Exhibit 10.1


 


CONSULTING
AGREEMENT


 


This Consulting Agreement (“Consulting Agreement”) is
made and entered into with an effective date of December 3, 2007, (“Effective
Date”), by and between Impac Funding Corporation, a California corporation (“Company”
or “Impac”), and Impac’s guarantor, Impac Mortgage Holdings, Inc., a
Maryland corporation (“Guarantor”) and Gretchen Verdugo (“Consultant” or “Verdugo”)
(collectively “the parties”) with reference to the following facts and
intentions.


 


RECITALS


 


A.            Consultant
and Company are parties to an Employment Agreement entered into and made
effective May 1, 2006 (“Employment Agreement”), whereby Verdugo was
employed as the Executive Vice President, Chief Financial Officer (“CFO”) for
Impac.


 


B.            The
above-referenced Employment Agreement has now been terminated and the parties
agree that there are no further, other or outstanding obligations remaining
with respect to the Employment Agreement, other than certain Consultant’s
obligations pursuant to the Proprietary Rights and Inventions Agreement that
was entered into as part of the Employment Agreement, as relate to
post-termination obligations as set forth in the Separation Agreement among
Impac and Verdugo (“the Separation Agreement”). 
Additionally, Impac remains bound by all rights to Indemnification to
Verdugo as set forth in the Separation Agreement, as well as the Guaranty
contained in the Employment Agreement, which shall apply to Impac’s obligation
to make payments as provided for in this Consulting Agreement.  Consultant and Company now desire a
consulting relationship to be established pursuant to the terms specified
herein.


 


            NOW THEREFORE, in
consideration of the foregoing and mutual covenants and conditions hereinafter
set forth, Consultant and Company agree as follows:


 


AGREEMENT


 


1.             Retention of
Services.  The parties agree to enter
into a consulting relationship whereby the Company has engaged the Consultant
to assist the Company with respect to any litigation against the Company of
which Consultant has any knowledge or in which she may be a witness.  This consulting relationship will commence on
December 3, 2007 and will continue until such time as any such litigation
is complete.


 


2.             Compensation.  During the term of the consulting
relationship, Consultant will be paid a total of $200,000.00, made payable in
equal, bi-monthly payments over the course of the initial six months of the
consulting relationship.  The first
payment shall be delivered upon execution of this agreement. Payment will be
made jointly to Gretchen Verdugo and the law firm of Allred Maroko &
Goldberg without withholding or offset. 
These payments are compensation to which Consultant would not otherwise
be entitled and constitute good and valuable consideration for the provision of
her consulting services and other obligations identified herein.  These payments are also subject to the
Guaranty that was entered with Verdugo in conjunction with her Employment
Agreement with Impac, dated May 1, 2006, a true and correct copy of which
is attached hereto and incorporated herein as Exhibit A.  All of the Guarantor’s obligations 


 


 

















 


set forth in the
Employment Agreement and its attachment shall apply equally to the obligations
to make the payments called for herein.


 


3.             Reimbursement of
Business Expenses.  During the period
that Consultant performs consulting services hereunder, the Company shall
reimburse Consultant for reasonable and necessary business expenses, including
reasonable travel expenses, incurred by Consultant on behalf of the Company in
connection with the performance of Consultant’s duties hereunder.


 


4.             Provision of
Health Care and other Benefits. 
Consultant will receive continuing health care benefits from the Company
through and until May 31, 2008. Consultant will receive continuing life
insurance, short term disability and long term disability benefits through and
until May 31, 2008 as provided under the Employment Agreement that was
terminated.  After May 31, 2008,
Consultant will be eligible for COBRA benefits with respect to health care
benefits.


 


5.             Consultant Free
to Obtain Other Employment. 
Consultant is free to seek and accept other consulting assignments
and/or part-time or full time employment during the term of this Consulting
Agreement.  Consultant’s relationship
with the Company, including payment of the above-referenced compensation, as
well as reimbursement of business expenses and provision of health care
benefits, will continue regardless of whether Consultant obtains other
consulting positions or part-time or full-time employment elsewhere. When Impac
desires the consulting services of Verdugo, it will refrain from interfering in
Verdugo’s other employment or income producing activity, or her pursuit of
same.


 


6.             Independent
Consultant Relationship.  Consultant’s
relationship with the Company after the termination of her employment will be
that of an independent Consultant, and nothing in this Consulting Agreement is
intended to, nor should be construed to, create a partnership, agency, joint
venture or employment relationship following the termination of the Employment
Agreement.  Consultant will not be
entitled to the benefits that the Company may make available to its employees,
(with the exception of the ongoing health care and other benefits referenced
above) including, but not limited to, , profit-sharing or retirement benefits,
paid vacation, holidays or sick leave. 
Consultant will not be authorized to make any representation, contract
or commitment on behalf of the Company unless specifically requested or authorized
in writing to do so by the Company. 
Consultant will be solely responsible for, and will file on a timely
basis, all tax returns and payments required to be filed with, or made to, any
federal, state or local tax authority with respect to the performance of
services and receipt of fees under this Consulting Agreement.  No part of Consultant’s compensation will be
subject to withholding by the Company for the payment of any social security,
federal, state or any other employee payroll taxes.  The Company will regularly report amounts
paid to Consultant by filing a Form 1099﷓MISC with the Internal
Revenue Service as required by law.


 


6.1.          Method of
Performing Services; Results.  In
accordance with the Company’s objectives, Consultant will determine the method,
details and means of performing the services required by this Consulting
Agreement.  Company shall have no right
to, and shall not, control the manner or determine the method of performing
Consultant’s services.  Consultant shall
provide the services for which Consultant is engaged to the reasonable
satisfaction of the Company.


 


 


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7.             Proprietary
Rights and Inventions Agreement. 
During the term of her Consulting Agreement, Consultant will remain subject
to certain remaining terms and conditions of the Proprietary Rights and
Inventions Agreement which was previously executed by her during her employment
with the Company.  Verdugo’s duties of
cooperation under this agreement and the Separation Agreement shall supersede
the provisions of section 3.5 of the Proprietary Rights and Inventions
Agreement.  A true and correct copy of
this Agreement is attached hereto as Exhibit B and incorporated herein.


 


8.             General
Provisions.


 


8.1.          Successors and
Assigns.  The rights and obligations
of the Company under this Consulting Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the Company.  This Agreement is binding on the parties’
heirs, executors, administrators, other legal representatives, successors and,
to the extent assignable, their assigns. 
Consultant may not assign her rights, subcontract or otherwise delegate
her obligations under this Consulting Agreement.


 


8.2.          Indemnification.  Consultant shall be indemnified from and held
harmless from and against any and all debts, claims, demands, liabilities,
expenses, losses, injuries, damages and reasonable attorneys’ fees arising out
of Consultant’s services rendered hereunder. 
Further, Consultant shall be indemnified from and held harmless from and
against any and all debts, claims, demands, liabilities, expenses, losses,
injuries, damages and reasonable attorneys’ fees arising out of Consultant’s
actions taken in the course of her previous employment with the Company
pursuant to California Labor Code section 2802 or any other provision of the
Labor Code, common law, the California Corporations Code, corporate by-laws,
any articles of incorporation (to the extent relevant) and under any policy of
insurance or other agreement.


 


8.3.          Notices.  Any notice required or permitted by this
Consulting Agreement shall be in writing and shall be delivered as follows,
with notice deemed given as indicated:  (a) by
personal delivery, when delivered personally; (b) by overnight courier,
upon written verification of receipt; (c) by telecopy or facsimile
transmission, upon acknowledgment of receipt of electronic transmission; or (d) by
certified or registered mail, return receipt requested, upon verification of
receipt.  Notice shall be sent to the
addresses set forth below or to such other address as either party may specify
in writing:


 


	
  If to Employer:

  	
   

  	
  Impac Funding
  Corporation

  
	
   

  	
   

  	
  19500 Jamboree Road

  
	
   

  	
   

  	
  Irvine, California
  92612

  
	
   

  	
   

  	
  Telephone (949)
  475-3600

  
	
   

  	
   

  	
  Facsimile (949)
  475-3969

  
	
   

  	
   

  	
  Attention: Ronald
  Morrison, Esq., General Counsel

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Amy Wintersheimer
  Findley, Esq.

  
	
   

  	
   

  	
  Allen Matkins Leck
  Gamble Mallory & Natsis

  
	
   

  	
   

  	
  501
  West Broadway, 15th Floor

  
	
   

  	
   

  	
  San
  Diego, California 92101-3541

  
	
   

  	
   

  	
  Telephone:
  (619) 233-1155

  
	
   

  	
   

  	
  Facsimile:
  (619) 233-1158

  



 


 


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  If to Employee:

  	
   

  	
  Gretchen Verdugo

  
	
   

  	
   

  	
  [address]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  John West, Esq.

  
	
   

  	
   

  	
  Allred,
  Maroko & Goldberg

  
	
   

  	
   

  	
  6300 Wilshire
  Boulevard, Suite 1500

  
	
   

  	
   

  	
  Los Angeles, California
  90048

  
	
   

  	
   

  	
  Telephone: (323)
  653-6530

  
	
   

  	
   

  	
  Facsimile: (323)
  653-1660

  



 


8.4.          Governing Law.  This Consulting Agreement shall be governed
in all respects by the laws of the United States of America and by the laws of
the State of California, as such laws are applied to agreements entered into
and to be performed entirely within California between California
residents.  Each of the parties
irrevocably consents to the exclusive personal jurisdiction of the federal and
state courts located in California, as applicable, for any matter arising out
of or relating to this Consulting Agreement, except that in actions seeking to
enforce any order or any judgment of such federal or state courts located in
California, such personal jurisdiction shall be nonexclusive.


 


8.5.          Severability.  If any provision of this Consulting Agreement
is held by a court of law to be illegal, invalid or unenforceable, (i) that
provision shall be deemed amended to achieve as nearly as possible the same
economic effect as the original provision, and (ii) the legality, validity
and enforceability of the remaining provisions of this Consulting Agreement
shall not be affected or impaired thereby.


 


8.6.          Waiver;
Amendment; Modification.  No term or
provision hereof will be considered waived by the Company, and no breach
excused by the Company, unless such waiver or consent is in writing signed by
the Company.  The waiver by the Company
of, or consent by the Company to, a breach of any provision of this Consulting
Agreement by Consultant, shall not operate or be construed as a waiver of,
consent to, or excuse of any other or subsequent breach by Consultant.  This Consulting Agreement may be amended or
modified only by mutual agreement of authorized representatives of the parties
in writing.


 


8.7.          Good Faith.  The parties agree to do all things necessary
and to execute all further documents necessary and appropriate to carry out and
effectuate the terms and purposes of this Agreement.


 


8.8.          Injunctive Relief
for Breach.  Consultant’s obligations
under this Agreement are of a unique character that gives them particular
value.  Consultant’s breach of any such
obligations will result in irreparable and continuing damage to the Company for
which there will be no adequate remedy at law. 
Accordingly, in the event of any such breach, the parties agree that the
Company will be entitled to injunctive relief and/or a decree for specific
performance, and such other and further relief as may be proper (including
monetary damages if appropriate).


 


8.9.          Entire Agreement.  This Consulting Agreement, along with the
relevant provisions of the Employment Agreement, the Separation Agreement, the
Proprietary Rights and Inventions Agreement, and the Guaranty, constitute the
entire agreement between the parties 


 


 


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relating to this
subject matter and supersedes all prior or contemporaneous oral or written
agreements concerning such subject matter. 
The terms of this Consulting Agreement will govern all services
undertaken by Consultant for the Company.


 


IN WITNESS WHEREOF, the parties have executed this
Consulting Agreement on the dates shown below.


 


 


 


 


	
  Impac Funding
  Corporation, 

  	
   

  	
  Consultant,

  
	
  a California
  corporation

  	
   

  	
  Gretchen Verdugo

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Joseph
  Tomkinson 

  	
   

  	
  By:

  	
  /s/ Gretchen
  Verdugo 

  
	
   

  	
  Joseph
  Tomkinson, Chairman and CEO

  	
   

  	
   

  	
  Gretchen Verdugo

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  12-18-07

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Impac Mortgage
  Holdings, Inc. 

  	
   

  	
   

  	
   

  
	
  a Maryland
  corporation

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ron Morrison

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  EVP

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  12-18-07

  	
   

  	
   

  	
   

  



 


 


 


 


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