Page 5

liability, if any, incurred as the maker, endorser or guarantor of any promissory note or
indebtedness payable or owed by them or any of them to FDIC-R, the Bank, other financial
institutions, or any other person or entity, including without limitation any claims acquired by

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

b against any person or entity not expressly released in this
Agreement; and
e which are not expressly released in Paragraphs I1.A 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 secking ryernoval, prohibition or any
other administrative enforcement action which may arise by operation of law, rule or regulation.
3. Notwithstanding any other provision, this Agreement does not parport 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 Attorney's Office for the District of Utah 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 I: Waiver of Dividends

To the extent, if any, that Settling Defendants are, or were, shareholders of the Bank and
by virtue thereof are or may have been entitled to a dividend, payment, or other pro rata
distribution upon resolution of the receivership of the Bank, they 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 pro rata distributions.


(b)(6)

Page 10

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

of them or theic duly authorized representatives on the dates hereinafier subscribed.

FEDERAL DEPOSIT INSURANCE CORPORATION as
RECEIVER FOR AMERICA WEST BANK, L. C.

Date: By:
Printed Name: Dayid T. Bartels
Its: Senior Attorney, Professional Liability & Financial Crimes Section

BLAKE N. HAZEN

Date:

RON H, RECHINS

outta tfhe —
GREG W. HAWS

Date:
TODD MORGAN

Date: ,
DOUGLAS M. DURBANO

Date:

Approved and Consented to by the Insurance Company:

Dat sag i A tm



Page 7

F. Reasonable Cooperation. The undersigned Parties agree to cooperate in good
faith to effectuate all the terms and conditions of this Agreement.

a. Advice of Counsel, Each Party hereby acknowledges that 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.

H. Severability. If any portion or portions of this Agreement are determined to be in
conflict with federal, state, or local law or are otherwise held unenforceable in accord with their
terms, all remaining provisions of this Agreement shall otherwise remain in fall force and effect
and be construed as if such invalid portion or portions had not been included herein.

1 Attorneys’ Fees, Except as set forth herein, the Parties shall each bear their own
aitomneys’ fees and costs incurred in this matter, including the preparation and execution of this
Agreement. However, in the event any of the Parties brings any legal proceeding of any kind
arising out of, relating to, or to enforce any term of this Agreement, the prevailing party in any
such legal proceeding shall be entitled to its reasonable attomeys’ fees and costs.

i Representation of Authority. The Parties represent and warrant that they are the

owner of and have full authority to settle and compromise the released claims, that they have not
sold, transferred or otherwise encumbered the released claims, and that they will not take any
action to frustrate or impair the purpose of this Settlement Agreement which is intended to fully
and finally seftle and resolve the released claims. In addition, nothing in this Settlement
Agreement shall impair or be construed to impair any right or defense of the Settling Defendants
ander applicable law, including any defense based on proportionate fault, against any third party

claim relating to the released claims.


Page 6

SECTION IV: Representations and Acknowledgements

A. No Admission of Liabilitv. 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 and any and all liability is expressly denied.

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.

Cc. Binding Eifect, 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,

sticcessors and assigns.

D. Choice af Law. This Agreement shall be interpreted, construed and enforced
according to applicable federal law, or in its absence, the laws of the State of Utah.

EL 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 nal be arriended or modified except by another written
instrument signed by the Party or Parties to be bound thereby, or by their respective authorized

attommey(s) or other representative(s).


OO. Ts"r

O8riip

Page 9

IN WITNESS WHEREOP, the parties hereto have caused this Agreement to be executed by each

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

FEDERAL DEPOSIT INSURANCE CORPORATION as
RECEIVER FOR AMERICA WEST BANK, L. C.

Date: By:
Primed Name: David Bartels
its: Senioy hey, Profes jability & Financial Cri fon
B seat HAZEN /
(b)6) .
Dates 2-7 2 =
ROW H. RECHINS
Date:
GREG W. HAWS
Date:
TODD MORGAN
Date: Co. ‘
Bie yO
(b)6)

pate 7 Ae Ay:

Apnroved and Consented fo Bi the Jnsurance Company:

Dates

HE



Page 1

SETTLEMENT AND RELEASE AGREEMENT

This Settlement and Release Agreement (the “Agreement”) is made as of this 19th day of
July, 2012, by, between, and among the following undersigned parties: (1) the Federal Deposit
Insurance Corporation, in its capacity as Receiver of America West Bank, L. C. ("FDIC-R"),
and (2) Douglas M. Durbano, Blake N. Hazen, Ron H. Richins, Greg W. Haws and Todd
Morgan (collectively, the "Settling Defendants"), (individually, the FDIC-R and the Settling
Defendanis may be referred to herein as “Party” and collectively as the “Parties”}. ‘The
effective date of this Agreement (the “Effective Date”) shall be the date on which the last of the
Parties" signatures is obtained on this Agreement.

RECITALS

WHEREAS.

Prior to May 1, 2009, America West Bank, L. C. (the "Bank") was a depository
institution organized and existing under the laws of Utah;

On May 1, 2009, the Bank was closed by the Utah Department of Financial Institutions,
and, pursuant to 12 U.S.C, § 1821(), the FDIC-R was appointed receiver, in accordance with 12
U.S.C. § 1821), the PDIC-R as receiver succeeded to all rights, titles, powers and privileges of
the Bank, including those with respect to ifs assets;

Among the assets to which the FDIC-R as receiver succeeded were any and all of the
Bank's claims, demands, and causes of actions against its former directors, officers, agents, 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;

The FDIC-R has asserted claims against the Settling Defendants, who had each served at
various times as directors and/or officers of the Bank;

jHinois National Insurance Company, a division or subsidiary of AIG (Insurance



(b)(6)

(b)(6)

Page 12

IN WITNESS WHEREOR, the parties hereto have caused this Agreement to be executed by each

of them or their daly authorized representatives on the dates hereinafter subscribed,

FEDERAL DEPOSIT INSURANCE CORPORATION as
RECEIVER FOR AMERICA WEST BANK, L. C.

ity & Einanclal Crimes Section.

Date: By.
Printed Name: David T. Bartels
Its: Senior Attorney. Professional Lia
BLAKE N. HAZEN

Date: ne
RON H, RICHINS

Date:
GREG W. HAWS
TODD MORGAN —__-y

tae Pe

POURLAYM. bURBAAO

i
Daler ZA

Approved and Consented to bythe Insurance Company:

Bale

(

p) (©)



(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 aubseribed.

Date:

Date:

Date:

FEDERAL DEPOSIT INSURANCE CORFORATION as
RECEIVER FOR AMERICA WEST BANK, L. C.

By:,

Printed Name: David T. Bartels

BLAKE N. BAZEN

RON H. RICHINS

GREG W. HAWS

Daler”!

Date:

Date:

TODD MORGAN

DOUGLAS M. DURBANO

Approved and Consented to by the Insurance Company:

Date:

i
i
i



Page 8

EN 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 AMERICA WEST BANK, LLG,

(b)) i q
Date: 1 [PS 12. By

me Printed Name: David T, Bartels

lis: Senior Attorney, Professional Liability & Financial Crimes Section

BLAKE N. HAZEN
Date:
RON H. RICHINS
Date:
GREG W. HAWS
Date:
TODD MORGAN
Date:
DOUGLAS M. DURBANO
Date:

Approved and Consented to by the Insurance Company:

Date:



Page 4

equity, whether known or unknown, belonging to the FDIC-R, that arise from or relate to, the
performance, nonperformance, or manner of performance of their respective functions, duties
and actions in any capacity, including but not limited to advisors, accountants, attorneys, agents,
employees and as officers and/or directors of the Bank, The Professional Liability & Financial
Crimes Section of the EDIC affirmatively states that, after having received the Settlement Funds
in full plus any accrued interest described in Section I above, it will close this matter and
following closure of the matters at issue herein, it will have closed all professional liability claim
areas (1.2., director and officer, accountant, and attomey malpractice/liability) related to the
Bank.

B. Release of FDIC-R by the Settling Defendants.

Effective simultaneously with the release granted in Paragraph II.A. above, the Settling
Defendants, on behalf of themselves individually, and their respective heirs, executors,
administrators, agents, representatives, successors and assigns, hereby waive, release and
discharge FDIC-R, and its employees, officers, directors, representatives, successors aod assigns,
from amy 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 functions,
duties and actions as officers and/or directors of the Bank or that arise from or relate to the
Policy.

c. Express Reservations From Releases by FDIC-R.

L. 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 the Settling Defendants or any other person or entity for


Page 3

annum until the date of full and final payment of the Settlement Funds.

c. In addition, and without waiving any other rights that the FDIC-R may have, in
the event that the Settlement Funds are not delivered to the FDIC-R, in full, on or before the
Payment Date, the FDIC-R, in its sole discretion, shall have the right at any time prior to receipt
of all Settlement Funds (including any accrued interest) io: (1) declare this Agreement null and
void, except for the agreed upon extension of the Tolling Period set forth in paragraph 1.D.
below, and prosecute its claims to the fullest; (2) agree in writing to extend the Payment Date; or
(3) enforce this Agreement, in which event the non-delivering Party, or Parties, agree to
jurisdiction in Federal District Court in Utah,

D. ‘The Parties recognize that the Tolling Agreement executed by the Parties,
effective as of April 30, 2012, was amended in the Settlement Terms Sheet, and that amendment
is restated herein, such that the “Tolling Period,” as defined on page one, paragraph No. 3 of the
Tolling Agreement, shall hereby be extended until the close of business on the fourteenth
business day that falls after the Payment Date. This provision shall survive and be enforceable
against any Party notwithstanding any voiding of this Agreement by the FDIC-R for nonpayment
of the Settlement Funds,

SECTION Il: Releases

A. Release of Individual Settling Defendants by FDIC-R.

Bffective upon receipt in full of the Settlement Funds plus any accrued interest described
in Section I above, and except as provided in Paragraph ILC below, the FDIC-R, for itself and its
snecessors and assigns, hereby waives, releases and discharges cach of the Settling Defendants,
and their respective spouses, beneficiaries, personal trusts or personal entities, agents, heirs,
executors, 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


Page 2

Company”) issued directors’ and officers’ liability policy number[_ ofthe “Pelicy”),
which insured the directors and officers of the Bank according to the terms, provisions and
conditions of the Policy and the Settling Defendants have made claims under the Policy;

The undersigned parties deem it in their best interests to enter into this Agreement to
avoid the uncertainty, trouble, and expense of litigation;

On June 29, 2012, the Parties reached agreement on, and outlined certain terms of, the
settlement in a Settlement Terms Sheet, executed by the Parties and made effective that day (the
“Settlement Terms Sheet”);

The parties now wish to execute this more formal, detailed Agreement to replace
Settlement Terms Sheet, as contemplated in the Settlement Terms Sheet; and

Upon the Effective Date of this Agreement, the Agreement will supersede the Settlement
Terms Sheet.

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 ‘The Insurance Company shall pay on behalf of the Settling Defendants to the
FDIC-R the sum of ONE MILLION SIX HUNDRED THOUSAND DOLLARS ($1,600,008.00)
(the “Settlement Funds”) within thirty 30) calendar days following the Effective Date of this
Agreement (the “Payment Date”). The Settlement Funds shall be delivered to FDIC-R by way
of direct wire transfer to the FDIC-R in accordance with wire instructions received from the
FEDIC-R.

B. In the event that the Settlement Funds are not delivered to the FDIC-R, in full, on

or before the Payment Date, interest shall accrue on all unpaid amounts af the rate of 10% per

(b)(4)