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Exhibit 10.13
AMENDED AND RESTATED NON-COMPETITION AGREEMENT
THIS AMENDED AND
RESTATED NON-COMPETITION AGREEMENT (the "Agreement") is
entered into as of August 2, 2004 by and
among Stephen M. Lamando (the
"Stockholder"), Clayton GRP, Inc., a
Delaware corporation (the "Company"),
Clayton Holdings, Inc., a Delaware
corporation ("Holdings"), and the parties set
forth on the signature pages hereto as
Investors (the "Investors").
WITNESSETH
WHEREAS, the
Company, Holdings and the Investors have entered into a
certain Contribution and Asset Transfer
Agreement, dated as of June 29, 2004
(the "Contribution Agreement"), by and
among the Company, Holdings, Stockholder,
the Investors, the Sellers named therein
(the "Sellers") and the other
stockholders of certain of the Sellers as
named therein, pursuant to which the
Company and Holdings have agreed to
purchase substantially all of the assets and
to assume certain liabilities of the
Sellers;
WHEREAS, as
contemplated by the Contribution Agreement (i) certain of the
Investors, through the purchase of
Convertible Preferred Stock of Holdings and
(ii) certain of the Investors and their
affiliates, through the purchase of
Subordinated Notes of the Company and
Common Stock of Holdings pursuant to a
certain Subordinated Note and Common Stock
Purchase Agreement, are providing
funds necessary for the Company and
Holdings to consummate the purchase and sale
transactions contemplated by the
Contribution Agreement;
WHEREAS, the
Sellers will hold a proportionate amount of the funds and
shares they receive pursuant to the
Contribution Agreement for the benefit of,
or distribute a proportionate amount of the
funds and shares they receive
pursuant to the Contribution Agreement to,
the Stockholder, and, accordingly,
the Stockholder shall derive a substantial
benefit from such transactions;
WHEREAS, the
Company is a subsidiary of Holdings; and
WHEREAS, Sellers
(immediately prior to the date hereof) were, and the
Company (as of the date hereof) is, in the
business of providing advisory
products and services relating to
residential, consumer and commercial loan
asset classes, including (i) portfolio due
diligence, advice, data collection,
management and analysis, (ii) regulatory
and operational compliance reporting,
(iii) credit underwriting, and (iv) loan
valuation, in each case to financial
institutions, including investment banking
firms, mortgage companies, commercial
banks, thrifts, government sponsored
enterprises, rating agencies, mortgage
insurance companies and bond insurers
(together with any other businesses or
activities conducted by the Company and its
subsidiaries from time to time, the
"Company Business");
WHEREAS, the
Company Business has been, and is presently contemplated to
be, conducted throughout the United States
and Canada, and the reputation and
goodwill of the Company are an integral
part of its business success; and
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WHEREAS, in
order to provide the Investors with the full benefits of their
investment, the Stockholder has agreed to
execute and deliver this Agreement.
NOW, THEREFORE,
in consideration of the mutual promises and covenants set
forth herein, the receipt and sufficiency
of which are hereby acknowledged, the
parties hereto, intending to be legally
bound, agree as follows:
Section 1.
EFFECTIVE DATE. The Stockholder, the Company, Holdings and the
Investors agree that this Agreement is
being entered into in connection with the
consummation of the transactions
contemplated by the Contribution Agreement, and
that this Agreement is effective as of the
date hereof (the "Effective Date").
Section 2.
NON-COMPETITION; NON-SOLICITATION. In view of the fact that any
activity of the Stockholder or any Seller
or any other person or entity subject
hereto in violation of the terms hereof
would materially and adversely affect
the Company Business and would deprive the
Investors under the Contribution
Agreement of the benefits of their bargains
and investments thereunder, and to
preserve the goodwill associated with the
Company Business, the Stockholder
hereby agrees on behalf of itself and each
Seller to the following restrictions:
(a) STOCKHOLDER
COVENANTS. The Stockholder hereby agrees that
during the period commencing
on the Effective Date and ending on the date
which is the later of five
(5) years after the Effective Date or two (2)
years after termination of
Stockholder's employment with the Company and its
subsidiaries for any reason,
he will not, without the express written consent
of the Company, directly or
indirectly (through any Seller or any other
subsidiary, affiliate or
controlled entity of the Stockholder) (collectively,
the "Seller Entities," and
individually, a "Seller Entity"), and will cause
each Seller Entity not to,
anywhere in the states of New York, New Jersey,
California, Connecticut,
Florida and Oklahoma, or any other state in the
United States or in Canada:
(i) engage in any activity which is competitive
with any of the business,
activities, products or services conducted or
offered by any of the
Company, any direct or indirect subsidiary of the
Company or Holdings or any
other direct or indirect subsidiary of Holdings
(collectively, the "Company
Entities," and individually, the "Company
Entity"), which business,
activities, products and services shall include, in
any event and without
limitation, the Company Business (any such activity, a
"Competitive Activity"), or
(ii) participate or invest in, provide or
facilitate the provision of
financing to, or assist (whether as owner,
part-owner, shareholder,
member, partner, director, officer, trustee,
employee, agent or
consultant, or in any other capacity) any business,
organization or person other
than the Company, Holdings, or any of their
respective direct or
indirect subsidiaries, whose business, activities,
products or services are
competitive with any of the business, activities,
products or services
conducted or offered by any Company Entity, which
business, activities,
products and services shall include, in any event and
without limitation, the
Company Business. Without implied limitation, the
forgoing covenant shall
prohibit Stockholder from (A) hiring or engaging or
attempting to hire or engage
for or on behalf of the Stockholder, any Seller
Entity or any such
competitor, any officer or employee of any Company Entity,
or any former officer or
employee of any Company Entity or any Seller Entity
who was employed by any
Company Entity or any Seller Entity at any time
within the eighteen (18)
month period prior to the date of such hiring or
engaging or attempt to hire
or engage (provided, that during the last six (6)
2
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months of such eighteen (18)
month period, if
