SETTLEMENT AGREEMENT 

This Settlement Agreement ("Agreement") is made as of this/) 

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.· day of !lr.~t'- , 

2012, by, between, and among the following undersigned parties: The Federal Deposit Insurance 

Corporation, as receiver of Silverton Bank, N.A. ("FDIC-R"), and Brian Bueche ("Bueche"). 

The FDIC-R and Bueche may be referred to herein as a "Party" and collectively as the '"Parties." 

RECITALS 

WHEREAS: 

I. Prior to May 1, 2009, Silverton Bank N.A. ("Silverton" or "Bank") was a 

depository institution organized and existing under the laws of the United States; 

2. On May I, 2009, the Bank was closed by the Office of the Comptroller of the 

Currency and, pursuant to 12 U.S.C. § 1821(c), the FDIC-R was appointed receiver of the Bank. 

In accordance with 12 U.S.C. § l821(d), the FDIC-R succeeded to all rights, titles, powers and 

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

3. Among the assets to which the FDIC-R succeeded were any and all of the Bank's 

claims, demands, and causes of actions against its former directors, officers and employees 

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

functions, duties and acts as directors and/or officers of the Bank; 

4. On August 23, 2011, the FDIC-R filed a complaint for money damages against 

certain persons, including Bueche, who had each served at various times as directors and/or 

officers 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 Silverton Bank, N.A. v. Bryan et. al., Civil Action No. 1: 11-cv-02790-JEC ("D&O 

Action"). 
5. Federal Insurance Company, a member insurer of the Chubb Insurance Group 

("Chubb"), issued DFI Primary Professional Liability Policy No.I leehubbPolicy'-'-), (b)(4) 

which insures the directors and officers of the Bank according to the terms, provisions and 

conditions of the Chubb Policy. Westchester Fire Insurance Company ("'Westchester") issued an 

(b)( 4). - ExcessHbiability PolicyNo;lH I ("Westchester Policy"), which provides excess 

insurance coverage to the directors and officers of the Bank according to the terms, provisions 

and conditions of the Westchester Policy. Bueche has made a claim under the Chubb Policy and 

the Westchester Policy relating to the claims asserted in the D&O Action. Chubb has denied 

coverage under the Chubb Policy and Westchester has denied coverage under the Westchester 

Policy. 

6. This Agreement is entered into to settle the claims asserted by the FDIC-R against 

Bueche in the D&O Action. 

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

to avoid the uncertainty, trouble, 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: 

AGREEMENT 

SECTION 1: Payment to the FDIC-R 

A. As an essential covenant and condition to this Agreement. Bueche agrees to pay 

the FDIC-R the sum of$320,000.00 ("Settlement Funds''). 

B. Upon the execution of an original, or originals in counterpart, of this Agreement 

by each of the undersigned Parties to this Agreement, but by no later than within thirty (30) days 

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of execution of this Agreement by the FDIC-R, the Settlement Funds shall be delivered to FDICR by direct wire transfer into an account designated by the FDIC-R. In the event that the 

Settlement Funds are not delivered to the FDIC-R within thirty (30) days of execution of this 

Agreement by the FDIC-R, interest shall accrue on all unpaid amounts at the rate of 5% per 

annum from the date that is thirty-one (31) days after the date of execution of this Agreement by 

the FDIC-R, until the date of payment. 

C. In addition, and without waiving any other rights that the FDIC-R may have, in 

the event that all Settlement Funds are not received by the FDIC-R within thirty (30) days of 

execution of this Agreement by the FDIC-R, then the FDIC-R, in its sole discretion, shall have 

the right at any time prior to receipt of all Settlement Funds (including all accrued interest) to 

declare this Agreement null and void, shall have the right to extend this Agreement for any 

period of time until it receives all Settlement Funds (including all accrued interest), and/or shall 

have the right to enforce this Agreement against Bueche in which event Bueche agrees to 

jurisdiction in the United States District Court for the Northern District of Georgia and agrees to 

pay all of the FDIC-R's reasonable attorney's fees expended in enforcing the terms of this 

Agreement. Any decision by the FDIC-R to extend the terms of this Agreement or to accept a 

portion of the Settlement Funds shall not prejudice its rights to declare this Agreement null and 

void at any time prior to receipt of all Settlement Funds (including all accrued interest) or to 

enforce the terms of this Settlement Agreement; provided, however, that in the event the FDIC-R 

declares this Agreement null and void, the FDIC-R will return all amounts paid to it under this 

Agreement by Bueche. 

SECTION II: Stipulated Judgment in Favor oftbe FDIC-R 

The FDIC-R and Bueche stipulate to the entry of a final and binding judgment in the 

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D&O Action in favor of the FDIC-R and against Bueche in the amount of $21 ,621, 93 8 

('"Stipulated Judgment"). The Stipulated Judgment shall bear post-judgment interest (beginning 

from the date judgment is entered until payment) pursuant to 28 U.S.C. § 1961(a). 

SECTION III: FDIC-R Covenant Not to Execute and Assignments by Bueche 

A. In consideration for the assignments set forth in Sections III. D. and III. E., the 

FDIC-R and its successors, assignees, agents, and any other person or entity acting on or in the 

FDlC-R's behalf, covenant and agree not to cause the filing of any lawsuit, process, petition, or 

other legal proceeding in execution upon, or to take any action of any kind to docwnent, record, 

or register as a lien, execute upon, or to collect the Stipulated Judgment from Bueche, except as 

set forth in paragraphs IILB. and VI.E. This covenant not to execute shall be effective 

immediately after the entry of the Stipulated Judgment and after the assignments set forth in 

Section III. D. and Ill. E. become effective in accordance with their tenns. 

B. The FDIC-R shall apply to payment of the Stipulated Judgment upon receipt the 

Settlement Funds, and all funds received by the FDIC-R as a result of its efforts to collect upon 

the rights, titles and interests of Bueche in the Chubb Policy and the Westchester Policy together 

with all of his respective rights, claims, and causes of action against Chubb and Westchester and 

their agents, brokers, employees, officers including, but not limited to, all statutory rights, 

contractual rights, and rights arising in tort or otherwise, relating to Chubb's and Westchester's 

duties to Bueche with respect to the D&O Action, specifically including the duty to settle and 

pay for the settlement of the D&O Action on behalf of Bueche. The FDIC-R may execute on 

the Stipulated Judgment to the extent necessary to realize the full value of Bueche's rights 

against Chubb and Westchester assigned to the FDIC-R hereunder, but will not collect or attempt 

to collect the Stipulated Judgment from Bueche, except as set forth in Section VI.E. 

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C. The FDIC-R is solely responsible for all efforts to collect the Stipulated 

Judgment. The FDIC-R agrees that all such efforts will be undertaken solely at its own risk and 

expense and that if those efforts are in any way unsuccessful, the FDIC-R shall have no recourse 

against Bueche or his attorneys. 

D. In consideration for the covenant not to execute set forth in Section III. A., 

Bueche assigns to the FDIC all of his rights, claims, and causes of action against Chubb and its 

agents, brokers, employees, officers and all other persons or entities relating to or arising out of 

any applicable insurance policy or policies, the D&O Action, or the Stipulated Judgment 

including, but not limited to, all statutory rights, contractual rights, and rights arising in tort or 

otherwise, relating to Chubb's duties to Bueche with respect to the D&O Action, specifically 

incJuding the duty to settle and pay for the settlement of the D&O Action on behalf of Bueche. 

The assignment in this Section III. D. will be effective immediately following the entry of the 

Stipulated Judgment and before the covenant not to execute set forth in Section III. A. is 

effective. 

E. In consideration for the covenant not to execute set forth in Section III. A., 

Bueche assigns to the FDIC all of his rights, claims, and causes of action against Westchester 

and its agents, brokers, employees, officers and all other persons or entities relating to or arising 

out of any applicable insurance policy or policies, the D&O Action, or the Stipulated Judgment 

including, but not limited to, all statutory rights, contractual rights, and rights arising in tort or 

otherwise, relating to Westchester's duties to Bueche with respect to the D&O Action, 

specifically including the duty to settle and pay for the settlement of the D&O Action on behalf 

of Bueche. The assignment in this Section III. E will be effective immediately following the 

entry of the Stipulated Judgment and before the covenant not to execute set forth in Section III. 

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A is effective. 

F. Within seven (7) days of entry of the Stipulated Judgment, Bueche shall seek the 

dismissal (without prejudice) of his claims pursuant to O.C.G.A. § 33-4-6 ('.Bad Faith Claims") 

against Chubb and Westchester. Bueche may not re-assert the Bad Faith Claims against Chubb 

and/or Westchester without the express Mitten consent of the FDIC-R, which consent the FDICR may withhold for any reason. Within fourteen (14) days of the entry of the Stipulated 

Judgment, the FDIC-R shall, pursuant to Federal Rule of Civil Procedure 25, seek to substitute 

itself for Bueche in connection with Bueche's claims against Chubb and Westchester and 

Chubb's and Westchester's claims against Bueche. Once the FDIC-R is substituted in as the 

proper party, the FDIC-R shall have complete discretion as to how those claims shall be 

prosecuted and defended. 

SECTION IV: Releases 

A. Release of Bueche by the FDIC-R. 

I. Effective upon receipt in full of the Settlement Funds plus any accrued 

interest described in Section I. above, and except for the Stipulated Judgment and as provided in 

Paragraph IV.C. below, the FOIC-R, on behalf of itself and its employees, officers, directors, 

representatives, successors and assigns, hereby releases and discharges Bueche and his 

respective heirs, executors, administrators, agents, representatives, successors and assigns, from 

any and all civil 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 Bank, or to 

the performance, nonperformance, or manner of performance of Bueche's functions, duties and 

actions as an officer and/or director of the Bank that were not asserted by the FDIC-R against 

Bueche in the D&O Action. 

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B. Release of the FDIC-R by Bueche. 

Effective simultaneously with the release granted in Paragraph IV .A. above, Bueche, on 

behalf of himself individually and his respective heirs, executors, administrators, agents, 

representatives, successors and assigns~ hereby releases and discharges the FDIC-R and its 

employees, officers, directors, 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, that arise from or relate to the Bank or to the performance, nonperformance, or manner of 

perfonnance of Bueche's functions, duties and actions as an officer and/or director of the Bank 

or that arise from or relate to the Chubb Policy or the Westchester Policy. 

C. Express Reservations from Releases by the FDIC-R. 

1. Notwithstanding any other provision, by this Agreement, the FDIC-R does 

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

been executed, any claims or causes of action: 

a. against Bueche 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, 

inc1uding, without limitation, any claims acquired by the FDIC as successor in interest to the 

Bank or any person or entity other than Bank; 

b. against any person or entity not expressly released in this Agreement; 

c. the Stipulated Judgment (but FDIC will not collect or attempt to collect 

the Stipulated Judgment from Bueche, except as set forth in Section VI .E); 

d. which are not expressly released in Paragraph II.B. above; and 

e. the payment of the Settlement Funds. 

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2. Notwithstanding any other provision, nothing in this Agreement shall be 

construed or interpreted as limiting, waiving~ releasing or compromising the jurisdiction and 

authority of the FDIC in the exercise of its supervisory or regulatory authority or to diminish its 

ability to institute administrative enforcement proceedings seeking removal, prohibition or any 

other administrative enforcement action which may arise by operation oflaw, rule or regulation. 

3. Notwithstanding any other provision, this Agreement does not purport to 

waive) or intend to waive, any claims which could be brought by the United States through either 

the Department of Justice, the United States Attorneys' Office for the Northern District of 

Georgia or any other federal judicial district. In addition, the FDIC-R specifically reserves the 

right to seek court ordered restitution pursuant to the relevant provisions of the Victim and 

Witness Protection Act, 18 U.S.C. § 3663, et. seq., if appropriate. 

SECTION V: Waiver of Dividends and Proceeds from Litigation 

To the extent, if any, that Bueche is or was a shareholder of Silverton or its holding 

company and by virtue thereof is or may be entitled to a dividend, payment, or other distribution 

upon resolution of the receivership of Silverton 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 part, the 

closing of Silverton, or any alleged acts or omissions by the Federal Home Loan Bank Board (or 

its successors), the Office of Thrift Supervision (or its successors), the Resolution Trust 

Corporation (or its successors), the FDIC, the Federal Savings and Loan Insurance Corporation 

Resolution Fund (or its successors), the Office of the Comptroller of the Currency, or the United 

States government in connection with Silverton, its conservatorship or receivership, Bueche 

hereby knowingly assigns to the FDIC-R any and all rights, titles and interest in and to any and 

all such dividends, payments or other distributions, or such proceeds. 

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SECTION VI: Representations and Acknowledgements 

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

one or more 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 all Parties hereto, 

and each such counterpart, upon execution and delivery, shall be deemed a complete original, 

binding the Party or Parties subscribed thereto upon the execution by all Parties to this 

Agreement. 

B. Binding Effect. Each of the undersigned persons represents and warrants that 

they are a Party 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 

Wldersigned Parties and their respective heirs, executors, administrators, representatives, 

successors and assigns. 

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 Georgia. 

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

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

set forth herein. This Agreement may not be amended or modified except by another written 

instrument signed by the Party or Parties to be bound thereby, or by their respective authorized 

attomey(s) or other representative(s). 

E. Specific Representations Warranties and Disclaimer. Bueche expressly 

acknowledges that, in determining to settle the claims herein, the FDIC-R has reasonably and 

justifiably relied upon the accuracy of financial infonnation, including, but not limited to, 

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personal financial statements and related materials submitted by Bueche to the FDIC-R 

("Financial Information"). If, in such Financial Information, Bueche has failed to disclose any 

material interest, legal, equitable, or beneficial, in any asset, Bueche agrees to cooperate fully 

with the FDIC-R to transfer his interest in the asset to the FDIC-R and to sign any and all 

documents necessary to transfer his interest in the asset to the FDIC-R. Moreover, if, in his 

Financial Information, Bueche has failed to disclose any material interest, legal~ equitable, or 

beneficial, in any asset, the FDIC-R, in its sole discretion, may exercise one or more or all of the 

following remedies: (i) the FDIC-R may declare the releases granted to Bueche null and void; 

(ii) the FDIC-R may retain the Settlement Funds; (iii) the FDIC-R may declare the covenant not 

to execute as null and void; (iv) the FDIC may retain the Stipulated Judgment; and (v) the FDICR may sue Bueche for damages, an injunction, and specific performance for the breach of this 

agreement. Bueche agrees that if, in his Financial Information, he has failed to disclose any 

material interest, legal, equitable, or beneficial, in any asset, then Bueche consents to the 

reinstatement of the FDIC-R's claims and waives any statute of limitations that would bar any of 

the FDIC-R's claims against him. 

F. Reasonable Cooperation. 

1. The undersigned 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 perform the terms of this Agreement. 

2. Bueche agrees to cooperate fully with the FDIC-R in connection with any 

action required under this Agreement. Any such cooperation that involves any out of pocket 

costs is subject to reasonable reimbursement by the FDIC-R pursuant to its internal guidelines 

and policy for such reimbursement. Such cooperation shall consist of: 

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a. producing all documents requested by the FDIC-R, without the 

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

Bank; 

b. making Bueche available upon request by the FDIC-R at reasonable 

times and places for interviews regarding facts, as determined by the FDIC-R, in its sole 

discretion, to be relevant to the Bank; 

c. appearing to testify, upon request by the FDIC-R, in any matter 

determined by the FDIC-R, in its sole discretion, to be related to the Bank, without the necessity 

ofsubpoena;and 

d. signing truthful affidavits upon request by the FDIC-R regarding any 

matter, as determined by the FDIC-R, in its sole discretion, to be relevant to the Bank. 

3. Bueche will, upon request of the FDIC-R or its attorneys, provide reasonable 

assistance in all efforts to collect the Stipulated Judgment and any other amounts based on the 

assigned rights, claims, and causes of action, including, but not limited to, responding to 

discovery requests, providing access to relevant non-privileged documents, giving truthful 

affidavits and deposition testimony at reasonable times and places, and testifying truthfully at 

trial. This Agreement shall not limit or affect the testimony which Bueche gives in any 

proceeding and it is understood and agreed that Bueche will also refrain from taking any actions 

that will prejudice the FDIC-R's ability to collect the Stipulated Judgment from any responsible 

party, provided however, that Bueche will give truthful testimony. 

G. Advice of Counsel. Each Party hereby acknowledges that he 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 its counsel. 

II 
H. No Prior Transfer of Claims. Bueche warrants and represents that he has not 

assigned, sold, or otherwise transferred or disposed of, and will not assign, sell, or otherwise 

transfer or dispose of, any interest in the Chubb Policy or the Westchester Policy or Bueche's 

respective rights, claims, and causes of action against Chubb and Westchester and their agents, 

brokers, employees, officers and all other persons or entities relating to or arising out of any 

applicable insurance policy or policies, the D&O Action or the Stipulated Judgment, including, 

but not limited to, all statutory rights, contractual rights, and rights arising in tort or otherwise, 

relating to Chubb's and/or Westchester's duties to Bueche with respect to the D&O Action, 

specifically including the duty to settle and pay for the settlement of the D&O Action on behalf 

of Bueche. The FDIC-R warrants and represents that it (i) owns all claims, demands, 

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

arise from or relate to Bueche's conduct as officer and/or director of Silverton, and (ii) has not 

assigned, sold, or otherwise transferred or disposed of, and other than as contemplated by this 

Agreement, 'hill not assign, sell, or otherwise transfer or dispose of, any of such claims, 

demands, obligations, damages, actions, and causes of action. 

I. Enforceability. In the event that any portion of this Agreement is held to be void 

or unenforceable by a court of competent jurisdiction, the remaining provisions of this 

Agreement shall have the same force and effect as though the void or unenforceable parts have 

been deleted. 

J. Authorship. In the event any dispute, disagreement or controversy anses 

regarding this Agreement. the Parties shall be considered joint authors and no provision shall be 

interpreted against any Party because of authorship. 

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K. 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. 

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 SILVERTON BANK, N.A. 

(b)(6) •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• lm•m•••••••••••••••••••••••••••••••••••••••••••••••••••••••••"""""""'""»»> 

Date: April l.J. 2012 By:~----------------------• Gregory K. Conway, Esq. / 

Counsel 

BRIAN BUECHE 

(b)(6). 

Dale: April"" , 2012 ········································~~···.!_ .. --------L------

Brian Bueche 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER OF 

SILVERTON BANK, N.A., 

Plaintiff, 

v. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

TOM A. BRYAN, PAULT. BENNETT, § 

MICHAEL CARLTON, W. ROGER § 

CROOK, J. MICHAEL ELLENBURG, § 

BRIAN R. FOSTER, ROBERT I. § 

GULLEDGE,CHARLESF.HARPER, § 

R. RICK HART, CHRISTOPHER B. § 

MADDOX, J. EDWARD NORRIS, § 

STEPHEN L. PRICE, BOBBY § 

SHEPARD, HUNTER SIMMONS, § 

TONY W. WOLFE, BRIAN D. § 

BUECHE, BROCK FREDETTE, § 

FEDERAL INSURANCE COMPANY, § 

and WESTCHESTER FIRE § 

INSURANCE COMPANY, § 

Defendants. 

§ 

§ 

§ 

CIVIL ACTION NO. 

1 :11-cv-02790-JEC 

FINAL JUDGMENT 

On ____ the Court considered the Joint Motion for Entry of 

Judgment (Doc. _) ("Motion") filed herein by Plaintiff, the Federal Deposit 

Insurance Corporation, as receiver of Silverton Bank, N.A. C'FDIC-R") and 

I 
Defendant, Brian Bueche (''Bueche"). Having considered the pleadings and 

evidence before the Court, the Court finds as follows: 

1 . In this civil action ("D&O Action"), the FDIC-R has filed its 

complaint alleging breaches of fiduciary duty and acts of negligence and gross 

negligence in connection with Bueche's role as an officer of Silverton Bank, 

N.A. ("Complaint"). 

2. The FDIC-R and Bueche have entered into a settlement 

agreement pursuant to which, among other things, Bueche consents to the 

entry of a judgment against him in the amount of $21 ,621, 93 8 (plus 

post-judgment interest) ("Stipulated Judgment"). 

3. The Stipulated Judgment will be a complete and final judgment 

addressing all claims against Bueche. 

4. The Motion is well taken and should be GRANTED, it is 

therefore ORDERED and ADJUDGED as follows: 

A. Judgment is entered in this matter in favor of the FDIC-R against 

Defendant Brian Bueche on the FDIC-R's Counts Two, Three and Four for 

relief set forth in the Complaint, in the amount of $21 ,621,938 to bear postjudgment interest (beginning from the date this judgment is entered until 

payment) pursuant to 28 U.S.C. § 1961(a). 

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B. The judgment against Bueche is several, and no amount recovered 

by the FDIC·R on the Stipulated Judgment shall be credited against any 

amount awarded to the FDIC·R (if any) in the future against any other 

Defendant in the D&O Action. Similarly, no amount collected by the FDICR from any other Defendant in the D&O Action shall be credited against the 

Stipulated Judgment. 

C. Each party to bear their own costs. 

This day of April, 2012. 

Honorable Julie E. Carnes 

Judge, United States District Court 

Northern District of Georgia 

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