**Exhibit 10.100**

 

**SECOND AMENDED AND RESTATEDADVISORY SERVICES AGREEMENT**

 

SECOND AMENDED AND RESTATED ADVISORY SERVICES AGREEMENT dated as of December 23,2005, and effective as of January 1, 2006, among SECURITY CAPITALCORPORATION, a Delaware corporation (“**Security Capital**”),CAPITAL PARTNERS, INC., a Connecticut corporation (“**CapitalPartners**”), 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 Amendedand Restated Advisory Services Agreement dated as of January 1, 2004 (the “**Advisory Services Agreement**”) pursuant to which CapitalPartners agreed to provide advisory services to Security Capital and itssubsidiaries in the areas of investments, general administration, corporatedevelopment, strategic planning, stockholder relations, financial matters andgeneral business policy for a fee of $1,550,000 per annum; and

 

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

 

WHEREAS, the Board of Directors of Security Capital (the “**Board**”) has assigned Capital Partners, and its President andChief Executive Officer, the responsibility****to manage theformal 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 thecompensation to be paid to Capital Partners for managing the formal saleprocess; and

 

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

 

WHEREAS, the Advisory Services Agreement provides for automatic one-yearrenewal periods unless either party terminates the Advisory Services Agreement notless than 60 days prior to December 31 of the then-current year; and

 

WHEREAS, neither Security Capital nor Capital Partners has providednotice of termination of the Advisory Services Agreement and the parties haveagreed to renegotiate the terms of the Advisory Services Agreement for theperiod commencing on January 1, 2006 in

 

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

 

WHEREAS, the Compensation Committee of the Board, the Audit Committeeof the Board and the full Board, a majority of the members of which areindependent directors, have unanimously determined that it is in the bestinterests of Security Capital and all of its stockholders to amend the AdvisoryServices Agreement to: (i) ensure that Capital Partners continues, fromand after January 1, 2006, to provide regular advisory services toSecurity Capital and its subsidiaries, for the same $1,550,000 annual fee ascurrently in effect; (ii) require Capital Partners to provide 2006 advisoryservices to Security Capital and its subsidiaries for a period of up to six monthsfollowing a Sale of Security Capital in order to provide transitional supportservices for the benefit of the buyer of Security Capital,****therebyenhancing the value of Security Capital; (iii) in the event of a separate Saleof Primrose require Capital Partners to provide 2006 advisory services to Primroseand its subsidiaries, for a period of up to six months following a Sale of Primrosein order to provide transitional support services for the benefit of the buyerof Primrose,****thereby enhancing the value ofPrimrose; (iv) in the event of a separate Sale of Primrose, requirePrimrose to pay 25% of the Fee (as defined in Section 3(a) below) payableto Capital Partners for the transitional support services for the six-monthperiod following the Sale of Primrose, and, in connection therewith, includePrimrose as a party to this Agreement; (v) provide that Capital Partnersforfeits the right to one-quarter of the Fee for 2006 in the event that the Saleof Security Capital is consummated on or before March 31, 2006 and forfeit a pro rated portion of suchamount in the event that a sale of the Company is consummated between April 1,2006 and June 30, 2006; and (vi) provide Capital Partners withthe 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 PerShare Consideration (as defined in Section 8) realized by the stockholdersof Security Capital from the formal sale process, if Capital Partners’management of the sale process is successful in realizing a Per Share Considerationacceptable to a majority of the independent directors on the Board, in theirsole discretion, with the opportunity to earn such Incentive Sales Bonus beingprovided to compensate Capital Partners for the additional services it is providingin connection with the management of the formal sale process, to incentivizeCapital Partners to achieve for the stockholders of Security Capital thehighest Per Share Consideration reasonably obtainable and to provide a measureof****employment continuation and severance forthe employees of Capital Partners whose services on behalf of Security Capitalwill cease upon the expiration of the transitional support services perioddiscussed above; and

 

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

 

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

 

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1.                                       AdvisoryServices.

 

(a)                                  CapitalPartners shall, during the periods provided for in this Agreement, provideadvisory services to Security Capital and its subsidiaries in the areas ofinvestments, general administration, corporate development, strategic planning,stockholder relations, regulatory compliance, financial matters and general businesspolicy. In the event of a Sale of Security Capital prior to the expiration ortermination of this Agreement, Capital Partners shall continue to provide toSecurity Capital and its subsidiaries substantially similar services in typeand amount as those provided by Capital Partners to Security Capital and itssubsidiaries prior to the commencement of the formal sale process.

 

(b)                                 Inthe event of a Sale of Primrose prior to the expiration or termination of thisAgreement, Capital Partners shall provide advisory services to Primrose and itssubsidiaries in the areas of general administration, corporate development,strategic planning, regulatory compliance, financial matters and generalbusiness policy, which services shall be substantially similar in type andamount to those provided by Capital Partners to Security Capital with respectto Primrose and its subsidiaries prior to the commencement of the formal saleprocess.

 

2.                                       AdvisoryPeriods.

 

(a)                                  Exceptas otherwise provided in Section 2(b), Capital Partners shall provide theservices described in Section 1 for a period of one year commencing on January 1,2006 and ending on December 31, 2006 and, thereafter, for successiveadditional one-year periods unless either party gives written notice oftermination 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 duringwhich 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)                                 Notwithstandinganything in this Agreement to the contrary,

 

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

 

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

 

3.                                       AdvisoryFee.

 

(a)                                  SecurityCapital shall pay to Capital Partners an advisory fee (the “**Fee**”) at the rate of $1,550,000 per annum for the servicesdescribed in Section 1. The Fee shall be payable in equal quarterlyinstallments, in advance, with the installment for each quarter payable on thefirst day of the first month of such quarter; provided that, (i) inthe 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 paymentfor the fourth quarter of 2006 and (ii) in the event that a Sale ofSecurity Capital is consummated after March 31, 2006 but on or prior to June 30,2006,

 

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the $387,500 payment forthe fourth quarter of 2006 shall be prorated and adjusted for the number ofdays elapsed during the fourth quarter of 2006 prior to the date of thetermination of this Agreement pursuant to Section 2(b)(i) of thisAgreement. The Fee shall be subject to an appropriate adjustment, as reasonablyagreed by the affected parties pursuant to Section 9, whenever there isthe 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 scopewhich results from any acquisition or disposition made by Security Capital or,if applicable, Primrose (other than a Sale of Security Capital or a Sale ofPrimrose). The Fee shall be exclusive of reasonable out-of-pocket costs incurredby 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)                                 Notwithstandinganything in this Agreement to the contrary,

 

(i)                                     inthe event of a Sale of Primrose, Primrose shall be obligated to (A) pay25% of the next installment payment of the Fee simultaneously with theconsummation of the Sale of Primrose and (B) pay 25% of any otherinstallment payment of the Fee due during the six-month period following theSale of Primrose at the time such installment payment is payable under thisAgreement; provided, that Security Capital shall be required to pay 100%of any remaining installment payments of the Fee due after the expiration ofthe six-month period following the Sale of Primrose; and

 

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

 

4.                                       Costs.Security Capital and, following a Sale of Primrose, if applicable, Primrose shallpromptly reimburse Capital Partners for all reasonable out-of-pocket costsincurred directly in connection with the services to be provided under thisAgreement to Security Capital and, if applicable, Primrose, except for rent,utilities and compensation for any employees of Capital Partners; providedthat nothing in this Agreement shall be deemed to require Capital Partners toadvance funds on behalf of Security Capital and, if applicable, Primrose for paymentof out-of-pocket expenses. In particular, except as otherwise determined by amajority of the independent directors on the Board, in their sole discretion, noseparate 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 arealso employees of Capital Partners. Such reimbursement shall be made promptly afterreceipt of invoices therefor submitted by Capital Partners to Security Capital and,if applicable, Primrose, from time to time.

 

5.                                       AcquisitionOpportunities. From time to time, Capital Partners may presentacquisition opportunities to Security Capital which Capital Partners believes may beappropriate for Security Capital. However, Capital Partners is under noobligation to present any or all acquisition candidates of which it is aware toSecurity Capital.

 

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6.                                       InvestmentBanking Advisory Fee. In the event that Security Capital or any of itssubsidiaries consummates any acquisition which was presented to SecurityCapital by Capital Partners, Security Capital shall pay an investment bankingadvisory fee to Capital Partners in an amount which is reasonable and customaryfor transactions of such size and complexity as reasonably agreed to in advanceby Security Capital and Capital Partners.

 

7.                                       IncentiveSales Bonus. In addition to the advisory services to be provided by CapitalPartners pursuant to Section 1, Capital Partners shall provide advisoryservices to Security Capital in connection with managing the formal saleprocess, including in the areas of planning such sale process, selecting andevaluating potential buyers, negotiating directly or indirectly with potentialbuyers and consummating a Sale of Security Capital and, if applicable, a Saleof Primrose. In exchange for such services, upon the consummation of a Sale ofSecurity Capital, Security Capital shall pay to Capital Partners the IncentiveSales Bonus. Notwithstanding the foregoing, Capital Partners’ right to receivethe Incentive Sales Bonus shall terminate if a Sale of Security Capital is notconsummated on or before June 30, 2006; provided that suchtermination date may be extended beyond June 30, 2006 if a majorityof the independent directors on the Board, in their sole discretion, determine,after considering all of the facts and circumstances at such time, that suchtermination date should be so extended. The Incentive Sales Bonus shall beexclusive of reasonable out-of-pocket costs incurred by Capital Partnersdirectly 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.                                       CertainDefinitions. For purposes of this Agreement, capitalized terms shall havethe meanings ascribed to them below:

 

(a)                                  “**Additional Fee**” means, in the event that the Per ShareConsideration is greater than the Baseline Per Share Consideration, an amountequal to (i) $100,000 multipliedby (ii) an amountequal to (A) the Per Share Consideration minus (B) theBaseline Per Share Consideration.

 

(b)                                 “**Baseline Per Share Consideration**” means the baseline PerShare Consideration that has been recommended by the Compensation Committee ofthe 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) $2,000,000plus (ii) the Additional Fee (if any) minus (iii) theReduction Amount (if any).

 

(d)                                 “**Per Share Consideration**” means the aggregate dollar value tobe received by Security Capital’s stockholders in respect of each share of Class Acommon stock of Security Capital owned by such stockholders in connection witha Sale of Security Capital.

 

(e)                                  “**Reduction Amount**” means, in the event that the Per ShareConsideration is less than the Baseline Per Share Consideration, the amount (ifany) 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

 

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in excess of an amountequal to (i) $100,000 multipliedby (ii) an amountequal to (A) the Baseline Per Share Consideration minus (B) thePer Share Consideration.

 

(f)                                    “**Sale of Primrose**” means either (i) the acquisition (bypurchase, merger, reorganization or otherwise) of more than 50% of theoutstanding common stock of Primrose by a person other than a person in which BrianD. Fitzgerald, Capital Partners or any of their respective affiliates has anownership interest or (ii) the acquisition by any such person of all orsubstantially all of the assets of Primrose, in each case, prior to a Sale ofSecurity Capital.

 

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

 

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

 

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

 

11.                                 Executionin Counterparts. This Agreement may be executed in counterparts, eachof which shall be an original, but all of which together shall constitute oneand the same instrument.

 

12.                                 GoverningLaw. This Agreement shall be governed by and construed in accordance withthe laws of the State of Connecticut.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beduly 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 |
|        |                               |  |  |  |

 

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