Exhibit 10.100


 


SECOND AMENDED AND RESTATED

ADVISORY SERVICES AGREEMENT


 


SECOND AMENDED AND RESTATED ADVISORY SERVICES AGREEMENT dated as of December 23,
2005, and effective as of January 1, 2006, among SECURITY CAPITAL
CORPORATION, a Delaware corporation (“Security Capital”),
CAPITAL PARTNERS, INC., a Connecticut corporation (“Capital
Partners”), and PRIMROSE HOLDINGS, INC., a Delaware corporation
(“Primrose”).


 


W I T N E S S E T H:


 


WHEREAS, Security Capital and Capital Partners entered into an Amended
and Restated Advisory Services Agreement dated as of January 1, 2004 (the “Advisory Services Agreement”) pursuant to which Capital
Partners agreed to provide advisory services to Security Capital and its
subsidiaries in the areas of investments, general administration, corporate
development, strategic planning, stockholder relations, financial matters and
general business policy for a fee of $1,550,000 per annum; and


 


WHEREAS, Security Capital has commenced a formal sale process in an
effort to maximize stockholder value by seeking for its stockholders the
highest price reasonably attainable for Security Capital, which formal sale
process may involve a single transaction for the Sale of Security Capital (as
defined in Section 8) as a whole, or separate transactions for the Sale of
Primrose (as defined in Section 8) followed by the Sale of Security
Capital; and


 


WHEREAS, the Board of Directors of Security Capital (the “Board”) has assigned Capital Partners, and its President and
Chief Executive Officer, the responsibility to manage the
formal sale process, which is currently expected to be consummated by March 31,
2006, or as soon thereafter as reasonably practicable; and


 


WHEREAS, the Advisory Services Agreement does not address the
compensation to be paid to Capital Partners for managing the formal sale
process; and


 


WHEREAS, the Advisory Services Agreement provides for an adjustment to
the $1,550,000 annual fee in the event of a material unforeseen event; and


 


WHEREAS, the Advisory Services Agreement provides for automatic one-year
renewal periods unless either party terminates the Advisory Services Agreement not
less than 60 days prior to December 31 of the then-current year; and


 


WHEREAS, neither Security Capital nor Capital Partners has provided
notice of termination of the Advisory Services Agreement and the parties have
agreed to renegotiate the terms of the Advisory Services Agreement for the
period commencing on January 1, 2006 in


 

















 


light of the commencement of the formal sale
process, the additional responsibilities assigned by the Board to Capital
Partners in connection with its management of the formal sale process and the
possible Sale of Security Capital and the possible separate Sale of Primrose;
and


 


WHEREAS, the Compensation Committee of the Board, the Audit Committee
of the Board and the full Board, a majority of the members of which are
independent directors, have unanimously determined that it is in the best
interests of Security Capital and all of its stockholders to amend the Advisory
Services Agreement to: (i) ensure that Capital Partners continues, from
and after January 1, 2006, to provide regular advisory services to
Security Capital and its subsidiaries, for the same $1,550,000 annual fee as
currently in effect; (ii) require Capital Partners to provide 2006 advisory
services to Security Capital and its subsidiaries for a period of up to six months
following a Sale of Security Capital in order to provide transitional support
services for the benefit of the buyer of Security Capital, thereby
enhancing the value of Security Capital; (iii) in the event of a separate Sale
of Primrose require Capital Partners to provide 2006 advisory services to Primrose
and its subsidiaries, for a period of up to six months following a Sale of Primrose
in order to provide transitional support services for the benefit of the buyer
of Primrose, thereby enhancing the value of
Primrose; (iv) in the event of a separate Sale of Primrose, require
Primrose to pay 25% of the Fee (as defined in Section 3(a) below) payable
to Capital Partners for the transitional support services for the six-month
period following the Sale of Primrose, and, in connection therewith, include
Primrose as a party to this Agreement; (v) provide that Capital Partners
forfeits the right to one-quarter of the Fee for 2006 in the event that the Sale
of Security Capital is consummated on or before March 31, 2006 and forfeit a pro rated portion of such
amount in the event that a sale of the Company is consummated between April 1,
2006 and June 30, 2006; and (vi) provide Capital Partners with
the opportunity to earn an Incentive Sales Bonus (as defined in Section 8)
with a targeted value of $2,000,000, subject to adjustment depending upon the Per
Share Consideration (as defined in Section 8) realized by the stockholders
of Security Capital from the formal sale process, if Capital Partners’
management of the sale process is successful in realizing a Per Share Consideration
acceptable to a majority of the independent directors on the Board, in their
sole discretion, with the opportunity to earn such Incentive Sales Bonus being
provided to compensate Capital Partners for the additional services it is providing
in connection with the management of the formal sale process, to incentivize
Capital Partners to achieve for the stockholders of Security Capital the
highest Per Share Consideration reasonably obtainable and to provide a measure
of employment continuation and severance for
the employees of Capital Partners whose services on behalf of Security Capital
will cease upon the expiration of the transitional support services period
discussed above; and


 


WHEREAS, Security Capital and Capital Partners desire to amend and
restate the Advisory Services Agreement to reflect such matters and Primrose
desires to become a party to this Agreement.


 


NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree, intending to be legally bound, to amend and restate the
Advisory Services Agreement, as follows:


 


2

















 


1.                                       Advisory
Services.


 


(a)                                  Capital
Partners shall, during the periods provided for in this Agreement, provide
advisory services to Security Capital and its subsidiaries in the areas of
investments, general administration, corporate development, strategic planning,
stockholder relations, regulatory compliance, financial matters and general business
policy. In the event of a Sale of Security Capital prior to the expiration or
termination of this Agreement, Capital Partners shall continue to provide to
Security Capital and its subsidiaries substantially similar services in type
and amount as those provided by Capital Partners to Security Capital and its
subsidiaries prior to the commencement of the formal sale process.


 


(b)                                 In
the event of a Sale of Primrose prior to the expiration or termination of this
Agreement, Capital Partners shall provide advisory services to Primrose and its
subsidiaries in the areas of general administration, corporate development,
strategic planning, regulatory compliance, financial matters and general
business policy, which services shall be substantially similar in type and
amount to those provided by Capital Partners to Security Capital with respect
to Primrose and its subsidiaries prior to the commencement of the formal sale
process.


 


2.                                       Advisory
Periods.


 


(a)                                  Except
as otherwise provided in Section 2(b), Capital Partners shall provide the
services described in Section 1 for a period of one year commencing on January 1,
2006 and ending on December 31, 2006 and, thereafter, for successive
additional one-year periods unless either party gives written notice of
termination to the other party not less than 60 days prior to December 31,
2006 or the end of any such additional period, in which case the period during
which Capital Partners shall provide such services shall terminate as of December 31,
2006 or the end of such additional period, as the case may be.


 


(b)                                 Notwithstanding
anything in this Agreement to the contrary,


 


(i)                                     in
the event of a Sale of Security Capital, this Agreement shall automatically terminate
on the earlier of (A) the six-month anniversary of the consummation of the
Sale of Security Capital and (B) December 31 of the year in which the
Sale of Security Capital is consummated; and


 


(ii)                                  in
the event of a Sale of Primrose, Capital Partners’ obligation to provide any services
to Primrose and its subsidiaries under this Agreement, and Primrose’s
obligation to pay any portion of the Fee, shall automatically terminate on the
earlier of (A) the six-month anniversary of the consummation of the Sale
of Primrose and (B) December 31 of the year in which the Sale of Primrose
is consummated.


 


3.                                       Advisory
Fee.


 


(a)                                  Security
Capital shall pay to Capital Partners an advisory fee (the “Fee”) at the rate of $1,550,000 per annum for the services
described in Section 1. The Fee shall be payable in equal quarterly
installments, in advance, with the installment for each quarter payable on the
first day of the first month of such quarter; provided that, (i) in
the event that a Sale of Security Capital is consummated on or prior to March 31,
2006, Capital Partners shall not be entitled to receive the $387,500 payment
for the fourth quarter of 2006 and (ii) in the event that a Sale of
Security Capital is consummated after March 31, 2006 but on or prior to June 30,
2006,


 


3

















 


the $387,500 payment for
the fourth quarter of 2006 shall be prorated and adjusted for the number of
days elapsed during the fourth quarter of 2006 prior to the date of the
termination of this Agreement pursuant to Section 2(b)(i) of this
Agreement. The Fee shall be subject to an appropriate adjustment, as reasonably
agreed by the affected parties pursuant to Section 9, whenever there is
the occurrence of any material unforeseen event, including, but not limited to,
any significant change in the scope of the operations of Security Capital or,
if applicable, Primrose, such as, for example, a significant change in scope
which results from any acquisition or disposition made by Security Capital or,
if applicable, Primrose (other than a Sale of Security Capital or a Sale of
Primrose). The Fee shall be exclusive of reasonable out-of-pocket costs incurred
by Capital Partners directly in the performance of the services described in Section 1,
which out-of-pocket costs shall be reimbursed in accordance with Section 4.


 


(b)                                 Notwithstanding
anything in this Agreement to the contrary,


 


(i)                                     in
the event of a Sale of Primrose, Primrose shall be obligated to (A) pay
25% of the next installment payment of the Fee simultaneously with the
consummation of the Sale of Primrose and (B) pay 25% of any other
installment payment of the Fee due during the six-month period following the
Sale of Primrose at the time such installment payment is payable under this
Agreement; provided, that Security Capital shall be required to pay 100%
of any remaining installment payments of the Fee due after the expiration of
the six-month period following the Sale of Primrose; and


 


(ii)                                  in
the event of a Sale of Security Capital, Security Capital shall be obligated to
(A) pay its portion of the next installment payment of the Fee
simultaneously with the consummation of the Sale of Security Capital and (B) pay
its portion of any other installment payment of the Fee due during the
six-month period following the Sale of Security Capital at the time such
installment payment is payable under this Agreement.


 


4.                                       Costs.
Security Capital and, following a Sale of Primrose, if applicable, Primrose shall
promptly reimburse Capital Partners for all reasonable out-of-pocket costs
incurred directly in connection with the services to be provided under this
Agreement to Security Capital and, if applicable, Primrose, except for rent,
utilities and compensation for any employees of Capital Partners; provided
that nothing in this Agreement shall be deemed to require Capital Partners to
advance funds on behalf of Security Capital and, if applicable, Primrose for payment
of out-of-pocket expenses. In particular, except as otherwise determined by a
majority of the independent directors on the Board, in their sole discretion, no
separate compensation shall be paid by Security Capital to, among any others,
Brian D. Fitzgerald, A. George Gebauer, William R. Schlueter or Richard O’Connor,
or their successors, who serve as officers of Security Capital, and who are
also employees of Capital Partners. Such reimbursement shall be made promptly after
receipt of invoices therefor submitted by Capital Partners to Security Capital and,
if applicable, Primrose, from time to time.


 


5.                                       Acquisition
Opportunities. From time to time, Capital Partners may present
acquisition opportunities to Security Capital which Capital Partners believes may be
appropriate for Security Capital. However, Capital Partners is under no
obligation to present any or all acquisition candidates of which it is aware to
Security Capital.


 


4

















 


6.                                       Investment
Banking Advisory Fee. In the event that Security Capital or any of its
subsidiaries consummates any acquisition which was presented to Security
Capital by Capital Partners, Security Capital shall pay an investment banking
advisory fee to Capital Partners in an amount which is reasonable and customary
for transactions of such size and complexity as reasonably agreed to in advance
by Security Capital and Capital Partners.


 


7.                                       Incentive
Sales Bonus. In addition to the advisory services to be provided by Capital
Partners pursuant to Section 1, Capital Partners shall provide advisory
services to Security Capital in connection with managing the formal sale
process, including in the areas of planning such sale process, selecting and
evaluating potential buyers, negotiating directly or indirectly with potential
buyers and consummating a Sale of Security Capital and, if applicable, a Sale
of Primrose. In exchange for such services, upon the consummation of a Sale of
Security Capital, Security Capital shall pay to Capital Partners the Incentive
Sales Bonus. Notwithstanding the foregoing, Capital Partners’ right to receive
the Incentive Sales Bonus shall terminate if a Sale of Security Capital is not
consummated on or before June 30, 2006; provided that such
termination date may be extended beyond June 30, 2006 if a majority
of the independent directors on the Board, in their sole discretion, determine,
after considering all of the facts and circumstances at such time, that such
termination date should be so extended. The Incentive Sales Bonus shall be
exclusive of reasonable out-of-pocket costs incurred by Capital Partners
directly in the performance of the services described in this Section 7,
which out-of-pocket costs shall be reimbursed in accordance with Section 4.


 


8.                                       Certain
Definitions. For purposes of this Agreement, capitalized terms shall have
the meanings ascribed to them below:


 


(a)                                  “Additional Fee” means, in the event that the Per Share
Consideration is greater than the Baseline Per Share Consideration, an amount
equal to (i) $100,000 multiplied  by (ii) an amount
equal to (A) the Per Share Consideration minus (B) the
Baseline Per Share Consideration.


 


(b)                                 “Baseline Per Share Consideration” means the baseline Per
Share Consideration that has been recommended by the Compensation Committee of
the Board and the Audit Committee of the Board and approved by the full Board,
a majority of the members of which are independent directors, on October 24,
2005.


 


(c)                                  “Incentive Sales Bonus” means an amount equal to (i) $2,000,000
plus (ii) the Additional Fee (if any) minus (iii) the
Reduction Amount (if any).


 


(d)                                 “Per Share Consideration” means the aggregate dollar value to
be received by Security Capital’s stockholders in respect of each share of Class A
common stock of Security Capital owned by such stockholders in connection with
a Sale of Security Capital.


 


(e)                                  “Reduction Amount” means, in the event that the Per Share
Consideration is less than the Baseline Per Share Consideration, the amount (if
any) by which a majority of Security Capital’s independent directors determine,
in their sole discretion, the Incentive Sales Bonus should be reduced; provided,
that in no event shall any such reduction be


 


5

















 


in excess of an amount
equal to (i) $100,000 multiplied  by (ii) an amount
equal to (A) the Baseline Per Share Consideration minus (B) the
Per Share Consideration.


 


(f)                                    “Sale of Primrose” means either (i) the acquisition (by
purchase, merger, reorganization or otherwise) of more than 50% of the
outstanding common stock of Primrose by a person other than a person in which Brian
D. Fitzgerald, Capital Partners or any of their respective affiliates has an
ownership interest or (ii) the acquisition by any such person of all or
substantially all of the assets of Primrose, in each case, prior to a Sale of
Security Capital.


 


(g)                                 “Sale of Security Capital” means either (i) the
acquisition (by purchase, merger, reorganization or otherwise) of more than 50%
of the outstanding common stock of Security Capital by a person other than a person
in which Brian D. Fitzgerald, Capital Partners or any of their respective affiliates
has an ownership interest or (ii) the acquisition by any such person of
all or substantially all of the assets of Security Capital, in each case, at a
Per Share Consideration which a majority of Security Capital’s independent
directors determine, in their sole discretion, is acceptable.


 


9.                                       Amendment
and Modifications; Further Agreements. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by the written
agreement of Security Capital and Capital Partners; provided that any
amendment, modification or supplement that affects the rights or obligations of
Primrose shall also require the written consent of Primrose. For purposes of
this Agreement, Security Capital shall act only with the approval of a majority
of Security Capital’s independent directors acting in their sole discretion.


 


10.                                 Headings.
The Section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.


 


11.                                 Execution
in Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.


 


12.                                 Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Connecticut.


 


6

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.


 


	
   

  	
  SECURITY
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  O’Connor

  	
   

  
	
   

  	
   

  	
  Name:
  Richard O’Connor

  
	
   

  	
   

  	
  Title:
  Controller

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPITAL
  PARTNERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian
  Fitzgerald

  	
   

  
	
   

  	
   

  	
  Name: Brian
  Fitzgerald

  
	
   

  	
   

  	
  Title:
  President and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PRIMROSE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jo
  Kirchner

  	
   

  
	
   

  	
   

  	
  Name: Jo
  Kirchner

  
	
   

  	
   

  	
  Title:
  President and CEO