SETTLEM.I!:NT AGREEMENT AND RELEASE 

This Settlement Agreement and Release ("AgrcemcntH) is made as of this _~tf._ day of 

February, 2014, by, between, and among the Plaintiff Federal Deposit Insurance Corporation as 

Receiver for BankFirst ("FDIC-R") and Bob D. Hutchins (the "Settling Defendant"). The FDICR and the Settling Defendant may be rcfened to herein individually as "Party" and collectively 

as the "Parties''). 

RECITALS 

WHEREAS: 

1. Prior to July 17, 2009, BankFirst ("Bank") was a state-chartered, Federal Reservemember depository institution organized and existing under the laws of the State of South 

Dakota; 

2. On July 17, 2009, the State of South Dakota, Department of Revenue and 

Regulation, Division of Banking, closed the Bank and appointed the FDIC-R as its receiver. The 

FDIC-R accepted its appointment as receiver fur BankFirst that same day. In accordance with 12 

U.S.C. § 1821(d)(2)(A)(i), the FDIC-R as receiver succeeded to all rights, titles, powers and 

privileges of the Bank, including those with respect to its assets; 

3. The Bank's assets now belonging to the FDIC-R include any and all of the Bank's 

claims, demands, and causes of actions against Settling Dett:ndants; 

4. On December 29,2006, BankFirst filed a petition seeking money damages against 

numerous parties, including without limitation the Settling Defendant. On Fcbmary 18, 2011, 

the FDIC-R was substituted for the Bank as the Plaintiff. The claims asserted in the Bank's 

petition were removed from the Supcliur Court of Fulton County to the United States District 
Court for the Northcm District of Georgia, Civil Action No. 1:11-cv-01622-AT (the "Action"). 

The Settling Defendant denies liability. 

5. The undersigned Pa1tics deem it in their best interests to enter into this Agreement 

to avoid the uncertainty, distraction, trouble, and expense of further litigation. 

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

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

·undersigned Pal1ies agree, each with the other, as follows: 

SECTION I: Payment to FDIC-R. 

A. As an essential covenant and condition to this Agreement, on or befill·e thirty (30) 

calendar days following the date the FDIC-R executes this Agreement (the "Payment Due 

Date"), the Settling Defendant agrees to pay the FDIC-R the sum of Three Hundred Fifty 

Thousand Dollars ($350,000.00) (the "Settlement Payment"). 

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

certified or cashier's check payable to "FDIC as Receiver for BankFirst" drawn upon a 

depository institution acceptable to the FDIC-R and delivered to its outside counsel, George P. 

Shingler. 

C. In the ~vent that the Settlement Payment is not delivered to the FDIC-R on or 

before the date detcnnincd by PARAGRAPH LA above, interest shall accrue from the date of 

execution of this Agreement by the FDIC-R through the date payment is received by the FDIC-R 

at a rate of five (5) per cent per annum. In addition, and without waiving any other rights the 

FDIC-R may have, in the event that the Settlement Payment is not received by the Payment Due 

Date, the FDIC-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 th{..·rcon) to (i) extend this Agreement 

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for any period of time until it receives the Settlement Payment in full (including all accrued 

interest thereon); (ii) enforce this Agreement and, in such event, the Settling Defendant agrees to 

jurisdiction in the United States District Court for the Northern District of Gt:orgia and to pay all 

of the FDIC-R's reasonable attomey's fees and costs expended in enforcing the terms of this 

Agreement; (iii) declare this Agreement null and void and move to vacate any dismissal order, to 

which the Settling Defendant shall consent, and re-institute the Action (or institute a new action) 

on the FDIC-R's claims, to which the Settling Defendant shall consent; and/or (iv) seck any 

other relief available to it in Jaw or equity. Any extension of time for delivery of the Settlement 

Payment shall not prejudice the FDIC-R's right to take other action or seek any relief during or 

afler such period of extension, including the right to terminate this Agreement or to bring an 

action to enforce the Agreement. 

SECTION Il: Stipulation and Dismissal. 

Within ten days after the latter of full execution of this Agreement by each of the Parties, 

or receipt of the Settlement Payment in full (including any interest accmed thereon), the FDJC-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. 

SECTION III: Releases. 

A. The FDIC-R's Release ofSettling_P~fcndant. 

Upon receipt of the Settlement Payment in full (including any accrued interest thereon) 

and dismissal of the Action, and except as provided in PARAGRAPH III.C., the FDIC-R, for 

itself and its employees, officers, directors, representatives, successors and assigns, hereby 

releases and discharges the Settling Defendant, and his respective employees, officers, directors, 

representatives, heirs, executors, administrators, successors and assigns, fi·om any and all claims, 

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demands, contracts, 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 allegations asscticd in the 

Action. 

B. The Settling D~fendant's Rel~as~ of the FDIC-R. 

Eficctivc simultaneously with the release in PARAGRAPH liLA above, the Settling 

Defendant, on behalf of himself individually, and his respective employees, officers, directors, 

representatives, heirs, executors, administrators, successors and assigns, hereby release and 

discharge "FDIC-R and its employees, officers, directors, representatives, successors and assigns, 

fi:om any and all claims, demands, contracts, obligations, damages, actions, and causes of action, 

direct or indirect, in law or in equity, that arise from or relate to, the Bailie 

C. Express RescrvatioQ~ fi:om Rel~ascs by FD~C-R. 

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

not release, and expressly prcs~rves fully and to the same extent as if this Agreement had not 

been executed, any claims or causes of action: 

a. against the Settling Defendant or any other person or entity for liability, if 

any, incull'cd as the maker, endorser or guarantor of any promissory note or indebtedness 

payable or owed by them to (i) the FDIC-R, (ii) the Bank, (iii) other financial institutions, 

or (iv) any other person or entity, inchtding without limitation any claims acquired by 

FDIC-R as successor in interest to the Bank or any person or entity other than the Bank; 

b. against any person or entity not expressly released by the FDIC-R in this 

Agreement; and 

c. which are not expressly released in PARAGRAPH HI.A. 

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

Agreement limits, waives, releases, diminishes or compromises the jurisdiction and authority of 

the Federal Deposit Insurance Corporation in the exercise of its supervisory or rC!:,'l.llatory 

authority to institute administrative enforcement or other proceedings seeking removal, 

prohibition, civil penalties, restitution or other relief it is authorh:~ed to seek pursuant to its 

supervisory or re!:,rulatory authority against any person. 

3. Notwithstanding any other provision, this Agreement does not waive, or intend to 

waive, any claims which could be brought by the United States through the Department of 

Justice, the United States Attomey'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. In addition, the FDIC-R 

specifically reserves the right to seck court ordered restitution pursuant to the relevant provisions 

of the Victim and Witness Protection Act, 1 X U.S.C. § 3663, et seq., if appropriate. 

SECTION IV: Waiver of Dividends And Proceeds From IJitigation. 

To the extent, if any, that Settling Defendant is or was a shareholder 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 United States based on or arising out of, in whole or in }Jart, 

the closing of the Bank, or any alleged acts or omissions by the United States government or any 

agency or department thereof in connection with the Bank, its conservatorship or receivership, 

Settling Defendant lH:~rcby knowingly assigns to the FDIC-R any and all rights, title and inttlrest 

in and to any and all such dividends, payments or other distributions, or proceeds. 

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SECTION V: Termination. 

In the event the FDIC-R exercises its right to terminate this Agreement as provided 

herein, then, for the purposes of any statute of limitations or other time-based defense to any of 

the claims of the FDIC-R, the Parties to this Agreement shall be deemed to have reverted to their 

respective status as of 5:00p.m. Eastcm Time, November 21, 2013. 

SECTION VI: Notices. 

Any notices required hereunder shall be sent by registered mail, first class, return receipt 

requested, and may also be sent by email, to the following: 

If to the FDIC-R: 

George P. Shingler, Esq. 

Shingler Lewis LLC 

1230 Peachtree Street, N.E. 

Suite 1075 

Atlanta, GA 30309 

404-907-1999 

(b)(6),omo• ••••••~~•-'"' ______ __, 

If to the Settling Defendant: 

William W. Horlock, Jr. 

Sctuddcr, Bass, Quillian, Horlock, Taylor & Lazarus, LLP 

900 Circle 75 Parkway, Suite 850 

Atlanta, Georgia 30339-3084 

770-6 I 2-9200 

(b )(6) ................. JL-_ ... ___ ____. 

SECTION VIJ: Other Matters. 

A. No Aqmission of 1iabi1ity. 

The undersigned Parties each acknowledge and agree that the matters set fmth 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 

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claim or defense, and that the Agreement shall not be offered or received in evidence by or 

against any Party hereto except to enforce its terms. 

B. Execution jn Countermnt~. 

This Abr:reement may be executed in counterparts by one or both of the Parties named 

herein and all such counterparts when so executed shall together constitute the final Agreement, 

as if one document had been signed by both Parties hereto; and each such counterpart, upon 

execution and delivery, shall be deemed a complete original, binding the Party or Pmties 

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

C. Binding Effect. 

Both of the undersigned persons represent and warrant that they arc a Patty 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 PHrty 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, administrators, representatives, attorneys, successors and assigns. 

D. Entire Agreement. 

This Agreement co11stitutcs the entire agreement and understanding between the 

undcrsib7flcd Pat1ies concerning the matters set forth herein and supersedes any prior agreements 

or understandings. No representations, warranties or inducements have been made to or relied on 

hy either Party concerning this Agreement and its exhibits other than those contained therein. 

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R. ,Amendments. 

This Agreement may not be amended or modified, nor may any of its provisions be 

waived, except in WJiting by the Party or Parties bound thereby, or by their respective authorized 

attomey(s) or other represcntativc(s). 

F. I~easonable Cooper()t_j_on. 

1. The undcrsibJfled 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 perform the terms of this Agreement. 

2. The Settling Defendant agrees to cooperate fully with the FDIC-R in connection 

with any action required under this Agreement. 

G. Choice_ of Law. 

This Agreement shall be interpreted, constmcd and enforced according to applicable 

federal law, or in its absence, the Jaws of the State of Georgia, without regard to its conflicts of 

laws. 

H. Forum. 

Any legal action brought to enforce this Agreement shall be brought in the United States 

District Comt for the Northern District of Georgia, unless that Court lacks jurisdiction, in which 

event, or upon a final order determining a lack of jurisdiction, the Parties agree to jurisdiction in 

the Superior Court of Fulton County, Georgia. 
I. Advice of Counsel. 

The Parties severally acknowledge that they consulted with and obtained the advice of 

counsel prior to executing this Agreement, and that this Agreement has been explained by 

counsel. 

J. Severability. 

If any provision of this Agreement is held unenforceable, then such provision will, if 

possible, be modified to be enforceable b11t still reflect the Parties' intentions. In any event, the 

remaining provisions of this Agreement shall remain in :futl force and effect. 

K. Title and Caption~. 

All section titles and captions contained in this Agreement arc for convenience only and 

shall not affect the interpretation of this Agreement. 

L. Author~hi:pLr~mstruction. 

This Agreement sets forth terms and agreements jointly negotiated by the Parties. It is 

expressly agreed that this Agreement shall not be constmcd for or against any Party by reason of 

·which Party drafted it. 

M. Attomcys' Fees and Ex_n_~nscs. 

Both Pat1ies to this release are severally responsible for their own costs and attorneys' 

fees associated with the Action. Neither Party to this Agreement shall be considered the 

prevailing party in the Action and no Party shall seck an award of attorneys' fees or costs arising 

from the Action. 

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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. 

FEDERAL DEPOSIT INSURANCE CORPORATION 

As Receiver for BankFirst 

BOB D. HUTCHINS 

(b)(6) __ --.=-r-Jz'-:-I-I-J ~--t-- 1 --- Date: ---2.Tog/zo!f \ !3\ 

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