E LOYMENTAGREEMENT This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March y and among Broadway Financial Corporation, ("BFC"), Broadway Federal Ba he "Bank" and, together with BFC, the "C ompany"), and Wayne-Kent A. Brads xecutive"). The term...
E LOYMENTAGREEMENT This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March y and among Broadway Financial Corporation, ("BFC"), Broadway Federal Ba he "Bank" and, together with BFC, the "C ompany"), and Xxxxx-Xxxx X. Brads xecutive"). The term Company shall refer to BFC in respect of Executive's serv and to the Bank in respect of the Executive's services to the Ban1c WHEREAS, the Executive has served as a senior executive officer of the Comp Bank since February, 2009; WHEREAS, the Company desires to continue to retain the Executive to serve nt and Chief Executive Officer of the Company on the terms and conditions se this Agreement, and the Executive desires to provide such services on such ter nditions; NOW, THEREFORE, in consideration of the terms and mutual covenants here 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 nt and Chief Executive Officer during the service period fixed by Section 4 her ervice Period"). The Executive shall report to the Board of Directors of BFC ( ") and shall have such duties and responsibilities as are consistent with the posi ident and Chief Executive Officer of a bank and holding company of similar siz mplexity as the Company (the "Services"). The Executive shall also serve on th o the extent he is elected for such service by the BFC stockholders, which elect recommended to the BFC stockholders by the appropriate committee of the Bo Executive shall serve on the board of directors of the Bank. The Executive's al work location shall be at the Company's principal executive offices; provide Executive may be required to travel as reasonably necessary in order to perform ive's duties and responsibilities hereunder. (b) During the Service Period, excluding any periods of vacation an ve to which the Executive is entitled, the Executive shall devote substantially al cutive's working time, energy and attention to the performance of his duties an ibilities hereunder and shall faithfully and diligently endeavor to promote the s of the Company. During the Service Period, the Executive may not, without t xxxxxx consent of the Board, directly or indirectly, operate, participate in the ment, operations or control of, or act as an executive, officer, consultant, agent ntative of, any type of competitive business or service; provided, that the Execut the extent not otherwise prohibited by this Agreement, devote such amount ofti not interfere with the performance of the Executive's duties under this Agreem ging in community and charitable activities.
2. Compensation. (a) Base Salary. During the Service Period, the Executive shall be ual base salary of$435,000 for the Executive's services hereunder, payable in ance with the normal and customary payroll procedures applicable to the any's senior executives. The Executive's base salary shall be subject to increase xxxxx, as determined by the Board in its discretion (such base salary, as in effec me to time, the "Base Salarv"). (b) Bonus Opportunity. During the portion of the Service Period th mpany is subject to EESA and the Interim Final Rule (both as defined in Sectio ereof), the Executive shall be eligible for an annual bonus opportunity, payable n the form of "long-term restricted stock" (as defined in the Interim Final Rule erm includes restricted stock units) that will be granted to the Executive, of up ximum amount permitted by EESA and the Interim Final Rule, on the terms and ons to be set by the compensation committee of the Board (or the Board, in the e of the compensation committee) and set forth in a separate agreement which s ed into on or before March 30 of each year of grant. Any long-term restricted st subject to the service-based vesting and the vesting limitations required by EE Interim Final Rule. The payment or accrual of bonuses, and the grant and vest ong-term restricted stock, pursuant to this Section 2(b) shall in all events be sub liance with Section 11 hereof. The Executive shall be eligible for an annual bo nity of such other type and on such performance and other conditions as shall b xxx by the compensation committee of the Board (or the Board, in the absence pensation committee) during any period after the Company ceases to be subjec nd the Interim Final Rule. Any such bonus with respect to a year in which the Period terminates shall be payable in full or on a pro-rated basis, depending on f the Company's bonus policy at that time. (c) Equity Incentives. The Executive shall be entitled to participate k's Employee Stock Ownership Plan.(the "ESOP") in accordance with its terms. , for any period after the Company ceases to be subject to EESA and the Interi ule, the Executive shall be granted equity-based awards pursuant to the Compan ng-Term Incentive Plan on or before March 30 each year of such types and in s s as shall be determined by the compensation committee of the Board (or the Boa sence of the compensation committee) based on the Executive's performance f xxxxx year. Such awards shall each vest and, in the case of any stock options, exercisable (i) to the extent of thirty three percent (33%) of the shares covered on the first anniversary of the date of grant, with the balance of each such awa atably over the succeeding twenty-four (24) months for each grant, and (ii) in f ent of the death or Disability ofthe Executive, the termination of the Service y the Company without Cause or the termination of the Service Period by the ve for Good Reason. Any stock options granted to the Executive pursuant to th 2(c) and the 2009 Stock Option Agreement (as defined in Section 14(b) hereof exercisable by the Executive's estate, legal representative or heirs for a period ear after termination of the Service Period due to the death, Disability, terminati Cause or termination for Good Reason of the Executive. Unless otherwise
ited pursuant to Section 11 hereof, all restricted stock granted pursuant to the 20 Agreement (as defined in Section 14(b) hereof), and any subsequent restricted st d to the Executive shall vest in full in the event ofthe death or Disability of the tive, the termination of the Executive's employment without Cause, or the ation of the Executive's employment for Good Reason. (d) Other Benefits. Except as otherwise provided herein, the Execu e eligible to participate in all employee benefit plans and arrangements of the any applicable to other senior executive officers, including, without limitation, th any's 401(k) Plan with continuation of the Company's current employee ution matching policy, and medical, dental, life and long-term disability insuran ms. (e) Vacation. The Executive shall be entitled paid vacation in ance with the Company's vacation policy; provided, that the Executive shall be to not less than twenty (20) days of vacation in each calendar year (or an riately pro-rated portion thereof for partial years). The Executive shall be permit ue permitted vacation days at such rate and carry over a maximum of fifteen (15 such accrued unused vacation from year to year. (f) Automobile Allowance. The Company will provide the Executi automobile allowance in the amount of $1,500 per month during the Service , payable in accordance with the normal and customary practices applicable to th ny's senior executives. 3. Reimbursement for Expenses. (a) Business Expenses. The Company shall promptly reimburse the ve for all reasonable out-of-pocket business expenses, including, without on, travel expenses incurred by the Executive in connection with carrying out hi ibilities under this Agreement during the Service Period upon presentation of iate vouchers, receipts or other satisfactory evidence thereof and otherwise in nce with applicable Company policies. (b) Memberships. The Company shall pay or reimburse the Executi al and trade membership dues and fees during the Service Period in accordance Company's policies and procedures as in effect from time to time, which polici cedures shall in all events include paying the social club dues of the Executive y paid by the Company at a rate not exceeding $1,000 per month. 4. Service Period. (a) Term. The "Service Period" during which the Executive shall the Services for the Company pursuant to this Agreement means the period ncing on the date hereof and, subject to extension as set forth below, expiring at t business on the third (3rd) anniversary of the date hereof in the year 2020. Prior er 31 of each calendar year during the Service Period, the Board shall review th ve's performance, shall discuss the results of such review with Executive and
tly shall inform the Executive in writing whether the Board proposes to extend e Period for an additional year, and the results thereof shall be included in the s of the Board's meeting at which the same has been considered. If the Board s the Executive that it proposes to extend the Service Period, and the Executive such proposal, the Service Period shall be extended to end on the anniversary of reofthat occurs in the year immediately following the expiration date of the th g Service Period. Notwithstanding the foregoing, nothing herein shall bar the from (a) extending the Service Period under this Agreement by mutual agreem ontinuing the Executive's employment by the Company without extension of t ent. (b) Termination. Notwithstanding the foregoing, the Service Period terminated at any time upon the earliest to occur of the following events or any nts identified in Section 7 hereof: (i) Death or Disability. The Service Period shall terminate e Executive's death or Disability. For this purpose, "Disability" means that eit Executive is deemed disabled for purposes of any group or individual long-ter ty policy maintained by the Company that covers the Executive, or (B) in the g dgment of the Board, the Executive is substantially unable to perform the ve's duties under this Agreement for more than one hundred twenty (120) days or not consecutive, in any twelve (12) -month period, by reason of a physical illness or injury. (ii) Termination for Cause by the Company. The Company m te the Service Period for Cause at any time effective upon written notice to the ve. For purposes of this Agreement, the term "Cause" shall mean the terminati ervice Period on account of(A) the Executive's failure to substantially perform ve's duties hereunder or as reasonably assigned to the Executive by the Board a nt with the Executive's obligations hereunder and Executive shall not have cur lure (as determined in the reasonable judgment of the Board) within thirty (30) er written notice from the Board; (B) the Executive's material breach of this ent or any material written policy of the Company and failure of the Executive ed such breach (as determined in the reasonable judgment of the Board) within 0) days after written notice from the Board; (C) the Executive's willful violation , rule, or regulation (other than traffic violations or similar offenses) or entry of se-and-desist order against the Executive; (D) conviction of a felony or a plea tendere to a felony; or (E) conduct by the Executive constituting a misdemean g a Disqualifier (as defined below) by the Executive. "Disqualifier" means (i) oral turpitude, dishonesty, breach of fiduciary duty involving personal profit, d crime or racketeering; (ii) willful violation of securities or commodities laws ns; (iii) willful violation of depository institution laws or regulations; (iv) willf of housing authority laws or regulations arising from the operations of the Ban llful violation of the rules, regulations, codes of conduct or ethics of a latory trade or professional organization.=Notwithstanding the foregoing, the e shall not be deemed terminated for Cause unless and until there shall have be d to the Executive a copy of the resolution duly adopted by the Board at a meeti
Board called and held for that purpose (after reasonable notice to the Executive) ortunity for the Executive , together with counsel, to be heard before the Board) g that, in the good faith ofthe Board, the Executive's conduct justified terminati use and specifying the particulars thereof in reasonable detail. (iii) Termination without Cause by the Company. The Comp rminate the Service Period without Cause. For the avoidance of doubt, "terminat t Cause" includes, without limitation, the failure by the Company for whatever to extend the Service Period pursuant to Section 4(a), except ifthe Executive in writing to accept the then one (I) year extension ofthe Service Period. (iv) Termination by the Executive for Good Reason. The ive may terminate the Service Period for Good Reason within ninety (90) days ng the initial existence of the circumstances giving rise to Good Reason, subject ms and conditions of this Section 4(b)(iv). For purposes of this Agreement, the te Reason" shall mean, unless the Executive shall have consented in writing theret Executive's demotion, loss of title in part or in whole, removal as a director of th ny or the Bank, loss of office, or reduction of authority, the failure by the olders to elect the Executive as a director of the Company or the obligation of ive to report to any senior officer rather than directly to the Board, (ii) a reduction cutive's base salary, (iii) relocation of the Executive's primary work location m enty (20) miles from 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, (iv) a l diminution of the Executive's responsibilities, or (v) any material breach of thi ent by the Company, including, without limitation, the failure to pay the Executi ount when due and payable, pursuant to this Agreement, except in the event of a de dispute regarding reimbursement of business expenses, provided, that the ve shall have delivered written notice to the Company, within thirty (30) days of t xistence of the circumstances giving rise to Good Reason, of the Executive's n to terminate the Service Period for Good Reason, which notice specifies in ble detail the circumstances claimed to give rise to the Executive's right to te the Service Period for Good Reason, and the Company shall not have cured su tances within thirty (30) days following the Company's receipt of such notice; d, however, that any breach by the Company of a payment obligation hereunder cured within five (5) days (rather than the foregoing 30 days) following the ny's receipt of such notice. If, following such thirty (30)-day period (or such fiv period, as applicable), the Company has not cured such circumstances and the ve decides to proceed with the termination of the Service Period for Good Reaso ermination will be effected by providing the Company with a Notice of ation, which Notice ofTermination shall be effective as of the date given, witho her right to cure by the Company. (v) Voluntary Termination by the Executive. The Executive untarily terminate the Service Period (other than for Good Reason); provided, th cutive provides the Company with notice of the Executive's intent to terminate t 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 mpany or by the Executive (other than a termination on account of the Executi shall be communicated by written "Notice of Termination" to the other party in ance with Section 14(a) hereof. The Notice of Termination must indicate the c termination provision in this Agreement the party giving such notice believes e the circumstances applicable to such termination and shall set forth in reason he facts and circumstances claimed to provide a basis for termination of the ive's employment under such provision_ (b) Date of Termination. "Date of Termination" shall mean (i) ifth Period expires pursuant to Section 4(a) hereof, the date on which the expiratio vice Period occurs; (ii) if the Service Period is terminated due to the Executive' r Disability, the date of the Executive's death or the date on which the Notice o ation is received by the Executive that the Board made its determination of ity in accordance with Section 4(b)(i) (A) or (B) hereof, (iii) if the Company tes the Service Period for Cause, the date on which the Notice of Termination i d by the Executive; (iv) if the Executive terminates the Service Period for Good , the date on which the Notice of Termination is given by the Executive (or suc date as may be agreed to by the Company); (v) if the Executive voluntarily tes the Service Period (other than for Good Reason), the date specified in the No ination, which date shall be no earlier than sixty (60) days after the date such no pursuant to Section 4(b)(v) hereof, unless otherwise agreed to by the parties; a he Service Period is terminated for any other reason, the date on which a Notice ation is received or any later date (within 30 days, or any alternative time perio upon by the parties, after the giving of such notice) as set forth in such Notice o ation. Notwithstanding the foregoing, if the party receiving a Notice ofTerminat the other party that a dispute exists concerning the appropriate characterization ect termination for purposes of determining the Executive's entitlement to Accr ions and Severance Payments, and any other benefits hereunder, the Date of ation shall be the date on which the dispute shall be finally resolved whether by agreement of the parties, by a binding arbitration award, or by a final ealable judgment or order by a court of competent jurisdiction, provided that herein modifies the mandatory arbitration provisions set forth in Section 10 her (c) Continuation ofPayment The Company shall continue to pay th ve's full compensation in effect when the Notice ofTermination giving rise to t described in subsection (b) above was given (including, but not limited to, the ve's then Base Salary) and continue the Executive as a participant in all employ plans and arrangements of the Company in which the Executive was participati e notice of dispute was given, until the dispute is fmally resolved in accordance s Agreement. Amounts paid under this Section 5(c) shall not be offset against, o any other amounts due to the Executive pursuant to this Agreement.
6. Rights and Obligations Upon Termination of the Service Period. (a) Termination by the Company for Disability or without Cause, o ecutive for Good Reason. In the event of the termination of the Service Period mpany for Disability or without Cause, or termination of the Service Period by ive for Good Reason, and to the extent permitted by applicable law and regulati ng, without limitation, those referred to in Section 11 hereof, the Company shall cutive, and the Executive shall be entitled to: (i) any unpaid portion of the Bas through the Date of Termination; (ii) any unreimbursed business expenses in ance with Section 3(a) hereof; (iii) the rights set forth in the Stock Option ent, the 2016 Award Agreement and any subsequent restricted stock award gra nt to the BFC 2008 Long Term Incentive Plan, as the sane may be amended, or xxxxx plan adopted by BFC; and (iv) any vested benefits to which the Executiv under the terms of the Company's employee benefit plans and programs, ng, without limitation, the ESOP, subject to the terms of such plans and progra ively the "Accrued Obligations"). In addition, the Company shall continue to cutive's monthly Base Salary (i.e., one-twelfth (l/12th) ofExecutive's annual B in effect as of the date immediately preceding the date of termination of ment, or the date immediately prior to the initial existence of circumstances giv Good Reason, as applicable) for (i) thirty-six (36) months (the "Severance Perio ess of the then remaining portion of the Service Period (each monthly salary ation payment shall be deemed to be a separate installment for purposes of Sec f the Code) commencing with the first calendar month following the Date of ation and (ii) the Company shall continue during the Severance Period to pay th bile allowance and social club dues provided for in Sections 2(t) and 3(b) hereo ll continue to pay the Executive for life, long-term disability, medical and xxxx xx premiums in manner consistent with the Company's obligations to make suc ts pursuant to Section 2(d) (the payments described in (i) and (ii) being collectiv to herein as the "Severance Payments"). All Severance Payments shall be paya dance with normal and customary payroll procedures applicable to the Compan xecutives, subject to Section 6(d) hereof. Notwithstanding the foregoing provisi ection 6(a): (i) the Executive's entitlement to the Severance Payments shall be to and conditioned upon the Executive delivering to the Company an Irrevocab not later than sixty (60) days after the date of the Executive's termination of ment; (ii) if such 60-day period following the Executive's termination of ment begins in one calendar year and ends in another, the Severance Payments the extent required in order to comply with Section 409A of the Internal Reve 1986, as amended (the "Code"), commence on the first payroll date following (A) the end of the calendar year in which the Executive's termination of ment occurs or (B) the date the Executive satisfies the Irrevocable Release ment; and (iii) the Executive's entitlement to the Severance Payments shall be to and conditioned upon the Executive complying in all material respects with s 8 and 9 of this Agreement. "Irrevocable Release" means a mutual general rele s in the form affixed hereto marked Exhibit A (except with the date of terminat oyment, the date of such Irrevocable Release and other indicated information fil has been executed by the Executive and for which the revocation period under A ination in Employment Act of 1967, as amended, and the terms of the release ha
d. For the avoidance of doubt, this Section 6(a) shall be subject to the limitatio n 11 of this Agreement. (b) Death. If the Service Period is terminated as a result of the tive's death, the Executive or the Executive's estate or beneficiaries, as the case ll be entitled to solely the Accrued Obligations. (c) Termination by the Company for Cause or by the Executive tarily. If the Service Period is terminated by the Company for Cause or volunta Executive (other than for Good Reason), the Executive shall be entitled to solely ed Obligations. (d) Change in Control. (i) In the event that the employment of the Executive by th ny is terminated by the Company without Cause or by the Executive for Good at any time within three (3) years after a Change in Control has occurred, the ive shall have the right to elect to receive a single lump sum payment of the pre as determined using a discount rate equal to the Applicable Federal Rate (as defi in effect at the time of such determination, of all of the payments provided for 6(a) within ten (10) days after written notice requesting such payment is given mpany by the Executive. If the Executive does not make such election within th ys after the Date of Termination, then payment of an amount equal to the aggre ayments provided for in Section 6(a) hereof shall be made to the Executive in th al annual installments, the first of which installment payments shall be made wi 30) calendar days following the Date ofTermimition and the remaining two of nstallment payments shall be made on January 15th of the respective following As used herein the term "Applicable Federal Rate" means the rate set forth from time in Table 1 of the Applicable Federal Rate Rulings of the Internal Revenue , or any official successor publication, for debt instruments maturing within thr nd having annual compounding. (ii) As used herein, the term "Change in Control" shall mean ith respect to the Company of a nature that (i) would be required to be reported e to Item 5.01 of a current report filed on Farm 8-K pursuant to Section 13 or 15 ecurities Exchange Act of 1934, as amended (the "Exchange Act") as in effect of this Agreement; or (ii) results in any person acquiring control of the Bank or ny within the meaning of the Home Owners' Loan Act of 1933, as amended, and d regulations Board of Governors of the Federal Reserve System (the "FRB") der, (provided, that in applying the defmition of change in control as set forth un les and regulations, the Board shall substitute its judgment for that of the FRB); a limitation, such an acquisition of control shall be deemed to have occurred at s (A) any "person" (as that term is used in Sections 13(d) and 14(d) ofthe Excha the regulations of the Securities and Exchange Commission (the "SEC") der, including any such persons that may be deemed to be acting in concert wit to the Bank or the Company, or the acquisition, ownership or voting of Bank or ny securities) is or becomes the "beneficial owner" (as defined in Rule 13d-3 un
change Act and the regulations of the SEC thereunder, directly or indirectly, of ies of the Bank or the Company representing fifty percent (50%) or more of the or the Company's outstanding securities except for any securities purchased by lified employee benefit plan of the Company or the Bank; or (B) individuals w ute the Board as of the date of this Agreement (the "Incumbent Board") cease f son to constitute at least a majority of the Board, provided that any person becom tor subsequent to the date hereof whose election was approved by a vote of at le uarters (3/4) of the directors then comprising the Incumbent Board, or whose tion for election by the Company's stockholders was approved by a nominatin ttee serving under an Incumbent Board, shall be, for purposes of this clause (B) ered as though such person were a member of the Incumbent Board; or (C) a pla tion reorganization, merger, consolidation sale of all or substantially all the asset k or the Company or similar transaction in which the Bank or the Company is ulting entity is approved by the Board and the stockholders of the Company or ise occurs; or (D) solicitations of stockholders ofthe Company, by someone oth e Incumbent Board of the Company, seeking stockholder approval of a plan of ization, merger or consolidation of the Company or Bank or a similar transacti e or more corporations as a result of which the outstanding shares ofthe Compa common stock are exchanged for or converted into cash or property or securities by the Bank or the Company shall be distributed; or (E) a tender offer is made f percent (20%) or more of the voting securities of the Bank or the Company. 7. Other Termination Provisions. (a) If the Executive is suspended and/or temporarily prohibited from ating in the conduct of the Company's affairs by a notice served under section or (g)(l) ofthe Federal Deposit Insurance Act (12 U.S.C. 1818(e)(3) or (g)(l)), ny's obligations under this Agreement shall be suspended as of the date of servi tayed by appropriate proceedings. If the charges in the notice are dismissed or se withdrawn, the Company shall (but subject in all events to the requirements 409A of the Code) (i) pay the Executive all of the compensation withheld while ny's obligations under this Agreement were suspended, and (ii) reinstate all of i ons which were suspended. (b) If the Executive is removed and/or permanently prohibited from ating in the conduct ofthe Company's affairs by an order issued under section or (g)(l) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(4) or (g)(l)), ons of the Company under this Agreement shall terminate as of the effective date r, but vested rights of the Executive shall not be affected. (c) If the Con;1pany is in default (asJhe term "default" is defined in 3(x)(l) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x)(l)), all obligati is Agreement shall terminate as of the date of default, but vested rights of the ve shall not be affected.
8. Non-Solicitation. (a) During the period of the Executive's employment by the Comp r pursuant to this Agreement or otherwise, and for the twelve (12) -month peri ing the termination of the Executive's employment with the Company for any the Executive will not, without the written consent of the Company, directly o tly: (i) influence or attempt to influence any customer of the ny or any ofits affiliates to discontinue its use of the Company's (or such affilia s or to divert such business to any other person, firm or corporation; provided; er, that a broad and general advertisement or solicitation not specifically targetin ng to target customers of the Company or any of its affiliates shall not be deem n of this Section 8; or (ii) interfere with, disrupt or attempt to disrupt the relationsh tual or otherwise, between the Company or any of its affiliates and any of its ive employees, customers, suppliers, principals, distributors, lessors or licensors by the Executive, whether direct or indirect, (A) to solicit or assist any other per y in soliciting any employee of the Company or any of its affiliates to perform s for any entity (other than the Company or any of its affiliates) or (B) to encour ployee ofthe Company, or any of its affiliates to leave their employment with t ny or any of its affiliates shall be in violation of this Section 8. A person's respo ad and general advertisement or solicitation not specifically targeting or intend t employees of the Company or any of its affiliates shall not be deemed a violat Section 8. (b) In the event the Executive materially breaches any of the provisi ed in Section 8(a) hereof and the Company seeks compliance with such provisi ial proceedings, the time period during which the Executive is restricted by suc ns shall be extended by the time during which the Executive has been in violati uch provision and any period of litigation required to enforce the Executive's ons under this Agreement. (c) The Executive and the Company intend that Section 8 ofthis ent be enforced as written. However, if one or more of the provisions contained 8 shall for any reason be held to be unenforceable because of the duration or sc provision or the area covered thereby, the Executive and the Company agree th t making such determination shall have the full power to reform, by "blue g" or any other means, the duration, scope and/or area of such provision and in d form such provision shall then be enforceable and shall be binding on the parti 9. Confidentiality; Non-Disclosure. (a) The Executive hereby agrees that, during the Service Period and r, he will hold in strict confidence any proprietary or Confidential Information o the Company or any of its affiliates. For purposes ofthis Agreement, the ter
dential Information" shall mean all information ofthe Company or any of its es (in whatever form) that is not generally known to the public, including witho ion any inventions, processes, methods of distribution, customer lists or trade . (b) The Executive hereby agrees that upon the termination of the e Period, the Executive shall not take, without the prior written consent of the ny, any business plans, strategic plans or reports or other document (in whateve f the Company or any of its affiliates, which is of a confidential nature relating mpany or any of its affiliates. I 0. Dispute Resolution; Injunctive Relief. (a) Any dispute, claim or controversy arising out of or relating to th ent or the breach, termination, enforcement, interpretation or validity thereof, ng without limitation the determination of the scope or applicability of this Sect hall be determined by arbitration in Los Angeles, California before a single or who is a retired judge on the panel of JAMS. If the parties are unable to agre e selection of one arbitrator, any party may request JAMS to appoint such or. The arbitration shall be administered by JAMS pursuant to its Comprehensiv tion Rules and Procedures. The decision of the arbitrator shall be fmal and bind arties. The scope of discovery shall be determined by the arbitrator. The prevail all be entitled to recover reasonable attorneys' fees and costs in accordance wit 13(b). Judgment on the arbitration award may be entered in any court having iate jurisdiction. This Section 1O(a) shall not preclude parties from seeking onal remedies in aid of arbitration from a court having appropriate jurisdiction, limit the rights of the Company set forth in Section 1O(b) hereof. (b) The parties hereto agree that it would not be possible to measure the damages that would be suffered by the Company and its affiliates in the eve Executive were to breach any of the restrictive covenants set forth in Sections 8 a f (the "Restrictive Covenants"). In the event that the Executive breaches any of ive Covenants, the Company shall be entitled to an injunction restraining the ve from violating such Restrictive Covenants (without posting any bond). If th ny shall institute any action or proceeding to enforce any such Restrictive nt, the Executive hereby waives the claim or defense that the Company or any of s has an adequate remedy at law and agrees not to assert in any such action or ing the claim or defense that the Company or any of its affiliates has an adequa at law. 11. TARP and Golden Parachute Restrictions. (a) Notwithstanding anything herein to the contrary: (i) any payment the Executive pursuant to this Agreement or otherwise are subject to and xxx upon their compliance with 12 U.S.C. 1828(k) and 12 C.F.R. Part 359 g golden parachute and indemnification payments; (ii) no annual bonus, incenti sation, severance pay, or golden parachute payments or benefits shall be paid,
ed, or accrued under this Agreement or othervvise to the extent it would violate n 111 of Emergency Economic Stabilization Act of2008, as amended ("EESA" Interim Final Rule (as hereinafter defined); (iii) no payment or benefit shall be ided under this Agreement or otherwise to the extent that it would violate any ent between or among the Company and the Board of Governors of the Federal e System, the Office of the Comptroller of the Currency or any other governme r agency, provided that the Company shall use commercially reasonable efforts te the authority and right to make all payments and provide all benefits to the ive as and when contemplated by this Agreement; and (iv) subject to, and in ance with, the interim final rule promulgated pursuant to Sections 101(a), 101(c) 1 ofEESA (the "Interim Final Rule"), the Executive shall be required to repay to ny the amount of any bonus payment (as defined in the Interim Final Rule) mad the TARP period (as defined in the Interim Final Rule) to the extent that the bo t was based on materially inaccurate financial statements (which includes, but i ited to, statements of earnings, revenues, or gains) or any other materially ate performance metric criteria. (b) In the event that the amounts and benefits payable pursuant to th ent, when added to other amounts and benefits which may become payable to t ve by the Company and any affiliated company, are such that the Executive s subject to the excise tax provisions of Section 4999 of the Code relating to parachute payments" as defined for purposes of Section 280G of the Code, the ny shall pay the Executive such additional amount or amounts as will result in t ve's retention of a net amount, after the payment of all federal, state and local employment and income taxes on such payments and the value of such benefits the net amount the Executive would have retained had the initially calculated t and benefits not been subject to such excise tax provisions. For purposes of th ng sentence, the Executive shall be deemed to be subject to the highest marginal relevant state and relevant local tax rate applicable to an individual resident in L , California. All calculations required to be made under this subsection shall be the Company's independent public accountants, subject to the right of ve's representative to review the same. All such amounts required to be paid by tion shall be paid at the time any withholding may be required by the Company, s may be required to be paid by the Executive, under applicable law, and any al amounts to which the Executive may be entitled shall be paid or reimbursed n fifteen (15) days following confirmation of such amount by the Company's dent public accountants. In the event any amounts paid hereunder are subsequen xxx to be in error, due to estimates required for calculation of such payments bei to be inaccurate or othervvise, the parties hereto agree to reimburse each other t uch error, as appropriate, and to pay interest thereon at the applicable federal ra mined pursuant to Code Section 1274) for the period of time such erroneous remained outstanding and unreimbursed. The parties hereto recognize that the mplementation ofthe provisions of this Section 8(b) are complex and agree to d h other in good faith to resolve any questions or disagreements arising with respe
12. Section 409A. (a) This Agreement is intended to comply with the requirements of n 409A of the Code (including the exceptions thereto), to the extent applicable, ties' Agreement shall be interpreted in accordance with such requirements. If a ion contained in the Agreement conflicts with the requirements of Section 409A de (or the exemptions intended to apply under the Agreement), the Agreement s med to be reformed to comply with the requirements of Section 409A of the Co applicable exemptions thereto). Notwithstanding anything to the contrary here poses of determining the Executive's entitlement to the Severance Payments, (i) e Period shall not be deemed to have terminated unless and until the Executive a "separation from service" as defined in Section 409A of the Code, and (ii) the t of Termination" shall mean the effective date of the Executive's separation from . Reimbursement of any expenses provided for in this Agreement shall be mad ly upon presentation of documentation in accordance with the Company's polic licable) with respect thereto as in effect from time to time (but in no event later t of calendar quarter following the year such expenses were incurred); provided, er, that in no event shall the amount of expenses eligible for reimbursement der during a calendar year affect the expenses eligible for reimbursement in any xable year. Notwithstanding anything to the contrary herein, if a payment or under this Agreement is due to a "separation from service" for purposes of the ru reas. Reg. § 1.409A-3(i)(2) (payments to specified employees upon a separatio rvice) and the Executive is determined to be a "specified employee" (as determi reas. Reg.§ 1.409A-l(i) and related Company procedures), such payment shall ent necessary to comply with the requirements of Section 409A of the Code, be n the later of (x) the date specified by the foregoing provisions of this Agreemen date that is six (6) months after the date of the Executive's separation from serv arlier, the date of the Executive's death). Any installment payments that are pursuant to this Section 12 shall be accumulated and paid in a lump sum on th y of the seventh month following the Date of Termination (or, if earlier, upon th ive's death) and the remaining installment payments shall begin on such date in nce with the schedule provided in this Agreement. The Severance Payments ar d not to constitute deferred compensation subject to Section 409A of the Code t nt such Severance Payments are covered by (i) the "short-term deferral excepti h in Treas. Reg. § l.409A-l(b)(4), (ii) the "two times severance exception" set fo s. Reg.§ 1.409A-l(b)(9)(iii), or (iii) the "limited payments exception" set forth Reg.§ 1.409A-l(b)(9)(v)(D). The short-term deferral exception, the two times ce exception and the limited payments exception shall be applied to the Xxxxxx xx in order of payment in such manner as results in the maximum exclusion of s ce Payments from treatment as deferred compensation under Section 409A of t Each installment of the Severance Payments shall be deemed to be a separate t for purposes of Section 409A of the Code.
13. Legal Fees. (a) The Company shall promptly reimburse the Executive for his able legal fees incurred in connection with the negotiation and preparation of th ment. (b) In the event of a dispute between the parties hereto arising out o g to this Agreement, the prevailing party in any resulting arbitration proceeding on permitted under the terms of this Agreement shall be entitled to recover such reasonable attorneys' fees and costs in addition to any other relief to which suc hall be entitled. The determination of which party is the prevailing party shall y the arbitrator or court before whom such arbitration or litigation is conducted 14. Miscellaneous. (a) Any notice or other communication required or permitted under ent shall be effective only if it is in writing and shall be deemed to be given w ed personally or one (1) day after it is sent by a reputable overnight courier serv vidence of delivery) and, in each case, addressed as follows (or if it is sent thro er method agreed upon by the parties): If to BFC: Broadway Financial Corporation Attn: Board of Directors 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 If to the Bank: Broadway Federal Bank, f.s.b. Attn: Board of Directors 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 If to the Executive: Xxxxx-Xxxx X. Xxxxxxxx 00000 Xxxxxxxx Xxxxx Xxxxxxxxx, XX 00000 ch other address as any party hereto may designate by notice to the others. (b) This Agreement together with the BFC Non-Statutory Stock Opt ent dated as of March 18, 2009 (the "2009 Stock Option Agreement"), the 2016 Agreement dated as of March 30,2016 (the "2016 Award Agreement"), and the the Executive pursuant to the ESOP shall constitute the entire agreement amon
rties hereto with respect to the subject matter hereof, and supersede and replace a l prior understandings or agreements with respect to the subject matter hereof. (c) Only an instrument in writing signed by the parties hereto may this Agreement, and any provision hereof may be waived only by an instrument g signed by the party or parties against whom or which enforcement of such waive . The failure of any party hereto at any time to require the performance by any ot ereto of any provision hereof shall in no way affect the full right to require such xxxxx at any time thereafter, nor shall the waiver by any party hereto of a breach ovision hereof be taken or held to be a waiver of any succeeding breach of such ion or a waiver of the provision itself or a waiver of any other provision of this ment. (d) This Agreement is binding on and is for the benefit of the parties and their respective successors, assigns, heirs, executors, administrators and othe epresentatives. Neither this Agreement nor any right or obligation hereunder may ed by the Executive, except as permitted hereunder. (e) The Company shall require any successor (whether direct or t, by purchase, merger, consolidation or otherwise) to all or substantially all ofth ss and/or assets of the Company to assume this Agreement in the same manner an ame extent that the Company would have been required to perform it if no such sion had taken place. As used in this Agreement, the term "Company" shall mea mpany and any such successor (or successors) that assumes this Agreement, by on of law or otherwise. Notwithstanding the foregoing, no such assignment or tion shall relieve the Company of any obligations hereunder. (f) The parties hereto shall cooperate with each other and take all , including obtaining, any governmental or stockholder approval, that any of the termine in good faith to be required to carry out the terms of this Agreement. (g) The Company may withhold from any amounts payable to the ive hereunder all federal, state, city or other taxes that the Company may reasonab ine are required to be withheld pursuant to any applicable law or regulation (it bei ood, that the Executive shall be responsible for payment of all taxes in respect of t ts and benefits provided herein). (h) In the event that the Executive shall perform services for the Ban other affiliate or subsidiary of BFC, any compensation or benefits provided to the ve by such other employer shall be applied to offset the obligations of BFC er, it being intended that this Agreement set forth the aggregate compensation an payable to the Executive for all services to the Company and all of its affiliates an aries. BFC shall reimburse the Bank for compensation or benefits paid or provid Bank to the Executive to the extent attributable to the Executive's performance of s for BFC in accordance with the applicable reimbursement policies of BFC and t
(i) This Agreement shall be govcmed by and construed in accordance h the laws of the State of' California, \Vithout reference to its principles of conflicts of . (j) This Agreement may be executed in several counterparts. each of ich shall be deemed an original. but all of which shall constitute one and the same rument. A facsimile of a signature shall be deemed to be and have the ctJect of an inal signature. The headings in this Agreement arc for convcnienec ofrererence {k) y and shall not be a part of or control or affect the meaning of any provision hereof. I:\! WJT:"\ESS WI IE REO F. the parties have executed this Employment Agreement f the date first wrinen above. "\?l.'ayne-Kcnt A. Bradsha\\' 16
(i) This Agreement shall be governed by and construed in accorda e laws of the State of California, without reference to its principles of conflicts This Agreement may be executed in several counterparts, each G) shall be deemed an original, but all of which shall constitute one and the same ment. A facsimile of a signature shall be deemed to be and have the effect of an l signature. The headings in this Agreement are for convenience of referenc (k) d shall not be a part of or control or affect the meaning of any provision hereof IN WITNESS WHEREOF, the parties have executed this Employment Agreem e date first written above. Broadway Financial Corporation Name: Xxxxxx Xxxxxxx Title: Chairman ofthe Board Broadway Federal Bank, f.s.b. Name: Xxxxxx Xxxxxxx Title: Chairman of the Board Xxxxx-Xxxx X Xxxxxxxx
MUTUAL GENERAL RELEASE OF CLAIMS Tl]js Mutual Genl Release of Claims ("Agreement") is dated and executed a r7 , 2 ("Execution Date"), by and among Broadway Financial 1 ation ("BFC 'tiroadwa y Federal Bank, f.s.b. (the "Bank" and together with B mpany"), and Xxxxx-Xxxx X. Xxxxxxxx ("Executive"). Each of the parties he red to individually as a "Party" and collectively as the "Parties". RECITALS A. TheCompany and Executive entered into that certain Employm ent dated as of March 22, 2017 ("Employment Agreement"). All capitalized te have the same meaning ascribed to them in the Employment Agreement, un ise defined herein. B. This Agreement is the mutual general release contemplated by Section ployment Agreement. C. Effective as of _, , Executive's employment pany ceased pursuant to Section 1 of the Employment Agreement, a copy of wh ed hereto marked Exhibit A and incorporated by reference herein. Now, therefore, in consideration of the recitals above, and the mutual covenant ditions set forth herein, the Parties agree as follows: Effective Date. The term "Effective Date" means the date that is eight (8) calen ter the Execution Date, provided Executive has not revoked his consent to t ent within seven (7) calendar days after the Execution Date. If the Effective D a weekend or holiday, the Effective Date shall be the business day immediat ng such weekend or holiday. If Executive revokes his consent to this Agreem even (7) calendar days after the Execution Date, (i) there shall be no Effect i) Executive shall not be entitled to any portion of the Separation Payments, a Party shall have any obligations under this Agreement. AccruedObligations and Separation Payments. The Company, jointly a y, shall pay the Executive, and the Executive shall be entitled to receive payment ued Obligations pursuant to and in accordance with Section 6 of the Employm ent. The Company, jointly and severally, shall pay Executive the Xxxxxx xx pursuant to and in accordance with Section 6 of the Employment Agreement urvival of Employment Agreement Provisions. Executive and the Compa edge and agree that Sections 6(a), 6(d), 8, 9, 10, 11, 12, 13 and 14, together with ons thereof, of the Employment Agreement shall remain in full force and effe ing herein terminates, amends or otherwise modifies any provision therein. pplicable: "4(b)(i)," "4(b)(iii)" or "4(b)(iv)."
Executive Release. 4.1 If the Effective Date occurs, Executive for himself and on behalf o beneficiaries, successors and assigns, hereby fully releases and discharges (i) ny and its successors, predecessors and assigns, and (ii) each of the respective sent shareholders, directors, officers, employees, agents, representatives, attorn ountants of the persons and entities described in clause (i) (the persons and ent ed in clauses (i) and (ii), collectively, the "Company Releasees"), and each of t from, without limitation, any and all rights, claims, liabilities, losses or expense d whether arising out of, from, or related to Executive's employment relation y of the Company Releasees, termination of Executive's employment, or ari any other matter between Executive and the Company Releasees through ng the Execution Date. The claims released in this Agreement include, but are to, claims based on tort, contract (express or implied and oral or written), or state, or local law, statute, regulation or ordinance. By way of example and no on, this release includes any claims arising under federal and state wage and h e Equal Pay Act; the Family and Medical Leave Act of 1993; Title VII ofthe C Act of 1964, the Americans with Disabilities Act and the California ment and Housing Act, the California Labor Code, the Pregnancy Disability Le e Age Discrimination in Employment Act of 1967, the Older Workers Ben on Act, all claims under the Employee Retirement Income Security Act, as wel ms asserting wrongful termination, harassment, discrimination, breach of contr of the implied (and any explicit) covenant of good faith and fair dealing, inflict tionaldistress, misrepresentation,interference withcontract or prospec ic advantage, defamation, invasion of privacy, and claims related to disabil leased claims also include claims for wages or other compensation due, severa onuses, sick leave, vacationpay, insurance orany otherfringe ben standing the foregoing, nothing herein waives (i) any rights or claims Execut ve that cannot lawfully be waived by agreement of the Parties, including, but to, workers' compensation benefits, unemployment insurance benefits, and ification rights under California Labor Code Sections 2800, et seq., (ii) Executi payment of the Accrued Obligations and the Severance Payments in accorda s Agreement, (iii) Executive's vested rights pursuant to the 2009 Stock Opt ent, the 2016 Award Agreement and all subsequent restricted stock awards gran utive by the Company, if any, (iv) Executive's rights under any Company plans t terms survive employment termination, including, without limitation, the Ban ee Stock Ownership Plan, (v) Executive's rights to indemnification pursuant ertificate of incorporation and bylaws and the Bank's charter and bylaws, a and all Executive's rights arising out of, related to, or in connection with t ent (collectively, the "Executive Reserved Claims"). In addition, nothing her event the Equal Employment Opportunity Commission from investigating any matter that it deems appropriate; provided, however, Executive understan es that, except as otherwise arising out of or related to this Agreement, Execut nd shall not be entitled to seek any further monetary compensation from a y Releasee and that any remedies that may be available to Executive are entir ded by the releases contained in this Agreement.
4.2 Except for the Executive Reserved Claims, Executive understands that the claims released are intended to and do include any and all claims of e and kind whatsoever, whether known or unknown, suspected or unsuspected, w ive has or may have against any of the Company Releasees and Executive he any and all rights Executive has or may have under Section 1542 of the Califo ode which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." hstanding the provisions of Section 1542, as well as laws of similar effect, and pose of implementing a full and complete release and discharge of the parties ns herein released, Executive expressly acknowledges that this Agreemen d to include in its effect, without limitation, all claims which Executive does r suspects to exist in his favor at the time of execution hereof, and that all s are included within, and extinguished and discharged by, this Agreement, exclud cutive Reserved Claims. Executive acknowledges that this release constitute itional general release of any and all known or unknown claims that Executive ainst any Company Releasees, excluding the Executive Reserved Claims, des that Executive may become aware of claims in the future which Executive did r prior to signing this Agreement. Company Release. 5.1 If the Effective Date occurs, each of BFC and the Bank, for itself and of its respective stockholders, directors, successors and assigns, hereby f and discharges Executive and Executive's heirs, beneficiaries, successors (collectively, the "Executive Releasees"), and each of them of and from, with on, any and all rights, claims, liabilities, losses or expenses of any kind whet out of, from, or related to Executive's employment relationship with the Compa tion of Executive's employment or the Employment Agreement through g the Execution Date. The claims released in this Agreement include, but are to, claims based on tort, contract (express or implied and oral or written), or state, or local law, statute, regulation or ordinance. By way of example and no on, this release includes any claims asserting breach of contract, breach of fiduci e covenant of good faith and fair dealing, misrepresentation, or interference w or prospective economic advantage. Notwithstanding the foregoing, noth aives any claims against Executive for (i) claims arising from or relating to t ent, (ii) claims arising from or relating to the 2009 Stock Option Agreement, ( rising from or relating to the 2016 Award Agreement, and all subsequent restric wards granted to Executive by the Company, if any, (iv) claims arising from to any breach of provisions from the Employment Agreement that survive beyo cution Date, or (v) claims arising from or relating to any Company plans that rms survive employment termination(collectively, the "Company Reserv ).
5.2 Except for the Company Reserved Claims, the Company understands that the claims released are intended to and do include any and all claims of e and kind whatsoever, known or unknown, suspected or unsuspected, which any has or may have against Executive or any of the other Executive Releasees mpany hereby waives any and all rights it has or may have under Section 1542 o nia Civil Code which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affocted his or her settlement with the debtor." hstanding the provisions of Section 1542, as well as laws of similar effect, and pose of implementing a full and complete release and discharge of the parties ns herein released, the Company expressly acknowledges that this Agreeme d to include in its effect, without limitation, all claims which it does not kno to exist in its favor at the time of execution hereof, and that all such claims d within, and extinguished and discharged by, this Agreement, except for ny Reserved Claims. The Company acknowledges that this release constitute itional general release of any and all known or unknown claims (except for ny Reserved Claims) that it may have against Executive or any other Execu es, despite the fact that it may become aware of claims in the future which it did r prior to signing this Agreement. Representations and Covenants of Executive. Executive represents and warr covenants with, the Company as of the Execution Date as follows: 6.1 No Claims Against Company.Executive has not filed any char ints, grievances, arbitrations, lawsuits, or claims against the Company, with ate or federal agency, union or court from the beginning of time to the Execu nd Executive will not do so at any time hereafter, based upon events occurring p Execution Date, excluding any charges, complaints, grievances, arbitrati s, or claims against the Company arising out of or relating to any Execu d Xxxxxx.Xx the event any arbitrator or court ever assumes jurisdiction of claim, charge, grievance, arbitration, or complaint, or purports to bring any le ing on his behalf, Executive will ask any such arbitrator or court to withdraw fr dismiss any such action, grievance, or arbitration, with prejudice, excluding , complaints, grievances, arbitrations, lawsuits, or claims against the Comp out of or relating to any Executive Reserved Claims. 6.2 Non-Assignment of Claims. Executive has not assigned or transferred ed to assign or transfer, by operation of law or otherwise, to any person, fi tion, partnership or other legal entity, any debt, claim, obligation, damage, liabil , or cause of action herein released.Executive, directly or indirectly, shall te or maintain or institute any action or proceeding at law or in equity, of any k e whatsoever against the Company or any other Company Releasees for any rea n any way to any claim released in this Agreement, and shall not raise any cla
t the Company or any other Company Releasees by way of defense, counterclai claim or in any other manner, on any alleged claim released in this Agreement. 6.3 Responsible for Taxes. Executive shall be fully responsible for any an income and other taxes relating to or arising from the payment of the Acc ations and Severance Payments as required by applicable law, provided not modifies or amends Section 11(b) of the Employment Agreement. If Executive a tax obligation required by applicable law relating to or arising from the payme crued Obligations and Severance Payments, and if as a result of such failure any becomes liable for, or pays such tax obligation, Executive shall indemnify armless the Company for payments actually made by it to satisfy such obligatio 6.4 Voluntary Signing. This Agreement is executed voluntarily, wit on, andwithfull knowledge of its significance, andwith Executive's tanding of its terms and conditions. Executive has received all wages nsation, as well as reimbursement of expenses, due and owing to him, excluding Accrued Obligations or Severance Payments or any other payments or xxx xxx be due and owing hereunder. Representations and Covenants of Company. Company represents and warrant venants with, Executive as of the Execution Date as follows: 7.1 No Claims Against Xxxxxxxxx.Xxxxxxx, directly or indirectly, has ny charges, complaints, grievances, arbitrations, lawsuits, or claims aga ive, with any local, state or federal agency, union or court from the beginnin the Execution Date and that Company will not do so at any time hereafter, ba vents occurring prior to the Execution Date, not including any charges, complai ces, arbitrations, lawsuits, or claims against Executive arising out of or related mpany Reserved Claims. In the event any arbitrator or court ever assu tion of any lawsuit, claim, charge, grievance, arbitration, or complaint, or purpo , directly or indirectly, any legal proceeding on Company's behalf, Company y such arbitrator or court to withdraw from and/or dismiss any such acti ce, or arbitration, with prejudice, not including any lawsuit, claim, char ce, arbitration, or complaint arising out of or related to the Company Xxxxx . 7.2 Non-Assignment of Claims. Company, directly or indirectly, has d or transferred, or purported to assign or transfer, by operation oflaw or otherw person, firm, corporation, partnership or other legal entity, any debt, cla on, damage. liability, demand, or cause of action herein released. Compa or indirectly, shall not prosecute or maintain or institute any action or proceed or in equity, of any kind or nature whatsoever against Executive or any ot ve Releasees for any reason related in any way to any claim released in t ent. and shall not raise any claim against Executive or any other Execut es by way of defense. counterclaim or cross-claim or in any other manner, on a claim released in this Agreement.
7.3 Voluntary Signing. Company has executed this Agreement volunta t coercion, and with full knowledge of its significance, and with Company's tanding of its terms and conditions. As of the Execution Date, Company has pai and compensation, as well as reimbursement of expenses, due and owin ive, not including any unpaid accrued obligations or Severance Payments or o nts or benefits which may be due and owing hereunder. Representations of Parties. Each Party represents and warrants to the other Part : (i) this Agreement constitutes the legal, valid, and binding obligation of s enforceable against him or it in accordance with its terms, except as s ability may be limited by bankruptcy, insolvency, or other similar laws relatin cting creditors' rights generally, or by general equitable principles (regardles r such enforceability is considered in a proceeding in equity or at law); (ii) the P absolute and unrestricted right, power, authority, and capacity to execute this Agreement and to perform his or its obligations under this Agreement; the execution anddeliveryof this Agreementnor the consummation ance of any of the transactions contemplated by this Agreement will, directly ly (with or without notice or lapse of time) contravene, conflict with, or result n of (A) any provision of any agreement, contract, obligation, promise king (whether written or oral and whether express or implied) to which such P ty or by which his or its assets are bound or (B) any award, decision, injuncti nt, order, or ruling, in each case that is binding upon such Party or to which su a party; (iv) the Party will not be required to give any notice to or obtain l, consent, ratification, waiver or other authorization from any individ tion, general or limited partnership, limited liability company, trust, or other ent ection with the execution and delivery of this Agreement or the consummation ance of any of his or its respective covenants set forth in this Agreement, except nsents, if any, that shall have been obtained on or prior to the Execution Date. ndemnity. 9.1 If Executive breaches any of Executive's representations or warranties s 6 (Representations and Covenants of Executive), or 8 (Representations Executive shall defend, indemnify, and hold the Company and the other Compa es harmless from and against any and all claims, liabilities, losses, judgmen ons, damages, costs, expenses, and actions, incurred as a result of such brea g, without limitation, reasonable attorneys' and accountants' fees and costs. .2 Ifthe Company breaches any of its representations or warranties in Sectio esentations and Covenants of Company), or 8 (Representations of Parties), t y shall defend, indemnify, and hold Executive and the other Executive Release from and against any and all claims, liabilities, losses, judgments, obligatio , costs, expenses, and actions, incurred as a result of such breach, includin limitation, reasonable attorneys' and accountants' fees and costs. dditional Acknowledgments. By signing this Agreement, Executive furth edges and consents that Executive hereby has been advised:
(a) To consult with an attorney prior to signing this Agreement; (b) That Executive has up to twenty-one (21) days in which to consider wh he should sign this Agreement, which contains a release of claims unde Age Discrimination and Employment Act of 1967 ("ADEA''), as amen and (c) That ifExecutive signs this Agreement, Executive will have seven (7) following the Execution Date to revoke the Agreement by deliveri notice regarding same to Xxxxxx Xxxxxxx, Chairman of the Board, at Company's principal office. This revocation period cannot be waived. Executive is not entitled to receive the Separation Payments prio expiration of this revocation period. Governing Law; No Presumption From Drafting; Survival of Representati greement shall be governed by and interpreted under the laws of the Stat nia applicable to contracts made and to be performed entirely within such S t regard to its conflicts of law provisions. This Agreement has been negotiate ties. Accordingly, any rule of applicable law, including, without limitat nia Civil Code Section 1654, or any other statute or common law principle effect, which would require interpretation of ambiguities in this Agreement aga y that has drafted it, has no application and is expressly waived. All representati rranties made by any Party herein shall survive the Effective Date. Dispute Resolution. Any dispute, claim or controversy arising out of or relatin reement or the breach, termination, enforcement, interpretation or validity ther ng without limitation the determination of the scope or applicability of this Sec ll be determined by arbitration in Los Angeles, California before a single arbitr a retired judge on the panel of JAMS. If the parties are unable to agree upon n of one arbitrator, any party may request JAMS to appoint such arbitrator. ion shall be administered by JAMS pursuant to its Comprehensive Arbitra nd Procedures.The decision of the arbitrator shall be final and binding on The scope of discovery shall be determined by the arbitrator. The prevailing pa entitled to recover reasonable attorneys' fees and costs in accordance with Sect gment on the arbitration award may be entered in any court having appropr tion. This Section 12 shall not preclude parties from seeking provisional remed f arbitration from a court having appropriate jurisdiction. Recovery of Fees and Costs. In the event that any legal, equitable, arbitratio oceeding is brought for the enforcement or interpretation of this Agreement of an alleged dispute, breach, default or invalidity in connection with n of this Agreement, the prevailing party shall be entitled to recover reasona s' fees and costs incurred, in addition to any other relief to which such Party m ed.
Severability.The provisions of this Agreement are severable.If any prov , or the application thereof to any person or circrnnstance shall be held to be in enforceable, then in each such event the remainder of this Agreement or ation of such provision to any other person or any other circumstance shall n y xxxxxxxx.Xx such event, the Parties shall negotiate in good faith to replac or unenforceable provision with another reflecting the same relative distributio mic benefits and burdens. Gender and Section Headings. As used in this Agreement, the masculine, femi ter gender, and the singular or plural number, shall each be deemed to include whenever the context so indicates. Section headings contained herein are ience only and shall not be considered for any purpose in construing ment. Successors and Assigns. This Agreement shall bind and inure to the benefit of sors, assigns, heirs and personal representatives of the Company, each of the o ees and Executive, provided no assignment shall relieve the assignor of ions hereunder. Counterparts. This Agreement may be executed in several counterparts, eac shall be deemed an original, and such counterparts shall together constitute one e Agreement, binding all Parties, notwithstanding that all of the Parties are ry to the original or same counterpart. A facsimile, or PDF scanned signature p ave the same force and effect as an original signature. Entire Agreement; Amendment; No Admission of Liability. This Agreem r with the 2009 Stock Option Agreement, the 2016 Award Agreement, the B xxx Stock Ownership Plan 2 constitute the entire agreement among the Parties to the subject matter hereof, and supersede any prior or contemporane ents, representations, understandings, policies, or practices among the Part r oral or written, express or implied.The terms of this Agreement may not d, amended, changed, altered or waived, except in a writing signed by Execut duly authorized representative of the Company. This Agreement shall not ed as an admission of any liability or wrongdoing by Executive or the Compan s applicable any other severance and equity incentive agreements between Executive and the that are in effect when this Agreement is signed.
IN WITNESS WHEREOF, the Parties have entered into this Mutual General e of Claims as of the date first above written. BROADWAY FINANCIAL CORPORATION By: Its: BROADWAY FEDERAL BANK, f.s.b. By: Its: W/h....£1-..s-Xxxxx-Xxxx X. Xxxxxxxx 15
IN WITNESS WHEREOF, the Parties have entered into this Mutual General e of Claims as of the date first above written. BROADWAY FINANCIAL CORPORATION By: _ Its: -----------BROADWAY FEDERAL BANK, f.s.b. By: _ Its: -----------W/h....£1-..s-Xxxxx-Xxxx X. Xxxxxxxx 15
