SETTLEMENT AND RELEASE AGREEMENT 

This Settlement and Release Agreement ("Agreement") is made by, between, and among 

the following undersigned parties: 

The Plaintiff Federal Deposit Insurance Corporation as Receiver for Alpha Bank & Trust, 

Alpharetta, Georgia (".FDIC-R"), and James A. Blackwell, Jr., Joseph L Briner, Dan E. Burge, 

Claud E. Clark, Thomas D. Daniel, Barry E. Mansell, Jack V. Miller, Jayantilal K. Patel, Robert 

E. Skeen, Til (collectively the "Settling Defendants"), and Cincinnati Insurance Company 

("Insurer") (individually, the FDIC-R, the Settling Defendants and the Insurer may be referred to 

herein as "Party" and collectively as the "Parties"). 

RECITALS 

WIIEREAS: 

Prior to October 24, 2008, Alpha Bank & Trust ("Bank") was a depository institution 

organized and existing under the laws of Georgia; 

On October 24, 2008, the Georgia Depat1ment of Banking & Pinancc closed the Bank 

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

Receiver. In accordance with 12 U.S.C. § 182l(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 FDIC-R succeeded were all of the Bank's claims, 

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

the perfonnancc, nonperformance, and manner of performance of their respective functions, 

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

On October 7, 20 l 1, the FDIC-R tiled 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 are now pending in the United States District Court for the 

Northern District of Georgia in F'DJC-R v. Blackwell et al., Civil Action No. l: 11-CV -3423 (the 

"D&O Action"). The Settling Defendants have denied liability in the D&O Action. 

The Insurer issued Financial Institutions Blue Chip Policy No . ._I ____ ...... _..)(''the ............... (0)(4.) 

Policy"), which insured the directors and officers of the Hank according to the terms, 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 

releases stated herein; the sufficiency 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 Agreement, on or before thirty (30) 

calendar days following the date this Agreement is executed by all Parties, the Insurer, on behalf 

of the Settling Defendants, agrees to pay the FDIC-R the sum of TWO MILLION and FIFTY 

TIIOUSAND DOLLARS ($2,050,000.00) ("the Settlement Payment"). 

B. On behalf of the Settling Defendants, the Insurer shall deliver the Settlement 

Payment to the FDIC-R, by check drawn on a depository institution acceptable to the FDIC-R 

which shall be sent by cet1itied mail or overnight delivery to the addressee listed below, with 

advanced email notice to the attorneys for all Parties. In the event that the Settlement Payment 

is not delivered to the FDIC-R (or its counsel) by thirty (30) calendar days following the date this 

Agreement is executed by all Parties, interest shall accrue on all unpaid amounts at the rate of 

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(b)(6},, 

5% per annum from the thirty-first calendar day following the date this Agreement is executed 

by aiJ J>arties until the date of payment. 

Settlement Payment Transmittal Information 

Payee: FDIC as Receiver for Alpha Bank & Trust 

Deliver To: Glenn A. Harris, Counsel 

Legal Division, Federal Deposit Insurance Corporation 

3501 Fairfax Drive, Rm VS-B-7026 

Arlington, VA 22226 

I .......................................................... : ................................. I 

The check or transmittal letter enclosing the check shall include the following information 

Financial Institution No: 10018 

Asset No.: None 

Re: FDIC as Receiver for Alpha Bank & Trust v. Blackwell, et al, Civil Action 

No. I: 11-CV -3423, U.S. District Court (N.D. Ga.) 

No less than ten (1 0) days before payment is due, the Fl)lC-R shaJI provide the Jnsurer with an 

executed Form W9 for the designated account. 

C. lf the FDIC-R docs not receive the Settlement Payment in full on or before the 

date required in subsection A above, then the FD.lC-R, in its sole discretion, shall have the right 

at any time prior to receipt of the Settlement Payment in full (including all accrued interest) to: 

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

accruing from the date determined by subsection A above, through 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 and 

Insurer agree to jurisdiction in United States District Court for the Nmthern District of Georgia 

and to pay all of the FDTC-R 's reasonable attorney's fees and costs expended in enforcing the 

terms of this Agreement; or 

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

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

claims. The Settling Defendants and Insurer furtber agree to waive any defense based on any 

statute of limitations that would bar any of the rDIC-R's claims and waive all objections, 

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

claims or counterclaims that did not exist or were otherwise unavailable as of the date this 

Agreement was fully executed; and/or 

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

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

acceptance of a portion of the Settlement Payment shall not prejudice the Fl)lC-R's rights to take 

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

Settlement Payment (including all accrued interest) in full. 

SECTION II: Stipulation and Dismi...sal 

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

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

shall file a stipulation of dismissal with prejudice, executed by the attorneys for all Parties 

heret<l, in the form attached hereto as Exhibit A, in the D&O Action. 

SECTION Ill: Releases 

A. The .FDTC-R's Rcleasc..c;. 

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

the FDlC-R, for itself and its successors and assigns, hereby releases and discharges: 

1. The Settling Defendants and their respective heirs, executors, trustees, 

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

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

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belonging to the FDIC-R, that arise from or relate to, the performance, nonpet·formanc~, or 

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

officers and/or directors of the Rank including without limitation the causes of action in the 

D&O Action. 

2. Insurer, its parents, subsidiaries, affiliates and reinsurers, and its and their 

respective employees, officers, directors, agents and representatives, including attorneys, 

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 Policy. As 

part of the release of the Insurer, the FDIC-R agrees that any interest that it may have under the 

Policy is extinguished. 

3. All other former din:ctors, officers, and employees of the Bank 

(collectively, the "Covered Persons") and their respective heirs, executors, trustees, 

administrators, representatives, successors, and assigns, from any and all cJaims, demands, 

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

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

manner of performance of the Covered Persons' respective functions, duties and actions as 

directors, officers and/or employees of the Bank including without limitation the causes of action 

alleged in the D&O Action. This release shall be null and void as to any Covered Person if such 

Covered Person asserts any claim against the FDIC-H ... 

B. The Settling Defendants' Release. 

Effective simultaneously with the release granted in Section liLA above, the Settling 

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

5 
administrators, agents, representatives, attorneys, successors, and assigns, hereby release and 

discharge: 

I. The FDIC-R, and its employees, officers, directors, representatives, 

attorneys, successors and ass1gns, from any and ali 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 performance of the Settling 

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

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

2. Insurer, its parents, subsidi aries, affiliates and reinsurers, and its and their 

respective employees, ofticers, directors, agents, representatives, attorneys, successors and 

assigns, from any and all claims, demands, obligations, damages, actions and causes of action, 

direct or indirect, in law or in t>quity, that arise from or relate to the Policy. 

3. Each other and each other's respective heirs, executors, trustees, 

administralors, rt:prcsentatives, attorneys, 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 D&O Action. 

C. Th~InstJx~r's Release. 

Effective simultaneously with the releases granted in Section lll.A above, Insurer, for 

itself and its successors and assigns, and on behalf of its parents, subsidiaries, affiliates and 

rt:insurcrs, and their successors and assigns, hereby releases and discharges: 

1. The FDIC-R, and its employees, officers, directors, agents, 

representatives, attorneys, successors, and assigns, from any and all claims, demands, 

6 
obligations, damages, actions, and causes of action, direct or indirect, in law or in equity, that 

arise lrom or relate to the Policy. 

2. Each of the Settling Defendants and their respective heirs, executors, 

trustees, administrators, representatives, attorneys, successors, and assigns from any and al1 

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

or in equity, that arise from or relate to the D&O Action. Nothing in this release shall affect any 

defense to coverage that the Insurer may have with respect to any claim that may be asserted 

against it in the future, if any, in connection with the Policy or otherwise. 

D. Exceptions from Releases by FDJC-R 

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

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 or 

indebtedness payable or owed by them to FDJC-R, the Hank, other financial institutions, or any 

other person or entity, including without limitation any such claims acquired by f'DIC-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 released by the FDIC-R 

in this Agreement. 

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

Agreement shall be construed or intcrprutcd 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 

7 
enforcement or other proceedings seeking removal, prohibition, or any other relief it is 

authorized to seek 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 through 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 as defined by 18 U.S.C. 

§ 6. 

4. In addition, the .FJ}IC-R specifically reserves the right to seck comtordcred restitution pursuant to the relevant provisions of the Mandatory Victims Restitution Act, 

18 U.S.C. §§ 3322 and 3663 ct seq. if appropriate. 

SECTION IV: Waiver ofl)ividcnds and Proceeds from Litigation 

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

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

distribution upon resolution of the recci vership 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 part, the closing of the Bank, 

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

the United States government, or any agency 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 all such 

dividends, payments, or other distributions, or proceeds. 

S].:CTION V: Representations and Acknowledgement 

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

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

and that they have the tull 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. 

n. Advice of Counsel. Each Party 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 

The Parties agree to cooperate in good faith to effectuate all the terms and conditions of 

this Agreement, including doing, or causing their agents and attorneys 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 terms of 

this Agreement. 

SECTION VII: Other Matters 

A. No Admission ofLiability. The undersigned Parties each acknowledge and agree 

that the matters set f011h 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 shall not be offered or 

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

B. Execution in Counterparts. This Agreement may be executed in counterparts by 

one or more of the Pa1tics 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 

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(b)(6) ... 

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

counterpart, upon execution and delivery, shall be deemed a complete original, binding the 

Parties subscribed thereto upon the execution by a ll Parties to this Agreement. 

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

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

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

class, return receipt requested, and by email, to the fo llowing; 

If to the FDIC-R: 

Glenn A. Harris, Counsel 

Legal Division, Fedeml Deposit Insurance Corporation 

3501 Fairfax Drive, Rm VS-B-7026 

Arlington, VA 22226 

.. J.......... I 

S. Paul Smith 

Jeanne Simkins Hollis 

SIMKINS HOLLTS LAW GROUP, PC 

1924 Lenox Road, NE 

Atlanta, GA 30306 

Telephone: (404) 474-2328 

Facsimile: (770) 587-0726 

I I 

Counselfor Plaintiff FDJC-R 

Ifto the Settling Defendants James A. Blackwell Jr., Joseph L Briner, Dan E. Burge, 

Claud E. Clark, Thomas D. Daniel, Barry E. Mansell, Jack V. Miller, Jayantila l K. Patel, and 

Robert E. Skeen, III: 

Kevin H . Hudson 

Mary Lillian Walker 

Hudson Parrott Walker LLC 

Fifteen Piedmont Center 

10 
3575 Piedmont Road 

Suite LIOO 

Atlanta, Georgia 30305 

(b )(6) 1 ...... ······ _____ ____. 

(b)(6) .. 

If to Insurer: 

Victor Peters 

l1eters & Nye, LLP 

14 Executive Court, Suite 2 

South Barrington, IL 600 I 0 

J .. 

-

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

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

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 attorncy(s), or other representatives. 

F. Titles and Captions. All section titles and captions contained in this Agt·eement 

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

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

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

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

IN WITNESS WI IEREOF, the Patties hereto have caused this Agreement to be executed 

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

Date: ----

' L.~ I . 

fEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR ALPHA 

BANK & TRUST /: 

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Claud E. Clark 

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Thomas D. Daniel 

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Barry E. Mansell 

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Jack V. Miller 

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Jayantilal K. Patel 

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Robert E. Skeen, ill 

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