Execution Version 

SECURITIES PURCHASE AGREEMENT 

by and among 

THE UNITED STATES DEPARTMENT OF THE TREASURY, 

BROADWAY FINANCIAL CORPORATION, 

and 

PACIFIC PREMIER BANK 

Dated as of September 21, 2017 
 -iTABLE OF CONTENTS 

Page 

ARTICLE I DEFINITIONS ......................................................................................................1 

Section 1.01 Definitions of Certain Terms. ...............................................................................1 

Section 1.02 Interpretation. ........................................................................................................4 

ARTICLE II THE SECURITIES PURCHASE .........................................................................4 

Section 2.01 Purchase and Sale of the Shares. ...........................................................................4 

Section 2.02 Closing of the Securities Purchase. .......................................................................4 

ARTICLE III REPRESENTATIONS AND WARRANTIES .....................................................5 

Section 3.01 Representations and Warranties of the Purchaser. ................................................5 

Section 3.02 Representations and Warranties of the Company. ................................................7 

ARTICLE IV COVENANTS ......................................................................................................8 

Section 4.01 Forbearances of the Seller. ....................................................................................8

Section 4.02 Further Action. ......................................................................................................8 

Section 4.03 Remaining Certification and Disclosure Requirements. .......................................8 

Section 4.04 Transferability Restrictions Related to Long-Term Restricted Stock. ..................8 

Section 4.05 Executive Compensation. .....................................................................................9 

ARTICLE V CONDITIONS TO THE CLOSING .....................................................................9 

Section 5.01 Conditions to Each Party’s Obligations. ...............................................................9 

Section 5.02 Condition to Obligations of the Seller. ...............................................................10 

ARTICLE VI TERMINATION .................................................................................................11 

Section 6.01 Termination Events. ............................................................................................11 

Section 6.02 Effect of Termination. .........................................................................................11 

ARTICLE VII MISCELLANEOUS ...........................................................................................11 

Section 7.01 Waiver; Amendment. ..........................................................................................11 

Section 7.02 Counterparts. .......................................................................................................12 

Section 7.03 Governing Law; Choice of Forum; Waiver of Jury Trial. ..................................12 

Section 7.04 Expenses. ............................................................................................................12 

Section 7.05 Notices. ...............................................................................................................12 

Section 7.06 Entire Understanding; No Third Party Beneficiaries. .........................................13 
 -iiSection 7.07 Assignment. ........................................................................................................14 

Section 7.08 Severability. ........................................................................................................14 
 -1- 

SECURITIES PURCHASE AGREEMENT 

THIS SECURITIES PURCHASE AGREEMENT (as amended, supplemented 

or otherwise modified from time to time, this “Agreement”) is dated as of September 21, 2017, 

and is entered into by and among the United States Department of the Treasury (the “Seller”), 

Broadway Financial Corporation, a Delaware corporation (the “Company”), and Pacific Premier 

Bank, a California chartered member bank (the “Purchaser”). 

RECITALS

WHEREAS, the Seller is currently the owner of and holds 3,611,048 shares of 

common stock, par value $0.01, of the Company (“Company Common Stock”); and 

WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires 

to purchase from the Seller, subject to the terms and conditions contained in this Agreement, 

916,046 shares of Company Common Stock (the “Purchased Shares”) at a purchase price of 

$2.05 per share (the “Securities Purchase”). 

NOW, THEREFORE, in consideration of the premises, and of the various 

representations, warranties, covenants and other agreements and undertakings of the parties 

hereto, and other good and valuable consideration, the receipt and sufficiency of which are 

hereby acknowledged, the parties hereto hereby agree as follows: 

AGREEMENT

ARTICLE I 

DEFINITIONS 

Section 1.01 Definitions of Certain Terms. For purposes of this Agreement, the 

following terms are used with the meanings assigned below (such definitions to be equally 

applicable to both the singular and plural forms of the terms herein defined): 

“Affiliate” means, with respect to any person, any person directly or indirectly 

controlling, controlled by or under common control with, such other person. For purposes of this 

definition, “control” (including, with correlative meanings, the terms “controlled by” and “under 

common control with”) when used with respect to any person, means the possession, directly or 

indirectly, of the power to cause the direction of management and/or policies of such person, 

whether through the ownership of voting securities, by contract or otherwise. 

“Agreement” has the meaning set forth in the introductory paragraph of this 

agreement. 
 -2- 

“Business Day” means any day that is not a Saturday, a Sunday or other day on 

which banking organizations in the State of California are required or authorized by Law to be 

closed. 

“Closing” has the meaning set forth in Section 2.02(A). 

“Closing Date” has the meaning set forth in Section 2.02(A). 

“Company” has the meaning set forth in the introductory paragraph to this 

Agreement. 

“Company Common Stock” has the meaning set forth in the recitals to this 

Agreement. 

“Company Material Adverse Effect” means a material adverse effect on the 

business, results of operations or financial condition of the Company and its consolidated 

Subsidiaries taken as a whole; provided, however, that Company Material Adverse Effect shall 

not be deemed to include the effects of (i) changes after the date hereof in general business, 

economic or market conditions (including changes generally in prevailing interest rates, credit 

availability and liquidity, currency exchange rates and price levels or trading volumes in the 

United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, 

declared or undeclared acts of war or terrorism, in each case generally affecting the industries in 

which the Company and its Subsidiaries operate, (ii) changes or proposed changes after the date 

hereof in United States generally accepted accounting principles or regulatory accounting 

requirements, or authoritative interpretations thereof, (iii) changes or proposed changes after date 

hereof in securities, banking and other Laws of general applicability or related policies or 

interpretations of Governmental Entities (in the case of each of these clauses (i), (ii) and (iii), 

other than changes or occurrences to the extent that such changes or occurrences have or would 

reasonably be expected to have a materially disproportionate adverse effect on the Company and 

its consolidated Subsidiaries taken as a whole relative to comparable United States banking or 

financial services organizations), or (iv) changes in the market price or trading volume of the 

Company Common Stock or any other equity, equity-related or debt securities of the Company 

or its consolidated Subsidiaries (it being understood and agreed that the exception set forth in 

this clause (iv) does not apply to the underlying reason giving rise to or contributing to any such 

change). 

“Compensation Regulations” means any guidance, rule or regulation, as the same 

shall be in effect from time to time, promulgated pursuant to or implementing Section 111 of the 

Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and 

Reinvestment Act of 2009 or otherwise from time to time. 

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended. 

“Governmental Entity” means any court, administrative agency or commission or 

other governmental or regulatory authority or instrumentality or self-regulatory organization. 
 -3- 

“Law” means any law, statute, code, ordinance, rule, regulation, judgment, order, 

award, writ, decree or injunction issued, promulgated or entered into by or with any 

Governmental Entity. 

“Liens” means any liens, licenses, pledges, charges, encumbrances, adverse rights 

or claims and security interests whatsoever. 

“Prohibited Investor” has the meaning set forth in Section 3.01(E)(5). 

“Purchase Price” has the meaning set forth in Section 2.01. 

“Purchased Shares” has the meaning set forth in the recitals to this Agreement. 

“Purchaser” has the meaning set forth in the introductory paragraph to this 

Agreement. 

“Registration Statements” has the meaning set forth in Section 3.02(E). 

“Regulatory Event” means, with respect to the Company, that (i) the Federal 

Deposit Insurance Corporation or any other applicable Governmental Entity shall have been 

appointed as conservator or receiver for the Company or any Subsidiary; (ii) the Company or any 

Subsidiary shall have been considered in “troubled condition” for the purposes of 12 U.S.C. Sec. 

1831i or any regulation promulgated thereunder; (iii) the Company or any Subsidiary shall 

qualify as “Undercapitalized,” “Significantly Undercapitalized,” or “Critically Undercapitalized” 

as those terms are defined in 12 U.S.C. Sec. 1831o or other applicable Law; or (iv) the Company 

or any Subsidiary shall have become subject to any formal or informal regulatory action 

requiring the Company or any Subsidiary to materially improve its capital, liquidity or safety and 

soundness. 

“Relevant Period” means the period in which any obligation of the Company 

arising from financial assistance under the Troubled Asset Relief Program remains outstanding, 

as it may be further described in the Compensation Regulations.

“SEC” has the meaning set forth in Section 3.02(E). 

“Securities Act” means the U.S. Securities Act of 1933, as amended. 

“Securities Purchase” has the meaning set forth in the recitals to this Agreement. 

“Seller” has the meaning set forth in the introductory paragraph to this 

Agreement. 

“Subsidiary” means, with respect to any person, any bank, corporation, 

partnership, joint venture, limited liability company or other organization, whether incorporated 

or unincorporated, (i) of which such person or a subsidiary of such person is a general partner or 

managing member or (ii) at least a majority of the securities or other interests of which having by 

their terms ordinary voting power to elect a majority of the board of directors or persons 
 -4- 

performing similar functions with respect to such entity is directly or indirectly owned by such 

person and/or one or more subsidiaries thereof. 

Section 1.02 Interpretation. The words “hereof,” “herein” and “hereunder” and 

words of similar import when used in this Agreement shall refer to this Agreement as a whole 

and not to any particular provision of this Agreement, and Section references are to this 

Agreement unless otherwise specified. Whenever the words “include,” “includes” or 

“including” are used in this Agreement, they shall be deemed to be followed by the words 

“without limitation.” The term “person” as used in this Agreement shall mean any individual, 

corporation, limited liability company, limited or general partnership, joint venture, government 

or any agency or political subdivision thereof, or any other entity or any group (as defined in 

Section 13(d)(3) of the Exchange Act) comprised of two or more of the foregoing. The table of 

contents and headings contained in this Agreement are for reference purposes only and shall not 

affect in any way the meaning or interpretation of this Agreement. In this Agreement, all 

references to “dollars” or “$” are to United States dollars. This Agreement and any documents 

or instruments delivered pursuant hereto or in connection herewith shall be construed without 

regard to the identity of the person who drafted the various provisions of the same. Each and 

every provision of this Agreement and such other documents and instruments shall be construed 

as though all of the parties participated equally in the drafting of the same. Consequently, the 

parties acknowledge and agree that any rule of construction that a document is to be construed 

against the drafting party shall not be applicable either to this Agreement or such other 

documents and instruments. 

ARTICLE II 

THE SECURITIES PURCHASE 

Section 2.01 Purchase and Sale of the Shares. Subject to, and on the terms and 

conditions of, this Agreement, effective at the Closing, the Purchaser will purchase from the 

Seller, and the Seller will sell, transfer, convey, assign and deliver to the Purchaser, the 

Purchased Shares at a purchase price of $2.05 per share of Company Common Stock, free and 

clear of all Liens. The aggregate purchase price for the Purchased Shares shall be an amount in 

cash equal to One Million Eight Hundred Seventy Seven Thousand Eight Hundred Ninety Four 

Dollars Thirty Cents ($1,877,894.30) (the “Purchase Price”). 

Section 2.02 Closing of the Securities Purchase. 

(A) Subject to Article V, the closing of the Securities Purchase (the “Closing”) 

shall occur on September 21, 2017 or at such other time or date that is agreed to in writing by the 

Seller and the Purchaser. The date on which the Closing occurs is referred to herein as the 

“Closing Date”. The Closing shall be held at such place as the Seller and the Purchaser shall 

mutually agree in writing. 

(B) At the Closing, or simultaneously therewith, the following shall occur: 

(1) The Purchaser will pay to the Seller the Purchase Price, by wire transfer in 

immediately available funds, to an account designated in writing by the Seller to the 
 -5- 

Purchaser, such designation to be made not later than two Business Days prior to the 

Closing Date. 

(2) The Seller will deliver to the Purchaser the Purchased Shares in book entry 

form without any restrictive legends and transferred via Deposit/Withdrawal At 

Custodian to accounts designated in writing by the Purchaser to the Seller, such 

designation to be made not later than two Business Days prior to the Closing Date. 

ARTICLE III 

REPRESENTATIONS AND WARRANTIES 

Section 3.01 Representations and Warranties of the Purchaser. The Purchaser, 

hereby represents and warrants to the Seller as follows: 

(A) Due Organization, Power and Authority. The Purchaser is duly organized 

and has all requisite power and authority to execute and deliver this Agreement and to 

consummate the transactions contemplated by this Agreement. 

(B) Authorization. This Agreement has been duly and validly executed and 

delivered by the Purchaser, and (assuming the due authorization, execution and delivery of this 

Agreement by the Seller and the other parties hereto) this Agreement constitutes a valid and 

binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its 

terms, except as enforcement may be limited by general principles of equity, whether applied in a 

court of law or a court of equity, and by bankruptcy, insolvency and similar Laws affecting 

creditors’ rights and remedies generally. 

(C) Non-Contravention. Neither the execution and delivery of this Agreement 

nor the consummation by the Purchaser of the transactions contemplated hereby, will violate 

applicable Law. 

(D) Consents and Approvals. No consents or approvals of, or filings or 

registrations with, any Governmental Entity or any other third party by and on behalf of the 

Purchaser are necessary in connection with the execution and delivery by the Purchaser of this 

Agreement and the consummation by the Purchaser of the transactions contemplated hereby. 

(E) Securities Matters. 

(1) The Purchaser is either (i) an “accredited investor” as defined in 

Rule 501 under the Securities Act with total assets of not less than $25 million, or 

(ii) a “qualified institutional buyer” as defined in Rule 144A under the Securities 

Act. 

(2) The Purchaser acknowledges and agrees that the Purchaser (i) is a 

sophisticated investor; (ii) does not require the assistance of an investment advisor 

or other purchaser representative to purchase the Purchased Shares; (iii) has such 

knowledge and experience in financial and business matters as to be capable of 
 -6- 

evaluating the merits and risks of its prospective investment in the Purchased 

Shares; (iv) has the ability to bear the economic risks of its prospective 

investment for an indefinite period of time; (v) can afford the complete loss of 

such investment; and (vi) recognizes that the investment in the Purchased Shares 

involves substantial risk. 

(3) The Purchaser understands that the Seller may have access to 

information about the Company that is not generally available to the public, and 

acknowledges and agrees that, to the extent the Seller has any such information, 

such information need not (and shall not) be provided to the Purchaser by the 

Seller. The Purchaser further understands that the Seller is a federal agency and 

that the Purchaser’s ability to bring a claim against the Seller under the federal 

securities laws may be limited. 

(4) The Purchaser acknowledges that the Purchaser is not relying on

any advice or recommendation from the Seller, or any investigation or 

examination that the Seller may have conducted, with respect to the Purchased 

Shares or the Company, and the Seller has not made any representation, warranty 

or covenant, express or implied, to the Purchaser with respect thereto and the 

Seller shall not have any liability to the Purchaser with respect thereto. 

(5) The Purchaser is not: (i) a person listed in the annex to Executive 

Order No. 13224 (2001) issued by the President of the United States (Executive 

Order Blocking Property and Prohibiting Transactions with Persons Who 

Commit, Threaten to Commit, or Support Terrorism); (ii) named on the List of 

Specially Designated Nationals and Blocked Persons maintained by the U.S. 

Office of Foreign Assets Control (OFAC); (iii) a Designated National other than 

an “unblocked national” as defined in the Cuban Assets Control Regulations, 31 

C.F.R. Part 515; (iv) a non-U.S. shell bank (as set forth in Section 313 of the 

Uniting and Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act)) or providing 

banking services indirectly to a non-U.S. shell bank; (v) a senior non- U.S. 

political figure or an immediate family member or close associate of such figure; 

(vi) a person with whom a U.S. citizen or entity is prohibited from transacting 

business, whether such prohibition arises under U.S. law, regulation, executive 

order, anti-money laundering, antiterrorist, financial institution and asset control 

laws, regulations, rules or orders, or as a result of any list published by the U.S. 

Department of Commerce, the U.S. Department of the Treasury, or the U.S. 

Department of State, including any agency or office thereof; (vii) a person who 

has funded or supported terrorism or a suspected terrorist organization or who has 

engaged in, or derived funds from, activities that relate to the laundering of the 

proceeds of illegal activity; or (viii) a person that would cause the Company to 

violate any Law (including bank or other financial institution regulatory laws, 

regulations or orders) to which the Company is subject by reason of such person’s 

or entity’s purchase of the Purchased Shares (categories (i) through (viii), each, a 

“Prohibited Investor”). 
 -7- 

(6) The Purchaser currently meets, will continue to meet, and has met 

(or has taken all action necessary to cure any instance of non-compliance with) all 

of its obligations under, the Bank Secrecy Act, as amended (31 U.S.C. Section 

5311 et seq.) and its implementing regulations, if applicable. 

(7) The funds used to purchase the Purchased Shares were legally 

derived from legitimate sources and not from any Prohibited Investor. 

(F) Availability of Funds. The Purchaser has and will have as of the Closing 

sufficient funds available to consummate the transactions contemplated hereunder. 

Section 3.02 Representations and Warranties of the Company. The Company 

hereby represents and warrants to the Purchaser and the Seller as follows: 

(A) Due Organization, Power and Authority. The Company is duly organized 

and validly existing as a corporation under the Laws of the State of Delaware and has all requisite 

power and authority to (i) execute and deliver this Agreement and to consummate the transactions 

contemplated by this Agreement and (ii) carry on its business as it has been and is currently being 

conducted. 

(B) Authorization. The execution and delivery of this Agreement, and the 

consummation by the Company of the transactions contemplated hereby, have been duly and 

validly approved by all necessary corporate action of the Company, and no other corporate or 

shareholder proceedings on the part of the Company are necessary to approve this Agreement or 

to consummate the transactions contemplated hereby. This Agreement has been duly and validly 

executed and delivered by the Company, and (assuming the due authorization, execution and 

delivery of this Agreement by the Seller and the other parties hereto) this Agreement constitutes a 

valid and binding obligation of the Company, enforceable against the Company in accordance 

with its terms, except as enforcement may be limited by general principles of equity, whether 

applied in a court of law or a court of equity, and by bankruptcy, insolvency and similar Laws 

affecting creditors’ rights and remedies generally. 

(C) Non-Contravention. Neither the execution and delivery of this Agreement 

nor the consummation by the Company of the transactions contemplated hereby will violate any 

provision of the certificate of incorporation or bylaws or similar governing documents of the 

Company or applicable Law. 

(D) Consents and Approvals. No consents or approvals of, or filings or 

registrations with, any Governmental Entity or any other third party by and on behalf of the 

Company are necessary in connection with the execution and delivery by the Company of this 

Agreement and the consummation by the Company of the transactions contemplated hereby. 

(E) Registration Statement. The Company has prepared and filed registration 

statements on Form S-1 (File No. 333-201233 and File No. 333-192451) (the “Registration 

Statements”) covering the resale of Company Common Stock from time to time, including the 

Purchased Shares to be sold by Seller under this Agreement, under the Securities Act and the 

rules and regulations promulgated thereunder. The Registration Statements have been declared 

effective by the Securities and Exchange Commission (the “SEC”), and no stop order has been 
 -8- 

issued or is pending or, to the knowledge of the Company, threatened by the SEC with respect 

thereto. 

(F) CDFI Designation. The Company is a certified “community development 

financial institution” designated as such under the Community Development Banking and 

Financial Institutions Act of 1994, as amended (12 U.S.C. Sections 4701 et seq.). 

ARTICLE IV 

COVENANTS 

Section 4.01 Forbearances of the Seller. From the date hereof until the Closing, 

without the prior written consent of the Purchaser, the Seller will not: 

(A) directly or indirectly transfer, sell, assign, distribute, exchange, pledge, 

hypothecate, mortgage, encumber or otherwise dispose of or engage in or enter into any hedging 

transactions with respect to, any of the Purchased Shares or any portion thereof or interest therein 

(other than pursuant to the Securities Purchase); or 

(B) agree, commit to or enter into any agreement to take any of the actions 

referred to in Section 4.01(A). 

Notwithstanding the foregoing, the Seller may undertake any of the actions set 

forth in Section 4.01(A) with an Affiliate of the Seller so long as this Agreement is assigned to 

such Affiliate in accordance with Section 7.07 of this Agreement. For the avoidance of doubt, 

until the Closing, except as expressly set forth in this Section 4.01, the Seller shall continue to be 

able to exercise all rights and privileges with respect to the Purchased Shares. 

Section 4.02 Further Action. The Seller, the Purchaser and the Company 

(A) shall each execute and deliver, or shall cause to be executed and delivered, such documents 

and other instruments and shall take, or shall cause to be taken, such further action as may be 

reasonably necessary to carry out the provisions of this Agreement and give effect to the 

transactions contemplated by this Agreement and (B) shall refrain from taking any actions that 

could reasonably be expected to impair, delay or impede the Closing or the consummation of the 

transactions contemplated by this Agreement. 

Section 4.03 Remaining Certification and Disclosure Requirements. The 

Company acknowledges and agrees to comply with the certification and disclosure requirements 

set forth in the Compensation Regulations, including without limitation those submissions that 

are required with respect to the final portion of the Relevant Period (see, for example, 

Sections 30.7(c) and (d), Sections 30.11(b) and (c) and Section 30.15(a)(3) of the Compensation 

Regulations and FAQ-14 in the Frequently Asked Questions to the Compensation Regulations, 

available at www.financialstability.gov). 

Section 4.04 Transferability Restrictions Related to Long-Term Restricted 

Stock. The Company acknowledges that any long-term restricted stock (as defined in 

Section 30.1 of the Compensation Regulations) awarded by the Company that has otherwise 
 -9- 

vested may not become transferable, or payable in the case of a restricted stock unit, at any time 

earlier than as permitted under the schedule set forth in the definition of long-term restricted 

stock in Section 30.1 of the Compensation Regulations. For this purpose, aggregate financial 

assistance received (for purposes of the definition of long-term restricted stock) includes the full 

original liquidation amount with respect to 9,000 shares of the Company’s Fixed Rate 

Cumulative Preferred Stock, Series D and 6,000 shares of the Company’s Fixed Rate Cumulative 

Preferred Stock, Series E (see FAQ-15 in the Frequently Asked Questions to the Compensation 

Regulations, available at www.financialstability.gov). On the last date upon which any 

obligations arising from Treasury’s TARP financial assistance remain outstanding, in the event 

that any long-term restricted stock awarded by the Company is not permitted to become 

transferable, or payable in the case of a restricted stock unit, under the schedule set forth in the 

definition of long-term restricted stock in Section 30.1 of the Compensation Regulations, the 

Company shall cancel such long term restricted stock and/or restricted stock units. 

Section 4.05 Executive Compensation. The Company shall not take any action 

that will result in, nor will the Company permit, directly or indirectly, the acceleration, vesting, 

enhancement or increase in the payments or benefits that would otherwise become due as a result 

of the consummation of the transactions contemplated in this Agreement to any current or former 

executive officers of the Company. 

ARTICLE V 

CONDITIONS TO THE CLOSING 

Section 5.01 Conditions to Each Party’s Obligations. The respective obligations 

of the Purchaser and the Seller to consummate the Securities Purchase are subject to the 

fulfillment, or written waiver by the Purchaser and the Seller, at or prior to the Closing, of each 

of the following conditions: 

(A) Regulatory Approvals. All regulatory approvals required to consummate 

the Securities Purchase shall have been obtained and shall remain in full force and effect and all 

statutory waiting periods in respect thereof shall have expired or been terminated. 

(B) No Injunctions or Restraints; Illegality. No order, injunction or decree 

issued by any court or agency of competent jurisdiction or other legal restraint or prohibition 

preventing the consummation of the Securities Purchase shall be in effect. No Law shall have 

been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or 

makes illegal the consummation of the Securities Purchase. 

(C) Representations and Warranties. The representations and warranties set 

forth in Article III of this Agreement shall be true and correct as though made on and as of the 

Closing Date. 

(D) Consents and Approvals. All consents and approvals of, and filings and 

registrations with, all Governmental Entities and of or with any other third party by and on behalf 

of the Company and the Purchaser that are necessary in connection with the execution and 

delivery by the Company and the Purchaser of this Agreement and the consummation by the 
 -10- 

Company and the Purchaser of the transactions contemplated hereby shall have been obtained or 

made, as applicable, and shall remain in full force and effect.

(E) Other Events. None of the following shall have occurred since the date 

hereof: 

(1) the Company or any of its Subsidiaries shall have (a) dissolved (other than 

pursuant to a consolidation, amalgamation or merger); (b) become insolvent or unable to 

pay its debts or failed or admitted in writing its inability generally to pay its debts as they 

become due; (c) made a general assignment, arrangement or composition with or for the 

benefit of its creditors; (d) instituted or have instituted against it a proceeding seeking a 

judgment of insolvency or bankruptcy or any other relief under any bankruptcy or 

insolvency law or other similar law affecting creditors’ rights, or have a petition 

presented for its winding-up or liquidation, and, in the case of any such proceeding or 

petition instituted or presented against it, such proceeding or petition shall have resulted 

in a judgment of insolvency or bankruptcy or the entry of an order for relief or the 

making of an order for its winding-up or liquidation; (e) had a resolution passed for its 

winding-up, official management or liquidation (other than pursuant to a consolidation, 

amalgamation or merger); (f) sought or shall have become subject to the appointment of 

an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other 

similar official for it or for all or substantially all its assets; (g) had a secured party take 

possession of all or substantially all its assets or had a distress, execution, attachment, 

sequestration or other legal process levied, enforced or sued on or against all or 

substantially all its assets; (h) caused or shall have been subject to any event with respect 

to it which, under the applicable laws of any jurisdiction, had an analogous effect to any 

of the events specified in clauses (a) to (g) (inclusive); or (i) taken any action in 

furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the 

foregoing acts; 

(2) a Governmental Entity in any jurisdiction shall have (a) commenced an 

action or proceeding against the Company or any of its Subsidiaries; or (b) issued or 

entered a temporary restraining order, preliminary or permanent injunction or other order 

binding upon the Company or any of its Subsidiaries, which in the case of (a) and (b) 

shall have had or be reasonably expected to have a Company Material Adverse Effect; 

(3) any fact, circumstance, event, change, occurrence, condition or

development shall have occurred that, individually or in the aggregate, shall have had or 

shall be reasonably likely to have a Company Material Adverse Effect; or 

(4) any Regulatory Event not otherwise existing on the date hereof shall have 

occurred. 

Section 5.02 Condition to Obligations of the Seller. The obligation of the Seller 

to consummate the Securities Purchase is also subject to the fulfillment, or written waiver by the 

Seller, prior to the Closing, of the following conditions: 
 -11- 

(A) Performance of Obligations. The Purchaser shall have performed in all 

material respects all obligations required to be performed by it under this Agreement at or prior to 

the Closing. 

(B) Closing Certificates. The Purchaser shall have delivered to the Seller a 

certificate, dated as of the Closing Date, certifying to the effect that all conditions precedent to the 

Closing have been satisfied. 

ARTICLE VI 

TERMINATION 

Section 6.01 Termination Events. This Agreement may be terminated at any 

time prior to the Closing: 

(A) by mutual written agreement of the Purchaser and the Seller; 

(B) by the Purchaser, upon written notice to the Seller, or by the Seller, upon 

written notice to the Purchaser, in the event that the Closing Date does not occur on or before 

September 22, 2017; provided, however, that the respective rights to terminate this Agreement 

pursuant to this Section 6.01(B) shall not be available to any party whose failure to fulfill any 

obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure 

of the Closing Date to occur on or prior to such date; or 

(C) by the Seller or the Purchaser if there shall be in effect a final nonappealable order of a Governmental Entity of competent jurisdiction restraining, enjoining or 

otherwise prohibiting the consummation of the transactions contemplated hereby. 

Section 6.02 Effect of Termination. In the event of termination of this 

Agreement as provided in Section 6.01, this Agreement shall forthwith become void and have no 

effect, and none of the Seller, the Purchaser, the Company, any affiliates of the Seller, the 

Purchaser or the Company or any officers, directors or employees of the Seller, the Purchaser or 

the Company or any of their respective affiliates shall have any liability of any nature 

whatsoever hereunder, or in connection with the transactions contemplated hereby, except that 

this Section 6.02 and Sections 7.03, 7.04, 7.05 and 7.06 shall survive any termination of this 

Agreement. 

ARTICLE VII 

MISCELLANEOUS 

Section 7.01 Waiver; Amendment. Any provision of this Agreement may be 

(A) waived in writing by the party benefiting by the provision, or (B) amended or modified at 

any time by an agreement in writing signed by each of the parties hereto. Neither any failure nor 

any delay by any party in exercising any right, power or privilege under this Agreement or any of 

the documents referred to in this Agreement will operate as a waiver of such right, power or 
 -12- 

privilege, and no single or partial exercise of any such right, power or privilege will preclude any 

other or further exercise of such right, power or privilege. 

Section 7.02 Counterparts. This Agreement may be executed by facsimile or 

other electronic means and in counterparts, all of which shall be considered an original and one 

and the same agreement and shall become effective when counterparts have been signed by each 

of the parties and delivered to the other parties, it being understood that all parties need not sign 

the same counterpart. 

Section 7.03 Governing Law; Choice of Forum; Waiver of Jury Trial. (A) This 

Agreement and any claim, controversy or dispute arising under or related to this Agreement, the 

relationship of the parties, and/or the interpretation and enforcement of the rights and duties of 

the parties shall be enforced, governed, and construed in all respects (whether in contract or in 

tort) in accordance with the federal law of the United States if and to the extent such law is 

applicable, and otherwise in accordance with the laws of the State of New York applicable to 

contracts made and to be performed entirely within such State. Each of the parties hereto agrees 

(a) to submit to the exclusive jurisdictions and venue of the United States District Court of the 

District of Columbia and the United States Court of Federal Claims for any and all civil actions, 

suits or proceedings arising out of or relating to this Agreement or the transactions contemplated 

hereby, and (b) that notice may be served upon (i) the Purchaser at the address and in the manner 

set forth for notices to the Purchaser in Section 7.05, (ii) the Company at the address and in the 

manner set forth for notices to the Company in Section 7.05 and (iii) the Seller at the address and 

in the manner set forth for notices to the Seller in Section 7.05, but otherwise in accordance with 

federal law. 

(B) To the extent permitted by applicable Law, each of the parties hereto 

hereby unconditionally waives trial by jury in any civil legal action or proceeding relating to 

this Agreement or the transactions contemplated hereby.

Section 7.04 Expenses. If requested by the Seller, the Company shall pay all 

reasonable out of pocket and documented costs and expenses associated with this Agreement and 

the transactions contemplated by this Agreement, including, but not limited to, the reasonable 

fees, disbursements and other charges of the Seller’s legal counsel and financial advisors. 

Section 7.05 Notices. All notices and other communications hereunder shall be 

in writing and shall be deemed given on the date of delivery if delivered personally or telecopied 

(upon telephonic confirmation of receipt), on the first Business Day following the date of 

dispatch if delivered by a recognized next day courier service, or on the third Business Day 

following the date of mailing if delivered by registered or certified mail, return receipt requested, 

postage prepaid. All notices hereunder shall be delivered as set forth below or in Schedule I 

hereto or pursuant to such other instructions as may be designated in writing by the party to 

receive such notice: 

 -14- 

subject matter hereof. Nothing in this Agreement, expressed or implied, is intended to confer 

upon any person, other than the parties hereto, any rights or remedies hereunder. 

Section 7.07 Assignment. Neither this Agreement nor any right, remedy, 

obligation or liability arising hereunder or by reason hereof shall be assignable by any party 

hereto without the prior written consent of the other parties, and any attempt to assign any right, 

remedy, obligation or liability hereunder without such consent shall be null and void; provided, 

however, that the Seller may assign this Agreement to an Affiliate of the Seller. If the Seller 

assigns this Agreement to an Affiliate, the Seller shall be relieved of its obligations and liabilities 

under this Agreement but (i) all rights, remedies, obligations and liabilities of the Seller 

hereunder shall continue and be enforceable by and against and assumed by such Affiliate, 

(ii) the Purchaser’s obligations and liabilities hereunder shall continue to be outstanding and 

(iii) all references to the Seller herein shall be deemed to be references to such Affiliate. The 

Seller will give the Purchaser and the Company notice of any such assignment; provided, that the 

failure to provide such notice shall not void any such assignment. 

Section 7.08 Severability. Any term or provision of this Agreement which is

determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any 

jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or 

unenforceability without rendering invalid, illegal or unenforceable the remaining terms and 

provisions of this Agreement. or affecting the validity, legality or enforceability of any of the 

terms or provisions of this Agreement in any other jurisdiction, and if any provision of this 

Agreement is determined to be so broad as to be unenforceable, the provision shall be interpreted 

to be only so broad as is enforceable, in all cases so long as neither the economic nor legal 

substance of the transactions contemplated hereby is affected in any manner materially adverse 

to any party or its shareholders. Upon any such determination, the parties shall negotiate in good 

faith in an effort to agree upon a suitable and equitable substitute provision to effect the original 

intent of the parties. 

[Remainder of page intentionally left blank]