Page 5

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 part, the
closing of the Bank, or any alleged acts or omissions by the United States government in
connection with Columbian or its receivership; he hereby knowingly assigns to the FDIC any
and all rights, titles and interest in and to any and all such dividends, payments or other

distributions, or such proceeds.

SECTION IV: Representations and Acknowledgements
A. Neo Admission of Liability. The undersigned parties each acknowledge and agree
that the matters set forth in this Agreement constitute the settlement and compromise of disputed

claims, and that this Agreement is not an admission or evidence of liability by any of them

regarding any claim.
B. 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.

1on 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
undersigned parties and their respective heirs, executors, administrators, representatives,
successors and assigns.

D. 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 Kansas.

{KQ397523, DOC, 12164872. doo


Page 8

THE FEDERAL DEPOSIT INSURANCE CORPORATION, its capacity as the receiver of The
Columbian Bank and Trust Company

By: Herbert G. Smith II

HERBERT G. SMITH IL

COMMONWEALTH OF VIRGINIA )
) ss:
COUNTY OF ARLINGTON )

Subscribed and swom. to before me this gm day of March 2012.

Notary Pub

Milicent Kaplan

My Appointment Expires: . , Commonwealth of Virginia
A commision Nor 7900422
7 mmission No.

of BG 2015 My Commission Expires 6/20/2015

{KO357523. DOC; Li2104872.doc

(b)(6)

(b)(6)


Page 4

D. Express Reservations From Releases By FDIC.

1. Notwithstanding any other provision, by this Agreement, the FDIC 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 Austin 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 FDIC, the Bank, other financial institutions, or any other person or entity,
including without limitation any claims acquired by 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; and

& which are not expressly released in Paragraph ILA., above.

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 of law, rule or regulation,

3. Notwithsianding 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 Attomey’s Office for the District of Kansas or any
other federal judicial district. In addition, the FDIC specifically reserves the right to seck 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 DI: WAIVER OF DIVIDENDS AND PROCEEDS FROM LITIGATION
To the extent, if any, that Austin is or was a shareholder of the Bank and its holding
company, and by virtue thereof is or may be entitled to a dividend, payment, or other distribution.

{KO357923. DOC, 2004872, dor


Page 6

E. Entire Agreement and Amendments. This Agreement constitutes the entire
agreement and understanding between the undersigned parties concerning the mutters 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 attorney(s) or
other representative(s).

F. Specific, Representations Warranties _and__ Disclaimer. Austin expressly
acknowledges that in determining to settle the claims released here, the FDIC has reasonably and
justifiably relied upon the accuracy of financial information in the personal financial statement
he has submitted. If in his personal financial statement, Austin has failed to disclose any
interest, legal, equitable, or beneficial, in any material asset such that disclosure of said asset
would have effected a material change in Austin’s personal financial statement, Austin agrees to
cooperate fully with the FDIC to transfer his interest in the asset to the FDIC and to sign any and
all documents necessary to transfer his interest in the asset to the FDIC. Moreover, if, in his
personal financial statement Austin has failed to disclose any interest, legal, equitable, or
beneficial, in any material asset such that disclosure of said asset would have effected a material
change in his personal financial statement, the FDIC in its sole discretion, may exercise one or
more or all of the following remedies: (a) the FDIC may declare the releases granted to Austin
as null and void; (b) the FDIC may retain the Settlement Funds; (c) the FDIC may sue Austin for
damages, an injunction, and specific performance for the preach of this agreement; and (d) the
FDIC may seek to vacate any dismissal order and reinstate the FDIC’s claims against Austin.
Austin agrees that if, in his personal financial statement, he has failed to disclose any interest,
legal, equitable, or beneficial, in any material asset such that disclosure of said asset would have
effected a material change in his personal financial statement, Austin consents to the
reinstatement of the FDIC’s claims and waives any statute of limitations that would bar any of

the FDIC's claims against him

{K0357523. DOC; 1) 2104872. doe


(b)(6)

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

Page 9

Randolph C, Austin

STATE OF Kansas )
) ss:
COUNTY OF Sone.)

On this ge day of March 2012, before me, the undersigned, a Notary Public in and for
said County and State, personally appeared, Randolph C. Austin, known to me to be the person
described herein, who executed the foregoing instrument, and acknowledged that he executed the
same as his free act and deed.

WITNESS my hand and Notarial Seal subscribed and affixed in said County and State,
the day and year in this certificate above written.

otary Public
My Appointment Expires:
Yow 2k, aoiS NOTARY PUBLIC - Stale cf Kerens
3, DANIELLE A, BLUI
= My Reps

{K03$7523.DOC, 1)2104872. doe


Page 1

SETTLEMENT AND RELEASE AGREEMENT

pe

This Settlement and Release Agreement (“Agreement”) is made as of this s day of
March 2012 by and between the following undersigned parties:

The Federal Deposit Insurance Corporation, as receiver of The Columbian Bank and
Trust Company (“FDIC”), and Randolph C. Austin (“Austin”). (Individually, the FDIC and

Austin may be referred to herein as “Party” and collectively as the “Parties”.}
RECITALS

WHEREAS:

Prior to August 22, 2008, The Columbian Bank and Trust Company (“Columbian” or the
“Bank”) was a depository institution organized and existing under the laws of the State of
Kansas.

On August 22, 2008, the Bank was closed by the State of Kansas and pursuant to 12
U.S.C. § 1821(c), the FDIC was appointed receiver. In accordance with 12 U.S.C. § 1821(d), the
FDIC. as receiver 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 as receiver 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
tespective functions, duties and acts as directors and/or officers of the Bank.

The FDIC has asserted claims against certain persons, including Austin, who had each
served at various times as directors of the Bank. Austin has denied Hability for the FDIC’s

claims.

Banclnsure issued directors’ and officers’ lability policy number hie
“Policy”), which insured the directors and officers of the Bank according to the terms, provisions
and conditions of the Policy. Austin has made claims under the Policy.

§KO357523. DOC, 1}

(b)(4)


Page 7

a. Reasonable Cooperation.
L Austin agrees to cooperate in good faith to effectuate all the terms and

conditions of this Agreement, including doing or causing his agents and attorneys to do whatever
is reasonably necessary to effectuate the signing, delivery, execution, filing, recording, and entry,
of any documenis necessary to perform the terms of this Agreement.

2. Further, Austin agrees to cooperate fully with the FDIC in connection with
any action required under this Agreement, and in any litigation filed by the FDIC against any
former directors or officers of Columbian. Any such cooperation that involves any out-of-pocket
costs is subject to reasonable reimbursement by the FDIC pursuant to its internal guidelines and
policy for such reimbursement, Such cooperation shall consist of:

a. producing all documents requested by the FDIC, without the
necessity of subpoena, as determined by the FDIC, in its sole discretion, to be relevant to the
Bank;

b. making himself available upon request by the FDIC at reasonable
times and places for interviews regarding facts, as determined by the FDIC in its sole discretion,
to be relevant to the Bank:

C appearing to testify, upon request by the FDIC, in any matter
determined by the FDIC in its sole discretion, to be related to the Bank, without the necessity of
subpoena:

a. signing truthful affidavits upon request by the FDIC, regarding any
matter, as determined by the FDIC in its sole discretion, to be relevant to the Bank.

H Advice of Counsel. Austin acknowledges that be has consulted with and obtained
the advice of counsel prior to executing this Agreement, and that this Agreement has been
explained to him by his counsel.

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.

{K0397923.DOC, Lj2L04872.doc


Page 2

The undersigned parties deem it in their best interests to enter into this Agreement to
avoid the uncertainty, trouble, and expense of 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, cach with the other, as follows:

SECTION f: Payment to FDIC

AL As an essential covenant and condition to this Agreement, Austin, agrees to pay
the FDIC the sum of $85,000 (“the 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, the Settlement Funds shall be delivered to
FDIC by direct wire transfer into an account designated by FDIC or by certified or cashier's
check drawn upon a depository institution acceptable to FDIC.

Cc. Without waiving any other rights that the FDIC may have, in the event that all
Settlement Funds are not received by the FDIC, the FDIC, in its sole discretion, shall have the
right at any time prior to receipt of all Settlement Funds 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, and/or shall have the right to enforce this Agreement, in which event Austin,
agrees to jurisdiction in Federal District Court in Kansas and agrees to pay all of the FDIC’s
reasonable attorneys’ fees expended in enforcing the terms of this Agreement. Any decision by
the FDIC 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 or to enforce the
terms of this Settlement Agreement; provided however, that in the event the FDIC declares this

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

SECTION U: Releases

A. Release of Austin by the FDIC.

{K0337523.DOC, 1}2404872.do0


Page 3

Effective apon receipt in full of the settlement funds described in SECTION I above, and
except as provided in PARAGRAPH ILD., the FDIC, for itself and its successors and assigns,
hereby releases and discharges Austin and his heirs, executors, administrators, representatives,
successors and assigns, from any and all claims, demands, obligations, damages, actions, and
causes of action, direct ot indirect, in law or in equity, belonging to the FDIC, that arise from or
relate to, the performance, nonperformance, or manner of performance of Austin’s functions,
duties and actions as a director of the Bank.

B. Release of FDIC by Austin.

Effective simultaneously with the release granted in PARAGRAPH ILA. above, Austin,
on behalf of himself individually, and his heirs, executors, administrators, agents,
representatives, successors and assigns, hereby releases and discharges the FDIC, 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 performance of Austin’s functions, duties and actions as a director of the Bank.

C. Release of Banclnsure by Austin

Effective simultaneously with the releases granted in Paragraphs IA. and ILB. above,
Austin, on behalf of himself individually, and his heirs, executors, administrators, agents,
representatives, successors and assigns, hereby releases and discharges Bancinsure, its parents,
subsidiaries, affiliates and reinsurers, and their respective employees, officers, directors, agents,
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
Policy. Austin agrees that any interest he may have under the Policy is extinguished, The
FDIC does not release, but instead expressly and fully preserves, any claims against Banclnsure,

notwithstanding the release of Banclnsure by Austin.

{KO3S7923. DOC; 1)2104872. doc