  “Fair
                    Market Value” with regard to a date
                    means:

                


        

        


        (a)           the
          price at which Common Stock shall have been sold on that date or the last
          trading date immediately prior to that date as reported by the national
          securities exchange selected by the Company on which the shares of Common
          Stock
          are then actively traded or, if applicable, as reported by the Nasdaq Stock
          Market;


        
          
            
            

          

          
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        Exhibit
          10.3

        


        (b)           if
          such market information is not published on a regular basis, the price
          of Common
          Stock in the over-the-counter market on that date or the last business
          day prior
          to that date as reported by the Nasdaq Stock Market or, if not so reported,
          by a
          generally accepted reporting service; or

        


        (c)           if
          the Common Stock is not publicly traded, as determined in good faith by
          the
          Company with due consideration being given to (i) the most recent independent
          appraisal of the Company, if such appraisal is not more than twelve (12)
          months
          old, and (ii) the valuation methodology used in any such appraisal.

        


        For
          purposes of Paragraphs (a), (b) and (c) above, the Company may use the
          closing
          price as of the applicable date, the average of the high and low prices
          as of
          the applicable date or for a period certain ending on such date, the price
          determined at the time the transaction is processed, the tender offer price
          for
          shares of Common Stock, or any method which the Company determines is reasonably
          indicative of the fair market value.

        


        IN
          WITNESS WHEREOF, the parties have
          executed this Agreement as of the date first above written.

        


        
          	 	
                  FREEDOM
                    BANCSHARES, INC.

                
	 	 	 
	 	
                  By:

                	 
	 	 	 
	 	
                  Title:

                	 


        

        


        
          	
                  ATTEST:

                	 	 
	 	 	 
	 	 	 
	
                  Title:

                	 	 


        

        


        
          	 	
                  OPTIONEE:

                
	 	 
	 	 


        

         

        
          
            
            

          

          
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        Exhibit
          10.3

        


        EXHIBIT
          1

        


        NOTICE
          OF EXERCISE OF

        STOCK
          OPTION TO PURCHASE

        COMMON
          STOCK OF

        FREEDOM
          BANCSHARES, INC.

        


        
          	 	
                  Name

                	 
	 	
                  Address

                	 
	 	 	 
	 	
                  Date

                	 


        

        


        Freedom
          Bancshares, Inc.

        3165
          Maysville Rd.

        Commerce,
          GA 30529

        Attn:  Chief
          Executive Officer

        


        Re:           Exercise
          of Non-qualified Stock Option

        


        Gentlemen:

        


        Subject
          to acceptance hereof by Freedom
          Bancshares, Inc. (the “Company”), I hereby give notice of my election to
          exercise options granted to me to purchase ______________ shares of common
          stock
          of the Company (“Common Stock”) under the Non-Qualified Stock Option Agreement
          (the “Agreement”) dated as of February 17, 2004.  The purchase shall
          take place as of ______________________, 200__ (the “Exercise
          Date”).

        


        On
          or before the Exercise Date, I will
          pay the applicable purchase price as follows by delivery of cash or a certified
          check for $___________ for the full purchase price payable to the order
          of
          Freedom Bancshares, Inc.

        


        As
          soon as the stock certificate is
          registered in my name, please deliver it to me at the above
          address.

        


        If
          the Common Stock being acquired is
          not registered for issuance to and resale by the Optionee pursuant to an
          effective registration statement on Form S-8 (or successor form) filed
          under the
          Securities Act of 1933, as amended (the “1933 Act”), I hereby represent,
          warrant, covenant, and agree with the Company as follows:

        


        The
          shares of the Common Stock being acquired by me will be acquired for my
          own
          account without the participation of any other person, with the intent
          of
          holding the Common Stock for investment and without the intent of participating,
          directly or indirectly, in a distribution of the Common Stock and not with
          a
          view to, or for resale in connection with, any distribution of the Common
          Stock,
          nor am I aware of the existence of any distribution of the Common
          Stock;

        


        I
          am not
          acquiring the Common Stock based upon any representation, oral or written,
          by
          any person with respect to the future value of, or income from, the Common
          Stock
          but rather upon an independent examination and judgment as to the prospects
          of
          the Company;


        
          
            
            

          

          
            Exhibit
              1 - Page 1 of 3

            
              

            

          

          
            
            

          

        


        The
          Common Stock was not offered to me by means of publicly disseminated
          advertisements or sales literature, nor am I aware of any offers made to
          other
          persons by such means;

        


        I
          am able
          to bear the economic risks of the investment in the Common Stock, including
          the
          risk of a complete loss of my investment therein;

        


        I
          understand and agree that the Common Stock will be issued and sold to me
          without
          registration under any state law relating to the registration of securities
          for
          sale, and will be issued and sold in reliance on the exemptions from
          registration under the 1933 Act, provided by Sections 3(b) and/or 4(2)
          thereof
          and the rules and regulations promulgated thereunder;

        


        The
          Common Stock cannot be offered for sale, sold or transferred by me other
          than
          pursuant to: (A) an effective registration under the 1933 Act or in a
          transaction otherwise in compliance with the 1933 Act; and (B) evidence
          satisfactory to the Company of compliance with the applicable securities
          laws of
          other jurisdictions.  The Company shall be entitled to rely upon an
          opinion of counsel satisfactory to it with respect to compliance with the
          above
          laws;

        


        The
          Company will be under no obligation to register the Common Stock or to
          comply
          with any exemption available for sale of the Common Stock without registration
          or filing, and the information or conditions necessary to permit routine
          sales
          of securities of the Company under Rule 144 under the 1933 Act are not
          now
          available and no assurance has been given that it or they will become
          available.  The Company is under no obligation to act in any manner so
          as to make Rule 144 available with respect to the Common Stock;

        


        I
          have
          and have had complete access to and the opportunity to review and make
          copies of
          all material documents related to the business of the Company, including,
          but
          not limited to, contracts, financial statements, tax returns, leases, deeds
          and
          other books and records.  I have examined such of these documents as I
          wished and am familiar with the business and affairs of the
          Company.  I realize that the purchase of the Common Stock is a
          speculative investment and that any possible profit therefrom is
          uncertain;

        


        I
          have
          had the opportunity to ask questions of and receive answers from the Company
          and
          any person acting on its behalf and to obtain all material information
          reasonably available with respect to the Company and its affairs.  I
          have received all information and data with respect to the Company which
          I have
          requested and which I have deemed relevant in connection with the evaluation
          of
          the merits and risks of my investment in the Company;

        


        I
          have
          such knowledge and experience in financial and business matters that I
          am
          capable of evaluating the merits and risks of the purchase of the Common
          Stock
          hereunder and I am able to bear the economic risk of such purchase;
          and

        


        The
          agreements, representations, warranties and covenants made by me herein
          extend
          to and apply to all of the Common Stock of the Company issued to me pursuant
          to
          this Agreement.  Acceptance by me of the certificate representing such
          Common Stock shall constitute a confirmation by me that all such agreements,
          representa­tions, warranties and covenants made herein shall be true and
          correct at that time.


        
          
            
            

          

          
            Exhibit
              1 - Page 2 of 3

            
              

            

          

          
            
            

          

        


        Exhibit
          10.3

        


        I
          understand that the certificates
          representing the shares being purchased by me in accordance with this notice
          shall bear a legend referring to the foregoing covenants, representations
          and
          warranties and restrictions on transfer, and I agree that a legend to that
          effect may be placed on any certificate which may be issued to me as a
          substitute for the certificates being acquired by me in accordance with
          this
          notice.  I further understand that capitalized terms used in this
          Notice of Exercise without definition shall have the meanings given to
          them in
          the Agreement.

        


        
          	 	 	 	
                  Very
                    truly yours,

                
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	
                  AGREED
                    TO AND ACCEPTED:

                	 	 	 
	 	 	 	 	 	 
	
                  FREEDOM
                    BANCSHARES, INC.

                	 	 	 
	 	 	 	 	 	 
	
                  By:

                	 	 	 	 	 
	 	 	 	 	 	 
	
                  Title:

                	 	 	 	 	 
	 	 	 	 	 	 
	
                  Number
                    of Shares Exercised:

                	 	 	 	 
	 	 	 	 	 	 
	
                  Number
                    of Shares Remaining:

                	 	 	
                  Date:

                	 


        

      

    

     

     

    Exhibit
      1
      - Page 3 of 3