EXHIBIT 2
CATALYTICA ENERGY SYSTEMS, INC.
STOCKHOLDER RIGHTS AGREEMENT
This Stockholder Rights Agreement (the "Agreement"), dated as of December
15, 2000, is entered into by and among Catalytica Energy Systems, Inc., a
Delaware corporation (the "Company"), and the entities listed on Exhibit A
attached hereto (collectively, the "Stockholder").
R E C I T A L S
A. The Stockholder and Catalytica, Inc., a Delaware corporation ("Catalytica")
are parties to the Investment Agreement (the "Investment Agreement") dated as of
June 25, 1997, pursuant to which the Stockholder became a major stockholder in
Catalytica.
B. Catalytica entered into the Agreement and Plan of Merger dated as of August
2, 2000 (the "Merger Agreement"), with Synotex Company, Inc. ("Synotex") and
Synotex Acquisition Corporation pursuant to which, (i) Catalytica will
distribute to its stockholders all of the shares of the Company that it owns,
and (ii) Synotex Acquisition Corporation will then merge with and into
Catalytica (the "Merger"), resulting in Catalytica becoming a wholly-owned
subsidiary of Synotex.
C. As a result of the distribution by Catalytica of its shares of the Company to
its stockholders pursuant to the Merger Agreement (the "Distribution"),
Stockholder will become a major stockholder in the Company.
D. In order to induce the Stockholder to provide support for the Merger, the
Company wishes to enter into this Agreement to afford certain rights and
privileges to Stockholder.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Board and Board Committee Representation.
(a) The Company agrees Stockholder shall have the right, so long
as Stockholder, in the aggregate, shall continue to beneficially own more than
5% of the outstanding common stock of the Company, to cause the Company to
include one (1) individual, as nominee for the Company's Board of Directors
recommended by the Board (the "Fund Nominee"). The Company further agrees that
for so long as Stockholder, in the aggregate, shall continue to beneficially own
more than 5% of the outstanding common stock of the Company, the Board of
Directors of the Company shall consist of no more than 10 directors.
(b) The Company agrees to place the Fund Nominee on each
committee of the Board of Directors of the Company.
2. Registration Rights.
2.1 Definitions. The following terms, as used herein, have the
following meanings:
"Affiliate" means, with respect to an entity, any other entity that
controls, is controlled by, or is under common control with, such entity.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means common stock, par value $0.001 per share, of the
Company.
"Demand Registration" means a Demand Registration as defined in
Section 2.2.1.
"Indemnified Party" means an Indemnified Party as defined in Section
2.4.3.
"Indemnifying Party" means an Indemnifying Party as defined in
Section 2.4.3.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, governmental agency or instrumentality, or
any other entity.
"Piggyback Registration" means a Piggyback Registration as defined in
Section 2.2.2.
"Registrable Securities" means shares of Common Stock owned from time
to time by the Stockholder and Stockholder's Affiliates, and any other
securities issued by the Company in exchange for or upon conversion of any such
securities.
"Stockholder Group" means the Stockholder and the Stockholder's
Affiliates.
"Total Voting Power" means the aggregate number of votes which may be
cast by holders of outstanding Voting Securities.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
"Voting Securities" means all securities of the Company entitled, in
the ordinary course, to vote in the election of directors of the Company.
"1933 Act" means the Securities Act of 1933, as amended, and any
rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
any rules and regulations promulgated thereunder.
2.2 Registration Rights.
2.2.1 Demand Registration.
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(a) At any time Stockholder may make up to four written requests
for registration under the 1933 Act of all or part of its Registrable
Securities (a "Demand Registration"); provided that the Company shall not be
obligated to effect (i) more than one Demand Registration in any 6-month period
or (ii) a Demand Registration for Registrable Securities having an aggregate
offering price of less than $15 million. Such request will specify the number
of shares of Registrable Securities proposed to be sold and will also specify
the intended method of disposition thereof. A registration will not count as a
Demand Registration until a registration statement relating to such Demand
Registration has become effective.
(b) If Stockholder so elects, the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of an
underwritten offering. Stockholder shall select the book-running and other
managing Underwriters in connection with such offering and any additional
investment bankers and managers to be used in connection with the offering. The
Company shall be obligated to cause senior management of the Company to
participate in any "road-show" in connection with the offering.
2.2.2 Piggyback Registration. If the Company proposes to file a
registration statement under the 1933 Act with respect to an offering of Common
Stock (i) for the Company's own account (other than a registration statement on
Form S-4 or S-8 (or any substitute form that may be adopted by the Commission)
or relating solely to securities issued pursuant to any present or future
restricted stock, stock option, stock purchase or dividend reinvestment plan or
other similar type of plan of the Company which provides for the issuance of
equity securities or options or rights to purchase equity securities of the
Company), or (ii) for the account of any of its holders of Common Stock, then
the Company shall give written notice of such proposed filing to Stockholder as
soon as practicable (but in no event less than 15 days before the anticipated
filing date), and such notice shall offer, subject to the terms and conditions
hereof, Stockholder the opportunity to register such Registrable Securities as
Stockholder may request on the same terms and conditions as the Company's or
such holders' shares (a "Piggyback Registration").
2.2.3 Reduction of Offering. Notwithstanding anything contained
herein, if the managing Underwriter or Underwriters of an offering described in
Section 2.2.1 or 2.2.2 shall advise the Company that (i) the size of the
offering that Stockholder, the Company and any other Persons intend to make or
(ii) the kind of securities that Stockholder, the Company and such other Persons
intend to include in such offering are such that the success of the offering
would be materially and adversely affected, then (A) if the size of the offering
is the basis of such Underwriter's advice, the amount of Registrable Securities
to be offered for the account of Stockholder shall be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing Underwriter or Underwriters;
provided that (x) in the case of a Demand Registration, the amount of
Registrable Securities to be offered for the account of the Stockholder shall be
reduced only after the amount of securities to be offered for the account of the
Company and such other Persons has been reduced to zero, and (y) in the case of
a Piggyback Registration, if securities are being offered for the account of
Persons other than the Company, then the proportion by which the amount of such
Registrable Securities intended to be offered for the account of Stockholder is
reduced shall not exceed the proportion by which the amount of such securities
intended to be offered for the account of such other Persons is reduced; and (B)
if the combination of securities to be offered is the basis of such
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Underwriter's advice, (x) the Registrable Securities to be included in such
offering shall be reduced as described in clause (A) above (subject to the
proviso in clause (A)), or (y) in the case of a Piggyback Registration, if the
actions described in sub-clause (x) of this clause (B) would, in the judgment of
the managing Underwriter, be insufficient to eliminate the adverse effect that
inclusion of the Registrable Securities requested to be included would have on
such offering, such Registrable Securities will be excluded from such offering.
2.3 Registration Procedures.
2.3.1 Filings; Information. Whenever Stockholder requests a
Demand Registration, the Company will use its best efforts to effect the
registration of such Registrable Securities as quickly as practicable, and in
connection with any such request:
(a) The Company will as expeditiously as possible prepare and
file with the Commission a registration statement on any form for which the
Company then qualifies and which counsel for the Company shall deem appropriate
and available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof, and
use reasonable best efforts to cause such filed registration statement to become
and remain effective for a period of not less than 90 days; provided that if the
Company shall furnish to Stockholder a certificate signed by its Chairman, Chief
Executive Officer or Chief Financial Officer stating that in his or her good
faith judgment it would be detrimental or otherwise disadvantageous to the
Company or its stockholders for such a registration statement to be filed, or,
in the case of an effective registration statement, for sales to be effected
thereunder, the Company shall have a period of not more than 90 days within
which to file such registration statement measured from the date of receipt of
the request in accordance with Section 2.2.1 or, in the case of an effective
registration statement, the Company shall be entitled to require Stockholder to
refrain from selling Registrable Securities under such registration statement
for a period of up to 90 days; provided further that, in the case of a
registration statement to be filed, the Company shall be entitled to only one 90
day delay in any 360 day period, and, in the case of an effective registration
statement, the Company shall be entitled to require Stockholder to refrain from
selling Registrable Securities under such Registration Statement for an
aggregate of 90 days in any 360 day period. If the Company furnishes a notice
under this paragraph at a time when a registration statement filed pursuant to
this Agreement is effective, the Company shall extend the period during which
such registration statement shall be maintained effective as provided in this
Section 2.3.1(a) hereof by the number of days during the period from and
including the date of the giving of notice under this paragraph to the date when
sales under the registration statement may recommence.
(b) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish to
Stockholder and each managing Underwriter, if any, copies thereof, and
thereafter furnish to Stockholder and each such Underwriter, if any, such number
of copies of such registration statement, each amendment and supplement thereto
(in each case including all exhibits thereto and documents incorporated by
reference therein) and the prospectus included in such registration statement
(including each preliminary prospectus) as Stockholder or such Underwriter may
reasonably request in order to facilitate the sale of the Registrable
Securities.
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(c) After the filing of the registration statement, the Company
will promptly notify Stockholder of any stop order issued or, to the knowledge
of the Company, threatened to be issued by the Commission and take all necessary
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its reasonable best efforts to qualify
the Registrable Securities for offer and sale under such other securities or
blue sky laws of such jurisdictions in the United States as Stockholder
reasonably (in light of Stockholder's intended plan of distribution) requests;
provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) generally consent to service of process in any such
jurisdiction.
(e) The Company shall, as promptly as practicable, notify
Stockholder, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, of the occurrence of an event requiring the
preparation of a supplement or amendment to such registration statement or
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such registration statement or prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and as promptly as practicable make available to Stockholder and to the
Underwriters any such supplement or amendment. Stockholder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in the preceding sentence, Stockholder will forthwith discontinue the
offer and sale of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until receipt of the copies of such
supplemented or amended prospectus and, if so directed by the Company,
Stockholder will deliver to the Company all copies, other than permanent file
copies then in Stockholder's possession, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. In the event
the Company shall give such notice, the Company shall extend the period during
which such registration statement shall be maintained effective as provided in
Section 2.3.1(a) hereof by the number of days during the period from and
including the date of the giving of such notice to the date when the Company
shall make available to Stockholder such supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including
an underwriting agreement in customary form and satisfactory in form and
substance to the Company in its reasonable judgment) and take such other actions
as are reasonably required in order to expedite or facilitate the sale of such
Registrable Securities.
(g) The Company will furnish to Stockholder and to each managing
Underwriter, if any, a signed counterpart, addressed to Stockholder and each
Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters delivered to such parties.
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(h) The Company will make generally available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the 1933 Act.
(i) The Company will use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
The Company may require Stockholder promptly to furnish in writing to the
Company such information regarding Stockholder, the plan of distribution of the
Registrable Securities and other information as the Company may from time to
time reasonably request or as may be legally required in connection with such
registration.
2.3.2 Registration Expenses. In connection with any Demand
Registration or Piggyback Registration, the Company shall pay the following
expenses incurred in connection with such registration (the "Registration
Expenses"): (i) all filing fees with the Commission and the National Association
of Securities Dealers, (ii) fees and expenses of compliance with securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), (iii)
printing expenses, (iv) the fees and expenses incurred in connection with the
listing of the Registrable Securities, (v) fees and expenses of counsel and
independent certified public accountants for the Company (including the expenses
of any comfort letters pursuant to Section 2.3.1(g) hereof) and (vi) the
reasonable fees and expenses of any additional experts retained by the Company
in connection with such registration. The Stockholder shall pay any underwriting
fees, discounts or commissions attributable to the sale of Registrable
Securities of the Stockholder. The Company shall pay (i) internal Company
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties) and (ii) the
reasonable out-of-pocket expenses of Stockholder (excluding the fees and
expenses of counsel to Stockholder).
2.4 Indemnification and Contribution.
2.4.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless Stockholder, its officers and directors, and each
Person, if any, who controls Stockholder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus (including documents incorporated by
reference therein), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Company by or on behalf of Stockholder expressly for use therein;
provided that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of Stockholder if a copy of the then
current prospectus was not provided to
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purchaser at or prior to the time of such purchase and such current prospectus
would have cured the defect giving rise to such loss, claim, damage or liability
or for any sales occurring during the period in which the Company is not
required to keep the registration statement effective as provided in Section
2.3.1(a) or after the Company has informed Stockholder under Section 2.3.1(e)
and prior to the delivery by the Company of any supplement or amendment to such
prospectus. The Company also agrees to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of Stockholder provided in this Section 2.4.1.
2.4.2 Indemnification by Stockholder. Stockholder agrees to
indemnify and hold harmless the Company, its officers and directors, and each
Person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to Stockholder, but only with reference to
information furnished in writing by or on behalf of Stockholder expressly for
use in any registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary
prospectus. Stockholder also agrees to indemnify and hold harmless Underwriters
of the Registrable Securities, their officers and directors and each person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 2.4.2.
2.4.3 Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 2.4.1 or 2.4.2, such Person (the "Indemnified Party") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Party") in writing and the Indemnifying Party, upon the request of the
Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would, in the opinion of counsel reasonably
acceptable to the Indemnifying Party, be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for all such Indemnified Parties, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate firm
for the Indemnified Parties, such firm shall be designated in writing by the
Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment.
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2.4.4 Contribution. If the indemnification provided for in this
Article 4 is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein, then each Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Stockholder from the offering of
the securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company and Stockholder in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Stockholder shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by each of the Company and Stockholder,
in each case as set forth in the table on the cover page of the prospectus, bear
to the aggregate public offering price of the securities. The relative fault of
the Company and Stockholder shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and Stockholder agree that it would not be just and equitable
if contribution pursuant to this Section 2.4.4 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
2.5 Miscellaneous.
2.5.1 Participations in Underwritten Registrations. No Person may
participate in any underwritten registered offering contemplated hereunder
unless such Person (A) agrees to sell its securities on the basis provided in
any underwriting arrangements and (B) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and these
Registration Rights.
2.5.2 Rule 144. The Company covenants that it will use best
efforts to file any reports required to be filed by it under the 1933 Act and
the 1934 Act and that it will take such further action as Stockholder may
reasonably request, all to the extent required from time to time to enable
Stockholder to sell Registrable Securities without registration under the 1933
Act within the limitation of the exemptions provided by Rule 144 under the 1933
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
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Upon the request of Stockholder, the Company will deliver to Stockholder a
written statement as to whether it has complied with such requirements.
2.5.3 Holdback Agreements.
(a) Stockholder agrees not to offer, sell, contract to sell or
otherwise dispose of any Registrable Securities, or any securities convertible
into or exchangeable or exercisable for such securities, from the date of filing
of a registration statement relating to the sale of Registrable Securities
through the 90 day period beginning on the date of the first sale of Registrable
Securities pursuant to the registration statement other than the Registrable
Securities to be sold pursuant to such registration statement.
(b) The Company agrees not to offer, sell, contract to sell or
otherwise dispose of any securities similar to the Registrable Securities to be
sold pursuant hereto, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days prior to, and during the 90
day period beginning on, the effective date of any registration statement
registering the Registrable Securities other than any shares of Common Stock
sold upon the exercise of an option or warrant or the conversion of a security
outstanding at such date or pursuant to any Company stock option plan or issued
by the Company as consideration for an acquisition.
2.5.4 Termination of Company Obligation. All registration rights
provided hereunder shall terminate at such time as Stockholder holds less than
5% of the outstanding Common Stock and is able to sell all of its Registrable
Securities without registration under the 1933 Act during any single three month
period.
2.5.5 No Transfer or Assignment of Registration Rights. The
registration rights set forth in this Agreement shall not be transferable or
assignable by the Stockholder except to an Affiliate or partner of such
Stockholder.
2.5.6 Effectiveness. This Agreement will become effective upon
the effectiveness of the Distribution. If the Distribution is not consummated
for any reason, this Agreement shall have no force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ Xxxxx X. Kitchen
-------------------------------------
Name: Xxxxx X. Kitchen
Title: President and Chief Executive Officer
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By: MSCP III, LLC
as General Partner
By: Xxxxxx Xxxxxxx Capital Partners III, Inc.,
as Member
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By: MSCP III, LLC
as General Partner
By: Xxxxxx Xxxxxxx Capital Partners III, Inc.,
as Member
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
MSCP III 892 INVESTORS, L.P.
By: MSCP III, LLC,
as General Partner
By: Xxxxxx Xxxxxxx Capital Partners III, Inc.,
as Member
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
EXHIBIT A
SCHEDULE OF STOCKHOLDERS
Xxxxxx Xxxxxxx Capital Partners III, LLC
MSCP III 892 Investors, X.X.
Xxxxxx Xxxxxxx Capital Investors, L.P.
