SETTLEMENT AND RELEASE AGREEMENT 

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

the following undersigned parties: 

The Plaintiff Federal Deposit Insurance Corporation as Receiver for United Western Bank 

("FDIC-R"), and Charles J. Berling, James H. Bullock, Anthony C. Codori, Bernard C. Darn~, 

Gary G. Petak, William D. Snider, Cindy J. Sterett, John S. Umbaugh, and Scot T. Wetzel 

(collectively the "Settling Defendants") (individually, the FDIC-R and the Settling Defendants 

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

RECITALS 

WHEREAS: 

Prior to January 21, 2011 , United Western Bank ("Bank") was a depository institution 

organized and existing under the laws of Colorado; 

On January 21, 2011, the Office of Thrift Supervision closed the Bank and, pursuant to 12 

U.S.C. § 1821(c), the Federal Deposit Insurance Corporation was appointed Receiver. In 

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 FDIC-R succeeded were all of the Bank's claims, demands, 

and causes of action against the Bank's former directors, officers, and employees arising from the 

performance, nonperformance, and manner of performance of their respective functions, duties 

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

On January 17,2014, the FDIC-R fi led a complaint for money damages against the Settling 

Defendants, each of whom served at various times as a director and/or officer ofthe Bank. Those 

claims for damages are now pending in the United States District Court for the District of Colorado 

in FDIC as Receiver for United Western Bank v. Berling, et al., Case No. 1 :14-cv-00137-CMAMJW (D. Colo.) ("D&O Action"). The Settling Defendants have denied liability in the D&O 

Action. 
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 1: Payment to the FDIC-R 

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

calendar days following the date the Parties execute this Agreement and the FDIC-R's provision 

of all necessary payment instructions (whichever comes later), the Settling Defendants shall cause 

payment to be made by a third party on their behalf to the FDIC-R of the sum of SEVEN MILLION 

SIX HUNDRED FTFTY THOUSAND DOLLARS ($7,650,000.00) ("the Settlement Payment"). 

B. The Settlement Payment shall be delivered by direct wire transfer into an account 

designated by the FDIC-R. In the event that the Settlement Payment is not delivered to the FDICR by the date determined by Subsection A above, interest shall accrue on all unpaid amounts at 

the rate calculated in accordance with 26 U.S.C. § 6621(a)(2) from the date determined by 

Subsection A above until the date of payment. The FDIC-R shall provide all necessary payment 

instructions no later than five calendar days after full execution of this Agreement. 

C. lfthe 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 (including all accrued interest) to: 

1. Extend the period of time for the Settlement Payment, including interest 

accruing from the date determined by subsection A above, through the date 

of payment at a rate calculated in accordance with 26 U.S.C. § 662l(a)(2); 

or 

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

jurisdiction in United States District Court for the District of Colorado and 

2 
to pay all of the FDIC-R's reasonable attorney's fees and costs expended in 

enforcing the terms of this Agreement; or 

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

Settling Defendants agree to consent, return any settlement payments 

previously made, and proceed with or re-institute the D&O Action. The 

Settling Defendants further agree to waive any defense based on any statute 

of limitations defense that did not exist prior to the execution of this 

Agreement and would bar any of the FDIC-R's claims and waive all 

objections, defenses, claims or counterclaims that did not exist or were 

otherwise unavailable as ofthe date this Agreement was fully executed and 

covenant and agree not to assert any 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 law or equity. 

Any extension of time under Section I.C.1 for delivery of the Settlement Payment or 

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

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

Payment (including all accrued interest) in full. 

SECTION II: Stipulation and Dismissal 

Within eight (8) business days after the latter of (1) full execution of this Agreement by all 

of the Parties, and (2) receipt of the Settlement Payment in full, plus any accrued interest, the 

FDIC-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, in the D&O Action. 

3 
SECTION III: Releases 

A. The FDIC-R's Releases 

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

the FDIC-R, for itself and its successors and assigns, hereby releases and discharges the Settling 

Defendants and their respective heirs, executors, trustees, administrators, representatives, insurers, 

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

respective functions, duties and actions as officers, employees, and/or directors of the Bank, 

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

B. The Settling Defendants' Release 

Effective simultaneously with 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, insurers, 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 functions, 

duties and actions as officers, employees, and/or directors of the Bank, including without limitation 

the causes of action alleged in the D&O Action. 

C. Exceptions from Releases by the FDIC-R 

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

4 
financial institutions, or any other person or entity, including without 

limitation any such claims acquired by the FDIC-R as 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 this 

Agreement. 

2. Notwithstanding any other provision of this 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 diminishing 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 United States 

as defined by 18 U.S.C. § 6. In addition, the FDIC-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. ~. if 

appropriate. 

SECTION IV: Waiver of Dividends and Proceeds from Litigation 

To the extent, if any, that Settling Defendants are or were shareholders 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 Federal Deposit Insurance 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 

5 
United States government, or any agency or department 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, other distributions, and 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 this Agreement, and that this 

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

SECTION VI: Reasonable Cooperation 

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 D&O Action and to otherwise perform the terms of this 

Agreement. 

SECTION VII: 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 

by any of them regarding any claim or defense, and that the Agreement shall not be offered or 

received in evidence by or against any Party except to enforce its terms. 

6 
(b )(6) . 

(b )(6) 

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, shall be deemed a complete original, binding the 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 the laws of the State of Colorado. 

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

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

If to the FDIC-R: 

Samuel B. Lutz 

Federal Deposit Insurance Corporation 

3501 Fairfax Drive, B-7034 

Arlington, Virginia 22226 

l I 

With a copy to: 

Andrew R. Shoemaker 

Paul H. Schwartz 

Shoemaker Ghiselli + Schwartz LLC 

1811 Pearl Street 

Boulder, CO 80302 

............................................................... L...---1 __ _____. 

If to the Settling Defendants: 

Ryan T. Scarborough 

Williams & Connolly LLP 

725 Twelfth Street, N.W. 

Washington, D.C. 20005 

(b)(6) ...... (. I 

E. Entire Agreement and Amendments. This Agreement, including the annexed 

Stipulation, constitutes the entire agreement between and among the undersigned Parties 

concerning the matters set forth herein and supersedes any prior agreements. This Agreement may 

7 
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 undersigned Patties acknowledge that this Agreement 

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

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

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:. ________ _ 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

UNITED WESTERN BANK 

BY: JL---~--~··_···········J-1-···· __ .................. (~)(§.) 

TITLE: ( .(lVV\s<A., L~ Divic,l ~ 

CHARLES J. BERLING 

JAMES H. BULLOCK 

ANTHONY C. CODORI 

8 
(b )(6) 

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 attomey(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 undersigned Parties acknowledge that this Agreement 

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

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

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:_~...l-- r~ .=........:... ~ lt_fo __ 

............................................................................................................. 

Date: ________ _ 

Date: ________ _ 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

UNITED WESTERN BANK 

BY: ------------------ TITLE: ____________ _ 

CHARLES J. BERLING 

JAMES H. BULLOCK 

ANTHONY C. CODORI 

8 
Jun 2316 11:14a WRAP & MAIL ROOM 2818556225 

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

not be amended or modified, nor may any of its provisions he 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 shalt not affect the interpretation of this Agreement. 

G. No Confidentiality. The undersigned Parties acknowledge that this Agreement 

shall not be C<lnfidential and will be disclosed pursuant to the Federal Deposit Insurance 

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

1N WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed 

by each of them or their duly authorized representatives on the dates here.inafter subscribed. 

Date: _______ _ 

Date: _______ _ 

Date: _ _ ~'--/_.? 3_,_)_1 b __ 

Date: _______ _ 

FEDERAL DEPOSlT INSURANCE 

CORPORATION AS RECEIVER FOR 

UNITED WESTERN BANK 

BY: ---------------------------- TITLE: _____________ _ 

CHARLES J. BERLING 

JAMES H. BULLOCK 

ANTHONY C. CODORI 

8 

- ---- ---- ----
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 res11ective 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 undersigned Parties acknowledge that this Agreement 

shall not he confidential and will be disclosed pursuant to the Fedeml Deposit Insmancc 

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

IN WITNESS \VHEREOF, 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:_----=-~+-6-~--=--J~/;._ 1 't_ 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER fOR 

UNITED WRSTRRN RANK 

BY: ---------------------------

TITLE: ____ _ 

CHARLES J. BERLING 

JAMES H. BULLOCK 

ANTHONY C. CODORI 

(b)(?.) 

······-······ 

........ ~············· 

································ 

8 
Date: G 1/J BERNARD C. DARRE 

(b)(6) ·············································································································································································································································jL ____________ ____. 

Date:. ______ _ GARY G. PETAK 

Date:. ______ _ WfLLIAM D. SNIDER 

Date:. ______ _ CINDY J. STERETT 

Date:. _ _____ _ JOHNS. UMBAUGH 

Date: ______ _ SCOTT. WETZEL 

9 
Date: ______ _ BERNARD C. DARRE 

Date; (;, I ~ 3 L~_Q_ / ~ GARY G. PETAK 

~L-____ ....... _ .......... _ .......... _ ............ _ ........... _ .................. 1.._""""'_ ........ _ .......... _ ......... J~)(?,) 

Date: ______ _ WILLIAM D. SNIDER 

Date: ______ _ CINDY J. STERETT 

Date: ______ _ JOHNS. UMBAUGH 

Date: ______ _ SCOTT. WETZEL 

9 
Date: ·------ BERNARD C. DARRE 

Date: _____ _ GARY G. PETAK 

WH..LIAM D. SNIDER 

j ································································· L (~)(()) 

Date: ·------ CINDY J. STEREIT 

Date:. _____ _ JOHN S. UMBAUGH 

Date: _____ _ SCOTT. WETZEL 

9 
06/22/2016 23:27 3036350550 

D~e:. ______________ _ 

D~e:. _____ ~--~---

Date: ___________ _ 

Date: ___________ _ 

Date: ______ ~_ 

Date:. __________ _ 

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9 
Date: _ _ _ _ __ _ BERNARD C. DARgE 

·. 

Date: ______ _ GARY G. PETAK 

Date: ______ _ WILLIAM D. SNIDER 

Date: ______ _ CINDY J. STERETT 

Date: __ (p__,_/ -'/,_J_lP _ _ JOHN S. UMBAUGH 

~ ..... ______ ······_····-·····-_·····-····_········ __ ....... ····!(~)(()) 

Date: ______ _ SCOTT. WETZEL 

9 
Date: ______ _ BERNARD C. DAR.RE .. 

Date: _ _ ____ _ GARY G. PETAK 

Date:. _ _____ _ WILLIAM D. SNIDER 

Date: ______ _ CINDY J. STERETT 

Date: ____ __ _ JOHNS. UMBAUGH 

SCOTT. WETZEL 

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

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9 
EXHIBIT "A" 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 14-cv-00137-CMA-MJW 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER 

FOR UNITED WESTERN BANK, 

Plaintiff, 

v. 

CHARLES J. BERLING, 

JAMES H. BULLOCK, 

ANTHONY C. CODORI, 

BERNARD C. DARRE, 

GARY G. PETAK, 

WILLIAM D. SNIDER, 

CINDY J. STERETT, 

JOHN S. UMBAUGH, 

and SCOTT. WETZEL, 

Defendants. 

STIPULATION TO VOLUNTARY DISMISSAL WITH PREJUDICE 

Pursuant to Rule 41 (a)(1 )(A)(ii) of the Federal Rules of Civil Procedure, and in 

accordance with their settlement agreement, it is hereby stipulated and agreed by and 

among Plaintiff Federal Deposit Insurance Corporation as Receiver for United Western 

Bank ("FDIC-R") and Defendants Charles J. Berling, James H. Bullock, Anthony C. 

Codori, Bernard C. Darre, Gary G. Petak, William D. Snider, Cindy J. Sterett, John S. 

Umbaugh, and Scot T. Wetzel ("Defendants"), by their respective attorneys, that the 

above-captioned case shall be dismissed in its entirety, with prejudice, and with each 

party to bear its/his/her own costs. 
Dated: ______ , 2016 

Stipulation prepared and agreed to by: 

s/ Andrew R. Shoemaker 

Andrew R. Shoemaker #2671 0 

Paul H. Schwartz # 29729 

SHOEMAKER GHISELLI +SCHWARTZ 

LLC 

1811 Pearl Street, Boulder, Colorado 

80302 

Phone: (303) 530-3452 

(b)(6) ·······························'-1 ________ ....... 

Attorneys for Plaintiff Federal Deposit 

Insurance Corporation as Receiver for 

United Western Bank 

s/ Rvan T. Scarborough 

Ryan T. Scarborough 

Steven D. Andrews 

Jeffrey Bailey 

Jay Schweikert 

WILLIAMS & CONNOLLY LLP 

725 121

h Street, NW 

Washington, DC 20005-5901 

I Phone (202) 4:- ~~00

1 (~)(~) 

2 

s/ Phillip A. Parrott 

Phillip A. Parrott #11828 

Campbell Killin Brittan & Ray, LLC 

270 St. Paul Street, Suite 200 

Denver, CO 80206 

Telephone: (303) 394-7202 

Email:l ······································-! ................... (P.)(§) 

Attorneys for Defendants Charles Berling, 

James Bullock, Anthony Codori, Bernard 

Dan·e, Gary Petak, William Snider, Cindy 

Sterrett, John Umbaugh, and Scot Wetzel