**EXHIBIT 10.45**

 

**COMMUNITY BANCSHARES, INC.**

**2005 NONQUALIFIED STOCK OPTION AGREEMENT**

**FOR DIRECTORS**

 

THIS AGREEMENT is made and entered into as of January 12, 2005, betweengrantor Community Bancshares, Inc., a Delaware corporation (the “Corporation”) and grantee, Patrick M. Frawley (the “Grantee”). 

 

**WITNESSETH:**

 

The Board of Directors of the Corporation (the “Board”) considers it in the best interests of the Corporation to issue from time to time toselected grantees options to purchase the Corporation’s stock so as to more closely align the interests of such grantees with the interests of the Corporation’s stockholders and to provide additional inducement for such grantees to remainin the service of the Corporation with an increased incentive to work for its long-term success. This Agreement establishes the terms and conditions applicable to Grantee’s award of options. 

 

NOW, THEREFORE, the parties hereto agree as follows: 

 

1. **Grant of Option.** Grantee shall have the right and option to purchase on the termsand conditions set forth herein, all or any part of an aggregate of 75,000 shares (“Option Shares”) of the $.10 par value common stock of the Corporation (the “Common Stock”) at the purchase price of $6.81 per share (the“Option Price”). The Option Price is 100% of the fair market value of the Common Stock on January 12, 2005, the date of the grant of the option covered by this Agreement. 

 

2. **Terms and Conditions.**It is understood and agreed that the option evidenced hereby is subject to the following terms andconditions: 

 

(a) Expiration Date. The option shallexpire five (5) years after the date of grant (the “Expiration Date”). After the Expiration Date, the parties shall have no further rights or obligations hereunder. 

 

(b) Exercise of Option. The option covered by this Agreement may be exercised by Grantee from time to time, in wholeor in part, at any time prior to the Expiration Date subject to the restrictions in Section 2(d) and Section 7. 

 

(c) Method of Exercise and Payment of Purchase Price Upon Exercise. The Grantee may elect to exercise the option by giving written notice of suchelection to the Corporation, in such form as the Board may require, accompanied by payment of the full purchase price of the Option Shares for which the election is made. Payment of the Option Price shall be made in cash or Common Stock that wasacquired at least six (6) months prior to the exercise of the option, or a combination thereof. To the extent permitted by applicable law, the option may be exercised and the exercise price paid pursuant to arrangements with brokerage firmspermitted under Regulation T of the Federal Reserve Board or successor regulations or statutes. Any federal or state tax withholding requirements can be satisfied by shares of Common Stock acquired pursuant to the option exercise. 

 

(d) Exercise Upon Termination of Affiliation with the Corporation . Ifthe Grantee’s affiliation in any capacity (i.e. as an employee or a director), but not necessarily in all capacities, with the Corporation and/or its subsidiaries is terminated for Cause (as defined below), the option shall expire on the dateof termination of Grantee’s affiliation with the Corporation. If Grantee resigns from his or her affiliation with the Corporation and its subsidiaries under circumstances where Cause for termination exists, the resignation will be considered atermination for Cause and the option will expire on the date of such resignation. Except as provided in the preceding sentences, the option may be exercised at any time during the stated term of the option notwithstanding the termination ofGrantee’s affiliation with the Corporation due to death, disability, retirement or other reasons. 

 

3. **No Rights as Shareholder or to Employment or to Directorship.**No option granted hereunder shall entitle the holder thereof to any rights as a shareholder in the Corporation with respect to any shares towhich the option relates until such shares have been paid for in full and issued. Furthermore, the option shall not confer upon the Grantee any rights of employment with the Corporation or any of its subsidiaries or any rights to be a director ofthe Corporation or any of its subsidiaries or affect the right of the Corporation or its subsidiaries to terminate the affiliation of the Grantee at any time, with or without cause. 

 

4. **Restrictions on Transfer of Shares and Option.** Grantee hereby agrees for himself or herself and his or her legal representative,heirs and distributees, that if a registration statement covering the shares issuable upon exercise of any option 

hereunder is not effective under the Securities Act of 1933, as amended (the “Act”), at the time of suchexercise, or if some other exemption from the provisions of the Act is not available, then all shares of Common Stock then received or purchased upon such exercise shall be acquired for investment, and that the notice of exercise delivered to theCorporation shall be accompanied by a representation in writing acceptable in scope and form to counsel to the Corporation and signed by Grantee or Grantee’s legal representative, heirs or distributees, as the case may be, to the effect thatthe shares are being acquired in good faith for investment and not with a view to distribution thereof. Any shares so acquired may be deemed restricted securities under Rule 144 as promulgated by the Securities and Exchange Commission under the Act,and as the same may be amended or replaced and subject to restrictions upon sale or other disposition. This option has not been registered under the Act or any applicable state securities laws in reliance upon registration exemptions in the Act andsuch laws. Grantee represents that Grantee is acquiring this option for Grantee’s own account for investment and not with a view to any resale or distribution thereof. Grantee understands and agrees that the option (in addition to therestriction on transfer set forth in Section 6) this option may not be sold, transferred or otherwise disposed of without registration under the Act and applicable state securities laws except in compliance with an exemption from such registration,the availability of which has been confirmed by an opinion of legal counsel or other evidence satisfactory to the Corporation. 

 

5. **Registration of Shares.** If at any time the Board shall determine that the listing, registration or qualification of any shares subject to the option upon anysecurities exchange, or under any state or federal law, or the consent or approval of any governmental or regulatory body is necessary or desirable as a condition of or in connection with the issuance or purchase of shares hereunder, the option maynot be exercised in whole or in part unless such listing, registration, qualification, consent, or approval has been effected or obtained free of any conditions not acceptable to the Board. 

 

6. **Transfer of Rights.** This option is not transferable except by will or by the lawsof descent and distribution and shall be exercisable during Grantee’s lifetime only by Grantee. After the death of Grantee, this option may be exercised only by Grantee’s estate or by the person or persons entitled to the option underGrantee’s will or the laws of descent and distribution, as appropriate. In the event the option is transferred to the Grantee’s estate, the option may be exercised by the estate only to the extent that the Grantee would have been entitledhad the option not been transferred. 

 

7.**Competition with Employer -Covenant Not to Compete.**In consideration of the grant by the Corporation of the option, Grantee agrees with the Corporation as follows: 

 

(a) While Grantee is affiliated with the Corporation or one or more of its subsidiaries (hereinafter collectively referred to as the “Company”)either as an employee or a director, Grantee will devote his or her entire time, energy and skills to the service of the Company. Any employment shall be at the pleasure of the board of directors of each employing corporation. 

 

(b) Grantee will not, during the term of his or her affiliation (either as anemployee or director) with the Company, or for a period of two years after termination for any reason of his or her affiliation with the Company, directly or indirectly, either individually or as a stockholder (except for passive investments of lessthan one percent of the outstanding shares), director, officer, consultant, independent contractor, employee, agent, member or otherwise of or through any corporation, partnership, association, joint venture, firm, individual or otherwise(hereinafter “Firm”), or in any other capacity: 

 

(i) Carry on or engage in a business like or similar to any business engaged in by the Company either (A) in the county in which the Grantee has primarily been employed by the Company at the time of termination ofemployment or (B) within a 25-mile radius of the location where the Grantee has primarily been employed by the Company at the time of termination of employment; or 

 

(ii) Solicit or do business (like or similar to any business engaged in by the Company) with any customer ofthe Company either (A) in the county in which the Grantee has primarily been employed by the Company at the time of termination of employment or (B) within a 25-mile radius of the location where the Grantee has primarily been employed by the Companyat the time of termination of employment; or 

 

(iii) Solicit, directly or indirectly, any employee of the Company to leave their employment with the Company for any reason. For purposes of this Agreement, the Company and Grantee agree that Grantee shall be deemed to have solicited anyemployee in violation of this Agreement if such employee is hired by Grantee or his or her Firm within six (6) months of Grantee’s last date of affiliation (either as an employee or a director) with the Company. 

 

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If Grantee is a nonemployee director, the restrictions in (i) and (ii) above shall apply with respect toeither (A) the county in which the director resides at the time he ceases to be a director, or (B) within a 25-mile radius of the location where the director resides at the time he ceases to be a director. 

 

The above two-year period shall be extended by any period of time duringwhich Grantee is in default of the covenants contained in this Agreement. 

 

(c) During the term of his or her affiliation (either as an employee or a director) with the Company and thereafter, Grantee shall not divulge, or furnish or make accessible to any third party, company, corporation orother organization (including, but not limited to, customers, competitors or governmental agencies), without the Corporation’s prior written consent, any trade secrets, customer lists, information regarding customers, or other confidentialinformation concerning the Company or its business, including without limitation, confidential methods of operation and organization, trade secrets, confidential matters related to pricing, markups, commissions and customer lists. 

 

(d) In the event of a breach or threatened breach by Grantee of all or anypart of the provisions of subdivisions (b) or (c) of this Section 7, the Company shall be entitled to an injunction restraining Grantee from such breach without limiting any other rights or remedies available to the Company for such breach orthreatened breach. 

 

(e) Grantee specifically recognizes andaffirms that each of the covenants contained in subdivisions (b) and (c) of this Section 7 is a material and important term of this Agreement which has induced the Company to provide for the award of the option granted hereunder, and Grantee furtheragrees that should all or any part or application of subdivisions (b) or (c) of Section 7 of this Agreement be held or found invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction in an action between Grantee and theCompany, the Corporation shall be entitled to receive (but not obligated to acquire) from Grantee all Common Stock held by Grantee which was obtained by Grantee under this Agreement (including all shares obtained by virtue of any stock dividend ordistribution, recapitalization, merger, consolidation, split-up, combination, exchange of shares, or other transaction, hereinafter “stock dividends”) by returning to Grantee for each share received the Option Price paid by Grantee (asadjusted for stock dividends). If Grantee has sold, transferred, or otherwise disposed of Common Stock obtained under this Agreement (including all shares obtained by virtue of any stock dividend), the Corporation shall be entitled to receive fromGrantee the difference between the Option Price paid by Grantee and the fair market value of the Common Stock (including all shares obtained by virtue of any stock dividends) on the date of sale transfer or other disposition. 

 

(f) Notwithstanding any provision to the contrary herein contained, Section7(b) shall not apply upon the termination of the Grantee’s affiliation with the Corporation (either as an employee or a director) other than for Cause within one (1) year following a Change in Control of the Corporation. 

 

8. **Definitions**. For the purposes of this Agreement, the following term shall have thedefinition set forth below: 

 

(a) “Cause” means (i)any act (A) that constitutes, on the part of the Grantee, fraud, dishonesty, a felony or gross malfeasance of duty and (B) that directly results in a material injury to the Corporation; or (ii) a material violation of the policies of the Corporationand/or its subsidiaries governing the conduct of Grantee; or (iii) conduct by the Grantee in his office with the Corporation that is grossly inappropriate and demonstrably likely to lead to material injury to the Corporation, as determined by theBoard acting reasonably and in good faith. 

 

(b) “Change inControl of the Corporation” means (i) the acquisition, directly or indirectly, by any “person” (within the meaning of Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) within anytwelve-month period of securities of the Corporation representing an aggregate of twenty percent (20%) or more of the combined voting power of the Corporation’s then outstanding securities; or (ii) during any period of two consecutive years,individuals who at the beginning of such period constitute the Board of Directors of the Corporation, cease for any reason to constitute at least a majority thereof, unless the election of each new director was approved in advance by a vote of atleast a majority of the directors then still in office who were directors at the beginning of the period; or (iii) consummation of a merger or consolidation or other business combination of the Corporation with any other person, other than a merger,consolidation or business combination which would result in the outstanding Common Stock immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into common stock of the surviving entity or a parentor affiliate thereof) at least sixty percent (60%) of the outstanding common stock of the Corporation or such surviving entity or parent of affiliate thereof outstanding immediately after such merger, consolidation or business combination; or (iv) aplan of complete liquidation of the Corporation or an agreement for the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets; or (v) the occurrence of any other event or circumstance which is notcovered by (i) through (iv) above which the Board determines affects control of the Corporation and, in order to implement the purposes of this agreement, adopts a resolution that such event or circumstance constitutes a Change in Control forpurposes of this agreement. 

 

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9. **Disposition of Shares.**Grantee agrees to notify the Corporation promptly of the disposition of any shares ofCommon Stock purchased pursuant to this option which are disposed of within one year after transfer of such shares to Grantee, or within two years of the date of the grant of such option. For purposes of such notification, “disposition”shall have the meaning assigned to it in Section 425(c) of the Code. 

 

10.**Adjustment of Awards.**In the event of any change in corporate capitalization, such as stock split, or a corporate transaction, such as a merger, consolidation, separation or other distribution of stock or property of the Corporation, anyreorganization (whether or not such reorganization comes within the definition of such term in Code Section 368) or any partial or complete liquidation of the Corporation, such adjustment shall be made in the number and class of and/or price of theOption Shares as may be determined to be appropriate and equitable by the Corporation’s Board of Directors, in its sole discretion, to prevent dilution or enlargement of the benefits or potential benefits intended to be available under thisagreement; provided that the number of Option Shares shall always be a whole number. 

 

11. **Interpretation.**Any question of interpretation or application of this Agreement shall be resolved by the Corporation’s Board of Directors and its determination shall be final and binding on the Corporation and Grantee.

 

12. **Notices.** All notices hereunder shall be in writing and, if to theCorporation, shall be delivered personally to the Chairman or mailed to the Corporation’s principal office at P.O. Box 1000, Blountsville, Alabama 35031, addressed to the attention of the Chairman; and if to Grantee, shall be deliveredpersonally or mailed to him at the address for Grantee found in the Corporation’s records. Such addresses may be changed at any time by notice from one party to the other. 

 

13. **Binding Effect.** This Agreement shall bind and inure to the benefit of the parties hereto, the successors and assigns of theCorporation and the person to whom the rights of Grantee are transferred by will or the laws of descent and distribution. 

 

14. **Amendment.** This Agreement may be amended from time to time by the Board, but no such amendment shall impair the rights of the Grantee without theGrantee’s consent. 

 

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

 
COMMUNITY BANCSHARES, INC.By: 
/s/ William H. Caughran
  William H. Caughran  General Counsel
 
WITNESS:  GRANTEE:
/s/ Carol Murcks
  
/s/ Patrick M. Frawley
   Patrick M. Frawley
 

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