This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of May 1, 2017 and among Broadway Financial Corporation, ("BFC"), Broadway Federal Bank, f.s.b. e "Bank" and, together with BFC, the "Company"), and Norman "Sandy" Bellefeuille e "Executive"). The...
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of May 1, 2017 and among Broadway Financial Corporation, ("BFC"), Broadway Federal Bank, f.s.b. e "Bank" and, together with BFC, the "Company"), and Xxxxxx "Xxxxx" Xxxxxxxxxxxx e "Executive"). The term Company shall refer to BFC in respect of Executive's services BFC and to the Bank in respect of the Executive's services to the Banlc WHEREAS, the Executive has served as a senior executive officer of the Company the Bank since July 9, 2012; and WHEREAS, the Company desires to continue to retain the Executive to serve as ior Vice President, Chief Loan Officer of the Company on the terms and conditions set h in this Agreement, and the Executive desires to provide such services on such terms conditions. NOW, THEREFORE, in consideration of the terms and mutual covenants herein for other good and valuable consideration, the parties hereto agree as follows: 1. Services, Duties and Responsibilities. (a) The Company hereby agrees to employ the Executive as its Senior e President, Chief Loan Officer during the service period fixed by Section 4 hereof (the rvice Period"). The Executive shall report to the President and Chief Executive Officer FC (the "Chief Executive Officer") (or such other senior executive officer designated he Board of Directors of BFC, in which case the term Chief Executive Officer shall n such other designated senior executive officer), and shall have such duties and onsibilities as are consistent with the position of a senior vice president and chief loan cer of a bank and holding company of similar size and complexity as the Company (the r vices"). The Executive's principal work location shall be at the Company's principal cutive offices, provided, that the Executive may be required to travel as reasonably ssary in order to perform the Executive's duties and responsibilities hereunder. (b) During the Service Period, excluding any periods of vacation and leave to which the Executive is entitled, the Executive shall devote substantially all of Executive's working time, energy and attention to the performance of his duties and onsibilities hereunder and shall faithfully and diligently endeavor to promote the ness of the Company. During the Service Period, the Executive may not, without the r written consent of the Chief Executive Officer, directly or indirectly, operate, cipate in the management, operations or control of, or act as an executive, officer, ultant, agent or representative of, any type of competitive business or service, ided that the Executive may, to the extent not otherwise prohibited by this Agreement, te such amount of time as does not interfere with the performance of the Executive's s under this Agreement to engaging in community and charitable activities.
(a) Base Salarv. During the Service Period, the Executive shall be annual base salary of $248,044.00 for the Executive's Services hereunder, payab cordance with the normal andcustomary payroll procedures applicable to ompany's senior executives. The Executive's base salary shall be subject to increase t decrease], as determined by the compensation committee of the Board of Directo FC (the "Board") in its discretion (such base salary, as in effect from time to time ase Salary"). (b) Changes in Compensation and Benefits. The payment or accru nuses, and the grant and vesting of any equity incentive awards, pursuant to Section low or otherwise shall in all events be subject to EESA and the Interim Final Rule ( defined in Section ll(a) hereof). (c) Eguity Incentives. The Executive shall be entitled to participa Bank's Employee Stock Ownership Plan (the "ESOP") in accordance with its term dition, the Executive shall be eligible for equity-based awards pursuant to B mended and Restated 2008 Long-Term Incentive Plan ("2008 Long Term Plan") of es and in such amounts as shall be determined by the compensation committee of ard (or the Board, in the absence of the compensation committee) based on ecutive's performance for the preceding year. Each of such awards shall vest and, in se of any stock options, become exercisable, to the extent of twenty percent (20%) o ares covered thereby, on the first anniversary of the date of grant, and an xxxxxx xxxx percent (20%) of the shares covered thereby on each subsequent anniversary o e of grant, provided that vesting will cease upon termination of Executive's Services more specifically set forth in the 2008 Long-Term Plan or applicable award agreem y stock options granted to the Executive pursuant to the 2008 Long-Term Plan shal rcisable by the Executive or the Executive's estate, legal representative or heirs f iod of twelve (12) months after termination of the Service Period due to Executi th or Disability, all as more specifically set forth in the 2008 Long-Term Plan or plicable Award Agreement. (d) Other Benefits. Except as otherwise provided herein, the Execu ll be eligible to participate in all employee benefit plans and arrangements of mpany applicable to other senior executive officers, including, without limitation, nk's incentive compensation plan, the Company's 401(k) Plan with continuation of mpany's current employee contribution matching policy, and medical, dental, life g-term disability insurance programs. (e) Vacation.The Executive shall be entitled paid vacation ordance with the Company's vacation policy; provided, that the Executive shall itled to not less than twenty (20) days of vacation in each calendar year (or ropriately pro-rated portion thereof for partial years). The Executive shall be permit
with an automobile allowance in the amount of $800.00 per month during the Servi Period, payable in accordance with the normal and customary practices applicable to t Company's senior executives. 3. Reimbursement for Expenses. (a) Business Expenses. The Company shall promptly reimburse th Executive for all reasonable out-of-pocket business expenses, including, witho limitation, travel expenses incurred by the Executive in connection with carrying out h responsibilities under this Agreement during the Service Period upon presentation o appropriate vouchers, receipts or other satisfactory evidence thereof and otherwise i accordance with applicable Company policies. (b) Memberships. The Company shall pay or reimburse the Executiv for trade membership dues and fees during the Service Period in accordance with th Company's policies and procedures as in effect from time to time. 4. Service Period. (a) Term. The "Service Period" during which the Executive shal erform the Services for the Company pursuant to this Agreement means the perio ommencing on the date hereof and, subject to extension as set forth below, expiring at th lose of business on the third (3rd) anniversary of the date hereof in the year 2020. Prior t December 31 of each calendar year during the Service Period, the Chief Executive Office or his designee) shall review the Executive's performance, shall discuss the results of suc eview with Executive and promptly shall inform the Executive in writing whether th oard proposes to extend the Service Period for an additional year, and the results thereo hall be included in the minutes of the Board's meeting at which the same has been onsidered. If the Chief Executive Officer (or his designee) informs the Executive that th oard proposes to extend the Service Period, and the Executive accepts such proposal, the ervice Period shall be extended to end on the anniversary of the date hereof that occurs i he year immediately following the expiration date of the then existing Service Period otwithstanding the foregoing, nothing herein shall bar the parties from (a) extending the ervice Period under this Agreement by mutual agreement or (b) continuing th xecutive's employment by the Company without extension of this Agreement, subject to ection 4(b)(iii) below. (b) Termination.Notwithstanding the foregoing, the Service Period ay be terminated at any time upon the earliest to occur of the following events or any of e events identified in Section 7 hereof: (i) Death or Disability. The Service Period shall terminate pon the Executive's death or Disability. For this purpose, "Disability" means that either
xecutive's duties under this Agreement for more than one hundred twenty (120) day whether or not consecutive, in any twelve (12)-month period, by reason of a physical mental illness or injury. (ii) Termination for Cause by the Company. The Company ma erminate the Service Period for Cause at any time effective upon written notice to th xecutive. For purposes of this Agreement, the term "Cause" shall mean the terminatio fthe Service Period on account of(A) the Executive's failure to substantially perform th xecutive's duties hereunder or as reasonably assigned to the Executive by the Chi xecutive Officer or the Board and consistent with the Executive's obligations hereund nd Executive shall not have cured such failure (as determined in the reasonable judgme f the Chief Executive Officer or the Board) within thirty (30) days after written notic om the Chief Executive Officer (or his designee); (B) the Executive's material breach o is Agreement or any material written policy of the Company and failure of the Executiv have cured such breach (as determined in the reasonable judgment of the Board) withi irty (30) days after written notice from the ChiefExecutive Officer (or his designee); (C e Executive's willful violation of any law, rule, or regulation (other than traffic violation r similar offenses) or entry of a final cease-and-desist order against the Executive; (D onviction of a felony or a plea of nolo contendere to a felony; or (E) conduct by th xecutive constituting a misdemeanor involving a Disqualifier (as defined below) by th xecutive. "Disqualifier" means (i) fraud, moral turpitude, dishonesty, breach of fiduciary uty involving personal profit, organized crime or racketeering; (ii) willful violation o curities or commodities laws or regulations; (iii) willful violation of depositor stitution laws or regulations; (iv) willful violation of housing authority laws o gulations arising from the operations of the Bank; or (v) willful violation of the rules gulations, codes of conduct or ethics of a self-regulatory trade or professiona ganization. Notwithstanding the foregoing, the Executive shall not be deemed terminated r Cause unless and until there shall have been delivered to the Executive a copy of th solution duly adopted by the Board at a meeting of the Board called and held for tha rpose (after reasonable notice to the Executive) and an opportunity for the Executive gether with counsel, to be heard before the Board), finding that, in the good faith of the oard, the Executive's conduct justified termination for Cause and specifying th rticulars thereof in reasonable detail. (iii) Termination without Cause by the Company. The Company ay terminate the Service Period without Cause. For the avoidance of doubt, "termination thout Cause" includes, without limitation, the failure by the Company for whatever ason to extend the Service Period pursuant to Section 4(a), except if the Executive fuses in writing to accept the then one (1) year extension ofthe Service Period. (iv) Termination by the Executive for Good Reason.The ecutive may terminate the Service Period for Good Reason within ninety (90) days llowing the initial existence of the circumstances giving rise to Good Reason, subject to
thority, (ii) a reduction in the Executive's base salary, (iii) relocation of the Executi imary work location more than twenty (20) miles from 0000 Xxxxxxxx Xxxxxxxxx, ngeles, California, (iv) a material diminution of the Executive's responsibilities, or y material breach of this Agreement by the Company, including, without limitation, ilure to pay the Executive any amount when due and payable, pursuant to greement, except in the event of a bona fide dispute regarding reimbursement of busin penses, provided, that the Executive shall have delivered written notice to the Compa thin thirty (30) days of the initial existence of the circumstances giving rise to G ason, of the Executive's intention to terminate the Service Period for Good Reas hich notice specifies in reasonable detail the circumstances claimed to give rise to ecutive's right to terminate the Service Period for Good Reason, and the Company s t have cured such circumstances within thirty (30) days following the Company's rece such notice; provided, however, any breach by the Company of a payment obligat reunder must be cured within five (5) days (rather than the foregoing 30 days) follow e Company's receipt of such notice. If, following such thirty (30)-day period (or s e (5)-day period, as applicable), the Company has not cured such circumstances and ecutive decides to proceed with the termination of the Service Period for Good Reas ch a termination will be effected by providing the Company with a Notice rmination, which Notice of Termination shall be effective as of the date given, with y further right to cure by the Company. (v) Voluntary Termination by the Executive. The Execut y voluntarily terminate the Service Period (other than for Good Reason), provided t Executive gives notice to the Company of the Executive's intent to terminate t rvice Period at least sixty (60) days in advance of the Date of Termination. 5. Termination Procedure. (a) Notice of Termination.Any termination of the Service Period Company or by the Executive (other than a termination on account of the Executiv th) shall be communicated by written "Notice of Termination" to the other party ordance with Section 14(a) hereof. The Notice of Termination must indicate cific termination provision in this Agreement the party giving such notice believes cribe the circumstances applicable to such termination and shall set forth in reasona ail the facts and circumstances claimed to provide a basis for termination of t ecutive's employment under such provision. (b) Date of Termination."Date of Termination" shall mean (i) if t vice Period expires pursuant to Section 4(a) hereof, the date on which the expiration Service Period occurs; (ii) if the Service Period is terminated due to the Executiv th or Disability, the date of the Executive's death or the date on which the Notice mination is received by the Executive that the Board made its determination ability in accordance with Section 4(b)(i)(A) or (B) hereof; (iii) if the Compa
Reason, the date on which the Notice of Termination is given by the Executive ( earlier date as may be agreed to by the Company); (v) if the Executive volu terminates the Service Period (other than for Good Reason), the date specified in the ofTermination, which date shall be no earlier than sixty (60) days after the date such is given pursuant to Section 4(b)(v) hereof, unless otherwise agreed to by the parti (vi) if the Service Period is terminated for any other reason, the date on which a N Termination is received or any later date (within 30 days, or any alternative time agreed upon by the parties, after the giving of such notice) as set forth in such No Termination. Notwithstanding the foregoing, if the party receiving a Notice ofTermi notifies the other party that a dispute exists concerning the appropriate characteriza the subject termination for purposes of determining the Executive's entitlement to A Obligations and Severance Payments, and any other benefits hereunder, the D Termination shall be the date on which the dispute shall be finally resolved whet mutualagreement of the parties, by a binding arbitration award, or by a non-appealable judgment or order by a court of competent jurisdiction, provide nothing herein modifies the mandatory arbitration provisions set forth in Section 10 (c) Continuation of Payment. The Company shall continue to p Executive's full compensation in effect when the Notice of Termination giving rise ispute described in subsection (b) above was given (including, but not limited Executive's then Base Salary) and continue the Executive as a participant in all em enefit plans and arrangements of the Company in which the Executive was partici when the notice of dispute was given, until the dispute is finally resolved in acco with this Agreement. Amounts paid under this Section 5(c) shall not be offset agai educe, any other amounts due to the Executive pursuant to this Agreement. 6. Rights and Obligations Upon Termination ofthe Service Period. (a) Termination by the Company for Disability or without Cause he Executive for Good Reason. In the event of the termination of the Service Period ompany for Disability or without Cause, or termination of the Service Period xecutive for Good Reason, and to the extent permitted by applicable law and regul ncluding, without limitation, those referred to in Section II hereof, the Company sh he Executive, and the Executive shall be entitled to: (i) any unpaid portion of the alary through the Date of Termination; (ii) any unreimbursed business expen ccordance with Section 3(a) hereof; (iii) the rights set forth in the 2016 Stock O greement, and any subsequent equity incentive awards granted pursuant to the ong-Term Plan, as the same may be amended, or any other similar plan adopted by nd (iv) any vested benefits to which the Executive is entitled under the terms ompany's employee benefit plans and programs, including, without limitation, the E ubject to the terms of such plans and programs (collectively the "Accrued Obligati n addition, the Company shall continue to pay the Executive's monthly Base Salar ne-twelfth (1112th) of Executive's annual Base Salary in effect as of the date immed receding the date of termination of employment, or the date immediately prior t
installment for purposes of Section 409A ofthe Code) commencing with the first month following the Date of Termination and (ii) the Company shall continue d Severance Period to pay the automobile allowance provided for in Sections 2(f) he shall continue to pay the Executive for life, long-term disability, medical an insurance premiums in the manner consistent with the Company's obligations such payments pursuant to Section 2(d) (the payments described in (i) and (i collectively referred to herein as the "Severance Payments"). All Severance Payme be payable in accordance with normal and customary payroll procedures applicab Company's senior executives, subject to Section 6(d) hereof. Notwithstand foregoing provisions of this Section 6(a): (i) the Executive's entitlement to the Se Payments shall be subject to and conditioned upon the Executive delivering Company an Irrevocable Release not later than sixty (60) days after the dat Executive's termination of employment; (ii) if such 60-day periodfollow Executive's termination of employment begins in one calendar year and ends in the Severance Payments shall, to the extent required in order to comply with Sectio of the Internal Revenue Code of 1986, as amended (the "Code"), commence on payroll date following the later of(A) the end of the calendar year in which the Exe termination of employment occurs or (B) the date the Executive satisfies the Irre Release requirement; and (iii) the Executive's entitlement to the Severance Payme be subject to and conditioned upon the Executive complying in all material respe Sections 8 and 9 of this Agreement. "Irrevocable Release" means a mutual general of claims in the form affixed hereto marked Exhibit A (except with the date of term of employment, the date of such Irrevocable Release and other indicated informatio in) that has been executed by the Executive and for which the revocation period un Discrimination in Employment Act of 1967, as amended, and the terms of the relea expired. For the avoidance of doubt, this Section 6(a) shall be subject to the limita Section 11 of this Agreement. (b) Death. If the Service Period is terminated as a result Executive's death, the Executive or the Executive's estate or beneficiaries, as the ca be, shall be entitled to solely the Accrued Obligations. (c) Termination by the Comoanv for Cause or by the Ex Voluntarily. If the Service Period is terminated by the Company for Cause or vol by the Executive (other than for Good Reason), the Executive shall be entitled to so Accrued Obligations. (d) Change in Control. (i) In the event that the employment of the Executive Company is terminated by the Company without Cause or by the Executive fo Reason at any time within two (2) years after a Change in Control (but only if such in Control also constitutes a "change in control event" within the meaning of Trea
ffect at the time of such determination, of all of the payments provided for in Section 6(a) ithin ten (10) days of such xxxxxxxxxxx.Xx used herein the term "Applicable Federal ate" means the rate set forth from time to time in Table 1 of the Applicable Federal Rate ulings of the Internal Revenue Service, or any official successor publication, for debt struments maturing within three years and having annual compounding. (ii) As used herein, the term "Change in Control" shall mean an vent with respect to the Company of a nature that (i) would be required to be reported in sponse to Item 5.01 of a current report filed on Form 8-K pursuant to Section 13 or 15(d) f the Securities Exchange Act of 1934, as amended (the "Exchange Act") as in effect on e date of this Agreement; or (ii) results in any person acquiring control ofthe Bank or the ompany within the meaning of the Home Owners' Loan Act of 1933, as amended, and the les and regulations Board of Governors of the Federal Reserve System (the "FRB") ereunder, (provided, that in applying the definition of change in control as set forth under ch rules and regulations, the Board shall substitute its judgment for that of the FRB); and, ithout limitation, such an acquisition of control shall be deemed to have occurred at such me as (A) any "person" (as that term is used in Sections 13(d) and 14(d) of the Exchange ct and the regulations of the Securities and Exchange Commission (the "SEC") ereunder, including any such persons that may be deemed to be acting in concert with spect to the Bank or the Company, or the acquisition, ownership or voting of Bank or ompany securities) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under e Exchange Act and the regulations of the SEC thereunder, directly or indirectly, of curities of the Bank or the Company representing fifty percent (50%) or more of the ank's or the Company's outstanding securities except for any securities purchased by any x qualified employee benefit plan of the Company or the Bank; or (B) individuals who nstitute the Board as of the date of this Agreement (the "Incumbent Board") cease for y reason to constitute at least a majority of the Board, provided that any person becoming director subsequent to the date hereof whose election was approved by a vote of at least ree-quarters (3/4) of the directors then comprising the Incumbent Board, or whose mination for election by the Company's stockholders was approved by a nominating mmittee serving under an Incumbent Board, shall be, for purposes of this clause (B), nsidered as though such person were a member of the Incumbent Board; or (C) a plan of uidation, reorganization, merger, consolidation, sale of all or substantially all the assets the Bank or the Company or similar transaction in which the Bank or the Company is not e resulting entity is approved by the Board and the stockholders of the Company· or herwise occurs; or (D) solicitations of stockholders of the Company, by someone other n the Incumbent Board of the Company, seeking stockholder approval of a plan of organization, merger or consolidation of the Company or Bank or a similar transaction th one or more corporations as a result of which the outstanding shares of the Company's ting common stock are exchanged for or converted into cash or property or securities not ued by the Bank or the Company shall be distributed; or (E) a tender offer is made for enty percent (20%) or more of the voting securities of the Bank or the Company.
(a) If the Executive is suspended and/or temporarily prohibited fr icipating in the conduct of the Company's affairs by a notice served under sect (3) or (g)(l) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(3) or (g)(l)), mpany's obligations under this Agreement shall be suspended as of the date of serv ss stayed by appropriate proceedings.If the charges in the notice are dismissed rwise withdrawn, the Company shall (but subject in all events to the requirements tion 409A of the Code) (i) pay the Executive all of the compensation withheld while mpany's obligations under this Agreement were suspended, and (ii) reinstate all of gations which were suspended. (b) If the Executive is removed and/or permanently prohibited fro cipating in the conduct of the Company's affairs by an order issued under secti (4) or (g)(l) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(4) or (g)(l)), gations of the Company under this Agreement shall terminate as of the effective date rder, but vested rights of the Executive shall not be affected. (c) If the Company is in default (as=the term "default" is defined on 3(x)(l) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x)(l )), all obligatio r this Agreement shall terminate as of the date of default, but vested rights of t cutive shall not be affected. 8. Non-Solicitation. (a) During the period of the Executive's employment by the Compan her pursuant to this Agreement or otherwise, and for the twelve (12) -month peri wing the termination n, the Executive will of the Executive's employment with the Company for a not, without the written consent of the Company, directly ectly: (i) influence or attempt to influence any customer of t pany or any of its affiliates to discontinue its use of the Company's (or such affiliate' ces or to divert such business to any other person, firm or corporation; provide ver, a broad and general advertisement or solicitation not specifically targeting ding to target customers of the Company or any of its affiliates shall not be deemed tion ofthis Section 8; or (ii) interfere with, disrupt or attempt to disrupt the relationshi actual or otherwise, between the Company or any of its affiliates and any of i ctive employees, customers, suppliers, principals, distributors, lessors or licensor ts by the Executive, whether direct or indirect, (A) to solicit or assist any other perso tity in soliciting any employee of the Company or any of its affiliates to perfor ces for any entity (other than the Company or any of its affiliates) or (B) to encoura
target employees of the Company or any of its affiliates shall not be deemed a violatio this Section 8. In the event the Executive materially breaches any of the provision (b) ntained in Section 8(a) hereof and the Company seeks compliance with such provision judicial proceedings, the time period during which the Executive is restricted by suc ovisions shall be extended by the time during which the Executive has been in violatio any such provision and any period of litigation required to enforce the Executive' ligations under this Agreement. (c) The Executive and the Company intend that Section 8 of thi reement be enforced as written. However, if one or more of the provisions contained in ction 8 shall for any reason be held to be unenforceable because of the duration or scop such provision or the area covered thereby, the Executive and the Company agree tha court making such determination shall have the full power to reform, by "blu nciling" or any other means, the duration, scope and/or area of such provision and in its ormed form such provision shall then be enforceable and shall be binding on the parties 9. Confidentiality; Non-Disclosure. (a) The Executive hereby agrees that, during the Service Period and reafter, he will hold in strict confidence any proprietary or Confidential Information xxx to the Company or any of its affiliates. For purposes of this Agreement, the term onfidential Information" shall mean all information of the Company or any of its liates (in whatever form) that is not generally known to the public, including without itation any inventions, processes, methods of distribution, customer lists or trade rets.Nothing herein prohibits the Executive from reporting possible violations of eral law or regulation to any federal, state or local governmental agency, commission or ity (collectively, "Governmental Agencies"), including, but not limited to, the partment of Justice, the Securities and Exchange Commission, the Congress, and the pector General, or making other disclosures that are protected under the whistleblower visions of federal law or regulations. Moreover, nothing herein limits the Executive's ity to communicate with any Governmental Agencies or otherwise participate in any estigation or proceeding that may be conducted by any Governmental Agency. (b) The Executive hereby agrees that upon the termination of the vice Period, the Executive shall not take, without the prior written consent of the mpany, any business plans, strategic plans or reports or other document (in whatever m) of the Company or any of its affiliates, which is of a confidential nature relating to Company or any of its affiliates. 10. Arbitration; Injunctive Relief. (a) Except for claims for injunctive relief pursuant to Section IO(b)
(a) shall not preclude parties from seeking provisional remedies in aid of arb om a court having appropriate jurisdiction, nor shall it limit the rights of the Comp rth in Section 1O(b) hereof. The parties hereto agree that it would not be possible to mea (b) xxxx the damages that would be suffered by the Company and its affiliates in th at the Executive were to breach any of the restrictive covenants set forth in Section hereof (the "Restrictive Covenants"). In the event that the Executive breaches any estrictive Covenants, the Company shall be entitled to an injunction restraini xecutive from violating such Restrictive Covenants (without posting any bond). ompany shall institute any action or proceeding to enforce any such Res ovenant, the Executive hereby waives the claim or defense that the Company or an filiates has an adequate remedy at law and agrees not to assert in any such ac oceeding the claim or defense that the Company or any of its affiliates has an ad medy at law. 11. TARP and Golden Parachute Restrictions. (a) Notwithstanding anything herein to the contrary: (i) any pay de to the Executive pursuant to this Agreement or otherwise are subject t nditioned upon their compliance with 12 U.S.C. 1828(k) and 12 C.P.R. Pa arding golden parachute and indemnification payments; (ii) no annual bonus, inc mpensation, severance pay, or golden parachute payments or benefits shall be vided, or accrued under this Agreement or otherwise to the extent it would v ction 111 of Emergency Economic Stabilization Act of 2008, as amended ("E d the Interim Final Rule (as hereinafter defined); (iii) no payment or benefit shall b provided under this Agreement or otherwise to the extent that it would xxxxx eement between or among the Company and the Board of Governors of the F serve System, the Office of the Comptroller of the Currency or any other govern ity or agency, provided that the Company shall use commercially reasonable eff otiate the authority and right to make all payments and provide all benefits ecutive as and when contemplated by this Agreement; and (iv) subject to, a ordance with, the interim final rule promulgated pursuant to Sections 101(a), 101 111 ofEESA (the "Interim Final Rule"), the Executive shall be required to repay mpany the amount of any bonus payment (as defined in the Interim Final Rule) ing the TARP period (as defined in the Interim Final Rule) to the extent that the ment was based on materially inaccurate financial statements (which includes, limited to, statements of earnings, revenues, or gains) or any other mat ccurate performance metric criteria. In the event that the amounts and benefits payable pursuant t (b) reement, when added to other amounts and benefits which may become payable cutive by the Company and any affiliated company, are such that the Exe
Executive's retention of a net amount, after the payment of all federal, state and xcise, employment and income taxes on such payments and the value of such be qual to the net amount the Executive would have retained had the initially calc ayment and benefits not been subject to such excise tax provisions. For purposes receding sentence, the Executive shall be deemed to be subject to the highest ma ederal, relevant state and relevant local tax rate applicable to an individual resident i ngeles, California. All calculations required to be made under this subsection xx xxx by the Company's independent public accountants, subject to the rig xecutive's representative to review the same. All such amounts required to be pa his Section shall be paid at the time any withholding may be required by the Compa ny taxes may be required to be paid by the Executive, under applicable law, an dditional amounts to which the Executive may be entitled shall be paid or reimburs ater than fifteen (15) days following confirmation of such amount by the Comp ndependent public accountants. In the event any amounts paid hereunder are subsequ etermined to be in error, due to estimates required for calculation of such payments roving to be inaccurate or otherwise, the parties hereto agree to reimburse each oth orrect such error, as appropriate, and to pay interest thereon at the applicable federa as determined pursuant to Code Section 1274) for the period of time such erro mount remained outstanding and unreimbursed.The parties hereto recognize tha ctual implementation of the provisions of this Section 11(b) are complex and agree to ith each other in good faith to resolve any questions or disagreements arising with re ereto. 12. Section 409A. This Agreementis intendedtocomply with quirements of Section 409A ofthe Code (including the exceptions thereto), to the e pplicable, and the parties' Agreement shall be interpreted in accordance with quirements. If any provision contained in the Agreement conflicts with the requirem Section 409A of the Code (or the exemptions intended to apply under the Agreem e Agreement shall be deemed to be reformed to comply with the requirements of Se 09A of the Code (or the applicable exemptions thereto). Notwithstanding anything t ntrary herein, for purposes of determining the Executive's entitlement to the Sever ayments, (i) the Service Period shall not be deemed to have terminated unless and e Executive incurs a "separation from service" as defined in Section 409A of the C d (ii) the term "Date of Termination" shall mean the effective date of the Execut paration from service. Reimbursement of any expenses provided for in this Agree all be made promptly upon presentation of documentation in accordance with ompany's policies (as applicable) with respect thereto as in effect from time to time no event later than the end of calendar quarter following the year such expenses curred); provided, however, in no event shall the amount of expenses eligible imbursement hereunderduring a calendar yearaffect the expenses eligible imbursement in any other taxable year. Notwithstanding anything to the contrary he a payment or benefit under this Agreement is due to a "separation from service rposes of the rules under Treas. Reg. § 1.409A-3(i)(2) (payments to specified emplo
procedures), such payment shall, to the extent necessary to comply with the requirement of Section 409A of the Code, be made on the later of(x) the date specified by the foregoin provisions of this Agreement or (y) the date that is six (6) months after the date of th Executive's separation from service (or, if earlier, the date of the Executive's death). Any installment payments that are delayed pursuant to this Section 12 shall be accumulated an paid in a lump sum on the first day of the seventh month following the Date of Terminatio (or, if earlier, upon the Executive's death) and the remaining installment payments shal begin on such date in accordance with the schedule provided in this Agreement. Th Severance Payments are intended not to constitute deferred compensation subject t Section 409A of the Code to the extent such Severance Payments are covered by (i) th "short-term deferral exception" set forth in Treas. Reg. § 1.409A-l(b)(4), (ii) the "two times severance exception" set forth in Treas. Reg. § 1.409A-I(b)(9)(iii), or (iii) the "limited payments exception" set forth in Treas. Reg. § 1.409A-l(b)(9)(v)(D). Th short-term deferral exception, the two times severance exception and the limited payments exception shall be applied to the Severance Payments in order of payment in such manne as results in the maximum exclusion of such Severance Payments from treatment as deferred compensation under Section 409A of the Code. Each installment of the Severance Payments shall be deemed to be a separate payment for purposes of Section 409A of the Code. 13. Legal Fees. The Company shall promptly reimburse the Executive for his reasonable legal fees incurred in connection with the negotiation and preparation of this Agreement. 14. Miscellaneous. (a) Any notice or other communication required or permitted under this Agreement shall be effective only if it is in writing and shall be deemed to be given when delivered personally or one (1) day after it is sent by a reputable overnight courier service (with evidence of delivery) and, in each case, addressed as follows (or if it is sent through any other method agreed upon by the parties): If to BFC: Broadway Financial Corporation Attn: Chief Executive Officer 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 If to the Bank: Broadway Federal Bank, f.s.b. Attn: Chief Executive Officer 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxxxxxxxxx 0000 Xxxx Xxxxx Xxxxxxxx, XX 00000 to such other address as any party hereto may designate by notice to the others. (b) This Agreement together with the Broadway Financial Corporation xxxx Agreement dated February 24, 2016 (the "2016 Stock Option Agreement"), and the hts of the Executive pursuant to the ESOP shall constitute the entire agreement among parties hereto with respect to the subject matter hereof, and supersede and replace any d all prior understandings or agreements with respect to the subject matter hereof. (c) Only an instrument in writing signed by the parties hereto may end this Agreement, and any provision hereof may be waived only by an instrument in iting signed by the party or parties against whom or which enforcement of such waiver is ght. The failure of any party hereto at any time to require the performance by any other ty hereto of any provision hereof shall in no way affect the full right to require such formance at any time thereafter, nor shall the waiver by any party hereto of a breach of y provision hereof be taken or held to be a waiver of any succeeding breach of such vision or a waiver of the provision itself or a waiver of any other provision of this reement. (d) In the event that any provision is determined to be invalid or nforceable, in whole or in part, such determination shall in no way affect any other visions of this Agreement, or the validity or enforcement of the remainder of this reement, and any provisions(s) thus affected shall be modified to the extent necessary to ng the affected provision(s) within the applicable requirements of the then-current law. (e) The Company shall use its commercially reasonable efforts to nge for any successor (whether direct or indirect, by purchase, merger, consolidation or erwise) to all or substantially all of the business and/or assets of the Company to assume Agreement in the same manner and to the same extent that the Company would have n required to perform it if no such succession had taken place. As used in this eement, the term "Company" shall mean the Company and any such successor (or cessors) that assumesthis Agreement,by operationof law or otherwise. withstanding the foregoing, no such assignment or assumption shall relieve the mpany of any obligations hereunder. (f) The parties hereto shall cooperate with each other and take all ons, including obtaining, any governmental or stockholder approval, that any of them determine in good faith to be required to carry out the terms of this Agreement.
determine are required to be withheld pursuant to any applicable law or regulation (it being understood, that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein). (h) In the event that the Executive shall perform services for the Bank or any other affiliate or subsidiary of BFC, any compensation or benefits provided to the Executive by such other employer shall be applied to offset the obligations of BFC hereunder, it being intended that this Agreement set forth the aggregate compensation and benefits payable to the Executive for all services to the Company and all of its affiliates and subsidiaries. BFC shall reimburse the Bank for compensation or benefits paid or provided by the Bank to the Executive to the extent attributable to the Executive's performance of services for BFC in accordance with the applicable reimbursement policies ofBFC and the Bank. (i) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to its principles of conflicts of law. (j) This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. A facsimile of a signature shall be deemed to be and have the effect of an original signature. (k) The headings in this Agreement are for convenience of reference only and shall not be a part of or control or affect the meaning of any provision hereof. [Signatures on next page]
as of the date first written above. Broadway Financial Corporation E s Name: Title: t-.JJ'f"YNG P d -. / c-o Broadway Federal Bank, fs.b. A y G Name: Title: .S:Jffl-,..) ,l>o;;.., / Xx Xxxxxx "Xxxxx" Xxxxxxxxxxxx Print or type name of Executive
TO EMPLOYMENT AGREEMENT (Executive: Xxxxxx "Xxxxx" Xxxxxxxxxxxx) 1. Arbitration Except as provided in Section 1O(b) of this Agreement, in the event of oversy, dispute or claim (including those based upon a statute, tort or public po those against individuals or other entities), arising out of or relating to (1) ement, (2) the employment relationship between the Executive and the Compan e termination of that relationship (hereafter "dispute"), the parties' exclusive rem be to submit such dispute to the dispute resolution procedures described below. s intend for all disputes to be covered by the arbitration provision contained in ndum A to the fullest extent permitted by law, and the Executive agrees to pursue dispute in an individual capacity and not as a class representative or class mem the following claims are excluded from these dispute resolution procedures: s by Executive for workers' compensation, unemployment compensation or s ility benefits; (2) claims based on any pension or welfare plan the terms of wh in an arbitration or other dispute resolution procedures; (3) claims brought utive or Company to compel arbitration pursuant to this Addendum A or to enforc ationaward;(4) claims underthe NationalLaborRelationsAct;(5) entative action under the Private Attorney General Act ("PAGA"); and (6) any ot s which are not permitted by applicable law to be subject to a binding pre-disp ation agreement. If either party has claims against the other party that are deemed arbitrable, those claims shall be stayed and the arbitrable claims shall be resol e the stayed claims are addressed. (a) Written notice of desire to arbitrate shall describe the factual b claims asserted ("Claim"), and shall be served on the other party as set forth n 14(a) of this Agreement. If written notice of desire to arbitrate is not served wit plicable time period, the party who failed timely to serve notice will be deemed waived the right to further contest the Claim, and will be deemed to have accepted party's last stated position on the Claim. (b) The arbitration shall be administered by JAMS, Inc. (form n as Judicial Arbitration and Mediation Services, Inc.) ("JAMS") pursuant to yment Arbitration Rules Procedures, which can be found & xxx.xxxxxxx.xxx/xxxxx-xxxxxxxxxx-xxxxxxxxxxx and which will be provided to tive upon request, and subject to JAMS Policy on Employment Arbitrat um Standards of Procedural Fairness, which will also be provided to the Execut equest.Judgment on any Award (as defined below) may be entered in any co competent jurisdiction. The arbitration shall take place in Los Angeles, Californ thstanding anything herein to the contrary, the parties may agree to use ndent arbitrator that they mutually select and agree upon.
ADDEND (c) Any party may be represented by an attorney or other represe d by the party. (d) Each party shall have the right to take the deposition o ual and any expert witness designated by another party without the arbitrator' al. Each party also shall have the right to make requests for production of docu party. Additional discovery may be had as ordered by the arbitrator. (e) At least fourteen (14) days before the arbitration, the parties ge lists of witnesses, including any expert, and copies of all exhibits intended the arbitration. (f) The arbitrator shall have jurisdiction to hear and rule on pre-h s and is authorized to hold pre-hearing conferences by telephone or in person, or deems necessary. The arbitrator shall have the authority to resolve all i to discovery, and to entertain motions to dismiss, motions for summary judg udication, and any other pre-trial motions submitted by any party, and shall dards governing such motions under the California Rules of Civil Procedure. (g) Either party, at its expense, may arrange for and pay the cos xxxxxx to provide a stenographic record of proceedings. If both parties des cess to the stenographic record of proceedings then they shall split all such (h) The arbitrator will have no authority to: (i) adopt new Com or procedures, (ii) modify this Agreement or existing Company pol res, wages or benefits, or (iii) in the absence of a written waiver pursua ph (j) below, hear or decide any matter that was not processed in accordance reement. The arbitrator shall have exclusive authority to resolve any C g, but not limited to, a dispute relating to the interpretation, applica ability or formation of this Agreement, or any contention that all or any part o ent is void or voidable. The arbitrator will have the authority to award any fo of remedy or damages that would be available in a court of competent jurisdi (i) Either party, in the party's sole discretion, may, in writing, wai r in part, the other's failure to follow any time limit or other requirement set fo eement, except that neither party can waive any statute oflimitation for filin The arbitration will be conducted in private, and will not be (j) or indirectly, to the public or the media. The arbitration and all inform or indirectly relating thereto (including, but not limited to, the testimony, evid ) shall be deemed Confidential Information and shall be subject to the restric in Section 9(a) of this Agreement. (k) The arbitrator, subject to the right to either party to utiliz
ADDEND l set forth the facts and reasons that support the Award. The Award shall be fin ing on the Company and the Executive. The parties agree, however, that a co petent jurisdiction has the right to set aside the decision of the arbitrator, trator, in rendering his or her award, committed an error oflaw that affected the r amages awarded. The Company will pay all administration fees associated wi (I) tration over and above those that the Executive would have to pay in a court proc the cost of arbitrator, it being the parties' intention that the Executive not be s that the Executive would not be required to bear in a court proceeding, to the the Executive would be required to pay for filing fees and transcript fees in a eeding Executive will remain responsible for such fees. Notwithstandin isions to the contrary found in such procedures, in the event of final and bi ration pursuant to this paragraph, except for the arbitrator's fees which the Com be responsible for paying, each party will be responsible for paying its own cos neys' fees in connection with the arbitration. The arbitrator shall not be authori d the prevailing party costs and attorneys' fees, except as expressly provid te. (m) The Company and the Executive understand that developme law and legislation may affect the enforceability of arbitration provisions such a he parties' intention and desire that this Addendum A is compliant with current l ime either party seeks its enforcement. Accordingly, if any one or more o isions of this Addendum A is deemed to be unenforceable, the remaining provi continue in full force and effect in accordance with Section 14(d) of this Agree (n) Each of the parties acknowledges that he or it has carefully rea rstands this Addendum A and agrees to be bound by and comply with all of its t of the parties acknowledges such party's voluntary agreement to arbitrate claim rstands and acknowledges that by signing this Agreement, such party is giving u to a jury trial and to a trial in a court of law.
