SETTLEMENT AND RELEASE AGREEMENT 

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

the following undersigned parties: 

TI1e Plaintiff Federal Deposit Insurance Corporation as Receiver for Community Bank & 

Trust ('<fDIC~R"), and Charles M. Miller and Trent D. Fricks (collectively the "Settling 

Defendants") (the FDIC-R and the Settling Defendants may be referred to herein individually as 

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

RECITALS 

WHEREAS: 

Prior to January 29, 2010, Community Bank & Trust (''Bank") was a depository 

institution organized and existing under the 1 aws of the state of Georgia; 

On January 29, 2010, the Georgia Department of Banking and Finance closed the Bank 

and, pursuant to 12 U.S.C. § 182l(c), the Federal Deposit Insurance Corporation was appointed 

Receiver. In accordance with 12 U.S.C. § 1821 (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 ofthe Bank's claims, 

demands, and causes of action against the Bank's former directors, officers, and employees 

arising from the performance, nonperformance, and manner of performance of their respective 

functions, duties, and acts as directors, oftlcers, and employees of the Bank; 

On February 12, 2012, the FDIC-R fi led 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 Federal Deposit Insurance Corporation as Receiver of 

Community Bank & Trust of Cornelia, Georgia v. Charles A1. lwiller and Trent D. Fricks, Case 

No.2: 12-CV -42. ("D&O Action"). The Settling Defendants have denied liability in the D&O 

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

to avoid the uncertainty and expense offmther 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 ten (1 0) 

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

(ii) the FDIC-R has provided to the Settling Defendants all necessary payment instructions and a 

completed Form W-9, the Settling Defendants shall have paid on their behalf the sum of 

$3,800,000.00 ("the Settlement Payment'') to the FDIC-R. 

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

an account designated by the FDIC-R by notice to the Settling Defendants. The FDIC-R shall 

provide all necessary payment instructions no later than five days after full execution of this 

Agreement by aJI Parties. 

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

the FDIC-R does not receive the Settlement Payment on or before the date determined by 

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

receipt of the Settlement Payment to: 

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

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

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

3. Terminate the Agreement, return any Settlement Payments previously 

made, and proceed with the D&O Action; and/or 

4. Seek any other relief available to it in law 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 prejudice the FDIC-R's rights to take 
any of the actions set fotth in Section I.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 execution of this Agreement by all of 

the Patties, and (2) receipt of the Settlement Payment, the FDIC-R shall file 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 and the Parties shall join in a stipulation dismissing with 

prejudice, with all parties bearing their own fees and costs, the lawsuit captioned St. Paul 

Mercury Insurance Co. v. Charles 11-1. Miller, et al., No. 2:12-cv-225 (N.D. Ga.). 

SECTION III: Releases 

A. The FDIC-R's Releases. 

Upon receipt 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 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, 

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

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

employees, officers and/or directors of the Bank, including without limitation the D&O Action 

and all matters alleged or assetted in the D&O Action. 

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, 

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

discharge the FDIC-R, and its employees, officers, directors, 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 equity, that arise from or relate to the Bank or to 

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the perfonnance, nonperfonnance, or manner ofpetformance ofthe 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 0&0 Action. 

C. Exceptions from Releases by FDIC-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 the FDIC-R, the Bank, other financial institutions, or 

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

in this Agreement. 

2. Notwithstanding any other provision of this 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 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 Attomeis Office for any federal 

judicial district, or any other department 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 provisions of the Mandatory Victims Restitution Act, 18 U.S.C. §§ 3322 

and 3663 et ~., if appropriate. 

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SECTION IV: Waiver of Dividends and Proceeds from Litigation 

To the extent, if any, that Settling Defendants are 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 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 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, other distributions, and proceeds. 

SECTION V: Representations and Acknowledgements 

A. Authorized Sisnatories. 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 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 benetit of the 

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

successors, and assigns. 

B. 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 0 &0 Action and to otherwise perform the terms of 

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(b)(6) ... 

(b)(6).m •• 

this Agreement. 

SECTION VII: Other Matters 

A. No Admission ofLiabilitv. The undersigned Parties each acknowledge and 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 infinnity 

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

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 ofthe State of Georgia. 

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

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

If to the FDIC-R: 

John V. Church 

Counsel 

Federal Deposit Insurance Corporation 

3501 Fairfax Drive, VS-B-7056 

Arlington, Virginia 22226 

~m •• I 

and 

Steven L. Hoard 

Mullin Hoard & Brown, LLP 

500 S. Taylor, Suite 800 

Amarillo National Bank Plaza II 

Amarillo, Texas 79101 

~ m ••• I 

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(b)(6) .. 

If to the Settling Defendants: 

Robert R. Long 

Alston +Bird 

One Atlantic Center 

12 0 1 West Peachtree Street 

Suite 4200 

Atlanta, Georgia 30309 

..................................................... ! ................... 

Julie A. Lierly 

Kilpatrick Townsend 

Suite 2800 

1100 Peachtree Street NE 

Atlanta, Georgia 30309-4528 

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 amende.d or modified, nor may any of its provisions be waived, except in writing signed 

by the Patties bound thereby, or by their respective authorized attorney(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 interpretation of this Agreement. 

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

shall not be confidential, and nothing in this Agreement prohibits the FDIC-R or the Settling 

Defendants from disclosing its terms. 

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(b)(6) 

(b)(6) 

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

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

Date: 

/l ... q,. I.S 

Date:-------

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR COMMUNITY BA}..TJ<. & TRUST 

PRINT NAME: . John V. Church 

CHARLES M. M1LLER 

TRENT D. FRICKS 

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