2. Compensation. (a) Base Salary. During the Service Period, the Executive shall be paid an annual base salary of $235,323.00 for the Executive's Services hereunder, payable in accordance with the normal and customary payroll procedures applicable to...
EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT (this "Agreement"), dated as ofMay 1, 2017 by and among Broadway Financial Corporation, ("BFC"), Broadway Federal Bank, f.s.b. (the "Bank" and, together with BFC, the "Company"), and Xxxxxx Xxxxxx (the "Executive"). The term Company shall refer to BFC in respect of Executive's services to BFC and to the Bank in respect of the Executive's services to the Bank. WHEREAS, the Executive has served as a senior executive officer of the Company and the Bank since October 1, 2012; and WHEREAS, the Company desires to continue to retain the Executive to serve as Senior Vice President, ChiefFinancial Officer of the Company on the terms and conditions set forth in this Agreement, and the Executive desires to provide such services on such terms and conditions. NOW, THEREFORE, in consideration of the terms and mutual covenants herein and 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 Vice President, Chief Financial Officer during the service period fixed by Section 4 hereof (the "Service Period"). The Executive shall report to the President and Chief Executive Officer of BFC (the "Chief Executive Officer") (or such other senior executive officer designated by the Board of Directors of BFC, in which case the term Chief Executive Officer shall mean such other designated senior executive officer), and shall have such duties and responsibilities as are consistent with the position of a senior vice president and chief financial officer of a bank and holding company of similar size and complexity as the Company (the "Services"). The Executive's principal work location shall be at the Company's principal executive offices, provided, that the Executive may be required to travel as reasonably necessary in order to perform the Executive's duties and responsibilities hereunder. (b) During the Service Period, excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive shall devote substantially all of the Executive's working time, energy and attention to the performance of his duties and responsibilities hereunder and shall faithfully and diligently endeavor to promote the business of the Company. During the Service Period, the Executive may not, without the prior written consent of the Chief Executive Officer, directly or indirectly, operate, participate in the management, operations or control of, or act as an executive, officer, consultant, agent or representative of, any type of competitive business or service, provided that the Executive may, to the extent not otherwise prohibited by this Agreement, devote such amount of time as does not interfere with the performance of the Executive's duties under this Agreement to engaging in community and charitable activities. Execution Copy Page 1 of 16 10904-0000212781363.3
Executive's duties under this Agreement for more than one hundred twenty (120) days, whether or not consecutive, in any twelve (12) month period, by reason of a physical or mental illness or injury. (ii) Termination for Cause by the Company. The Company may terminate the Service Period for Cause at any time effective upon written notice to the Executive. For purposes of this Agreement, the term "Cause" shall mean the termination of the Service Period on account of (A) the Executive's failure to substantially perform the Executive's duties hereunder or as reasonably assigned to the Executive by the Chief Executive Officer or the Board and consistent with the Executive's obligations hereunder and Executive shall not have cured such failure (as determined in the reasonable judgment of the Chief Executive Officer or the Board) within thirty (30) days after written notice from the Chief Executive Officer (or his designee); (B) the Executive's material breach of this Agreement or any material written policy of the Company and failure of the Executive to have cured such breach (as determined in the reasonable judgment of the Board) within thirty (30) days after written notice from the Chief Executive Officer (or his designee); (C) the Executive's willful violation of any law, rule, or regulation (other than traffic violations or similar offenses) or entry of a final cease-and-desist order against the Executive; (D) conviction of a felony or a plea of nolo contendere to a felony; or (E) conduct by the Executive constituting a misdemeanor involving a Disqualifier (as defined below) by the Executive. "Disqualifier" means (i) fraud, moral turpitude, dishonesty, breach of fiduciary duty involving personal profit, organized crime or racketeering; (ii) willful violation of securities or commodities laws or regulations; (iii) willful violation of depository institution laws or regulations; (iv) willful violation of housing authority laws or regulations arising from the operations of the Bank; or (v) willful violation of the rules, regulations, codes of conduct or ethics of a self-regulatory trade or professional organization. Notwithstanding the foregoing, the Executive shall not be deemed terminated for Cause unless and until there shall have been delivered to the Executive a copy of the resolution duly adopted by the Board at a meeting of the Board called and held for that purpose (after reasonable notice to the Executive) and an opportunity for the Executive, together with counsel, to be heard before the Board), finding that, in the good faith of the Board, the Executive's conduct justified termination for Cause and specifying the particulars thereof in reasonable detail. (iii) Termination without Cause by the Company. The Company may terminate the Service Period without Cause. For the avoidance of doubt, "termination without Cause" includes, without limitation, the failure by the Company for whatever reason to extend the Service Period pursuant to Section 4(a), except if the Executive refuses in writing to accept the then one (1) year extension of the Service Period. (iv) Termination by the Executive for Good Reason. The Executive may terminate the Service Period for Good Reason within ninety (90) days following the initial existence of the circumstances giving rise to Good Reason, subject to the terms and conditions of this Section 4(b)(iv). For purposes of this Agreement, the term "Good Reason" shall mean, unless the Executive shall have consented in writing thereto, (i) the Executive's demotion, loss oftitle in part or in whole, loss of office, or reduction of authority, (ii) a reduction in the Executive's base salary, (iii) relocation of the Executive's Execution Copy Page4 of16 10904-00002/2781363.3
ofTermination, which date shall be no earlier than sixty (60) days after the date such notice is given pursuant to Section 4(b)(v) hereof, unless otherwise agreed to by the parties; and (vi) if the Service Period is terminated for any other reason, the date on which a Notice of Termination is received or any later date (within 30 days, or any alternative time period agreed upon by the parties, after the giving of such notice) as set forth in such Notice of Termination. Notwithstanding the foregoing, if the party receiving a Notice ofTermination notifies the other party that a dispute exists concerning the appropriate characterization of the subject termination for purposes of determining the Executive's entitlement to Accrued Obligations and Severance Payments, and any other benefits hereunder, the Date of Termination shall be the date on which the dispute shall be finally resolved whether by mutual agreement of the parties, by a binding arbitration award, or by a final non-appealable judgment or order by a court of competent jurisdiction, provided that nothing herein modifies the mandatory arbitration provisions set forth in Section 10 hereof. (c) Continuation of Payment. The Company shall continue to pay the Executive's full compensation in effect when the Notice of Termination giving rise to the dispute described in subsection (b) above was given (including, but not limited to, the Executive's then Base Salary) and continue the Executive as a participant in all employee benefit plans and arrangements of the Company in which the Executive was participating when the notice of dispute was given, until the dispute is finally resolved in accordance with this Agreement. Amounts paid under this Section 5(c) shall not be offset against, or reduce, 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, or by the Executive for Good Reason. In the event of the termination of the Service Period by the Company for Disability or without Cause, or termination of the Service Period by the Executive for Good Reason, and to the extent permitted by applicable law and regulations, including, without limitation, those referred to in Section 11 hereof, the Company shall pay the Executive, and the Executive shall be entitled to: (i) any unpaid portion of the Base Salary through the Date of Termination; (ii) any unreimbursed business expenses in accordance with Section 3(a) hereof; (iii) [the rights set forth in the 2016 Stock Option Agreement, and any subsequent equity incentive awards granted pursuant to the 2008 Long-Term Plan, as the same may be amended, or any other similar plan adopted by BFC; and (iv) any vested benefits to which the Executive is entitled under the terms of the Company's employee benefit plans and programs, including, without limitation, the ESOP, subject to the terms of such plans and programs (collectively the "Accrued Obligations"). In addition, the Company shall continue to pay the Executive's monthly Base Salary (i.e., one-twelfth (1112th) ofExecutive's annual Base Salary in effect as of the date immediately preceding the date of termination of employment, or the date immediately prior to the initial existence of circumstances giving rise to Good Reason, as applicable) for (i) twenty-four (24) months (the "Severance Period") regardless of the then remaining portion ofthe Service Period (each monthly salary continuation payment shall be deemed to be a separate installment for purposes of Section 409A of the Code) commencing with the first calendar month following the Date of Termination and (ii) the Company shall continue during the Severance Period to pay the automobile allowance provided for in Sections 2(f) Execution Copy Page 6 of 16 10904-00002/2781363.3
otherwise withdrawn, the Company shall (but subject in all events to the requirements of Section 409A of the Code) (i) pay the Executive all of the compensation withheld while the Company's obligations under this Agreement were suspended, and (ii) reinstate all of its obligations which were suspended. (b) If the Executive is removed and/or permanently prohibited from participating in the conduct of the Company's affairs by an order issued under section 8(e)(4) or (g)(l) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(4) or (g)(l)), all obligations of the Company under this Agreement shall terminate as of the effective date of the order, but vested rights of the Executive shall not be affected. (c) If the Company is in default (as:<the term "default" is defined in section 3(x)(1) ofthe Federal Deposit Insurance Act, 12 U.S.C. 1813(x)(l)), all obligations under this Agreement shall terminate as of the date of default, but vested rights of the Executive shall not be affected. 8. Non-Solicitation. (a) During the period of the Executive's employment by the Company, whether pursuant to this Agreement or otherwise, and for the twelve (12) -month period following the termination of the Executive's employment with the Company for any reason, the Executive will not, without the written consent of the Company, directly or indirectly: (i) influence or attempt to influence any customer of the Company or any of its affiliates to discontinue its use of the Company's (or such affiliate's) services or to divert such business to any other person, firm or corporation; provided, however, a broad and general advertisement or solicitation not specifically targeting or intending to target customers of the Company or any of its affiliates shall not be deemed a violation of this Section 8; or (ii) interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between the Company or any of its affiliates and any of its respective employees, customers, suppliers, principals, distributors, lessors or licensors. Efforts by the Executive, whether direct or indirect, (A) to solicit or assist any other person or entity in soliciting any employee of the Company or any of its affiliates to perform services for any entity (other than the Company or any of its affiliates) or (B) to encourage any employee of the Company, or any of its affiliates to leave their employment with the Company or any of its affiliates shall be in violation of this Section 8. A person's response to a broad and general advertisement or solicitation not specifically targeting or intending to target employees of the Company or any of its affiliates shall not be deemed a violation ofthis Section 8. (b) In the event the Executive materially breaches any of the provisions contained in Section 8(a) hereof and the Company seeks compliance with such provisions by judicial proceedings, the time period during which the Executive is restricted by such provisions shall be extended by the time during which the Executive has been in violation Execution Copy Page 9 of16 I 0904-00002/2781363.3
Restrictive Covenants, the Company shall be entitled to an injunction restraining the Executive from violating such Restrictive Covenants (without posting any bond). If the Company shall institute any action or proceeding to enforce any such Restrictive Covenant, the Executive hereby waives the claim or defense that the Company or any of its affiliates has an adequate remedy at law and agrees not to assert in any such action or proceeding the claim or defense that the Company or any of its affiliates has an adequate remedy at law. 11. TARP and Golden Parachute Restrictions. (a) Notwithstanding anything herein to the contrary: (i) any payments made to the Executive pursuant to this Agreement or otherwise are subject to and conditioned upon their compliance with 12 U.S.C. 1828(k) and 12 C.F.R. Part 359 regarding golden parachute and indemnification payments; (ii) no annual bonus, incentive compensation, severance pay, or golden parachute payments or benefits shall be paid, provided, or accrued under this Agreement or otherwise to the extent it would violate Section Ill of Emergency Economic Stabilization Act of 2008, as amended ("EESA"), and the Interim Final Ru1e (as hereinafter defined); (iii) no payment or benefit shall be paid or provided under this Agreement or otherwise to the extent that it would violate any agreement between or among the Company and the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency or any other governmental entity or agency, provided that the Company shall use commercially reasonable efforts to negotiate the authority and right to make all payments and provide all benefits to the Executive as and when contemplated by this Agreement; and (iv) subject to, and in accordance with, the interim final rule promulgated pursuant to Sections IOI(a), 101(c)(5), and 111 ofEESA (the "Interim Final Rule"), the Executive shall be required to repay to the Company the amount of any bonus payment (as defined in the Interim Final Rule) made during the TARP period (as defined in the Interim Final Rule) to the extent that the bonus payment was based on materially inaccurate financial statements (which includes, but is not limited to, statements of earnings, revenues, or gains) or any other materially inaccurate performance metric criteria. (b) In the event that the amounts and benefits payable pursuant to this Agreement, when added to other amounts and benefits which may become payable to the Executive by the Company and any affiliated company, are such that the Executive becomes subject to the excise tax provisions of Section 4999 of the Code relating to "excess parachute payments" as defined for purposes of Section 280G of the Code, the Company shall pay the Executive such additional amount or amounts as will result in the Executive's retention of a net amount, after the payment of all federal, state and local excise, employment and income taxes on such payments and the value of such benefits, equal to the net amount the Executive would have retained had the initially calculated payment and benefits not been subject to such excise tax provisions. For purposes of the preceding sentence, the Executive shall be deemed to be subject to the highest marginal federal, relevant state and relevant local tax rate applicable to an individual resident in Los Angeles, California. All calculations required to be made under this subsection shall be made by the Company's independent public accountants, subject to the right of Executive's representative to review the same. All such amounts required to be paid by Execution Copy Page 11 of16 I 0904-00002/2781363.3
this Section shall be paid at the time any withholding may be required by the Company, or any taxes may be required to be paid by the Executive, under applicable law, and any additional amounts to which the Executive may be entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such amount by the Company's independent public accountants. In the event any amounts paid hereunder are subsequently determined to be in error, due to estimates required for calculation of such payments being proving to be inaccurate or otherwise, the parties hereto agree to reimburse each other to correct such error, as appropriate, and to pay interest thereon at the applicable federal rate (as determined pursuant to Code Section 1274) for the period of time such erroneous amount remained outstanding and unreimbursed. The parties hereto recognize that the actual implementation of the provisions of this Section 11(b) are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising with respect hereto. 12. Section 409A. This Agreement is intended to comply with the requirements of Section 409A of the Code (including the exceptions thereto), to the extent applicable, and the parties' Agreement shall be interpreted in accordance with such requirements. If any provision contained in the Agreement conflicts with the requirements of Section 409A of the Code (or the exemptions intended to apply under the Agreement), the Agreement shall be deemed to be reformed to comply with the requirements of Section 409A of the Code (or the applicable exemptions thereto). Notwithstanding anything to the contrary herein, for purposes of determining the Executive's entitlement to the Severance Payments, (i) the Service Period shall not be deemed to have terminated unless and until the Executive incurs a "separation from service" as defined in Section 409A ofthe Code, and (ii) the term "Date of Termination" shall mean the effective date of the Executive's separation from service. Reimbursement of any expenses provided for in this Agreement shall be made promptly upon presentation of documentation in accordance with the Company's policies (as applicable) with respect thereto as in effect from time to time (but in no event later than the end of calendar quarter following the year such expenses were incurred); provided, however, in no event shall the amount of expenses eligible for reimbursement hereunder during a calendar year affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding anything to the contrary herein, if a payment or benefit under this Agreement is due to a "separation from service" for purposes of the rules under Treas. Reg. § 1.409A-3(i)(2) (payments to specified employees upon a separation from service) and the Executive is determined to be a "specified employee" (as determined under Treas. Reg. § 1.409A-1(i) and related Company procedures), such payment shall, to the extent necessary to comply with the requirements of Section 409A of the Code, be made on the later of(x) the date specified by the foregoing provisions of this Agreement or (y) the date that is six (6) months after the date of the 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 and paid in a lump sum on the first day of the seventh month following the Date ofTermination (or, if earlier, upon the Executive's death) and the remaining installment payments shall begin on such date in accordance with the schedule provided in this Agreement. The Severance Payments are intended not to constitute deferred compensation subject to Section 409A of the Code to the extent such Severance Payments are covered by (i) the "short-term deferral exception" set forth in Treas. Reg. § 1.409A-1(b)(4), (ii) the "two Execution Copy Page 12 of16 I 0904-00002!2781363.3
(c) Only an instrument in writing signed by the parties hereto may amend this Agreement, and any provision hereof may be waived only by an instrument in writing signed by the party or parties against whom or which enforcement of such waiver is sought. The failure of any party hereto at any time to require the performance by any other party hereto of any provision hereof shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by any party hereto of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or a waiver of the provision itself or a waiver of any other provision of this Agreement. (d) In the event that any provision is determined to be invalid or unenforceable, in whole or in part, such determination shall in no way affect any other provisions of this Agreement, or the validity or enforcement of the remainder of this Agreement, and any provisions(s) thus affected shall be modified to the extent necessary to bring the affected provision(s) within the applicable requirements ofthe then-current Jaw. (e) The Company shall use its commercially reasonable efforts to arrange for any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all ofthe business and/or assets ofthe Company to assume this Agreement in the same manner and to the same extent that the Company would have been required to perform it if no such succession had taken place. As used in this Agreement, the term "Company" shall mean the Company and any such successor (or successors) that assumes this Agreement, by operation of law or otherwise. Notwithstanding the foregoing, no such assignment or assumption shall relieve the Company of any obligations hereunder. (f) The parties hereto shall cooperate with each other and take all actions, including obtaining, any governmental or stockholder approval, that any of them may determine 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 Executive hereunder all federal, state, city or other taxes that the Company may reasonably 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. Execution Copy Page 14 of16 I 0904-00002/2781363.3
(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] Execution Copy Page 15 of 16 I 0904-000021278 I 363.3
IN WITNESS WHEREOF as of the date first written above. the parties have executed this Employment Agreement Broadway Financial Corporation Name: Title: Broadway Federal Bank, f.s.b. tive Xxxxxx Xxxxxx Print or type name of Executive Execution Copy Page 16 of 16 I 0904-00002/2781363.3
ADDENDUM A TO EMPLOYMENT AGREEMENT (Executive: Xxxxxx Xxxxxx) 1. Arbitration Except as provided in Section 1O(b) of this Agreement, in the event of any controversy, dispute or claim (including those based upon a statute, tort or public policy, and those against individuals or other entities), arising out of or relating to (1) this Agreement, (2) the employment relationship between Executive and Company, or (3) the termination of that relationship (hereafter "dispute"), the parties' exclusive remedy shall be to submit such dispute to the dispute resolution procedures described below. The parties intend for all disputes to be covered by the arbitration provision contained in this Addendum A to the fullest extent permitted by law, and the Executive agrees to pursue any such dispute in an individual capacity and not as a class representative or class member. Only the following claims are excluded from these dispute resolution procedures: (1) claims by the Executive for workers' compensation, unemployment compensation or state disability benefits; (2) claims based on any pension or welfare plan the terms of which contain an arbitration or other dispute resolution procedures; (3) claims brought by Executive or Company to compel arbitration pursuant to this Addendum A or to enforce an arbitration award; (4) claims under the National Labor Relations Act; (5) any representative action under the Private Attorney General Act ("PAGA"); and (6) any other claims which are not permitted by applicable law to be subject to a binding pre-dispute arbitration agreement. If either party has claims against the other party that are deemed not to be arbitrable, those claims shall be stayed and the arbitrable claims shall be resolved before the stayed claims are addressed. (a) Written notice of desire to arbitrate shall describe the factual basis of all claims asserted ("Claim"), and shall be served on the other party as set forth in Section 14(a) of this Agreement. If written notice of desire to arbitrate is not served within the applicable time period, the party who failed timely to serve notice will be deemed to have waived the right to further contest the Claim, and will be deemed to have accepted the other party's last stated position on the Claim. (b) The arbitration shall be administered by JAMS, Inc. (formerly known as Judicial Arbitration and Mediation Services, Inc.) ("JAMS") pursuant to its Employment Arbitration Rules & Procedures, which can befound at xxxx://xxx.xxxxxxx.xxx/xxxxx-xxxxxxxxxx-xxxxxxxxxxx and which will be provided to Executive upon request, and subject to JAMS Policy on Employment Arbitration Minimum Standards of Procedural Fairness, which will also be provided to Executive upon request. Judgment on any Award (as defined below) may be entered in any court having competent jurisdiction. The arbitration shall take place in Los Angeles, California. Notwithstanding anything herein to the contrary, the parties may agree to use an independent arbitrator that they mutually select and agree upon. Addendum A-1 I 0904-00002/2781363.2
(c) Any party may be represented by an attorney or other representative selected by the party. Each party shall have the right to take the deposition of one (d) individual and any expert witness designated by another party without the arbitrator's prior approval. Each party also shall have the right to make requests for production of documents to any party. Additional discovery may be had as ordered by the arbitrator. (e) At least fourteen (14) days before the arbitration, the parties must exchange lists of witnesses, including any expert, and copies of all exhibits intended to be used at the arbitration. The arbitrator shall have jurisdiction to hear and rule on pre-hearing (f) disputes and is authorized to hold pre-hearing conferences by telephone or in person, as the arbitrator deems necessary. The arbitrator shall have the authority to resolve all issues related to discovery, and to entertain motions to dismiss, motions for summary judgment and adjudication, and any other pre-trial motions submitted by any party, and shall apply the standards governing such motions under the California Rules of Civil Procedure. (g) Either party, at its expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of proceedings. If both parties desire to have access to the stenographic record of proceedings then they shall split all such costs 50150. (h) The arbitrator will have no authority to: (i) adopt new Company policies or procedures, (ii) modify this Agreement or existing Company policies, procedures, wages or benefits, or (iii) in the absence of a written waiver pursuant to Paragraph U) below, hear or decide any matter that was not processed in accordance with this Agreement. The arbitrator shall have exclusive authority to resolve any Claim, including, but not limited to, a dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, or any contention that all or any part of this Agreement is void or voidable. The arbitrator will have the authority to award any form or amount of remedy or damages that would be available in a court of competent jurisdiction. (i) Either party, in the party's sole discretion, may, in writing, waive, in whole or in part, the other's failure to follow any time limit or other requirement set forth in this Agreement, except that neither party can waive any statute of limitation for filing the Claim. The arbitration will be conducted in private, and will not be open, (j) directly or indirectly, to the public or the media. The arbitration and all information directly or indirectly relating thereto (including, but not limited to, the testimony, evidence or result) shall be deemed Confidential Information and shall be subject to the restrictions set forth in Section 9(a) ofthis Agreement. (k) The arbitrator, subject to the right to either party to utilize the internal appeal process provided for in the JAMS rules with respect to any initial judgment rendered in an arbitration, shall render a written decision and award (the "Award"), which Addendum A-2 10904-00002/2781363.2
shall set forth the facts and reasons that support the Award. The Award shall be final and binding on the Company and the Executive. The parties agree, however, that a court of competent jurisdiction has the right to set aside the decision of the arbitrator, if the arbitrator, in rendering his or her award, committed an error oflaw that affected the remedy or damages awarded. (1) The Company will pay all administration fees associated with the arbitration over and above those that the Executive would have to pay in a court proceeding and the cost of arbitrator, it being the parties' intention that the Executive not bear any costs that the Executive would not be required to bear in a court proceeding, to the extent that the Executive would be required to pay for filing fees and transcript fees in a court proceeding the Executive will remain responsible for such fees. Notwithstanding any provisions to the contrary found in such procedures, in the event of final and binding arbitration pursuant to this paragraph, except for the arbitrator's fees which the Company shall be responsible for paying, each party will be responsible for paying its own costs and attorneys' fees in connection with the arbitration. The arbitrator shall not be authorized to award the prevailing party costs and attorneys' fees, except as expressly provided by statute. (m) The Company and the Executive understand that developments in case law and legislation may affect the enforceability of arbitration provisions such as this. It is the parties' intention and desire that this Addendum A is compliant with current law at the time either party seeks its enforcement. Accordingly, if any one or more of the provisions of this Addendum A is deemed to be unenforceable, the remaining provisions shall continue in full force and effect in accordance with Section 12(d) of this Agreement. (n) Each of the parties acknowledges that she or it has carefully read and understands this Addendum A and agrees to be bound by and comply with all of its terms. Each of the parties acknowledges such party's voluntary agreement to arbitrate claims and understands and acknowledges that by signing this Agreement, such party is giving up the right to a jury trial and to a trial in a court of law. Addendum A-3 I 0904-00002/2781363.2
MUTUAL GENERAL RELEASE OF CLAIMS This Mutual General Release of Claims ("Agreement") is dated and executed as of , ("Execution Date"), by and among Broadway Financi(!.l Corporation ("BFC"), Broadway Federal Bank, f.s.b. (the "Bank" and together with BFC, the "Company"), and Xxxxxx Xxxxxx ("Executive"). Each of the parties hereto is refereed to individually as a "Party" and collectively as the "Parties." RECITALS A. dated as of The Company and Executive entered into that certain Employment Agreement ("Employment Agreement"). All capitalized terms herein have the same meaning ascribed to them in the Employment Agreement, unless otherwise defined herein. B. This Agreement is the mutual general release contemplated by Section 6 of the Employment Agreement. C. Effective as of the Agreement Date, Executive's employment at the Company ceased pursuant to Section 1 of the Employment Agreement, a copy of which is affixed hereto marked Exhibit A and incorporated by reference herein. Now, therefore, in consideration of the recitals above, and the mutual covenants and conditions set forth herein, the parties agree as follows: 1. Effective Date. The term "Effective Date" means the date that is eight (8) calendar days after the Execution Date, provided Executive has not attempted to revoke his consent to this Agreement within seven (7) calendar days after the Execution Date. If the Effective Date falls on a weekend or holiday, the Effective Date shall be the business day immediately following such weekend or holiday. If Executive revokes his consent to this Agreement within seven (7) calendar days after the Execution Date, (i) there shall be no Effective Date, (ii) Executive shall not be entitled to any portion of the Separation Payments, and (iii) no Party shall have any obligations under this Agreement. 2. Accrued Obligations and Separation Payments. The Company, jointly and severally, shall pay the Executive, and the Executive shall be entitled to the Accrued Obligations pursuant to and in accordance with Section 6 of the Employment Agreement. The Company, jointly and severally, shall pay Executive the Separation Payments pursuant to and in accordance with Section 6 of the Employment Agreement. 3. Survival of Employment Agreement Provisions. Executive and the Company acknowledge and agree that Sections 6(a), 6(d), 8, 9, 10, 11, 12, 13 and 14, together with all subsections thereof, of the Employment Agreement shall remain in full force and effect, and nothing herein terminates, amends or otherwise modifies any provision therein. 1 Insert as applicable: "4(b)(i)," "4(b)(iii)," or "4(b)(iv)." Exhibit A-I I 0904-0000212781363.3
4. Executive Release. 4.1 If the Effective Date occurs, Executive for himself and on behalf of his heirs, beneficiaries, successors and assigns, hereby fully releases and discharges (i) the Company, and its successors, predecessors and assigns, and (ii) each of the respective past and present shareholders, directors, officers, employees, agents, representatives, attorneys and accountants of the persons and entities described in clause (i) (the persons and entities described in clauses (i) and (ii), collectively, the "Company Releasees"), and each of them of and from, without limitation, any and all rights, claims, liabilities, losses or expenses of any kind whether arising out of, from, or related to Executive's employment relationship with any of the Company Releasees, termination of Executive's employment, or arising out of any other matter between Executive and the Company Releasees through and including the Execution Date. The claims released in this Agreement include, but are not limited to, claims based on tort, contract (express or implied and oral or written), or any federal state, or local law, statute, regulation or ordinance. By way of example and not in limitation, this release includes any claims arising under federal and state wage and hour laws, the Equal Pay Act; the Family and Medical Leave Act of 1993; Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the California Fair Employment and Housing Act, the California xxxxx Code, the :Pregnancy Disability Leave Act, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, all claims under the Employee Retirement Income Security Act, as well as any claims asserting wrongful termination, harassment, discrimination, breach of contract, breach of the covenant of good faith and fair dealing, infliction of emotional distress, misrepresentation, interference with contract or prospective economic advantage, defamation, invasion of privacy, and claims related to disability. Such released claims also include claims for wages or other compensation due, severance pay, bonuses, sick leave, vacation pay, insurance or any other fringe benefit. Notwithstanding the foregoing, nothing herein waives (i) any rights or claims Executive may have that cannot lawfully· be waived by agreement of the parties, including, but not limited to, workers' compensation benefits, unemployment insurance benefits, and his indemnification rights under California Labor Code Sections 2800, et seq., (ii) Executive's rights to payment ofthe Accrued Obligations and the Severance Payments in accordance with this Agreement, (iii) Executive's rights pursuant to the 2016 Stock Option Agreement, and all subsequent awards, if any, granted to Executive by the Company, pursuant to the 2008 Long-Term Plan, (iv) Executive's rights under any Company plans that by their terms survive employment termination, including, without limitation, the Bank's Employee Stock Ownership Plan (v) Executive's rights to indemnification pursuant to BFC's certificate of incorporation and bylaws and the Bank's charter and bylaws, and (vi) any and all Executive's rights arising out of, related to, or in connection with this Agreement (collectively, the "Executive Reserved Claims"). In addition, nothing herein shall prevent the Equal Employment Opportunity Commission from investigating or pursuing any matter that it deems appropriate; provided, however, Executive understands and agrees that, except as otherwise arising out of or related to this Agreement, Executive is not and shall not be entitled to seek any further monetary compensation from any Company Releasee and that any remedies that may be available to Executive are entirely superseded by the releases contained in this Agreement. 4.2 Except for the Executive Reserved Claims, Executive understands and agrees that the claims released are intended to and do include any and all claims of every nature and kind whatsoever, whether known or unknown, suspected or unsuspected, which Executive has or may Exhibit A-2 I 0904-0000212781363.3
have against any of the Company Releasees and Executive hereby waives any and all rights Executive has or may have under Section 1542 of the California 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 affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, as well as laws of similar effect, and for the purpose of implementing a full and complete release and discharge of the parties and concerns herein released, Executive expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all claims which Executive does not know or suspects to exist in his favor at the time of execution hereof, and that all such claims are included within, and extinguished and discharged by, this Agreement, excluding the Executive Reserved Claims. Executive acknowledges that this release constitutes an unconditional general release of any and all known or unknown claims that Executive may have against any Company Relea.,ees, excluding the Executive Reserved Claims, despite the fact that Executive may become aware of claims in the future which Executive did not consider prior to signing this Agreement. 5. Company Release. 5.1 lfthe Effective Date occurs, each ofBFC and the Bank for itself and on behalf of its respective stockholders, directors, successors and assigns, hereby fully release and discharge Executive and Executive's heirs, beneficiaries, successors and assigns (collectively, the "Executive Releasees"), and each of them of and from, without limitation, any and all rights, claims, liabilities, losses or expenses of any kind whether arising out of, from, or related to Executive's employment relationshjp with the Company, termination of Executive's employment or the Employment Agreement through and including the Execution Date. The claims released in this Agreement include, but are not limited to, claims based on tort, contract (express or implied and oral or written), or any federal state, or local law, statute, regulation or ordinance. By way of example and not in limitation, this release includes any claims asserting breach of contract, breach of fiduciary duty, the covenant of good faith and fair dealing, misrepresentation, or interference with contract or prospective economic advantage. Notwithstanding the foregoing, nothing herein waives any claims against Executive for (i) claims arising from or relating to this Agreement, ·(ii) claims arising from or relating to the 2016 Stock Option Agreement, (iii) claims arising from or relating to other awards, if any, granted to Executive by the Company pursuant to the 2008 Long-Term Plan, (iv) claims arising from or relating to any breach of provisions from the Employment Agreement that survive beyond the Execution Date, or (v) claims arising from or relating to any Company plans that by their terms survive employment termination (collectively, the "Company Reserved Claims"). 5.2 Except for the Company Reserved Claims, the Company understands and agrees that the claims released are intended to and do include any and all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, which the Company has or may have against Executive or any of the other Executive Releasees and the Company hereby waives any and all rights it has or may have under Section 1542 of the California Civil Code which provides: Exhibit A-3 I 0904-0000212781363.3
(c) That if Executive signs this Agreement, Executive will have seven (7) days following the Execution Date to revoke the Agreement by delivering a notice regarding same to the Company's Chief Executive Officer, at the Company's principal office. This revocation period cannot be waived, and Executive is not entitled to receive the Separation Payments prior to expiration of this revocation period. 11. Governing Law; No Presumption From Drafting; Survival of Representations. This Agreement shall be governed by and interpreted under the laws of the State of California applicable to contracts made and to be performed entirely within such State, without regard to its conflicts of law provisions. This Agreement has been negotiated by all parties. Accordingly, any rule of applicable law, including, without limitation, California Civil Code Section 1654, or any other statute or common law principles of similar effect, which would require interpretation of ambiguities in this Agreement against the Party that has drafted it, has no application and is expressly waived. All representations and warranties made by any Party her in shall survive the Effective Date. 12. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including without limitation the determination of the scope or applicability of this Section 12, shall be determined by arbitration in Los Angeles, California before a single arbitrator who is a retired judge on the panel of JAMS, Inc. ("JAMS"). If the Parties are unable to agree upon the selection of one arbitrator, any Party may request JAMS to appoint such arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The decision of the arbitrator shall be final and binding on the parties. The scope of discovery shall be determined by the arbitrator. The prevailing Party shall be entitled to recover reasonable attorneys' fees and costs in accordance with Section 13. Judgment on the arbitration award may be entered in any court having appropriate jurisdiction. This Section 12 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having appropriate jurisdiction. 13. Recovery of Fees and Costs. In the event that any legal, equitable, arbitration or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, default or invalidity in connection with any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred, in addition to any other relief to which such party may be entitled. 14. Severability. The provisions of this Agreement are severable. If any provision herein, or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, then in each such event the remainder of this Agreement or the application of such provision to any other person or any other circumstance shall not be thereby affected. In such event, the parties shall negotiate in good faith to replace the invalid or unenforceable provision with another reflecting the same relative distribution of economic benefits and burdens. 15. Gender and Section Headings. As used in this Agreement, the masculine, feminine or neuter gender, and the singular or plural number, shall each be deemed to include the others whenever the context so indicates. Section headings contained herein are for convenience only and shall not be considered for any purpose in construing this Agreement. Exhibit A-7 I 0904-0000212781363.3
