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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."
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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, b
