SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Relense Agreement C'Agreement") is made by, between, and among 

the following undersigned parties: 

The Plaintiff, Federal Deposit Insumnce Corporation as Receiver for Mcintosh 

Commercial Bank ("FDIC~R"). and Defendants John H. Burson, Ill, MD., Lawrence M. 

Alligood. M.D., Ronnie H. Jordan. Robert B. Pitts, M.D., Dcne M. Schoemer, WilJiam H. 

Gafford, Jr., Marvin Kennedy, and Jan P. Teal (collectively the "Settling Defendants") 

(individually, the PDIC·R and the Settling Defendants may be referred to herein as "Party" and 

collectively as tbe "Parties,.). 

RECITALS 

WHEREAS: 

Prior to March 16, 2010, Mcintosh Commercial Bank ("Bankn) was a depository 

institution organized and existing under the laws of the state of Georgia; 

On Mat·ch 26,2010, the Georgia Department of Banking and Finance closed the Bank 

and, pursuant to 12 U.S.C. § 1821(c)~ the Federal Deposit Insuran~e Corporation was appointed 

Receiver. In accordance with 12 U.S.C. § 182l(d), the FDIC·Rsuccceded to all rights, titles, 

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

Among the as~ets to which the FDIC·R succeeded were all of the Bank's claims;. 

demands, and causes of action against the Bank •s fonner directors, officers, and employees 

arising from the perfonnance, nonperformonce, and manner of performance of their respective 

functions, duties, and acts os directors, officers, and employees of the Bank; 

On March 14. 2014, 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 

Bank. Those claims for damages at-e now pending in the United States District Court for the 

Northern District of Georgia in FDIC as Receiver for Mcintosh Commercial Bank v. Burson, e1 

al., Case 3:14-cv..00033·SCJ ("0&0 Action"). The Settling Defendants have denied liability in 

the D&O Action. 
The Bank carried a directors' and officers' liability policy for the period October 21, 

2006 to October 21, 2009 ("Policy.,), by which the insurer ("Insurer.,) insured the directors and 

officers of the Bank according to the tenns, provisions, and conditions of the Policy. The 

Settling Defendants asserted claims for coverage under the Policy. 

The undersigned Parties deem it in their best interests to enter into this Agreement to 

avoid the uncertainty and expense of further litigation. 

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

releoses stated herein, the sufficiency of which consideration is hereby acknowledged, the 

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

SECTION I: Payment to FDIC-R 

A. As an essential covenant and condition to this Asreement, on or before ten (1 0) 

business days following the date on which both (i) all Parties have executed this Agreement and 

delivered same to htsurer and (ii) the FDIC-R has provided to the Settling Defendants and 

Insurer aU necessary payment instructions and a completed Form W-9 acceptable to the Insurer, 

the Settling Defendants jointly and severally agree to cause the. Insurer to pay the FDIC-R the 

sum of$3>258,269.23 ("the Settlement Payment"). 

B. The Settlement Payment to the FDIC-R shall be made by direct wire transfer into 

an acc:ount designated by the FDIC·R by notice to the Settling Defendants and htsurer. The 

FDIC-R shall provide all necessary payment instructions no later than five days after full 

execution ofthis Agreement by all Parties. 

C. Subject to and without waiving the requirements set forth in Section I.A above, if 

the·FDJC·R does not receive the Settlement Payment on or before the date determined by 

Section J.A above, then the FDIC-R, in its sole discretion, shall have the right at any time prior to 

receipt of the Settlement Payment to: 

L. Extend the period of time for the Settlement Payment; or 

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

jurisdiction in the United States District Coutt for the Northern District of Georgia; or 

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3. Terminate the Agreement, and proceed with the 0&0 Action; and/or 

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

Ariy 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 prejudice the· FDIC·R·s rights to take 

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

Settlement Payment in full. 

SECTION II:.Stipulation and Dismissal · 

Within ten business days after the latter of (1) full elCecution of this Agreement by all of 

the Parties, and (2) receipt of the Settlement Payment, the FDIC-R shall tile a stipulation of · 

dismissal with prejudice, executed by the attorneys for all Parties hereto, in the form attached 

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

SECTION ID: Releases 

A. The FDIC~R's Releases. 

Upon t'Cccipt of the Settlement Payment in full as provided in Section I, 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 rcsix:ctive heirs, executot•s, trustees, 

administrators, representatives, successors, and assigns, from any and a11 claims, demands, 

obligations, damages, actions, and causes of action, direct or indirect, in law or in equity, 

belonging to t~ FDIC-R, that arise from or relate to the performance, nonperformance, or 

manner of performance of the Settling Defendants' respective functions, duties, nnd actions as 

employees, officers lltldlor directors of the Bank. including without limitation all matters alleged 

or asserted in the D&O Action •. 

B. The Settling Defendgnts' Release. 

Effective simultaneously with the release granted in Section TII.A above, the Settling 

Defendants, on behalf of themselves individually, and their respective heirs, executors, trustees, 

administrators, agents, representatives, attorneys. successors, and assigns. hereby release and 

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

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successors, and assigns, from any and all claims, demands, obligations, damages, 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 manner of perfonnance of the Settling Defendants' 

respective functions, duties, and actions as officers ondlor directors of the Bank, including 

without limitation the causes of action oiJeged in the D&O Action. 

C. Ex.centions from Releases by FDIC-B. 

l. Notwithstanding any other provision of this Agreement, the FDIC-R does 

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

been executed, any clnims or causes of action: 

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

liability, if any, incurl'ed as the maker, endorser, or auarantor of any promissory note or 

indebtedness payable or owed by them to th!: FDIC-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 Bank or any person or entity other than Bank; and 

b. Against any person or entity not expressly re1ensed by the FD IC-R 

in this Agreement. 

2. Notwithstanding any other provision ofthis Agreement. nothing in this 

Agreement 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 diminishing ability to institute administrative enforcement 

or other proceedings seeking removal, prohibition, or any other relief it is authorized to seck 

pursuant to its supervisory or regulatory authority against any person. 

3. Notwithstanding any other provision of this Agreement, this Agreement 

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

States tbl'ough the Department of Justice •. the United States Attorney's Office for any federal 

judicial district, or any other department or agency of the United States os defined by 18 U.S.C. 

§ 6. In addition, the FDJCwR specifically reserves the right to seek court ordered restitution 

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

and 3663 ~ ~ .• if apprQpriate. 

SECTION IV: Waiver ofDMdends and Proceeds from Litigation 

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

holdins company and by virtue thereof are or may be entitled to a dividend, payment, or other 

distribution upon resolution. of the receivership of the Bank or proceeds in any litigation that has 

been or could be brought against the Federal Deposit Insurance Corporation in any capacity or 

against the United· States based on or arising out of, in whole or in ~art, the closing ofth~ Bank, 

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

the United States government, or any ageney or department of the United States government in 

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

knowingly assign to the FDIC·R any and all rights, titles, and interest in and to any and aJt such 

dividends, payments, other distributions, and proceeds. 

SECTION V: Represen•atioos and Ac:knowlcdgements . 

A. Authorized Siinatories. All of the undersigned persons represent and warrant that 

they arc Parties bereto 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 shalt be binding upon and inure to the benefit of the 

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

successors, and assigns . 

. · B. Advice of CounseL Each Party hereby acknowledges thot he, she, or it has 

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

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

SECTION VI: Roasonable Cooperation 

The Parties agree to cooperate in good faith to effectuate oil the tenns and conditions of 

this Agreement1 including doing, or causing thejr agents and attorneys to do, whatever is 

reasonably necessary to effectuate the signing, delivery, execution, filing, recording, ond entry of 

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any doc~Jments necessary to conclude the 0&0 Action, and to otherwise perform the tenns of 

this Agreement. 

SECTION VII: Other Mattns 

A. No Admission ofLiabilit)!. The undersigned Parties each acknowledge 2Uld agree 

· that the matters set forth in thiS Agreement constitute the 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 sholl not be offered or 

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

B. Execution in Counlemarts. This Agreement may be exccutc.d in counterparts by 

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

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

counterpart, upon execution and delivery, shalJ be deemed a complete original, binding Ute . 

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

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

· according to the laws of the Smte of Georgia. 

D. ffi:!Ucss. Any notiees.rcquircd hereunder shall be sent by registered mail, first 

. claSs, return receipt requested, and by email, to the following: 

lfto the FDIC-R: · 

(b)(6) --

Robert J. Gibson 

Counsel, Federal Deposit Insurance Corporation 

1601 Bryan St. 

BNG-35002 

DaJlas, TX 75201 

--··-··· .. 

and 

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

Joyce Gist Lewis 

SHINGLER LEWIS LLC 

1230 Peacht,ree Street, NE. 

Suite 1075 . 

Atlanta, Georgia 30309 

m fL...-_•••••••••••••••••••-•••••••••••••••••••••••• - -----1 

lfto the Settling Oefendants.Burson, Alligood, Jordan, Pitts, Schoemer, and T~l: 

James B. Manl.ey, Jr. 

Jill C. Kuhn 

DENTONS US .LLP 

, 303 Peachtree .Street, NB 

Suite 5300. 

(b)(6) ---·· ................................... _ 

Atlanta, Georgia 30308 

:! ················-- . . ... '( 

(b)(6) 

If to the SettJing Defendants Oafford and Kennedy: 

Barry D. Hov.is 

Catherine M. Lee · 

MUSICK, PEE[.,ER & GARREIT LLP 

601 California Street, Suite 1250 

Son Francisco, CA 94 I 08 

James E. Connelly 

Womble Cadyh~ Sandridge & Rice, LLP 

271 17th Street, NW 

Suite2400 

Atlanta, GA 30363-1017 

I ····································I····· ................................. ............ . .................................. (b)(6) . - .................................. ........... . . I 

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

agreement and understanding between and among the undersigned Parties concerning the maUcrs 

set forth herein and supersedes any prior agreements or understandings. This Agreement may 

not be 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 nttomey(s) or other 

representative(s ). 

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

are for convenience only and shall not affect the interp1-ctation of this Agreement 

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(b)(6) 

(b)(6) 

G. No ConOdcntinllty. The undersigned Par1ies acknowledge thttt this Agreement 

shall not be cotlfidemlnJ, nttd nothing in this Agl'ccanent prohibits the FOIC-R o•· the ~euling 

Defendnnls fi·om disclosing its limns. 

lN WITNESS WHEREOF, the Pooics hereto hnve cQused this Agreement to be executed by 

each of them ot• thek duly authorized t·epl'csontntives on the datos bcreinuftet· subscribed. 

Dole:-------

Dnte: -------

fEDERAL DEPOSIT INSURANCE CORPORATION AS 

RBCmVER. fOR MCINTOSH COMMBRCIAI.. BANK 

;;I"=== ··············,...,::_····················-H:_···················-······~~-______J~ TITLE: Counsel 

PRINT NAME~\r·v± '3" " 

Lawrence M. Alligood, M.D. 

Ronnie H. Jordan 

a 
(b)(6) 

0. No Confidcntioli()•. n1e undcrsigtled Pot1ies acknowledge that this Agt'Cetnent 

shnll not be confidential, and nothing In this Agreement prohibits the FDIC-R OJ' the Settling 

Defendants 1\-om disclosing its tenns. 

IN WITNESS WHEREOF, the Patties hereto have oau11ed this Agroo1~ent to be .executed by. 

each of the1u or theia· duly authorized t-eprcscnrnti vcs on the dates hct·elnuf\er subsct·ibcd. 

Date: ______ _ 

Date:-------

Date: 

Oat~:-------

FEDBRAL DEPOSIT INSURANCE CORPORA TlON AS 

RECEIVER. POR MCINTOSH COMMeRCIAL BANK 

BY: ______________________ __ 

TITLB: Counsel 

PRINTNAMB: ------------

John 1·1~ Bunron,IU, M.D. 

Lawrence M. Alligood, M.D. 

Ronnie H. Jordan 

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0, No CvuOd!JnHuli!y. The undot'BIGncd Pa11les acknowledge lhar Ibis Agreement 

shall not be confidenlllll, end nothing In Jhls Agreement p(ohlbits lho F'OIC~R or the Sot111ng 

D~rendaJ\tS fi•om d!sciO~~n8 itS lerms, 

, . 

lN WITN13SS WHHREOF, the Pat1fes hereto have caused this Asrccment to be cxecutod by 

ooch of them <lt'lhelr duly aulhorlzed rcproacntt~tlve.s on ~e dates hcrclnRI\er :mbsorlbcd. 

Dlltc: -------

Dille:_ 

Du(e: -------

Dane: (b)(6)_~ ----.. 

FEDeRAL OBPOSIT JNSURANCe CORPORA TlON AS 

RECEIVER. FOR MCINTOSH COMMERCIAL BANK 

BY: 

TITLE: Counsel 

PRlNTNAME: --------__ ...., 

John II. 8ursntl,111, M.D. 

Lawrcn~ M. Alligood, M.D. 

-----------·------....__ ........ ··--···--···- ······· 

ll 
(b)(6) ·~ ~~~ (, f / r RollQ18, PIUB.M.D. , 

. ---- ------~ ~---. 

-

Ot1tc: ------- Done M. Schoei'TlCr 

Dole:------- William It Onfford. Jr. 

Dote:------- Mtu·vln Kennedy 

Date:------- Jnn P. Tcnl 

9 
O

nte: ------- Robcrl B. Pita, 

M.D. 

(b)(6) 

tohvlr~ . ( l () l>cnc M. Sch06ri\Cr 

Onto: William I-I. Gafford, 

Jr. i 

. :· 

, . 

: I 

I 

I 

Dntc: 

Murvi11 Kennedy l 

I 

I 

Jan P. Tcnl 

I 

J)gtc: I ' 

I 

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Date:------- Robert B. Pitts, M.D. 

Date: ______ _ Denc M. Schocmcr 

William H. Gafford, Jr. 

(b )(6) .................. ................ ............................................................ I - - - ·······················-

~----------------------~ 

Date: ______ _ Marvin Kennedy 

Date: ______ _ Jan P. Teal 
(b )(6) 

Date: Robert B. Pitts, M.D. 

Date: Dene M. Schoerner 

Date: William H. Gafford, Jr. 

Date: lo -3 0- 2.t.:}J ·r Marvin Kennedy 

................................................................................................................. -... ........................ ......... ! 

L.··_······_·······_······_· ······_············ _ ·_········· _ _············· _ _·······_······_·······_·······_· --....-----____J 

Date:--------

i 

Jan P. Teal 

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Dote: ______ _ 

Dule: -------

Dntc: ______ _ 

Dote:-------

Dntci /OJJIJJ dO/f) 

(b)(6 -- ' _ ' ~--

Robert B. PIUs, M.D. 

Dane M. Schoen,er 

Will hun H. Onfford~ Jr. 

M.lll'vln Kennedy 

Jan P. Teal 

J _ i ············································- ~------------------~ 

j. 

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