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EXECUTION VERSION 

SETTLEMENT AND RELEASE AGREEMENT 

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

the following undersigned parties: 

The Plaintiff Federal Deposit [nsurance Corporation as Receiver for First United Bank 

("FDIC-R"), and Donald Borowski, Kevin Gorman, Wayne Hameister, Richard Lindeman, 

Donald Olivieri. Jr., and David Zeglis (collectively the "Settling Defendants"), and Federal 

insurance Company ("Insurer") (individually, the FDIC-R, the Settling Defendants and the 

Insurer may be refened to herein as "Party" and collectively as the "Parties"). 

RECITALS 

WHEREAS: 

Prior to September 28, 2012, First United Bank ("Bank") was a depository institution 

organized and existing under the laws of Illinois; 

On September 28, 20 l2, the Illinois Department of Financial and Professional Regulation 

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

was appointed Receiver. Jn 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 FDlC-R succeeded were all of the Bank's claims, 

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

the performance, nonperfonnance, and manner of performance of their respective funct.ions, 

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

On June 15, 2016, the FDIC-R filed 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 Illinois in FDIC. as Receiver.for First United Bank v. Borowski, et al .• No. l: 16-cv06250 ("D&O Action"). The Settling Defendants have denied liability in the D&O Action 

'"Policy"), which insured the directors and officers of the Bank 

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EXECUTION VERSION 

according to the terms, provisions, and conditions of the Policy. The SenLing Defendants 

asserted claims for coverage under the Policy. Insurer has reserved its rights to deny coverage 

under tbe Policy for claims asserted by FDlC-R against tbe Settling Defendants. 

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 I: Payment to FDIC-R 

A. As an essential covenant and condition to this Agreement, on or before one (1) 

calendar day following the date all parties execute this Agreement, the Tnsurer agrees to pay tbe 

FDIC-R the sum of THREE MILLION AND 00/100 DOLLARS ($3,000,000.00) ("the 

Settlement Payment''). 

B. The Insurer shall deliver the Settlement Payment to the FDIC-R by check or wire 

transfer. 

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

date determined by subsection A above, then the FDIC-R, in its sole discretion, shall have the 

right at any time prior to receipt of the Settlement Payment in full to: 

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

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

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

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

enforcing the tem1s of this Agreement; or 

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

the Sett! ing Defendants and Insurer agree to consent~ and re-institute an action on the FDIC-R's 

claims. The Settling Defendants and Insurer further covenant and agree not to assert any 

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EXECUTION VERSION 

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 1aw or equity. 

AJ1y extension oftime under Section 1.C. l for delivery of the Settlement Payment or 

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

any of the actions set forth in Sectionl.C.2 through I.C.4 at any time prior to receipt of 

Settlement Payment in fuJJ. 

SECTION II: Stipulation and Dismissal 

Within ten business days after the latter of (1) full execution of this Agreement by all of 

the Parties, and (2) receipt of the Settlement Payment, the FDIC-R shall file a stipulation of 

dismissal with prejudke in the D&O Action, with each Party bearing their own foes and costs. 

SECTION ID: Releases 

A. The FDIC-R's Releases. 

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

the FDIC~R, for itself and its successors and assigns, hereby releases and discharges: 

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

administrators, representatives, successors, and assigns, from any and aJl 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 

manneT 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, subsidiaries, affiliates and reinsurers, and their 

respective employees, officers, directors, agents, representatives, successors and assigns, from 

any and aJI 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 this release of the 

lnsurer, the FDTC-R agrees that any interest it may have under the Policy is extinguished. 

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EXECUTION VERSION 

3. All other former directors, 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 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, 11onperformance, or 

maimer 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-R. 

B. The Settling Defendants' Release. 

Effective simultaneously wrn1 the release granted in Section III.A. 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 

the performance, nonperformance, or manner of performance of the Settling Defendants' 

respective fw1ctions, duties and actions as officers and/or directors of the Bank including, 

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

C. The lnsurer's Release. 

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

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

reinsurers, and their successors and assigns, hereby releases and clischarges the FDIC-R, and its 

employees, officers, 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 equity, that arise from or relate to the Policy. 

D. Exceptions from Releases by FDIC-R. 

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EXECUTION VERSION 

1. Notwithstanding any other provision of this Agreement, the FDlC-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, incuned as the maker, endorser or guarantor of any promissory note or 

indebtedness payable or owed by them to FDIC-R, the Bank, other financial institutions, or any 

other person or entity, including without limitation any such claims acquired by FDIC-Ras 

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 thjs Agreement. 

2. Notwithstanding any other provision of trus 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 to diminish its 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 Attorney's Office for any federal 

judicial district, or any other department or agency of the Uruted States as defined by 18 U.S.C. § 

6. ln addition, the FDfC-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 seq., if appropriate. 

SECTION TV: Waiver of Dividends and Proceeds from Litigation 

To the extent, if any, that Settling Defendants are or were shareholders of the Bank and 

by virtue thereof are or may be entitled to a dividend, payment, or otl1er distribution upon 

resolution of the receivership of the Bank or proceeds in any litigation that has been or could be 

CHICAGO/lf3024662J 5 
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EXECUTION VERSION 

brought against the Federal Deposit lnsurance 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 depa11ment 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. 

SECTION V: Representations and Acknowledgements 

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 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, 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 tbis Agreement, and that 

this Agreement has been explained to that Party by his or her counsel. 

SECTION VI: Reasonable Cooperation 

A. 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 O&O Action and to otherwise perfom1 

the terms of this Agreement. 

SECTION Vil: Other Matters 

A. No 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 defenses. that this Agreement is not an admission or evidence of liability or infirmity 

Cl IICAG0/#3024662.J 6 
(b )(6) 

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(b)(6) 

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EXECUTION VERSION 

by any of them regarding any claim or defense, and that lhe 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, shaJI be deemed a complete original, binding tbe 

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 applicable federal law, or in its absence, the laws of the State of Illinois. 

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

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

rf to the FDIC-R: 

Robert T. Barnard 

Counsel 

Federal Deposit Insurance Corporation 

3501 Fairfax Drive 

Arlington, Virginia 22226 

, - ~ u 

and 

Cynthia H. Hyndman 

Robinson Curley P.C. 

300 South Wacker Drive 

Suite 1700 

o. Illinois 60606 

Tfto the Settling Defendants: 

Randall M. Lending 

Vedder Price 

222 North LaSalle Street 

icago, 1llinois 6060 I 

and 

CH ICAGO/#302-1662.3 7 
(b )(6) 

(b )(6) 

(b )(6) 

Robert J. Ambrose 

Howard & Howard 

200 South Michigan 

Suite 1100 

o. lllinois 60604 

and 

Alan R. Brnggeman 

Page 8 

Bruggeman Hurst and Associates, P.C. 

20012 WolfRoad 

Suite 200 

, a lJlinois 60448 

EXECUTION VERSJON 

lf to Insurer: 

E. 

Karen Chilcote Rivetti 

Federal Lnsurance Company 

82 Hopmeadow Street 

Simsbury, CT 06070 

J. ,:;;~ s, 

Entire Agreement and Amendments. This Agreement constitutes the entire 

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

set f01th 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 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 tmdersigned Parties acknowledge that this AgTeement 

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

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

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EXECUTION VERSION 

[N 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: 

Date: 

Date: ____ _ 

Date: ____ _ 

CIDCAOO/#3024662.3 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST UNITED BANK 

BY: 

TITLE: 

PRCNTNAME: 

- -----------

DONALD BOROWSKI 

PRINT NAME: 

KEVIN GORMAN 

PRINTNAME: 

WAYNE HAMEISTER 

PRINT NAME· 

t) 

(b )(6) 
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EXECUTION VERSJ.ON 

IN WITNESS VlHER.EOF, the Parties hereto have ca.used this Agrnement to be executed 

by each of them or their duly au:thorized representatives on the dates hereinafter subscribed. 

Date: 

Date: ____ _ 

Date: ____ _ 

CH!CAG0//13024662.3 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST UNITED BANK 

BY: 

TITLE: 

PRINT NAME: ___ , _______ _ 

DONALD BOROWSKI 

PRINT NA!vffi.: 

KEVIN GOR1v1AN 

WAYNE HAMEISTER 

PRINTNAME: 

9 

(b )(6) 
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EXECUTION VERSION 

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: 

Date: -----

Date: ____ _ 

Date: a/-/;;L-!8 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST UNITED BANK 

BY: 

TITLE: 

PRINT NAME: ----- ----- --

DONALD BOROWSKI 

PRINT NAME: 

KEVIN GORMAN 

PRINT NAME: 

WAYNE HAMEISTER 

~ PRINT NAME: 

9 

(b )(6) 
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EXECUTION VERSION 

(b)(6) 

Date: / -:l.S -.;J, 0/ 8 RICHARD LINDEMAN 

PRINT NAME: 

Date: --- - - DONALD OLIVIERI, JR. 

PRINT NAME: 

Date: - - - -- DAVID ZEGLIS 

PRINT NAME: 

FEDERAL INSURANCE COMPANY 

Date: ----- BY: 

TITLE: Assistant Vice President 

PRINT NAME: Karen Chilcote Rivetti 

CHICAGO/#30246623 JO 
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EXECUTION VERSION 

Date: --- - - RlCHARD LINDEMAN 

PRINT NAME: 

(b )(6) 

Date: DONALD OLIVIERI. JR. 

PRINT NAME: 

Date: _ ___ _ DAVIDZEGUS 

PRINT NAME: 

FEDERAL INSURANCE COMPANY 

Date: BY: --- ---

TITLE: Assistant Vice President 

PRINT NAME: Karen Chilcote Rivetti 

CHICAGO/113024662-3 10 
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EXECUTION VERSION 

Date: _ ___ _ RICHARD LINDEMAN 

PRINTNAME: 

Date: ----- DONALD OLIVIERI, JR. 

PRINTNAME: 

(b )(6) 

DAVID ZEGLIS 

FEDERAL INSURANCE COMPANY 

Date: _ ___ _ BY: 

TITLE: Assistant Vice President 

PRINT NAME: Karen Chilcote Rivetti 

CHICAG0/113024662.3 10 
Date: ____ _ 

Date: ____ _ 

Date: -----

Date: QI 5/ Jal 8" 

r ' 

CHICAGO/#3024662.3 

Page 15 

EXECUTION VERSION 

RICHARD LINDEMAN 

PRINT NAME: 

DONALD OLNIERI, JR. 

PRINT NAME: 

DAVID ZEGLIS 

PRINT NAME: 

(b )(6) 

FEDERAL INSURANCE COMP ANY 

BY: 

TITLE: Assistant Vice President 

PRINT NAME: Karen Chilcote Rivetti 

10 
Page 16 

EXECUTION VERSION 

TN 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: z./-a/1'b 

Date: _____ _ 

T)a(c: _____ _ 

Date: ------

CHlCM,0/#3024662.J 

FI:DFRAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST UNITED BANK 

nv [] ~ I 

TJTI,E: C• ~~'bt.>L 

PRINT NA:\IIE: ~(> ~~""\" -q- . ~ J\~~(Z.t) 

DONALD BOROWSKI 

PRINT NAME: 

KEVIN GORMAN 

PRTNTNA:\rll•:: 

WAYNE I IA.MEISTER 

PRINT NAME: 

9 

(b )(6)