SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 10)*
Security Capital Corporation
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(Name of issuer)
Class A Common Stock, par value $0.01 per share
- --------------------------------------------------------------------------------
(Title of class of securities)
814131405
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(CUSIP number)
Brian D. Fitzgerald
Capital Partners, Inc.
One Pickwick Plaza, Suite 310
Greenwich, CT 06830
(203) 625-0770
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
APRIL 6, 1999
- --------------------------------------------------------------------------------
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Exchange Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
(Continued on following pages)
(Page 1 of 11 Pages)
<PAGE>
SCHEDULE 13D
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CUSIP No. 814131405 Page 2 of 11 Pages
============================= ============================
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
BRIAN D. FITZGERALD ####-##-####
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS*
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
===============================================================================
7 SOLE VOTING POWER
NUMBER OF 239,882
SHARES ============================================================
BENE-FICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 4,983,361
REPORTING ============================================================
PERSON 9 SOLE DISPOSITIVE POWER
WITH
239,882
============================================================
10 SHARED DISPOSITIVE POWER
4,983,361
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,223,243
===============================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
81.1%
===============================================================================
14 TYPE OF REPORTING PERSON*
IN
===============================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 814131405 Page 3 of 11 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Capital Partners, Inc. #13-3109595
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS*
00
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
===============================================================================
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ============================================================
BENE-FICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 4,455,672
REPORTING ============================================================
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
============================================================
10 SHARED DISPOSITIVE POWER
4,455,672
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,455,672
===============================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.2%
===============================================================================
14 TYPE OF REPORTING PERSON*
CO
===============================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 814131405 Page 4 of 11 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
FGS, Inc. #51-0315515
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS*
00
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
===============================================================================
7 SOLE VOTING POWER
NUMBER OF 527,689
SHARES ============================================================
BENE-FICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 4,455,672
REPORTING ============================================================
PERSON 9 SOLE DISPOSITIVE POWER
WITH
527,689
============================================================
10 SHARED DISPOSITIVE POWER
4,455,672
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,983,361
===============================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
77.4%
===============================================================================
14 TYPE OF REPORTING PERSON*
CO
===============================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 814131405 Page 5 of 11 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
CP Acquisition, L.P. No. 1 #51-0328383
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS*
00
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
===============================================================================
7 SOLE VOTING POWER
NUMBER OF 4,455,672
SHARES ============================================================
BENE-FICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 0
REPORTING ============================================================
PERSON 9 SOLE DISPOSITIVE POWER
WITH
4,455,672
============================================================
10 SHARED DISPOSITIVE POWER
0
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,455,672
===============================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.2%
===============================================================================
14 TYPE OF REPORTING PERSON*
CO
===============================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 814131405 Page 6 of 11 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
FGS Partners, L.P. #06-1326750
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS*
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
===============================================================================
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ============================================================
BENE-FICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 4,455,672
REPORTING ============================================================
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
============================================================
10 SHARED DISPOSITIVE POWER
4,455,672
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,455,672
===============================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.2%
===============================================================================
14 TYPE OF REPORTING PERSON*
PN
===============================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 7 of 11 Pages
THIS STATEMENT CONSTITUTES AMENDMENT NO. 9 TO THE SCHEDULE 13D PREVIOUSLY FILED.
ITEM 1. SECURITY AND ISSUER
This statement relates to the Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of Security
Capital Corporation (the "Issuer"). The address of the
Issuer's principal executive offices is 1111 North Loop West,
Suite 400, Houston, Texas 77008.
ITEM 2. IDENTITY AND BACKGROUND
Item 2 is hereby amended to read as follows:
(a) This amendment is being filed by Brian D. Fitzgerald, FGS,
Inc., a Delaware corporation ("FGS"), Capital Partners, Inc.,
a Connecticut corporation ("CP Inc."), CP Acquisition, L.P.
No. 1, a Delaware limited partnership ("CP Acquisition"), and
FGS Partners, L.P., a Delaware limited partnership (each, a
"Registrant" and, collectively, the "Registrants").
(b) and (c) See Schedule A hereto.
(d) and (e) During the past five years, no Registrant or any
other person listed in Schedule A hereto has (a) been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or (b) been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or a finding of
any violation with respect to such laws.
(f) See Schedule A hereto.
<PAGE>
Page 8 of 11 Pages
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is hereby amended to read as follows:
Pursuant to a Stock Purchase Agreement, dated as of
April 6, 1999, by and between the Issuer and CP Acquisition,
CP Acquisition purchased 1,136,364 shares of Class A Common
Stock. The funds needed for CP Acquisition to purchase such
shares were contributed to CP Acquisition by its general and
limited partners pursuant to CP Acquisition's partnership
agreement.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 is hereby amended to read as follows:
(a) - (j) The purpose of the acquisition described in Item 3
by CP Acquisition was to provide the Issuer with the capital
necessary to fund the acquisition of all of the outstanding
shares of Common Stock of Primrose School Franchising Company,
a Georgia corporation, The Jewel I, Inc. d/b/a Country Day
School, a Georgia corporation, and Metrocorp Properties, Inc.,
a Georgia corporation. Other than as may have been previously
reported herein, none of the Registrants or any of the other
persons listed in Schedule A hereto has any plan or proposal
which related to or would result in any of the events listed
in subparagraphs (a) - (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 is hereby amended to read as follows:
(a) Number of shares of Class A Common Stock beneficially
owned as of April 6, 1999 by each of the Registrants and the
other persons listed in Schedule A hereto:
Brian D. Fitzgerald 5,223,243
FGS, Inc. 4,983,361
Capital Partners, Inc. 4,455,672
CP Acquisition, L.P.
No. 1 4,455,672
FGS Partners, L.P. 4,455,672
A. George Gebauer 89,198
Percent of Class A Common Stock*/:
Brian D. Fitzgerald 81.1%
FGS, Inc. 77.4%
Capital Partners, Inc. 69.2%
CP Acquisition, L.P.
No. 1 69.2%
FGS Partners, L.P. 69.2%
A. George Gebauer 1.7%
- --------
*/ Based on the 6,442,309 shares of Class A Common Stock outstanding as of
April 6, 1999.
<PAGE>
Page 9 of 11 Pages
(b) Number of shares of Class A Common Stock beneficially owned as
of April 6, 1999 as to which Registrants and each of the other
persons listed in Schedule A hereto have:
(i) sole power to vote or direct the vote:
<TABLE>
<CAPTION>
<S> <C>
Brian D. Fitzgerald 239,882 shares owned of record
FGS, Inc. 527,689 shares owned of record
Capital Partners, Inc. 0 shares
CP Acquisition, L.P.
No. 1 4,455,672 shares owned of record
FGS Partners, L.P. 0 shares
A. George Gebauer 89,198 shares owned of record
(ii) shared power to vote or direct the vote:
Brian D. Fitzgerald 4,983,361 shares (including 4,455,672
shares owned of record by CP
Acquisition and 527,689 shares
owned of record by FGS)
FGS, Inc. 4,455,672 shares owned of record by
CP Acquisition
Capital Partners, Inc. 4,455,672 shares owned of record by
CP Acquisition
CP Acquisition, L.P. No. 1 0 shares
FGS Partners, L.P. 4,455,672 shares owned of record by
CP Acquisition
A. George Gebauer 0 shares
</TABLE>
(iii) sole power to dispose or to direct the disposition of:
<TABLE>
<CAPTION>
<S> <C>
Brian D. Fitzgerald 239,882 shares owned of record
FGS, Inc. 527,689 shares owned of record
Capital Partners, Inc. 0 shares
CP Acquisition, L.P. No. 1 4,455,672 shares owned of record
FGS Partners, L.P. 0 shares
A. George Gebauer 89,198 shares owned of record
</TABLE>
(iv) shared power to dispose or to direct the disposition of:
<TABLE>
<CAPTION>
<S> <C>
Brian D. Fitzgerald 4,983,361 shares (including 3,319,308
shares owned of record by CP
Acquisition and 527,689 shares
owned of record by FGS)
FGS, Inc. 4,455,672 shares owned of record by
CP Acquisition
Capital Partners, Inc. 4,455,672 shares owned of record by
CP Acquisition
CP Acquisition, L.P. No. 1 0 shares
</TABLE>
<PAGE>
Page 10 of 11 Pages
<TABLE>
<CAPTION>
<S> <C>
FGS Partners, L.P. 4,455,672 shares owned of record by
CP Acquisition
A. George Gebauer 0 shares
</TABLE>
(c) The only acquisitions within the past 60 days are
described in Item 3 and were closed on April 6, 1999.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Except as set forth in Item 3 of this Amendment and in the
original Schedule 13D or the other amendments thereto, there
are no contracts, arrangements, understandings or
relationships between the Reporting Persons and any other
person with respect to the securities of the issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is hereby amended to add the following exhibit:
(1) Stock Purchase Agreement, dated as of April 6,
1999, between CP Acquisition, L.P., No. 1 and
Security Capital Corporation
<PAGE>
Page 11 of 11 Pages
SIGNATURES
After reasonable inquiry and to the best of the knowledge and
belief of each of the undersigned, each of the undersigned certifies that the
information set forth in this Amendment No. 10 to Schedule 13D is true, complete
and correct.
Dated: April 14, 1999
/s/ BRIAN D. FITZGERALD FGS PARTNERS, L.P.
BRIAN D. FITZGERALD By Capital Partners, Inc.
General Partner
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
CP ACQUISITION, L.P. NO. 1 FGS, INC.
By: FGS, Inc.
General Partner
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
CAPITAL PARTNERS, INC.
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
<PAGE>
SCHEDULE A
Schedule A is hereby amended to read as follows:
FGS, Inc.
1105 North Market Street
Suite 1300
P.O. Box 8985
Wilmington, Delaware 19899
Controlling Persons, Executive Officers and Directors of
FGS, Inc., a Delaware corporation
Brian D. Fitzgerald President, Treasurer, Director
A. George Gebauer Vice President, Secretary, Director
Frank J. Sokol Vice President, Director
Calvin A. Neider Vice President
Messrs. Fitzgerald, Gebauer and Neider are principally employed as
partners of Capital Partners, One Pickwick Plaza, Suite 310, Greenwich,
Connecticut 06830.
All of the foregoing individuals are United States citizens.
___________________________________________________________________
Capital Partners, Inc.
One Pickwick Plaza, Suite 310
Greenwich, Connecticut 06830
Controlling Persons, Executive Officers and Directors of
Capital Partners, Inc., a Connecticut corporation
Brian D. Fitzgerald President, Treasurer and Director
A. George Gebauer Vice President
Harold F. Doolittle Vice President
James G. Andersen Vice President
Calvin A. Neider Vice President
Joan E. Wolff Secretary
Messrs. Doolittle and Andersen and Ms. Wolff are principally employed
as officers of Capital Partners, Inc., the business address of which is set
forth
<PAGE>
above. None of such persons beneficially owns any shares of Class A Common Stock
of the Issuer.
_______________________________________________
FGS Partners, L.P.
1105 North Market Street
Suite 1300
P.O. Box 8985
Wilmington, Delaware 19899
FGS Partners, L.P. is a Delaware limited partnership.
General Partner: Capital Partners, Inc.
See the description of Capital Partners, Inc. above for a description
of its controlling persons, executive officers and directors.
_______________________________________________
CP Acquisition, L.P. No. 1
1105 North Market Street
Suite 1300
P.O. Box 8985
Wilmington, Delaware 19899
CP Acquisition, L.P. No. 1 is a Delaware limited partnership.
General Partners: Capital Partners, Inc.
FGS, Inc.
FGS Partners, L.P.
See the description of the three general partners above for a
description of the controlling persons, executive officers and directors
thereof.
<PAGE>
_______________________________________________
Brian D. Fitzgerald
c/o Capital Partners, Inc.
One Pickwick Plaza, Suite 310
Greenwich, Connecticut 06830
See the description of Mr. Brian D. Fitzgerald under the description of
FGS, Inc. above.
_______________________________________________
A. George Gebauer
c/o Capital Partners, Inc.
One Pickwick Plaza, Suite 310
Greenwich, Connecticut 06830
See the description of Mr. A. George Gebauer under the description of
FGS, Inc. above.
<PAGE>
Index of Exhibits
to Amendment No. 10 to
Schedule 13D
NUMBER EXHIBIT
1. Stock Purchase Agreement, dated as of April 6, 1999, between
CP Acquisition, L.P., No. 1 and Security Capital
Corporation.
<PAGE>
JOINT FILING AGREEMENT
JOINT FILING AGREEMENT, dated as of the 14 day of April, 1999, among
BRIAN D. FITZGERALD, FGS, INC., CAPITAL PARTNERS, INC., CP ACQUISITION, L.P. NO.
1 and FGS PARTNERS, L.P. (COLLECTIVELY, THE "JOINT FILERS").
WHEREAS, pursuant to Rule 13d-1(k) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the parties hereto desire to satisfy any
filing obligation under Section 13(d) of the Exchange Act by a single joint
filing;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Joint Filers hereby agree and represent as
follows:
1. Amendment No. 10 to the Schedule 13D with respect to the Class A
Common Stock, par value $.01 per share, of Security Capital Corporation (to
which this Joint Filing Agreement is an exhibit) is filed on behalf of each of
the Joint Filers.
2. Each of the Joint Filers is eligible to use Schedule 13D for the
filing of information therein contained.
3. Each of the Joint Filers is responsible for the timely filing of
Schedule 13D and any amendments thereto, and for the completeness and accuracy
of the information concerning such person contained therein, PROVIDED that each
such person is not responsible for the completeness or accuracy of the
information concerning the other persons making the filing, unless such person
knows or has reason to believe that such information is inaccurate.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Joint Filing
Agreement to be duly executed and delivered as of the date first above written.
/s/ BRIAN D. FITZGERALD FGS PARTNERS, L.P.
BRIAN D. FITZGERALD By Capital Partners, Inc.
General Partner
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
CP ACQUISITION, L.P. NO. 1 FGS, INC.
By: FGS, Inc.
General Partner
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
CAPITAL PARTNERS, INC.
By: /S/ A. GEORGE GEBAUER
A. George Gebauer
Vice President
- ------------------------------------------------------------------------------
SECURITY CAPITAL CORPORATION
------------------------
STOCK PURCHASE AGREEMENT
------------------------
Dated as of April 6, 1999
- ------------------------------------------------------------------------------
<PAGE>
STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of April 6, 1999, among SECURITY CAPITAL
CORPORATION, a Delaware corporation (the "Company"), and CP Acquisition, L.P.
No. 1 (the
"Investor").
WHEREAS, the Company proposes to issue and sell to the Investor an
aggregate of 1,136,364 shares or such lesser number of shares to which the
parties hereto agree (the "Shares") of Class A Common Stock, par value $0.01 per
share (the "Class A Common Stock"), of the Company for $4.40 per share.
WHEREAS, the aggregate purchase price for the Shares shall be the
number of Shares sold multiplied by $4.40 (the "Purchase Price").
WHEREAS, the Investor desires to purchase the Shares;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
1. SALE AND PURCHASE. Upon the terms and subject to the conditions
herein contained, the Company agrees to sell to the Investor, and the Investor
agrees to purchase from the Company, on the Closing Date (as defined below), the
Shares. The Investor shall pay to the Company the Purchase Price for the Shares.
2. CLOSING.
(a) The closing of the sale and purchase by the Investor of
the Shares (the "Closing") shall occur at the offices of Morgan, Lewis & Bockius
LLP, 101 Park Avenue, New York, New York 10178, at the hour of 10:00 A.M.,
Eastern Standard Time, on April 6, 1999 or at such other time and at such other
place as the parties shall agree (the "Closing Date").
(b) At the Closing, the Company shall deliver to the Investor
a certificate evidencing the Shares, which shall be registered in the Investor's
name, against delivery to the Company of payment by check or wire transfer of
immediately available funds to an account specified in writing by the Company on
or before the Closing Date in an amount equal to the Purchase Price.
3. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to and agrees with the Investor as follows (which
representations, warranties and agreements shall survive the Closing Date):
3.1 EXECUTION, ETC. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against it in accordance with its terms, subject to
the effect of any
1
<PAGE>
applicable bankruptcy, reorganization, insolvency (including without limitation
all laws relating to fraudulent transfers), moratorium or similar laws affecting
creditors' rights and remedies generally and subject to general principles of
equity (regardless of whether considered in a proceeding at law or in equity).
3.2 CONSENTS. No consent, approval or authorization of, or any
registration, filing, qualification or declaration with, any federal, state,
local or foreign governmental authority or any other person is required on the
part of the Company in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
3.3 NO VIOLATIONS, ETC.. Neither the consummation of the
transactions contemplated by this Agreement, nor the fulfillment of the terms of
this Agreement by the Company conflicts with, results in a breach of or
constitutes a default under any agreement, contract, mortgage, note,
undertaking, indenture or other agreement or instrument to which the Company is
a party or by which it is bound or to which its assets are subject, or any
judgment, writ, decree, order, statute, rule or regulation applicable to the
Company or to which its assets are subject.
SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
INVESTOR.
The Investor represents and warrants to and agrees with the Company
as follows (which representations, warranties and agreements shall survive the
Closing Date):
4.1 EXECUTION, ETC. This Agreement has been duly executed and
delivered by the Investor and constitutes the legal, valid and binding
obligation of the Investor, enforceable against it in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization, insolvency
(including without limitation all laws relating to fraudulent transfers),
moratorium or similar laws affecting creditors' rights and remedies generally
and subject to general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
4.2 CONSENTS. No consent, approval or authorization of, or any
registration, filing, qualification or declaration with, any federal, state,
local or foreign governmental authority or any other person is required on the
part of the Investor in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
4.3 NO VIOLATIONS, ETC. Neither the consummation of the
transactions contemplated by this Agreement, nor the fulfillment of the terms of
this Agreement by the Investor conflicts with, results in a breach of or
constitutes a default under any agreement, contract, mortgage, note,
undertaking, indenture or other agreement or instrument to which the Investor is
a party or by which it is bound or to which its assets are subject, or any
judgment, writ, decree, order, statute, rule or regulation applicable to the
Investor or to which its assets are subject.
2
<PAGE>
SECTION 5. COVENANTS AND OTHER AGREEMENTS
5.1 LISTING OF EXCHANGE SHARES. The Company will use its best
efforts to cause all of the Shares to be listed on the Pacific Exchange or any
other securities exchange or any interdealer quotation system on which similar
securities issued by the Company are listed.
5.2 REGISTRATION RIGHTS. The Investor is hereby granted rights
relating to the registration of the Shares under the Securities Act of 1933, as
amended, identical to any such rights previously granted to Capital Partners,
Inc. and/or its affiliates in respect of shares of Class A Common Stock owned by
any of them.
SECTION 6. CONDITIONS TO THE PARTIES' OBLIGATIONS
6.1 CONDITIONS TO THE INVESTOR'S OBLIGATION. The Investor's
obligation to purchase the Shares is subject to the satisfaction, at or before
the Closing Date, of each of the
following conditions:
(a) The representations and warranties of the Company
shall be true and accurate in all respects at and as of the Closing Date.
(b) The Company shall have performed in all respects all
obligations required by this Agreement to be performed by it before or on the
Closing Date.
6.2 CONDITIONS TO THE COMPANY'S OBLIGATION. The Company's
obligation to issue the Shares is subject to the satisfaction, on or before the
Closing Date, of each
of the following conditions:
(a) The representations and warranties of the Investor
set forth in this Agreement shall be true and accurate in all respects at and as
of the Closing Date.
(b) The Investor shall have performed in all respects
all obligations required by this Agreement to be performed by it on or before
the Closing Date.
SECTION 7. MISCELLANEOUS
7.1 BENEFITS; ASSIGNMENTS. This Agreement shall inure
exclusively to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. This Agreement may not be assigned
by the Company or the Investor without the prior written consent of the other.
7.2 AMENDMENT AND WAIVER. No provision of this Agreement may
be amended or otherwise modified except in writing executed by the Company and
the Investor. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provisions of this
Agreement. The failure of a party to insist upon strict adherence to any term of
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this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
7.3 GOVERNING LAW; HEADINGS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
giving effect to conflict of laws, except to the extent that the Delaware
General Corporation Law applies, in which case such law shall apply. The
headings in this Agreement are for convenience only and shall not affect the
construction hereof.
7.4 SEVERABILITY. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to most
nearly retain the intent of the parties hereto, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby.
7.5 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be deemed an original and both of which
together will be deemed to be one and the same instrument, and all signatures
need not appear on any one counterpart.
7.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
sale and purchase by the Investor of the Shares. Any certificate or other
document delivered pursuant to or in connection with this Agreement shall be
deemed to be part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
SECURITY CAPITAL CORPORATION
By: /s/ A. GEORGE GEBAUER
Name: A. George Gebauer
Title: President
CP ACQUISITION, L.P. NO.1
By: Capital Partners, Inc.
General Partner
By: /s/ A. GEORGE GEBAUER
Name: A. George Gebauer
Title: Vice President
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