Exhibit 10.1


 


EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT
AGREEMENT is made as of April 1, 2008, by and between Impac Funding
Corporation, a California corporation (“Employer”), and Joseph Tomkinson, an
individual (“Executive”).


 


R E C I T A L S


 


WHEREAS, Executive is
knowledgeable of and skillful in the business of Employer and IMH, which
includes but is not limited to acquiring for investment and sale non-conforming
residential mortgage loans and mortgage backed securities and performing mortgage
operations for affiliates or related entities of Employer and those duties and
functions identified in Exhibit A hereto (the “Business”);


 


WHEREAS, Employer
believes that Executive is an integral part of its management and currently is
and will become more knowledgeable of and be in part responsible for developing
the Business;


 


WHEREAS, Executive
possesses extensive management experience and knowledge regarding the Business,
including confidential information concerning service marketing plans and strategy,
business plans and projections and the formulas and models pertaining thereto,
customer needs and peculiarities, finances, operations, billing methods and
customer lists;


 


WHEREAS, Employer desires
that Executive continue his employment as 
Chief Executive  Officer of
Employer; and


 


WHEREAS, Executive is
willing to be employed by Employer and provide services to Employer and any
affiliates or related entities of Employer (as more fully described in Exhibit A
attached hereto) under the terms and conditions herein stated.


 


A G R E E M E N T


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter contained, and
for other good and valuable consideration, it is hereby agreed by and between
the parties hereto as follows:


 


1.             Employment, Services and
Duties.


 


1.1           Employer hereby
employs Executive and Executive hereby accepts such employment full-time
(subject to those exceptions, if any, set forth below) as Chief Executive
Officer of Employer to perform the duties and functions set forth in Exhibit A
attached hereto and, Subject to Section 2.2(i), to perform such other
duties or functions as are reasonably required or as may be prescribed from
time to time or as otherwise agreed. 
Executive shall


 





















 


render
his services by and subject to the instructions and under the direction of
Employer’s Board of Directors to whom Executive shall directly report.


 


1.2           Executive
acknowledges and agrees that Executive may be required by Employer to devote a
portion of his working time to perform functions for Employer’s affiliates or
related entities (as set forth in Exhibit A attached hereto) and
that such services are to be performed pursuant to and consistent with
Executive’s duties and obligations under this Agreement.


 


1.3           Executive will at all
times faithfully, industriously and to the best of his ability, experience and
talents perform all of the duties required of and from him pursuant to the
terms of this Agreement.  Executive will
devote his full business energies and abilities and all of his business time to
the performance of his duties hereunder and will not, without Employer’s prior
written consent, render to others any service of any kind (whether or not for
compensation) that would interfere with the full performance of Executive’s duties
hereunder, and in no event will engage in any activities that compete with the
Business or that could create a reasonably foreseeable conflict of interest or
the appearance of a reasonably foreseeable conflict of interest; provided that
nothing contained in this Section 1.3 shall preclude Executive from
engaging in or managing Executive’s outside investments.


 


2.             Term and Termination.


 


2.1           The term of this
Agreement shall be from January 1, 2008 through December 31, 2009,
unless extended by the mutual written agreement of Employer and Executive or
pursuant to the terms of Paragraph 2.8 herein.


 


2.2           Executive’s
employment shall terminate prior to the expiration of the term set forth in Section 2.1
upon the happening of any of the following events:


 


(a)           Voluntary
termination by Executive other than for Good Reason (as defined below);
provided that Executive shall be required to provide Employer with at least 30
days prior written notice of such voluntary termination;


 


(b)           Death of Executive;


 


(c)           Employer may
terminate Executive under this Agreement for “cause” if any of the following
occurs (any determination of “cause” as used in this Agreement shall be made
only by an affirmative majority vote of the Board of Directors (not including
Executive in the deliberations or vote on the same, if a director) of
Employer):


 


(i)            Executive is
convicted of (or pleads nolo contendere to) (A) a crime of dishonesty or
breach of trust, including such a crime involving either the property of
Employer IMH (or any affiliate or related entity of Employer or IMH) or the
property entrusted to Employer or IMH (or any affiliate or related entity of
Employer or IMH) by its clients, including fraud, or embezzlement or other
misappropriation of funds belonging to Employer or IMH (or any affiliate or
related entity of Employer or IMH) or any of their respective


 


2





















 


clients,
or (B) a felony leading to incarceration of more than 90 days or the
payment of a penalty or fine of $100,000 or more;


 


(ii)           Executive
materially and substantially fails to perform Executive’s job duties properly
assigned to Executive after being provided 30 days prior written notification
by the Board of Directors of Employer setting forth those duties that are not
being performed by Executive; provided that Executive shall have a reasonable
time to correct any such failures to the extent that such failures are
correctable and Employer may not terminate Executive for “cause” on the basis
on any such failure that is cured within a reasonable time.


 


(iii)          Executive has
engaged in willful misconduct or gross negligence in connection with his
service to Employer or IMH (or any affiliate or related entity of Employer or
IMH) that has caused or is causing material harm to Employer or IMH (or any
affiliate or related entity of Employer or IMH); or


 


(iv)          Executive’s
material breach of any of the terms of this Agreement or any other obligation
that Executive owes to Employer or IMH (or any affiliate or related entity of
Employer or IMH), including a material breach of trust or fiduciary duty or a
material breach of any proprietary rights and inventions or confidentiality
agreement between Employer and Executive or between IMH and Executive (or
between Executive and any affiliate or related entity of Employer or IMH)(as
such agreements may be adopted or amended from time to time by Employer and
Executive).


 


(d)           By mutual agreement
between Employer and Executive;


 


(e)           The date when
Executive is declared legally incompetent under the laws of the State of
California, or if Executive has a mental or physical condition that can
reasonably be expected to prevent Executive from carrying out his essential
duties and obligations under this Agreement for a period of greater than six
months (any such condition an “Incapacitating Condition”), notwithstanding
Employer’s reasonable accommodations (to the extent required by law);


 


(f)            Employer may
terminate Executive under this Agreement at will (and without cause) upon
written notice at any time.  Unless
otherwise provided in such notice, such termination shall be effective
immediately upon providing written notice to Executive; or


 


(g)           Executive may
terminate his employment under this Agreement for Good Reason upon providing
Employer at least 30 days prior written notice of such termination stating the
basis on which Executive has determined that he has Good Reason to terminate
his employment; provided that Employer shall have a reasonable time after
receiving such notice to cure any event that would constitute Good Reason for
Executive to terminate his employment (provided such event is curable) and
Executive may not terminate his employment for Good Reason on the basis of any
such event that is cured within a reasonable time.  Notwithstanding the foregoing portion of this
Section 2.02(g),


 


3





















 


the
aforementioned 30-day notice and reasonable cure period shall not apply to Section 2.02(g)(iv).  “Good Reason” shall mean:


 


(i)            the assignment to
Executive of duties materially inconsistent with, or a substantial reduction or
alteration in, the authority, duties or responsibilities of Executive as set
forth in this Agreement, without Executive’s prior written consent;


 


(ii)           the principal place
of the performance of Executive’s responsibilities and duties is changed to a
location more than 65 miles from the location of such place as of the date of
this Agreement, without Executive’s prior written consent;


 


(iii)          a material breach
by Employer of this Agreement, including a reduction by Employer of Executive’s
Base Salary, without Executive’s prior written consent; or


 


(iv)          a failure by
Employer to obtain from any acquirer of Employer, before any Acquisition (as
defined below) takes place, an agreement to assume and perform this Agreement.


 


Good Reason does
not include the expiration of the term of this Agreement on December 31,
2009.


 


2.3           Except as set forth
in Section 4, in the event that Executive’s employment is terminated
pursuant to Section 2.2(a), 2.2(b), 2.2(c) or  2.2(d) herein, neither Employer nor
Executive shall have any remaining duties or obligations under this Agreement,
except that Employer shall pay to Executive, or his legal representatives, on
the date of termination of employment (the “Termination Date”) or, with respect
to reimbursement for expenses, as promptly as practical after the Termination
Date, the following:


 


(a)           Such compensation
as is due pursuant to Section 3.1(a), prorated through the Termination
Date;


 


(b)           Any expense
reimbursements due and owing to Executive for reasonable and necessary business
and entertainment expenses of Employer incurred by Executive prior to the
Termination Date; and


 


(c)           The dollar value of
all accrued and unused paid time off that Executive is entitled to through the
Termination Date.


 


(d)           If the termination
is pursuant to the terms of 2.2(b) or (e), then Executive, or his estate
or heirs,  shall also be entitled to six (6) additional
months of compensation due under 3.1(a), which shall be paid out over the following
six (6) months.


 


2.4           Except as set forth
in Section 4, in the event that Executive’s employment is terminated
pursuant to Section 2.2(f) or 2.2(g), neither Employer nor Executive
shall have any


 


4





















 


remaining
duties or obligations under this Agreement, except that Employer shall pay to
Executive, or his representatives, the amounts set forth in Section 2.3 at
the times set forth in Section 2.3 and the following (provided that
payments for health insurance coverage shall be made to an insurance provider):


 


(a)           An additional 18
month’s worth of Base Salary to be paid over the succeeding 18 month period
after the Termination date:


 


(b)           Premiums for
continuation of Executive’s health insurance benefits under Employer’s group
health insurance plan, pursuant to COBRA, for the 18 month period succeeding
the Termination Date (with such health insurance coverage to be at a level and
quality equivalent to the health insurance coverage provided by Employer to
Executive immediately prior to the Termination Date, “Equivalent Coverage”);
provided that Employer shall pay such premiums only so long as (during said 18
month period) Executive remains eligible for such Equivalent Coverage under
COBRA;


 


(c)           The payments set
forth in Sections 2.4(a) and (b) above are referred to herein
collectively as the “Severance Payments” and each as a “Severance Payment.”


 


5





















 


2.5           As a condition
precedent of Executive or his estate receiving any Severance Payment from
Employer, whether in a lump sum payment or a string of payments or in the form
of payment of benefits, Executive or his estate shall, in consideration for
payment of such amount or benefit, sign and deliver to Employer (against the
execution and delivery of the same by the other parties thereto) the form of
Waiver and Release Agreement attached hereto as Exhibit B.  Such Waiver and Release Agreement will not be
construed to include any release of any indemnification rights Executive may
have against Employer pursuant to Employer’s Articles of Incorporation or
bylaws, any indemnification agreement or California Labor Code Section 2800.


 


2.6           This Agreement
shall not be terminated by Employer merging with or otherwise being acquired by
another entity, whether or not Employer is the surviving entity, or by Employer
transferring of all or substantially all of its assets (any such event, an “Acquisition”).


 


2.7           In the event of any
Acquisition, the surviving entity or transferee, as the case may be, shall be
bound by and shall have the benefits of this Agreement, and Employer shall not
enter into any Acquisition unless the surviving entity or transferee, as the
case may be, agrees to be bound by the provisions of this Agreement.


 


2.8           This Agreement
shall automatically renew for an additional two (2) year period at its
conclusion with the same terms and conditions unless Employer gives Executive
written notice of their intent not to renew this Agreement.  If Employer chooses not to renew this
Agreement then Notice of such nonrenewal must be given between July 15,
2009 and August 15, 2009.  If
Employer gives such Notice, then Executive’s right to demand or seek
compensation under Paragraph 2.4 herein shall no longer be available to
Executive.


 


3.             Compensation.


 


3.1           As the total
consideration for Executive’s services rendered hereunder, Executive shall be
entitled to the following during the period that Executive is employed
hereunder:


 


(a)           A base salary of
$600,000 per year (“Base Salary”), payable in equal installments bi-weekly on
those days when Employer normally pays its employees;


 


(b)           Executive shall
accrue paid time off during the period he is employed hereunder at the rate of
five weeks per calendar year, subject to any vacation benefit accrual cap
established by Employer (i.e., once the cap has been reached, further accrual
shall cease until Executive uses some or all of his accrued time to fall below
the accrual cap).  The timing of
Executive’s vacation shall be governed by Employer’s usual policies applicable
to all employees;


 


(c)           Executive is
entitled to participate in any policies or plans regarding benefits of
employment, including pension, profit sharing, group health, disability
insurance and other employee welfare benefit plans now existing or hereafter
established to the extent that Executive is eligible under the terms of such
plans.  Despite the foregoing, Executive
is entitled to participate in any such plan or program only if the


 


6





















 


executive
officers of Employer generally are eligible to participate in such plan or
program.  Employer may, in its sole
discretion and from time to time, establish additional senior management
benefit programs as it deems them appropriate. 
Executive understands that any such plans may be modified or eliminated
in Employer’s sole discretion in accordance with applicable law; and


 


(d)           Executive shall be
entitled to stock options at the sole discretion of the Board of Directors in
the amount and subject to the terms and conditions as is consistent with other
Executives in the Company.


 


(e)           Such other benefits
as the Board of Directors of Employer, in its sole discretion, may from time to
time provide which may include cash bonuses or stock grants.


 


3.2           During the period
that Executive is employed hereunder, Employer shall reimburse Executive for
reasonable and necessary business and entertainment expenses incurred by
Executive on behalf of Employer in connection with the performance of Executive’s
duties hereunder.


 


3.3           Executive may elect
to defer any portion of his Base Salary into an approved, Employer sponsored
deferred compensation plan; provided that Employer has no obligation to provide
such a deferred compensation plan.  All
Base Salary, whether or not deferred, shall be deemed to be earned and
immediately vested upon distribution to Executive or deferral into a deferred
compensation plan.


 


3.4           There shall be no
inflation or any other automatic adjustments to any of the compensation paid to
Executive under this Agreement.


 


3.5           Employer shall have
the right to deduct from the compensation due to Executive hereunder any and
all sums required for social security and withholding taxes and for any other
federal, state, or local tax or charge which may be in effect or hereafter
enacted or required as a charge on the compensation of Executive.


 


3.6           During the period
that Executive is employed hereunder, Employer shall pay to Executive an
automobile allowance in the amount of $1,000 per month (prorated for any
partial month during the employment period).


 


4.             Non-Competition.


 


4.1           At all times during
Executive’s employment hereunder, and in consideration for any and all payments
and benefits provided to Executive pursuant to this Agreement, Executive shall
not, directly or indirectly, engage or participate in, prepare or set up,
assist or have any interest in any person, partnership, corporation, limited
liability company, firm, association, or other business organization, entity or
enterprise (whether as an employee, officer, director, member, agent, security
holder, creditor, consultant or otherwise) that engages in any activity in
those geographic areas where Employer conducts the Business, which activity is
the same as, similar to, or competitive with any activity now engaged in by
Employer or its affiliates or related entities or in any way relating to the
Business.


 


7





















 


4.2           Nothing contained
in Section 4.1 shall be deemed to preclude Executive from purchasing or
owning, directly or beneficially, as a passive investment, less than five
percent of any class of publicly traded securities of any entity so long as
Executive does not actively participate in or control, directly or indirectly,
any investment or other decisions with respect to such entity.


 


5.             No Compensation from
Related Entities.  Without prior written approval from Employer’s
Board of Directors, Executive shall not directly or indirectly receive
compensation from any company with whom Employer or any of its affiliates (as “affiliate”
is defined in Rule 405 promulgated under the Securities Act of 1933) has
any financial, business or affiliated relationship.


 


6.             Confidentiality;
Non-Solicitation and Proprietary Rights.  Executive and
Employer have previously signed a Proprietary Rights and Inventions Agreement
in the form attached hereto as Exhibit C (the “Proprietary Rights
and Inventions Agreement”) and it is agreed that such Agreement is true and
correct and will remain in effect during the term of this Agreement.


 


7.             Copies of Agreement.  Executive
authorizes Employer to send a copy of the Proprietary Rights and Inventions
Agreement to any and all future employers which Executive may have, and to any
and all persons, firms, and corporations, with whom Executive may become
affiliated in a business or commercial enterprise, and to inform any and all
such employers, persons, firms or corporations that Employer intends to
exercise its legal rights should Executive breach the terms of the Proprietary
Rights and Inventions Agreement or should another party induce a breach of that
agreement on Executive’s part.


 


8.             Severable Provisions.  The provisions
of this Agreement are severable and if any one or more provisions is determined
to be illegal or otherwise unenforceable, in whole or in part, the remaining
provisions, and any partially unenforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.


 


9.             Arbitration.  To the fullest
extent allowed by law, any controversy, claim or dispute between Executive and
Employer (or any of its stockholders, directors, officers, employees,
affiliates, agents, successors or assigns) relating to or arising out of
Executive’s employment or the cessation of that employment will be submitted to
final and binding arbitration in Orange County, California for determination in
accordance with the American Arbitration Association’s (“AAA”) National Rules for
the Resolution of Employment Disputes, as the exclusive remedy for such
controversy, claim or dispute.  In any
such arbitration, the parties may conduct discovery to the same extent as would
be permitted in a court of law.  The
arbitrator shall issue a written decision, and shall have full authority to
award all remedies which would be available in court.  The arbitrator shall be required to determine
all issues in accordance with existing case law and the statutory laws of the
State of California.  Employer shall pay
the arbitrator’s fees and any AAA administrative expenses.  In the event Executive files a claim to
collect unpaid payments or benefits payable under Section 2.4, the
prevailing party shall be awarded reasonable attorneys fees and costs.  Any judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.  Possible disputes covered by
the above include unpaid wages, breach of contract, torts, violation of public
policy,


 


8

















 


discrimination,
harassment, or any other employment-related claims under laws including Title
VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the
Age Discrimination in Employment Act, the California Fair Employment and
Housing Act, the California Labor Code, and any other federal or state
constitutional provisions, statutes or laws relating to an employee’s
relationship with his employer.  However,
claims for workers’ compensation benefits and unemployment insurance (or any
other claims where mandatory arbitration is prohibited by law) are not covered by
this arbitration agreement, and such claims may be presented to the appropriate
court or government agency.  BY AGREEING
TO THIS MUTUAL AND BINDING ARBITRATION PROVISION, BOTH EXECUTIVE AND EMPLOYER
GIVE UP ALL RIGHTS TO TRIAL BY JURY. 
This arbitration policy is to be construed as broadly as is permissible
under relevant law.  EMPLOYER AND
EXECUTIVE HAVE READ THIS SECTION 9 AND IRREVOCABLY AGREE TO ARBITRATE ANY
DISPUTE IDENTIFIED ABOVE.


 




	
            
  /s/ RM

  	
   

  	
            /s/
  JRT

  
	
  Employer’s Initials

  	
   

  	
  Executive’s Initials

  






 


10.          Injunctive Relief.  The parties
hereto agree that any breach or threatened breach of Section 4 of this
Agreement or the Proprietary Rights and Inventions Agreement will cause
substantial and irreparable damage to Employer in an amount and of a character
difficult to ascertain.  Accordingly, to
prevent any such breach or threatened breach, and in addition to any other
relief to which Employer may otherwise be entitled, Employer will be entitled
to immediate temporary, preliminary and permanent injunctive relief through
appropriate legal proceedings in any arbitration, without proof of actual
damages that have been incurred or may be incurred by Employer with respect to
such breach or threatened breach. 
Executive expressly agrees that Employer will not be required to post
any bond or other security as a condition to obtaining any injunctive relief
pursuant to this Section 10, and Executive expressly waives any right to
the contrary.  Executive agrees that this
Section 10 is without prejudice to the rights of the parties to compel
arbitration pursuant to Section 9.


 


11.          Entire Agreement.  This Agreement
and the Exhibits attached hereto contain the entire agreement of the parties
relating to the subject matter hereof, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of
this Agreement that are not set forth otherwise herein or the Exhibits attached
hereto.  This Agreement supersedes any
and all prior agreements, written or oral, with Employer relating to Executives
employment with Employer and any other subject matter of this Agreement.  Any such prior agreements are hereby
terminated and of no further effect and Executive, by the execution hereof,
agrees that any compensation provided for under any such prior agreement is
specifically superseded and replaced by the provision of this Agreement;
subject to the following: (i) any and all compensation previously deferred
under any pre-existing deferred compensation plan shall immediately be paid to
Executive without condition or limitation; and (ii) this Agreement is not
intended to supercede, cancel or replace any stock option or dividend
equivalent right payments that Executive may have or otherwise be entitled to
receive.  The parties hereto agree that
in no event shall an oral modification of this Agreement be enforceable or
valid.


 


9

















 


12.          Governing Law.  This Agreement
is and shall be governed and construed in accordance with the laws of the State
of California, regardless of any laws on choice of law or conflicts of law of
any jurisdiction.


 


13.          Notice.  All notices hereunder must be in writing and
shall be sufficiently given for all purposes hereunder if properly addressed
and delivered personally by documented overnight delivery service, by certified
or registered mail, return receipt requested, or by facsimile or other
electronic transmission service at the address or facsimile number, as the case
may be, set forth below.  Any notice given
personally or by documented overnight delivery service is effective upon
receipt.  Any notice given by registered
mail is effective upon receipt, to the extent such receipt is confirmed by
return receipt.  Any notice given by
facsimile transmission is effective upon receipt, to the extent that receipt is
confirmed, either verbally or in writing by the recipient.  Any notice which is refused, unclaimed or
undeliverable because of an act or omission of the party to be notified, if
such notice was correctly addressed to the party to be notified, shall be
deemed communicated as of the first date that said notice was refused,
unclaimed or deemed undeliverable by the postal authorities, or overnight
delivery service.


 


	
  If
  to Employer:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Impac Funding Corporation

  	
   

  	
   

  
	
  19500 Jamboree Rd.

  	
   

  	
   

  
	
  Irvine, California 92603

  
	
  Telephone:

  	
   

  	
  (949) 475-3600

  
	
  Facsimile:

  	
   

  	
  (949) 475-3969

  
	
  Attention:

  	
   

  	
  Ronald Morrison, Esq.

  
	
   

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
  If to Executive:

  
	
   

  	
   

  	
   

  
	
  Joseph Tomkinson

  
	
   

  
	
   

  
	
  Telephone:

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  
	
   

  
	
  With a copy to:

  
	
   

  	
   

  	
   

  
	
  Ernest W. Klatte, III, Esq.

  
	
  Rutan & Tucker, L.L.P.

  
	
  611 Anton Blvd., 14th Floor

  
	
  Costa Mesa, California 92626

  
	
  Telephone:

  	
   

  	
  (714) 641-5100

  
	
  Facsimile:

  	
   

  	
  (714) 546-9035

  
						



 


14.          Amendments And Waivers.  This Agreement
may not be amended, modified, superseded, canceled, or any terms waived, except
by written instrument signed by both parties, or in the case of waiver, by the
party to be charged.


 


10

















 


15.          Successor and Assigns.  This Agreement
is not assignable by Executive, nor by Employer except to an affiliated or
successor entity.  This Agreement is
binding on the parties’ heirs, executors, administrators, other legal
representatives, successors, and, to the extent assignable, their assigns.


 


16.          Representations.  The person
executing this Agreement on behalf of Employer hereby represents and warrants
on behalf of himself and Employer that he is authorized to represent and bind
Employer.  Executive specifically
represents and warrants to Employer that he is not now under any contractual or
quasi-contractual obligations that is inconsistent or in conflict with this
Agreement or that would prevent, limit or impair Executive’s performance of his
obligations under this Agreement, (b) he has had the opportunity to be
represented by legal counsel of his choosing in preparing, negotiating,
executing and delivering this Agreement; and (c) fully understands the
terms and provisions of this Agreement.


 


17.          Counterparts; Facsimile Signatures.  This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original for all purposes.  This
Agreement may be executed by a party’s signature transmitted by facsimile (“fax”),
and copies of this Agreement executed and delivered by means of faxed signatures
shall have the same force and effect as copies hereof executed and delivered
with original signatures.  All parties
hereto may rely upon faxed signatures as if such signatures were originals.  Any party executing and delivering this
Agreement by fax shall promptly thereafter deliver a counterpart signature page of
this Agreement containing said party’s original signature.  All parties hereto agree that a faxed
signature page may be introduced into evidence in any proceeding arising
out of or related to this Agreement as if it were an original signature page.


 


18.          Rules of Construction.  This Agreement
has been negotiated by the parties and is to be interpreted according to its
fair meaning as if the parties had prepared it together and not strictly for or
against any party.  References in this
Agreement to “Sections” refer to Sections of this Agreement, unless the context
expressly indicates otherwise. 
References to “provisions” of this Agreement refer to the terms,
conditions, restrictions and promises contained in this Agreement.  References in this Agreement to laws and
regulations refer to such laws and regulations as in effect on this date and to
the corresponding provisions, if any, of any successor law or regulation.  At each place in this Agreement where the
context so requires, the masculine, feminine or neuter gender includes the
others and the singular or plural number includes the other.  Forms of the verb “including” mean “including
without limitation” unless the context expressly indicates otherwise.  “Or” is inclusive and includes “and” unless
the context expressly indicates otherwise. 
The introductory headings at the beginning of Sections of this Agreement
are solely for the convenience of the parties and do not affect any provision of
this Agreement.


 


11

















 


IN
WITNESS WHEREOF,
this Agreement is executed as of the day and year first above written.


 


	
   

  	
  “EMPLOYER”

  
	
   

  	
   

  
	
   

  	
  IMPAC
  FUNDING CORPORATION,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald Morrison

  
	
   

  	
   

  	
  Name:

  	
  Ronald Morrison

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President and General 

  	
   

  
	
   

  	
   

  	
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “EXECUTIVE”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Joseph Tomkinson

  
	
   

  	
  JOSEPH
  TOMKINSON

  
						



 


12

















 





 


EXHIBIT A


 


JOB
DESCRIPTION


 


	
  Job
  Title:

  CEO

  	
   

  	
  FLSA:

  Exempt

  
	
  Department:

  Executive Administration

  	
   

  	
  Reports
  To:

  Board of Directors

  
	
  Cost
  Center:

  1805

  	
   

  	
  Salary
  Grade:

  
	
  Location:

  Irvine, Ca

  	
   

  	
  Effective
  Date:

  2008

  



 


	
  A.

  	
   

  	
  Scope of Job:

  



 


Responsible
for the management of all aspects of the company’s activities to ensure maximum
profits commensurate with the best interests of customers, shareholders,
employees, and the public.  In
conjunction with other directors is responsible for capital formation,
authorization of capital expenditures, and declaration of dividends.  Provides leadership in establishing overall
objectives, policies, and plans.


 


	
  B.

  	
   

  	
  Responsibilities:

  
	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
  Insures
  that all regulatory policies and procedures and Board policies and procedures
  are strictly adhered to.

  
	
  ·

  	
   

  	
  Establish
  current and long-range strategies, plans, and policies.

  
	
  ·

  	
   

  	
  Insures
  the necessary corporate environment to carry out major plans and procedures,
  consistent with established policies and Board approval.

  
	
  ·

  	
   

  	
  Responsible
  for maintaining the overall adequacy and soundness of the organization’s
  financial structure.

  
	
  ·

  	
   

  	
  Review
  operating results of the organization, compares them to established
  objectives, and takes steps to ensure that appropriate measures are taken to
  correct unsatisfactory results.

  
	
  ·

  	
   

  	
  Establish
  and maintains an effective system of communications throughout the
  organization.

  
	
  ·

  	
   

  	
  Represent
  the organization with major customers, shareholders, the financial community,
  and the public.

  
	
  ·

  	
   

  	
  Act
  as liaison between State and Federal Regulators on behalf of the company.

  
	
   

  
	
  C.

  	
   

  	
  Supervisory Responsibilities:

  
	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
  Ensures that the responsibilities, authorities, and
  accountability of all direct subordinates are defined and understood.

  



 


13

















 


	
  D.

  	
   

  	
  Qualifications and Skills:

  
	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
  To perform this job successfully, an individual must
  be able to perform each essential duty satisfactorily. The requirements
  listed below are representative of the knowledge, skill, and/or ability
  required. Reasonable accommodations may be made to enable individuals with
  disabilities to perform the essential functions.

  
	
  ·

  	
   

  	
  Must
  possess excellent verbal and written communication skills.

  



 


	
  E.

  	
   

  	
  Education and/or Experience:

  
	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
  General
  Studies or Bachelors in Administration or Sciences

  
	
  ·

  	
   

  	
  8-10
  years previous experience in a similar capacity.

  
	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  Certificates, Licenses, and/or
  Registrations:

  
	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
    As necessary for the position/role

  
	
   

  	
   

  	
   

  
	
  G.

  	
   

  	
  Physical Requirements

  
	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
  The physical demands described here are representative
  of those that must be met by an employee to successfully perform the
  essential functions of this job. Reasonable accommodations may be made to
  enable individuals with disabilities to perform the essential functions.

  



 


14

















 


EXHIBIT B


 


WAIVER AND RELEASE AGREEMENT


 


For full and
valuable consideration, including, but not limited to, severance payments made
and to be made by Impac Funding Corporation and any affiliate or related entity
of Impac Funding Corporation (collectively, “Employer”) to Joseph Tomkinson (“Executive”)
and guaranteed by Impac Mortgage Holdings, Inc. (“Guarantor”) pursuant to
the Employment Agreement between Employer and Executive dated as of April 1,
2008 (the “Employment Agreement”), Executive, on the one part, and Employer and
Guarantor on the other part, hereby enter into this Waiver and Release
Agreement (“Waiver”), and each agrees to waive and release the other and, as
the case may be, the other’s stockholders, directors, officers, employees,
affiliates, agents, successors and assigns, if any, from all known and unknown
claims, agreements or complaints related to or arising under Executive’s
employment with Employer, including, but not limited to, any claim arising out
of Executive’s termination, any express or implied agreement between Executive
and Employer (other than each party’s respective rights and obligations under
Sections 2.3, 2.4 and 4.1 of the Employment Agreement, the Guaranty and the
Proprietary Rights and Inventions Agreement), and any other federal or state
constitutional provisions, statutes or laws relating to an employee’s
relationship with his employer, including, but not limited to, Title VII of the
Civil Rights Act of 1964, the Employee Retirement Income Security Act, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the
California Fair Employment and Housing Act, and the California Labor Code.


 


This Waiver shall
not include a waiver of any of the following: (i) any right to defense
and/or indemnification that Executive may have under California Labor Code
section 2802, or under any defense and indemnification policy or agreement; (ii) any
claim for breach of any pension, 401k, deferred compensation  or stock option plan of Employer; or (iii) any
claim that Executive may have against any officer, director, employee, or agent
of Employer or Guarantor for defamation or intentional interference with
prospective employment or business advantage.


 


This Waiver
includes a waiver of any rights the parties may have under Section 1542 of
the California Civil Code, which states:


 


“A general release does
not extend to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.”


 


Executive’s Waiver
is conditioned upon Employer and Guarantor’s performance of all of their
severance obligations pursuant to Sections 2.3 and 2.4 of the Employment
Agreement and pursuant the Guaranty.  In
the event that either Employer or Guarantor materially breaches its severance
obligations under the Employment Agreement or Guaranty, then Executive shall be
entitled to pursue any claims as though this Waiver did not exist, and the
statute of limitations for any such claims shall be deemed to have been tolled
during the period from the date of Executive’s termination through the date
Employer or Guarantor breached it obligations.


 


1

















 


Employer’s Waiver
is conditioned upon Executive’s performance of all of his obligations pursuant
to Section 4.1 of the Employment Agreement.  In the event that Executive materially
breaches his noncompete obligations under the Employment Agreement, then
Employer and Guarantor shall be entitled to pursue any claims as though this
Waiver did not exist, and the statute of limitations for any such claims shall
be deemed to have been tolled during the period from the date of Executive’s
termination through the date Executive breached his obligations.  The parties to this Waiver each acknowledge
that each may hereafter discover facts different from or in addition to those
now known or believed to be true with respect to the claims, suits, rights,
actions, complaints, agreements, contracts, causes of action, and liabilities
of any nature whatsoever that are the subject of the above release, and the
parties expressly agree that this Waiver shall be and remain effective in all
respects regardless of such additional or different facts.


 


Executive is
advised as follows:  (i) Executive
should consult an attorney regarding this Waiver before executing it; (ii) Executive
has 21 days in which to consider this Waiver and whether Executive will enter
into it; (iii) this Waiver does not waive rights or claims that may arise
after it is executed; and (iv) at anytime within seven days after
executing this Waiver, Executive may revoke this Waiver.  This Waiver shall not become effective or
enforceable until the seven day revocation period set forth herein has passed.


 


Capitalized terms
not otherwise defined herein shall have the meanings set forth in the
Employment Agreement.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JOSEPH TOMKINSON

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  IMPAC FUNDING
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  IMPAC MORTGAGE
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
							



 


2

















 


EXHIBIT C


 


EMPLOYEE’S
DISCLOSURE


 


Gentlemen:


 


1.             Except for the information and ideas
listed below that rightfully became part of my general knowledge prior to my
first contact or communication with the Company or any of its affiliates or
related entities, I represent that I am not in the possession of and have no
knowledge of any information that can be considered the Proprietary Information
of Impac Funding Corporation, a California corporation (the “Company”), other
than information disclosed by Company or any of its affiliates or related
entities during my employment negotiations or my prior employment with the
Company or any of its affiliates or related entities, which I understand and
agree is the Proprietary Information of Company or its affiliates or related
entities, as the case may be.


 


 


 


2.             Except for the complete list of
Inventions set forth below, I represent that I (in whole or in part, either
alone or jointly with others) have not made, conceived, developed or first
reduced to practice any Inventions relevant to the subject matter of my
employment with the Company prior to my employment with the Company or any of
its affiliates or related entities.


 


	
  No Inventions

  
	
   

  
	
  See below:

  



 


 


 


	
  Additional
  sheets attached

  



 


 


	
   

  	
   

  
	
   

  	
  JOSEPH TOMKINSON

  



 


1