IMH. Infinet and the Consultant intend (i) that this Agreement shall be a consulting agreement and not an employment agreement, and (ii) that the Consultant shall be an independent contractor and not an employee.
IMH. ICH or any Affiliated REIT may only pursue an Investment Opportunity contained in a Notice of First Refusal to the Principal Party on terms no less favorable than as presented to IMH, ICH or any Affiliated REIT, or any of their Operating Subsidiaries, and then as set forth to the Principal Party on said Notice of First Refusal.
IMH has full corporate power and authority to enter into the Dealer Manager Agreement, the Tax Agreement, Non-Competition Agreement, the Right of First Refusal Agreement, the Contribution Agreement and the Submanagement Agreement with the Manager. The Tax Agreement, the Contribution Agreement, the Right of First Refusal Agreement, the Non-Competition Agreement, the Submanagement Agreement and any other Company Agreements to which IMH is a party are collectively referred to as the "IMH Agreements." Each of the Dealer Manager Agreement and the IMH Agreements has been duly authorized, executed and delivered by IMH and constitutes a valid and binding agreement of IMH and is enforceable against IMH in accordance with its terms, except as the enforceability hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors' rights generally and moratorium laws in effect from time to time and by equitable principles restricting the availability of equitable remedies. The execution and delivery by IMH of, and the performance by IMH of its obligations under, each of the Dealer Manager Agreement and IMH Agreements, the consummation of the transactions contemplated hereby and thereby and the application of the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under the caption "Use of Proceeds" will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of IMH pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any other party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, the charter or by-laws of IMH, any contract or other agreement to which IMH is a party or by which IMH or any of its properties is bound or affected, or violate or conflict with any judgment, ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties of IMH the effect of any of which, individually or in the aggregate, would be to have a Material Adverse Effect.
IMH. During each calendar year that occurs during the Employment Period, IMH shall establish an annual incentive compensation plan pursuant to which Executive shall be eligible to receive additional compensation (the “IMH Cash Bonus”) in an amount up to one hundred percent (100%) of Executive’s IMH Base Salary. The IMH Cash Bonus for each calendar year shall become payable to Executive by IMH based upon the attainment of certain specified goals and objectives as determined by the Compensation Committee of the IMH Board, from time to time, in its sole discretion. The goals and objectives for each calendar year shall be determined by the Compensation Committee of the IMH Board within ninety (90) days after the start of each calendar year (or for calendar 2011, within ninety (90) days after the Effective Date). The Executive’s IMH Cash Bonus for 2011 shall be prorated. Except as provided in Section 7, the Executive must be employed by IMH on the last date of the applicable calendar year in order to be eligible for the IMH Cash Bonus with respect to that calendar year. IMH also has adopted the 2010 IMH Financial Corporation Stock Incentive Plan (the “IMH Equity Plan”). Subject to the terms of this Section 3.2.1, promptly after the Effective Date, it will be recommended to the Compensation Committee of the IMH Board that Executive be granted a stock option (the “Option”) under the IMH Equity Plan to purchase 150,000 shares of IMH’s common stock. The Option shall be granted with an exercise price per share equal to the Fair Market Value (as defined in the IMH Equity Plan) of a share of IMH’s common stock on the grant date, which Fair Market Value will be determined based on the conversion price of the Convertible Loan. Subject to the Executive’s continued employment on each vesting date, the Option shall vest and become exercisable in thirty six (36) substantially equal monthly installments, with the first installment vesting on the last day of the month following the month in which the grant date occurs and an additional installment vesting on the last day of each of the thirty five (35) months thereafter. The Option may also become vested as provided in Section 7. The Option shall have an ordinary term of ten (10) years. The Option shall be granted under and subject to the terms and conditions of the IMH Equity Plan and IMH’s form option agreement approved for use under the IMH Equity Plan. During the Employment Period, the Executive shall also be eligible to recei...
IMH. The Consultant has or shall provide the following Consulting Services to IMH to the extent requested by IMH:
1.1 advice to IMH of a strategic and business development nature;
1.2 diligence on, and analytical work with respect to, IMH’s loan portfolio and prospective loan purchases and sales;
1.3 advice to IMH with respect to unrealized gains and losses in IMH’s loan portfolio;
1.4 advice to IMH with respect to the work of IMH’s valuation consultants and related issues;
1.5 advice to IMH with respect to certain accounting oriented issues, and interface with various parties, including, without limitation, the Company and IMH’s auditor;
1.6 advice to IMH with respect to certain matters under consideration from time to time by legal counsel respecting the Form S-11 and IMH’s contemplated initial public offering (the “IPO”), interface on those issue with IMH and IMH’s legal counsel, among others, and establishment and management of timelines for the filing of the Form S-11;
1.7 advice to IMH with respect to the implementation and management of certain matters in the final Form S-4, including, without limitation, all issues with IMH’s transfer agent, including the lock-up of the shares;
1.8 advice to IMH with respect to the structuring of IMH’s contemplated IPO and interface with management of IMH, the underwriters, legal counsel and auditors with respect thereto;
1.9 advice to IMH with respect to liquidity strategies in addition to IMH’s contemplated IPO, including, without limitation, potential debt offerings and assistance in the arrangement of commercial banking facilities;
1.10 advice to IMH regarding the selection of an independent Board of Directors and committees thereof, including, without limitation, candidates and proposed compensation terms, among other issues;
1.11 advice to IMH with respect to SEC filings to be made by IMH in connection with IMH’s contemplated IPO, and interface with management, legal counsel and IMH’s auditors with respect thereto;
1.12 advice to IMH with respect to liability insurance and directors and officers insurance; and
1.13 other advice to IMH from time to time as requested by IMH.
IMH. Commencing on the Effective Date and ending thirty (30) days after IMH’s written notice of termination of this Agreement to the Consultant as to IMH, in consideration for the Consultant’s Consulting Services rendered to IMH through the date thereof, IMH shall pay the Consultant during the Term an annual fee of $595,000, or the IMH Base Consulting Fee, or a monthly fee of $49,583.34 (the “IMH Base Monthly Fee”), payable monthly in advance. Partial months shall be prorated on the basis of a 30-day month.
IMH. The Consultant has or shall provide the following Consulting Services to IMH to the extent requested by IMH:
1.1 advice to IMH of a strategic and business development nature.
IMH has the power, authority and legal right to execute, deliver and perform this Agreement and all obligations required hereunder and has taken all necessary corporate action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder. No consent of any other person including, without limitation, stockholders and creditors of IMH, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by IMH in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement and all obligations required hereunder. This Agreement has been, and each instrument or document required hereunder will be, executed and delivered by a duly authorized officer of IMH and this Agreement constitutes, and each instrument or document required hereunder when executed and delivered hereunder will constitute, the legally valid and binding obligation of IMH enforceable against IMH in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, moratorium or similar laws now or hereafter in effect relating to the rights and remedies of creditors generally, and general principles of equity.
IMH. During the Employment Period, Executive shall serve as the Chief Financial Officer of IMH. In this capacity, Executive shall have such duties, authorities and responsibilities commensurate with the duties, authorities and responsibilities of persons in similar capacities in similarly-sized companies, and such other duties and responsibilities as the Chief Executive Officer of IMH shall reasonably designate that are consistent with Executive’s position as Chief Financial Officer of IMH. Executive shall report exclusively to the Chief Executive Officer of IMH, and in the absence of a Chief Executive Officer, Executive shall report to the President of IMH. In addition to serving as the Chief Financial Officer of IMH, Executive shall become a member of the Board of Directors of IMH (the “IMH Board”) from and after the Effective Date, subject to customary board election practices.
IMH. During the Employment Period, Executive shall serve as the President of IMH. In this capacity, Executive shall have such duties, authorities and responsibilities commensurate with the duties, authorities and responsibilities of persons in similar capacities in similarly-sized companies, and such other duties and responsibilities as the Board of Directors of IMH (the “IMH Board”) shall reasonably designate that are consistent with Executive’s position as President of IMH. Executive shall report exclusively to the Chairman and Chief Executive Officer of IMH. In addition to serving as the President of IMH, Executive currently is and shall continue to be a member of the IMH Board from and after the Effective Date, subject to customary board election practices.
