SJt:TTLI.!~MRNT AND HEJ .EASE AGIHt:lt:MRNT 

This Settlement and Release Agreement ("Agreement'') is made by, bel ween, and among 

the following undersigned parties: 

The Plaintiff Federal Deposit Insurance Corporation as Receiver for Century Bank, 

Federal Savings Dank, Sarasota, Florida ("FDIC-R"), and Barry W. Horescue ("Florcscue"), 

John P. O'Neill ("O'Neill"), Stanley Kreitman ( .. Kreitman"), Charles W. Micrsch ("Miersch"), 

and James M. Nickerson ("Nickerson") (collectively the "Settling Defendants"). Individually, 

the FDIC-R and the Settling Defendants may be referred to herein as "Party" and colkctively as 

"Parties". 

WHEllliAS: 

Prior to November 13, 2009, Century Bank, Federal Savings Bank, ("Bank") was a 

depository institution organized and existing under the laws of Florida; 

On November 13, 2009, the Office of Thrift Supervision («OTS") closed the Bank and 

pursuant to 12 U.S.C. § 182l(c), the .Fctkral Deposit Insurance C01·poration was appointed 

Receiver. In accordance with 12 U.S.C. § l 82l(d), the FDIC-R succeeded to all rights, titles, 

powers and privileges of the Bank, including those with respect to its assets. 

Among the assets to which the FpiC-R succeeded were all of the Bank's claims, 

demands, and causes of action against its fmmcr directors, officers, and employees arising from 

the performance, nonperfonnance, and manner of performance of their respective functions, 

duties and acts as directors, officers, and employees of the Bank. 

On November 9, 2012, the FDIC-R filed a complaint for money damages against the 

Settling Defendants, each of whom served at various times as a director and/or officer of the 

12527761v9 22461-0041 
Bank. Those claims for damages are now pending in the United States District Court for the 

Middle District of Florida, Tampa Division, in Federal Deposit Insurance Corporation, as 

Receiver for Century Bank, Federal Savings Bank v. Barry M Florescue, eta!., Case No. 8:12-

cv-02547-JSM-TBM ("D&O Action"). The Settling Defendants have denied any and all 

allegations of negligence, gwss negligence, or liability of any kind in the D&O Action. 

The SettJing Defendan1s were issued a director and officer liability policy for the period 

FeblUary 5, 2007, to February 5, 2010 ("Policy"), which insured the directors and officers of the 

Dank according to the terms, provisions, and conditions of the Policy. The Settling Defendants 

asset1ed claims for coverage under the Policy. 

The undersigned Pa1ties acknowledge this is a settlement of disputed claims and defenses 

and deem it in their best interests to enter into this Agreement to avoid the unce11ainty and 

expense of further litigation. 

NOW, THEREFORE, in consideration of the promises, undertakings, payments, and 

releases stated herein, the :mfficicncy of which consideration is hereby acknowledged, the 

undersigned Parties agree, each with the other, as follows: 

SECTION 1: Payment to FDIC"R 

A. As an essential covenant and condition to this Agt·ccmcnt, on or before twenty-one 

(21) calendar days following December 29, 2014, the Settling Defendants, jointly and severally, 

agree to pay to the FDIC-R the sum ofl~ivc Mi!Jion und 00/100 dollars ($5,000,000.00) ("the 

Settlement Payment"). 

\ 

B. The Settling Defendants shall deliver the Settlement Payment to the FDIC-R by direct 

wire transfer into an account designated by the FDIC-R by notice to the attorneys for the Settling 

Defendants. 

2 

125277Glv9 22461-0041 
C. If the Fl>IC-R does not 1·eceive the Settlement Payment in full on m· before January 

19, 2015, then the l''DJC-R, in its sole discretion, shall have the right at any time prior to receipt 

of the Settlement Payment in full (including all accmed interest) to: 

1. Extend the period of time for the Settlement Payment, including interest 

accruing from the date dctcnnined by subsection A above, tlu·ough the date of payment at a rate 

calculated in accordance with 26 U.S.C. § 6621(a)(3); or 

2. Enforce this Agreement, in which event the Settling Defendants ugrcc to 

jurisdiction in United States District Court in l1lorida and to pay all of the FDIC-R's reusunable 

attorney's fees and costs expended in enforcing the te1ms of this Agreement; Ol' 

3. Terminate the Agreement, move to vacate any dismissal order, to which 

the Settling Defendants agree to consent, and re-institute an action on the FDIC-R's claims. The 

Settling Defendants further agree to waive any defense based on any stututc of limitations that 

would bar any of the FDIC-R's claims and waive all objuctions, defenses, claims or 

counterclaims, and covenant and agree not to assert any objections, defenses, claims or 

counterclaims thut did not exist or were otherwise unavailable as of the date this Agreement wus 

fully executed; and/or 

4. Seek any other relief available to it in Jaw or equity. 

Any extension of time under Section I.C.l for delivery of the Settlement Payment or 

acceptance of a portion of the Settlement Payment shall not pre:iudicc the FDIC-R's rights to take 

any of the actions set forth in Section I.C.2 through I.C.4 at any time prior to receipt of 

Settlement Payment (including all accmed interest) in full. 

3 

12527761v9 22461-0041 
SECTION II: Stipu1ntion nnd Dismissal 

Within ten business days after the latter of (l) full execution of this Agreement by all of 

the Patties, and (2) receipt of the Settlement Payment, plus any accrued interest, the FDIC-R 

shall lile a Joint Motion for Dismissal with Prejudice, executed by the attorneys for all Parties 

hereto, along with a proposed Agreed Order of Dismissal with Prejudice, in the f01ms attached 

hereto ns Exhibit A, in the D&O Action. 

SECTION Ill: Relenses 

A. The FDIC::R's Releases. 

Upon receipt of the Settlement Payment in full and except as provided in Section III. C., 

the FDIC-R, for itself and its successors and assigns, hereby releases and discharges the Settling 

Defendants, and their respective heirs, executors, trustees, administrators, representatives, 

insurers, successors, and assigns, from any and all claims, demands, obligations, damages, 

actions, and causes of action, direct or indirect, jn law or in cqllity, belonging to the FDIC-R, that 

arise from or relate to, the performance, nonperformance, or manner of performance of the 

Settling Defendants' respective functions, duties and actions as officers and/or directors of the 

Bank including without limitation the claims alleged, or that could have been alleged, in the 

D&O Action. 

B. The Settling Defendants' Release. 

Effective simultaneously with the release gl'anted in Section III.A. above, the Settling 

Defendants, on behalf of themselves individually, and their respective heirs, executors, IJ.ustees, 

administrators, agents, representatives, attomcys, insmers, successors, and as~igns, hereby 

release and discharge the FDIC-R, and its employees, officers, directors, representatives, 

attorneys, successors and assigns, from any and all claims, demands, obligations, damaees, 

4 

1252776 lv9 22461-0041 
actions, and causes of action, direct or indirect, in law or in equity, that arise from or relate to, 

the Bank or to the performance, nonperformance, or mmmcr of performance of the Settling 

Defendants' respective functions, duties and actions as oilicers and/or directors of the Bank 

including without limitation the claims alleged, or that could have been alleged, in the D&O 

Action. 

C. E.~~eP.tions f~om Rdcnses b_y.)?DIC-R. 

1. Notwithstanding any other provision of this Agreement, the FDIC-R docs 

not release, and expressly preserves fully and to the same extent as if this Agreement had not . 

been executed, any claims or causes of action: 

a. Against the Settling Defendants or any other person or entity for 

liability, if any, incurred as the maker, endorser or guarantor of any promissory note Ot' 

indebtedness payable or owed by them to ¥DIC-R, the Bank, other financial institutions, or any 

other person or entity, including without limitation any such claims acquired by FDIC~R as 

successor in interest to the Dank or any person or entity other than l3ank; and 

b. Against any person or entity not expressly· released by the FDIC-R 

in this Agreement, including but not limited to attorney Mark J. I .ongo, the law firm of nlock & 

Longo, P.C. (:f/k/a Dlock Colucci & Longo, P,C.), and their insurer(s). 

2. Notwithstanding any other provision of this Agreement, nothing in this 

Agt·ecmcnt shall be construed or interpreted as limiting, waiving, releasing, or compromising the 

jurisdiction and authority of the Federal Deposit Insurance Corporation, in the exercise of its 

supervisory or regulatory authority or to diminish its ability to institute administrative 

enforcement or other proceedings seeking removal, prohibition, or any other relief it is 

authol'ized to seek pursuant to its supervisory or regulatory authority against any person. 

5 

17..527?61 v9 224 61·0041 
3. Notwithstanding any other provision of this Agreement, this Agreement 

does not purport to waive, ot• intend to waive, any claims that could be brought by the United 

States through the Department of Justice, the United States Attorney's Office for any federal 

judicial district, or any other depmtment or agency of the United States as defined by 18 U.S.C. § 

6. In addition, the FDIC-R specifically reserves the right to seek court-ordered restitution 

pursuant to the relevant provjsions of the Mandatory Victims Restitution Act, 18 U.S.C. §§ 3322 

and 3663 Y.t, seq., if appropriate. 

D. Express Reservation of Rights ofBond C_arriet:. 

1. Notwithstanding any other provision of this Agreement, nothing in this 

Agreement shall release or prejudice the rights of St. Paul Mercury Insmance or any other 

underwriter of any financial institution bond, fidelity bond, or banker's blanket bond on which 

the Bank is an insured, to bt·1ng any claims by way of subrogation to the claims of the FDIC-R, 

against (a) any directors, officers, or employees of the Bank, including but not limited to the 

Settling Defendants, in their capacities as directors, officers, or employees of the Bank or in any 

other capacity, or (b) any other individual or entity. 

2. Nothing herein shntl be construed to admit the existence of, or to establish, 

any claim or cause of action on the part of St. Paul Mercury Insurance or any other bond 

underWl·iter by way of subrogation to claims of the FDIC-R, that would not exist had this 

Agreement not been executed. 

SECTION IV: Waiver of Dividends aucl Proceeds fl'om Litigation 

To the extent, if any, that Settling Defendants arc or were shareholders of the Bank or its 

holding company and by vhtue thereof are or may be entitled to a dividend, payment, or other 

distribution upon resolution of the receivership of the Dank or proceeds in any litigation thut has 

6 

12S27761v9 22461·0041 
been m· could bo brought against the Federul Deposit Insurance Corporation in any capacity or 

against the United States based on or arising out of, in whole or in pat1, the closing of the Btmk, 

or any alleged acts or omissions by the Federal Deposit Insurance Corporation in any capacity, 

the United States government, or any agency or dcpat'tment of the United States govcmment in 

connection with the Bank, its conservatorship, or receivership, Settling Defendants hereby 

knowingly assign to the }'DIC-R any and all rights, titles, and interest in and to any and all such 

dividends, payments, or other distributions, m· proceeds. 

SECTION V: Rcprcsenh1tions and Aclmowlcdgcments 

A. Au~horized Signatories. All of the undersigned persons represent and warrant that 

they are Patties hereto or are authorized to sign this Agreement on behalf of the respective Party, 

and that they have the full power and authority to bind such Party to each and every provision of 

this Agreement. This Agreement shall be binding upon and inure to the benefit of the 

undersigned Parties and their respective heirs, executors, trustees, administrators, representatives, 

successors and assigns. 

B. A<\yicc of Counsel. Each Patty hereby acknowledges that he, she, or it has 

consulted with and obtained the advice of counsel prior to executing this Agreement, and that 

this Agreement has been explained to that Party by his or her counsel. 

SECTION VI: Reasonable Cooperation 

A. The Patties agree to cooperate in good fuith to effectuate all the ierms and 

conditions of this Agreement, includjng doing, or causing their agents and attomcys to do, 

whatever is reasonably necessary to effectuate the signing, delivery, execution, filing, recording, 

and entry, of any documents necessary to conclude the D&O Action, and to otherwise perform 

the tetms of this Agreement 

7 

1252776lv9 2?.461 -004 1 
B. The Settling Defendants agree to cooperate fully with the FDIC-R in connection 

with any action required under this Agreement. Such cooperation shall consist of: 

1. Producing all doc11ments requested by the FDfC-R, without the necessity 

of subpoena, as determined by the FDIC-R, in its sole discretion, to be relevant to the Dank; 

2: Appearing as requested by the FDIC-R at reasonable times and places for 

interviews regarding facts, as determined by the FDIC-R in its sole discretion, to he relevant to 

the Bank; 

3. Testifying as requested by the FDIC-R, without the necessity of a 

subpoena, in any matter relevant to the Bank, as detennincd by the FDIC-R; 

4. Signing truthful affidavits, regarding any matter, as determined by the 

FDIC-R in its sole discretion, to be relevant to the Bank. 

SECflON VII: Other Matters 

A. No Adm~ssion ofLiability. The undctsigncd Parties each acknowledge and agree 

that the matters set forth in this Agreement constitute tho settlement and compromise of disputed 

claims and defenses, that this Agreement is not an admission or evidence of liability or infirmity 

by any of them regarding any claim or defense, and that the Agreement shall not be ofiercd or 

received in evidence by or against any Party except to enforce its terms. 

B. Execution ll ounterp_fllt~. This Agreement may be executed in counterpmts by 

one or more of the Parties and all such counterparts when so executed shall together constitute 

the final Agreement, as if one document had been signed by all Parties; and each such 

counterpart, ttpon execution and delivet'Y, shall be deemed a complete original, binding the 

Parties subscribed thereto upon the execution by all Parties to this Agreement. 

8 

1152776 lv9 22461-0041 
(b)(6) 

(b)(6) 

(b)(6) ............ 

(b)(6) ........... 

C. Choice of Law. This Agreement shall be interpreted, construed and enforced 

according to applicable federal law, or in its absence, the laws of the State of Florida. 

D. Notices. Any notices required hereunder shall be sent by registered mail, first 

class, retum receipt requested, and by email, to the following: 

If to the FDIC-R: 

If to the Settling Defendants: 

Darry M. Plorcscue 

Chal'les W. Micrsch 

12527761v9 22461-0041 

Barbara Slott Pcgg, Counsel 

Federal Deposit Insurance Corporation 

3501 N. Fairfax Dr. D7062 

Arlington, VA 22226 

Telephone: (703) 516-5273 

••••••••••••••••••••••••••••lm••••••••••••••••••••••••••••••••• I 

And 

Chades B. Lee 

Miller & Mmtin PLLC 

Volunteer Building 

832 Georgia A venue, Suite 1000 

Chattanooga, TN 37402 

Telephone: (423) 756-6600 •••••••••••••••••••••••••••lm••••••••••••••••••••••••••••••••••••••••••••••• I 

John E. Johnson 

Christopher L. Decort 

Johnson & Cassidy, P.A. 

324 S. Hyde Park A venue, Ste .. 325 

Tampa, Florida 33606 

Telephone: (813) 699-4859 

11acsimilc: (813) 235-0462 I m •• ~~ 

And 

9 
(b)(6) 

(b) 

If to the Settling Defendants: 

Stanley Kreitman 

James Nickerson 

Ross A. Nabatoff 

Brand J ,aw Gro-up 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 662-9700 

Facsimile: C::W2) 737-7565 

-1-----

Charles Wachter, Esq. 

Charles L. Stutts, Esq. 

Anthony J. Palermo, Esq. 

Holland & Knight, LLP 

100 N. Tampa Street, Ste. 4100 

Tampa, Florida 33602 

Telephone: (8 13) 227-8500 

f~~f~~ ................................... ::.. . .... . ................................................ ,_ •....... 

(b)(6) 

If to the Settling Defendant: 

John O'Neill 

Martin D. Woods 

Steams Weaver, et al. 

200 E. Las Olas Blvd., Ste. 2100 

Fort Lauderdale, Florida 33301 

Telephone: (954) 462-9500 

- ------------------11·-----

E. Entire Agreement and Amendments. This Agreement constitutes the entire 

agreement and understanding between and among the undersigned Patties concerning the matters 

set forth herein and supersedes any prior agreements or understandings. This Agreement may not 

he amended or modified, nor may any of its provisions be waived, except in writing signed by 

the Parties bound thereby, or by their respective ·authorized attomey(s), or other 

representative( s). 

F. Titles .. ~QQ...Captions. All section titles and captions contained in this Agreement 

are for convenience only and shall not affect the interpretation of this Agreement. 

10 

12S27761v9 22161 -0041 
G. No G9nfidcntialijy. The undersigned Parties acknowledge that this Agreement 

shall not 9e confidential and will be disclosed pursuant to the Federal Deposit Insurance 

Corporation's applicable policies, procedtu·es, and other legal requirements. 

IN WITNESS WHEREOF, the Patiios hereto have caused this Agreement to he executed 

by each of them or their duly authorized representatives on the dates hereinafter subscribed. 

FEDERAL DEPOSIT fNSURANCE 

CORPORATION AS RECEIVER FOR CENTURY 

BANK, FED L SAVINGS BANK 

(b)(

6

)_ ---=D=-- atc-: tfl;. tf4 ;nar~-' --------1.-= -.,..._.._-__,...,..-.J. -----·-

Date: 

Date: 

Date: __ _ 

Date: __ _ 

1252776Jv9 22461·0041 

BY: ____ _ 

BatTy M. Florescue 

TITLE: _____ _ _ _ 

PRJNT NAME: --· .---

SETriJNG DEFENDANT: 

BY:---··-·· ------- ___ _ Charles W. Micrsch 

TJTJ,E: --- - - ---- - - -- PRINT NAME: - - --------

SETIUNG DEFENDANT: 

RY: _____ _______ _ _ _ _ 

Stanley Kreitman 

TITLE: ___ _ _ 

PRINTNAME: --- -------

SEITLING DEFENDANT: 

BY: 

James M. Nickerson 

TITLE:-------- - - PRINT NAME: 

II 
(b)(6) . 

G. No Confidentiality:. The undersigned Parties acknowledge that this Agreement 

shall not 9e confidential and will be disclosed plll'suant to the Federal Deposit Jnsurance "'- ~ ... 

Cotporation's appli~able policies, pl'OcedurOl!. and other legal tequirements. 

IN WITNESS WHEREOF. the Parties hereto have caused this Agreement to be execut~d 

by each ofthe.m. or their duly ro.tthorized representatives on the dates hereinafter subsw'bed. 

Dato: 

Date:-------

Date: ___ _ __ _ 

Date: _____ _ _ _ 

1~$~776Iv!l 22461·0041 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR CENTURY 

BANK, FED L SAVINGS BANK 

arry 

TITLE: -----,-q"----:---=...-----­ PRlNTNAME: ?nffi-1 w~ rF~reS'-~'~ 

SBITLING DEFENDANT: 

BY: 

· -C-h~-1-es-W--.M~i~s-~----------------

TITLE: 

PruNTN-AME--~.-. --------------~----

SETI1JNG DEFENDANT: 

BY; ______ ~--~--------------- Stanley Kreitman 

TITLE: ___ ~------

P~NAME: _ _ ______ ----

SEITLING DEFENDANT: 

BY: _________________ __ 

James M. Nickerson 

TITLE: -----------­

PRlN'fNAME: ---- --~-

11 
G. H,o Conf.1~entiality. The lmdersigned Parties acknowledge that this Agreement 

' 

shall not ~e confidentiai and will be disclosed pursuant to the Federal Deposit Insurance 

Corporation's applicable Policies, procedures, and other legal requirements. 

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed 

by ench of them or their 4uly authorized representatives on the dates hereinafter subscribed. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECE1VER FOR CENTITRY 

J3ANK, FED SAVINGS BANK 

(b)(6) ____ 

Date: Jib, ~w. 

(b)(6) 

I 

Date;~-----"--

Date: s;~ 1s: ................................ , ........ 

i 

j 

I 

Date:--~-----

Date:--~------

12!5Z776Iv? 22461-0041 

BY: _______________ ~----

Barry M. Florescue 

TITLE: _ __ _ 

P~NAME:~------------------

SE1TLING-DE.FENDANT: 1J 

~y:-~ .................... : : I 

Charles W. Miersoh 

TITLE: .. ·-- ~;-:-::-:--:---:-__, -,-----.-- PRINT NAME: ffi/1£af.$ fv, !itldiZSC/J 

SETILING JJEl".H.NDANT: 

BY; ________________________ ~--

Stanley Kreitman 

TITLE: 

PRThiTNAM£ --~·:----------~-------

SETILJNO DEFENDANT: 

BY ----~~---~----~-------- James M. Nickerson 

TITLE: 

PruNTNAME ----: -------------------

11 
G. No. Confidentiality. The undersigned Parties acknowledge that this Agreement 

shall not be confidential and will he disclosed pursuant to the Federal Deposit 1nsurancc 

Corporation's applicable policies, procedures, and other legal requirements. 

IN WITNESS WHEREOF, the Pat1ics hereto have caused this Agreement to be executed 

by each of them or their duly authorized representatives on the dates hereinafter subscribed. 

Date: ________ _ 

Date:_____ __ 

Date: ---· ··-

1252776lv9 22461-0041 

SETl'LING DEFENDANT: 

BY: ---.. - -·-------

Barry M. Florescue 

TITLE: . 

PRlNTNAME: ___ _ 

SETTLING DEFENDANT: 

BY: _____________________ _ 

Charles W. Miersch 

TITLE: --=-+LI--...... ------- PRINT N~u.;.....J 

BY: 

James M. Nickerson 

TITLE: 

PRINT NAMR: ----------

11 
G. No ContldentJailty. Tllc llll<l~rslgneo Yarllcs acJumwltxlgl~ tnllt 1111s 1\erecm~m 

shall not b~:: confidential and will be disclnse<i plJrSHant to thtl Ft:dt~ra\ IJcpnsit Insurance 

Co1·poration1s flpp1icablc poHcie!l, r)l'oc:edures. and otht:t legal requirements. 

IN WiTNESS WHEREOF, the Patiic~ hereto have cau11ed thJs Agreement to be executed 

by e!lch of them or their dul.y autbori:t.ed J'epresentatives on the dates hereinafter subscribed. 

FEDERAL DEPOSIT INSURANCE 

BANK. FEDJ?RAL SAVINGS BANK 

(b)(6)..... ··················································nilfii' AfJ;;::;fl :fhf1lm (Hy:_l_ . . .. .. . 1 .. __ ... ·-

Date:--... ···---------

----............. .. 

n:Jt(!: -----.. ··-----·-··-

lJntc: or . .:MtJ. ~~~ ..... (b)(6) 

•>ouumrt "'"'~• 1 "'l:!>b (,Y/ 

'UT! .E: l'oun~d f<.?r Plcintj~f- .} 

.t'.KU'l l !'UUVW: -W<t'/Jl~ Clftql JC~ 

SETTLING DEFENDAN'I': 

BY: 

TITLP.; ________ . 

Charles W. Mieisch 

--·-···· .. --·---··- -----· ·----·-·---

PRlNT NAME: . 

SETTT JN<l DEFENDANT: 

BY: ... ______ .... --·-----.. .... . ..... --

TTTU~: __ -----·-- .... -- ... ----

i"KlN l Ni~LVJC! ------·· .. ·-----.... __ _ 

TITLE:. __ ·----·---

11 
Date: - -+f....::. vo+f:J;H' _J-b-t -'{_ { 

SlJTILING DEFENDANT: 

BY:~~==~---- 4--------

12 

12527761v9 22461-0041