First Amendment to Stockholders Agreement among Clayton Holdings, Inc., Founders, and Investors

Summary

This amendment updates the Stockholders Agreement dated March 31, 2005, between Clayton Holdings, Inc., its founders, and investors. It modifies payment terms related to contingent payments under a prior Contribution Agreement, specifying new amounts, timing, and conditions for these payments. The amendment clarifies that certain payment obligations are solely those of the company, not the investors, and confirms that all other terms of the original Stockholders Agreement remain in effect unless specifically changed by this amendment.

EX-10.36 32 a2164247zex-10_36.txt EXHIBIT 10.36 Exhibit 10.36 FIRST AMENDMENT TO THE STOCKHOLDERS AGREEMENT This First Amendment to the Stockholders Agreement (this "AMENDMENT") is made and entered into as of the 4th day of November, 2005, by and among Clayton Holdings, Inc., formerly CMH Holdings, Inc. (and including its subsidiaries, the "COMPANY"), the Clayton Founders, the TMHC Founders and the Investors. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in the Stockholders Agreement (as defined below) or the Contribution Agreement (as defined below), as the context requires. The Company, the Clayton Founders, the TMHC Founders and the Investors may be referred to collectively in this Amendment as the "PARTIES." WHEREAS, the Company, the Clayton Founders, the TMHC Founders and the Investors are each a party to that certain Stockholders Agreement, dated March 31, 2005 (the "STOCKHOLDERS AGREEMENT"); and WHEREAS, the Parties hereto have agreed to amend and restate certain provisions of the Stockholders Agreement, and therefore desire to amend the Stockholders Agreement pursuant to Section 7.3 thereof. NOW, THEREFORE, in consideration of the promises and the mutual covenants and undertakings contained herein, subject to and on the terms and conditions herein set forth, and intending to be bound hereby, the Parties agree as follows: 1. GRP Holdings, Inc. ("GRP"), Clayton Services, Inc. ("CLAYTON SERVICES"), the Clayton Founders and certain of the Investors (the "CLAYTON INVESTORS") are parties to a certain Contribution and Asset Transfer Agreement, dated as of June 29, 2004, as amended (the "CLAYTON CONTRIBUTION AGREEMENT"). In connection with the this Agreement, the parties to the Contribution Agreement hereby agree to the following provisions relating to the Contribution Agreement, which provisions are expressly acknowledged and agreed to by all of the parties to this Agreement. 2. Section 1.15(c) of the Clayton Contribution Agreement, as amended by the Stockholders Agreement, is hereby amended and restated in its entirety as follows: "Promptly upon the execution of the First Amendment to the Stockholders Agreement on November 4, 2005, an amount equal to $10.0 million, together with any interest or other income earned thereon (other than a portion of the interest that will be distributed to the Clayton Investors to pay any taxes imposed in respect of such interest), shall be paid in full satisfaction of the Second Contingent Payment, such amount to be paid from the Escrow Deposit and in accordance with the terms of Section 1.3(d) hereof. For the avoidance of doubt, the aforementioned payment shall be distributed in accordance with the terms of Section 6.14(a) of the Stockholders Agreement." 3. Section 1.15(d) of the Clayton Contribution Agreement, as amended by Section 6.14(c) of the Stockholders Agreement, is hereby amended and restated in its entirety to read as follows: "Upon the earlier to occur of any of the following four events, (each, a "CONTINGENT PAYMENT RELEASE EVENT"): (i) the consummation of a QPO (as such term is defined in the Company's Second Amended and Restated Certificate of Incorporation, or "CHARTER"); (ii) the consummation of a Liquidity Event (as such term is defined in the Charter); (iii) the consummation of a recapitalization of the Company in which (a) all amounts outstanding under the senior credit facility of the Company are repaid, (b) all outstanding senior subordinated notes and subordinated notes issued by the Company and/or its subsidiaries, are repurchased in full, and (c) the holders of Convertible Preferred Stock (as such term is defined in the Charter) are paid an Extraordinary Dividend (as such term is defined in the Charter) in any amount; or (iv) the later of (x) March 31, 2006 or (y) the delivery of signed audited financial statements of the Company, but in no event later than May 1, 2006, Clayton Services shall pay to Silverheels, Inc., on behalf of Silverheels, Inc., the Clayton Subsidiaries and the Founding Stockholders, an amount equal to $13.25 million in full satisfaction of the Third Contingent Payment and the Fourth Contingent Payment, by delivery of a certified or official bank check payable in immediately available funds to Silverheels, Inc. or by causing such payment of immediately available funds to be credited to an account or accounts as may be designated by Silverheels, Inc., on behalf of Silverheels, Inc., the Clayton Subsidiaries and the Founding Stockholders. For the avoidance of doubt and subject to Sections 1.3(d) and 1.17 of the Clayton Contribution Agreement, the obligation to make any such payments shall constitute an obligation solely of the Company and not of any of the Investors. Upon the occurrence of a Contingent Payment Release Event and subsequent payment to Silverheels, Inc. as described above, all obligations of the Company and its subsidiaries to Silverheels, Inc., the Clayton Subsidiaries and the Founding Stockholders with respect to the Contingent Payments shall be satisfied in full and discharged completely." 4. Section 1.15(f) of the Clayton Contribution Agreement, as amended by the Stockholders Agreement, is hereby deleted in its entirety. 5. The sections of the Stockholders Agreement that have not been amended hereby shall remain in full force and effect. Unless expressly provided to the contrary in this Amendment, the Parties do not waive any rights they may have under the Stockholders Agreement, all of which rights are hereby expressly reserved. The sections of the Stockholders Agreement, as amended hereby, shall remain in full force and effect. For the avoidance of doubt, to the extent that the provisions of this Amendment conflict or are inconsistent with the provisions of the Stockholders Agreement, the provisions of this Amendment shall prevail. 6. This Amendment may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. 7. This Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first set forth above. NEW HOLDINGS: CLAYTON HOLDINGS, INC. By: /s/ Frederick C. Herbst ---------------------------------------------- Name: Frederick C. Herbst Title: Chief Financial Officer FOUNDERS: /s/ Margaret Sue Ellis -------------------------------------------------- Margaret Sue Ellis Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- Harvey Allon Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- /s/ Stephen M. Lamando -------------------------------------------------- Stephen M. Lamando Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- Peter Krell Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- Brian Kramer Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- BNS FAMILY IRREVOCABLE GRANTOR TRUST By: /s/ Nicholas Lamando --------------------------------------------- Name: Nicholas Lamando Title: Authorized Person Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- LAMANDO CHARITABLE REMAINDER UNITRUST By: /s/ Stephen M. Lamando --------------------------------------------- Name: Stephen M. Lamando Title: Trustee Address For Notice: -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- INVESTORS: TA IX L.P. By: TA Associates IX LLC, its General Partner By: TA Associates, Inc., its Manager By: /s/ ROGER KAFKER --------------------------------------------- Name: Roger B. Kafker Its: Managing Director TA/ATLANTIC AND PACIFIC IV L.P. By: TA Associates AP IV L.P., its General Partner By: TA Associates, Inc., its General Partner By: /s/ ROGER KAFKER --------------------------------------------- Name: Roger B. Kafker Its: Managing Director TA STRATEGIC PARTNERS FUND A L.P. By: TA Associates SPF L.P., its General Partner By: TA Associates, Inc., its General Partner By: /s/ ROGER KAFKER --------------------------------------------- Name: Roger B. Kafker Its: Managing Director TA STRATEGIC PARTNERS FUND B L.P. By: TA Associates SPF L.P., its General Partner By: TA Associates, Inc., its General Partner By: /s/ ROGER KAFKER --------------------------------------------- Name: Roger B. Kafker Its: Managing Director TA INVESTORS II, L.P. By: TA Associates, Inc., its General Partner By: /s/ ROGER KAFKER --------------------------------------------- Name: Roger B. Kafker Its: Managing Director TA SUBORDINATED DEBT FUND, L.P. By: TA Associates SDF LLC, its General Partner By: TA Associates, Inc., its Manager By: /s/ ROGER KAFKER --------------------------------------------- Name: Roger B. Kafker Its: Managing Director MADISON CAPITAL FUNDING LLC By: ---------------------------------------------- Name: Its: Managing Director LIBMAN FAMILY HOLDINGS LLC By: ----------------------------------------------- Name: Its: ACKNOWLEDGED AND AGREED: GRP HOLDINGS, INC. By: /s/ Frederick C. Herbst --------------------------------------------- Name: Frederick C. Herbst Title: Chief Financial Officer CLAYTON SERVICES, INC. By: /s/ Frederick C. Herbst --------------------------------------------- Name: Frederick C. Herbst Title: Chief Financial Officer