exv10w2









Exhibit 10.2




EXECUTION VERSION




     REGISTRATION RIGHTS AGREEMENT dated as of July 25, 2008 between XO HOLDINGS, INC., a Delaware
corporation (the “Company”), and the entities listed on the signature pages hereto under the
caption “Purchasers” (each a “Purchaser” and, collectively, the “Purchasers”).



     Pursuant to the Stock Purchase Agreement dated as of July 25, 2008 (the “Stock Purchase
Agreement”) by and between the Company and the Purchasers, the Purchasers will acquire on the
Closing Date an aggregate of 555,000 shares of the Company’s 7% Class B Convertible Preferred Stock
(the “Convertible Preferred Stock”) and 225,000 shares of the Company’s 9.5% Class C Perpetual
Preferred Stock (the “Perpetual Preferred Stock”). Each of the Convertible Preferred Stock and
Perpetual Preferred Stock shall be referred to as the “Preferred Stock” herein.



     It is a condition precedent to the consummation of the transactions contemplated by the Stock
Purchase Agreement that the Company and the Purchasers enter into this Agreement to provide for the
rights of the Purchasers with respect to the registration of the shares of Preferred Stock held by
the Purchasers and the shares of Common Stock issuable upon conversion of the Convertible Preferred
Stock.



     Accordingly, the parties hereto agree as follows:



SECTION
1. Definitions.




     As used herein, unless the context otherwise requires, the following terms have the following
respective meanings:



     “Closing Date” is defined in the Stock Purchase Agreement.



     “Commission” means the Securities and Exchange Commission or any other Federal agency at the
time administering the Securities Act.



     “Common
Stock” means the Common Stock, par value $0.01 per share, of the Company.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at the time.



     “Initiating Purchasers” means, collectively, Purchasers who properly initiate a registration
request under this Agreement.



     “Permitted Holder” means and includes: (i) a Purchaser or any Affiliate (as defined in the
Stock Purchase Agreement) of a Purchaser; (ii) any Person to whom a Purchaser or its transferee
transfers its Preferred Stock and/or Common Stock issued upon conversion of
the Convertible Preferred Stock, in whole or in part, together with the assignment of such
Purchaser’s or transferee’s (as applicable) rights under this Agreement under Section 4.3 hereof;



 









 







and (iii) any corporation, limited liability company, partnership, or other entity, the controlling
equity interests in which are held by or for the benefit of any one or more Persons described in
clause (i), (ii), or (iii) of this definition.



     “Person” means a corporation, an association, a partnership, an organization, a business, a
trust, an individual, or any other entity or organization, including a government or political
subdivision or an instrumentality or agency thereof.



     “Registrable Securities” means (i) any shares of Preferred Stock, (ii) any shares of Common
Stock issued or issuable upon the conversion of any Convertible Preferred Stock held by the
Purchasers, and (iii) any shares of Common Stock issued with respect to the Convertible Preferred
Stock or the Common Stock referred to in clauses (i) and (ii) by way of a stock dividend, stock
split or reverse stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or otherwise. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities (a) when a registration statement with respect to the sale
of such securities shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) when such securities
shall have been otherwise transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent public distribution of
them shall not require registration of them under the Securities Act or (c) when such securities
are eligible for sale under clause (b) of Rule 144 of the Securities Act or any successor
provision.



     “Registration Expenses” means all expenses incident to the registration and disposition of the
Registrable Securities pursuant to Section 2 hereof, including, without limitation, all
registration, filing and applicable national securities exchange fees, all fees and expenses of
complying with state securities or blue sky laws (including fees and disbursements of counsel to
the underwriters in connection with “blue sky” qualification of the Registrable Securities and
determination of their eligibility for investment under the laws of the various jurisdictions), all
word processing, duplicating and printing expenses, all messenger and delivery expenses, the fees
and disbursements of counsel for the Company and of its independent public accountants, including
the expenses of “cold comfort” letters or any special audits required by, or incident to, such
registration, all fees and disbursements of underwriters (other than underwriting discounts and
commissions), all transfer taxes, and all fees and expenses of counsel to the Purchasers;
provided, however, that Registration Expenses shall exclude, and the Purchasers
shall pay, underwriting discounts and commissions in respect of the Registrable Securities being
registered.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.



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SECTION 2. Registration Under Securities Act, etc.




     2.1. Demand Registration.



     (a) Requests for Registration. Each Purchaser will have the right, by written notice
delivered to the Company (a “Demand Notice”) and subject to the terms and conditions set forth in
this Agreement, to require the Company to register Registrable Securities under and in accordance
with the provisions of the Securities Act (a “Demand Registration”); provided that (i) no Purchaser
may make more than one Demand Registration, (ii) the aggregate offering price (net of underwriters’
discounts and commissions) of the Registrable Securities requested by the Initiating Purchasers to
be so registered pursuant to this Section must exceed $5,000,000 and (iii) each Initiating
Purchaser must provide to the Company a certificate (the “Authorizing Certificate”) signed by such
Initiating Purchaser. For purposes of the preceding sentence, the filing of two or more
registration statements in response to one Demand Notice shall be counted as one Demand
Registration. Each request for a Demand Registration shall state the amount of the Registrable
Securities proposed to be sold and the intended method of disposition thereof. The Authorizing
Certificate shall set forth (A) the name of Initiating Purchaser signing such Authorizing
Certificate, (B) the number of Registrable Securities held by such Purchaser and the number of
Registrable Securities such Purchaser has elected to have registered, and (C) the intended methods
of disposition of the Registrable Securities.



     (b) Withdrawal of Registration Request. An Initiating Purchaser may at its option
withdraw Registrable Securities from a registration and, in such event (1) any continuing
registration of Registrable Securities shall constitute the Demand Registration to which the
Initiating Purchaser is entitled and (2) the withdrawing Initiating Purchaser shall reimburse the
Company for the registration and filing fees (including any fees payable to the SEC, the Financial
Industry Regulatory Authority, or any successor organization) it has incurred with respect to the
withdrawn Registrable Securities (unless all Registrable Securities are withdrawn, in which case
the withdrawing Initial Purchaser shall reimburse the Company for all costs and expenses incurred
by it in connection with the registration of such Registrable Securities). Subject to compliance
with clause (2) of the preceding sentence, a Demand Registration that is terminated in its entirety
prior to the effected date of the applicable registration statement will not constitute a Demand
Registration.



     (c) Company Right of Deferral. Notwithstanding the foregoing obligations, if the
Company furnishes to an Initiating Purchaser requesting a registration pursuant to this Section 2.1
a certificate signed by the Company’s chief executive officer stating that in the good faith
judgment of the Company’s Board of Directors it would be materially detrimental to the Company and
its stockholders for such registration statement to either become effective or remain effective for
as long as such registration statement otherwise would be required to remain effective, because
such action would (i) materially interfere with a significant acquisition, corporate
reorganization, or other similar transaction involving the Company; (ii) require premature
disclosure of material information that the Company has a bona fide business purpose for preserving
as confidential; or (iii) render the Company unable to comply with requirements under the
Securities Act or Exchange Act, then the Company shall have the right to defer taking action with
respect to such filing, and any time periods with respect to filing or effectiveness



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thereof shall
be tolled correspondingly, for a period of not more than one hundred twenty (120)
days after the request of the Initiating Purchaser is received by the Company; provided,
further, that the Company shall not register any securities for its own account or that of any
other stockholder during such one hundred twenty (120) day period other than pursuant to a
registration relating to the sale of securities to employees of the Company or a subsidiary
pursuant to a stock option, stock purchase, or similar plan or a registration in which the only
securities being registered are Common Stock issuable upon conversion of debt securities that are
also being registered.



     (d) Recent Registration. The Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to Section 2.1(a): (i) during the period that is thirty
(30) days before the Company’s good faith estimate of the date of filing of, and ending on a date
that is ninety (90) days after the effective date of, a Company-initiated registration, provided,
that the Company is actively employing in good faith commercially reasonable efforts to cause such
registration statement to become effective; or (ii) if the Company has effected a Demand
Registration pursuant to Section 2.1(a) within the six (6) month period immediately preceding the
date of such request.



     (e) Piggyback Rights. If the Company proposes to file a registration statement,
whether or not for sale for the Company’s own account or for the account of a shareholder of the
Company, on a form and in a manner that would also permit registration, offer or sale of
Registrable Securities, the Company shall each such time use reasonable efforts to give to the
Purchasers holding Registrable Securities known to the Company written notice of such proposed
filing at least 20 days before the anticipated filing. The notice referred to in the preceding
sentence shall (i) describe the proposed registration and offering and (ii) offer the Purchaser the
opportunity to register, offer or sell such amount of Registrable Securities as the Purchaser may
request (a “Piggyback Registration”). Subject to Section 2(f), the Company will include in each
such Piggyback Registration (and any related qualification under state blue sky laws and other
compliance filings, and in any underwriting involved therein) all Registrable Securities with
respect to which the Company has received written requests for inclusion therein within 10 days
after the written notice from the Company is given.



     (f) Registration of Other Securities. The Company will cause the managing underwriter
or underwriters of a proposed underwritten offering, if any, to permit any Purchaser holding
Registrable Securities requested to be included in the registration for such offering, to include
therein all such Registrable Securities requested to be so included (such securities, together with
any other shares of the same class requested to be included in such registration by any other
Person pursuant to similar registration rights, the “Piggyback Shares”) on the same terms and
conditions as any securities of the Company included therein (other than the indemnification by
such Purchasers, which will be limited to the dollar amount of the proceeds received by the
Purchaser upon the sale of the Registrable Securities giving rise to such indemnification
obligation; provided, that the Purchasers give customary representations and warranties); provided
that, if the Company or managing underwriter advises, in good faith, the Purchasers in writing to
the effect that the total amount of securities that the Purchasers, the Company and any other
Person propose to include in a registration statement is such as to



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materially and adversely affect
the success of an offering of securities, then the Company will include in such registration:




(x) in the case of a registration in connection with a sale of securities for the Company’s
own account, (i) first, 100% of the securities that the Company proposes to sell for its own
account, (ii) second, to the extent that the number of securities in clause (i) above is
less than the number of securities which the Company or underwriter has advised can be sold
in such offering without having the adverse effect referred to above, the Piggyback Shares,
determined pro rata on the basis of the number of shares of the class being sold owned by
the Purchasers, and (iii) third, to the extent that the number of securities in clauses (i)
and (ii) above is less than the number of securities which the Company has been advised can
be sold in such offering without having the adverse effect referred to above, the number of
Piggyback Shares requested to be included in such offering by any other Persons pursuant to
similar registration rights, determined pro rata on the basis of the number of shares of the
class being sold owned by such other Persons requesting registration, collectively;




(y) in the case of a Demand Registration (i) first, 100% of the securities, if any, that the
Initiating Purchasers propose to sell, (ii) second, to the extent that the number of
securities in clause (i) above is less than the number of securities which the Company or
underwriter has advised can be sold in such offering without having the adverse effect
referred to above, the Piggyback Shares, determined pro rata on the basis of the number of
shares of the class being sold owned by the Purchasers, (iii) third, to the extent that the
number of securities in clauses (i) and (ii) above is less than the number of securities
which the Company has been advised can be sold in such offering without having the adverse
effect referred to above, the securities sought to be included by the Company in the
offering and (iv) fourth, to the extent that the number of securities in clauses (i) through
(iii) above is less than the number of securities which the Company has been advised can be
sold in such offering without having the adverse effect referred to above, the number of
Piggyback Shares requested to be included in such offering by any other Persons pursuant to
similar registration rights, determined pro rata on the basis of the number of shares of the
class being sold owned by such other Persons requesting registration.




(z) in the case of a registration in connection with a sale of securities on account of
Persons other than the Company or Purchasers (i) first, 100% of the securities, if any, that
those Persons propose to sell, (ii) second, to the extent that the number of securities in
clause (i) above is less than the number of securities which the Company or underwriter has
advised can be sold in such offering without having the adverse effect referred to above,
the Piggyback Shares, determined pro rata on the basis of the number of shares of the class
being sold owned by the Purchasers, (iii) third, to the extent that the number of securities
in clauses (i) and (ii) above is less than the number of securities which the Company has
been advised can be sold in such offering without having the adverse effect referred to
above, the number of Piggyback Shares requested to be included in such offering by any other
Persons pursuant to similar registration rights, determined pro rata on the basis of the
number of shares of the class being sold owned by such other Persons



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requesting registration
and (iv) fourth, to the extent that the number of securities in clauses (i) through (iii)
above is less than the number of securities which the Company has been advised can be sold
in such offering without having the adverse effect referred to above, the securities sought
to be included by the Company in the offering.



          (g) Registration Statement Form. Registration under this Section 2.1 shall be on such
appropriate registration form of the Commission as, subject to clause (a) above, shall be selected
by the Company and as shall be reasonably acceptable to the Purchasers. The Company agrees to
include in any such registration statement all information which, in the opinion of counsel to the
Purchasers and counsel to the Company, is necessary or desirable to be included therein.



          (h) Expenses. The Company shall pay all Registration Expenses in connection with
registration pursuant to this Section 2.1.



          (i) Effective Registration Statement. Registration pursuant to this Section 2.1 shall
not be deemed to have been effected (i) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason not attributable to the Purchasers and has not
thereafter become effective, or (ii) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are not satisfied or waived.



          (j) Shelf Registration. If the Company effects a registration of Registrable
Securities by means of shelf registration pursuant to Rule 415 under the Securities Act (a “Shelf
Registration Statement”), in addition to the other requirements contained herein, the Company
shall, at its cost, use its reasonable commercial efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus forming part thereof to be usable by the
Purchasers until such time as all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease to be outstanding
(the “Effectiveness Period”); provided, however, that the Effectiveness Period in
respect of the Shelf Registration Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery requirements under the Securities Act and
as otherwise provided herein.



          (k) Availability. The registration rights set forth in this Agreement shall not be
available to any Purchaser (i) until after the first anniversary of the purchase by such Purchaser
of such shares of Preferred Stock, (ii) if in the opinion of counsel to the Company, all of the
Registrable Securities then owned by such Purchaser could be sold in any 6-month period pursuant to
Rule 144 under the Securities Act (without giving effect to the provisions of Rule 144(b)(1)) or
(iii) if all of the Registrable Securities held by such Purchaser have been sold in a registration
pursuant to the Securities Act or pursuant to said Rule 144.



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          2.2. Registration Procedures. In connection with the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 hereof, the Company shall as
expeditiously as possible:




     (a) prepare and file with the Commission the requisite registration statement to effect
such registration (and shall include all financial statements required by the Commission to
be filed therewith) and thereafter use its reasonable efforts to cause such registration
statement to become effective; provided, however, that before filing such registration
statement (including all exhibits) or any amendment or supplement thereto or comparable
statements under securities or blue sky laws of any jurisdiction, the Company
shall as promptly as practicable furnish such documents to the Purchasers and each
underwriter, if any, participating in the offering of the Registrable Securities and their
respective counsel, which documents will be subject to the review and comments of the
Purchasers, each underwriter and their respective counsel;




     (b) notify the Purchasers of the Commission’s requests for amending or supplementing
the registration statement and the prospectus, and prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement for such period as shall be
required for the disposition of all of such Registrable Securities in accordance with the
intended method of distribution thereof; provided, that except with respect to any such
registration statement filed pursuant to Rule 415 under the Securities Act, such period need
not exceed 365 days;




     (c) furnish, without charge, to the Purchasers and each underwriter such number of
conformed copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act,
in conformity with the requirements of the Securities Act, and such other documents, as the
Purchasers and such underwriters may reasonably request;




     (d) use its reasonable efforts (i) to register or qualify all Registrable Securities
and other securities covered by such registration statement under such securities or blue
sky laws of such States of the United States of America where an exemption is not available
and as the Purchasers or any managing underwriter shall reasonably request, (ii) to keep
such registration or qualification in effect for so long as such registration statement
remains in effect, and (iii) to take any other action which may be reasonably necessary or
advisable to enable the Purchasers to consummate the disposition in such jurisdictions of
the securities to be sold by the Purchasers, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection (d) be
obligated to be so qualified or to consent to general service of process in any such
jurisdiction;



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     (e) use its reasonable efforts to cause all Registrable Securities covered by such
registration statement to be registered with or approved by such other federal or state
governmental agencies or authorities as may be necessary in the opinion of counsel to the
Company and counsel to the Purchasers to consummate the disposition of such Registrable
Securities;




     (f) furnish to the Purchasers and each underwriter, if any, participating in the
offering of the securities covered by such registration statement, a signed counterpart of
(i) an opinion of counsel for the Company as is customarily requested of issuer’s counsel,
and (ii) a “comfort” letter signed by the independent public accountants who have
certified the Company’s or any other entity’s financial statements included or
incorporated by reference in such registration statement, covering substantially the same
matters with respect to such registration statement (and the prospectus included therein)
and, in the case of the accountants’ comfort letter, with respect to events subsequent to
the date of such financial statements, as are customarily covered in opinions of issuer’s
counsel and in accountants’ comfort letters delivered to the underwriters in underwritten
public offerings of securities (and dated the dates such opinions and comfort letters are
customarily dated);




     (g) promptly notify the Purchasers and each managing underwriter, if any, participating
in the offering of the securities covered by such registration statement (i) when such
registration statement, any pre-effective amendment, the prospectus or any prospectus
supplement related thereto or post-effective amendment to such registration statement has
been filed, and, with respect to such registration statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the Commission for
amendments or supplements to such registration statement or the prospectus related thereto
or for additional information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the initiation of any
proceedings for that purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable Securities for sale
under the securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose; (v) at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were made, and in the case of
this clause (v), at the request of the Purchasers promptly prepare and furnish to the
Purchasers and each managing underwriter, if any, participating in the offering of the
Registrable Securities, a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the purchasers of
such securities, such prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which they were
made; and (vi) at any time when the



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representations and warranties of the Company
contemplated by Section 2.2(k) hereof cease to be true and correct;




     (h) otherwise comply with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the first full
calendar month after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and promptly furnish to the Purchasers a copy of any amendment or
supplement to such registration statement or prospectus;




     (i) provide and cause to be maintained a transfer agent and registrar (which, in each
case, may be the Company) for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such registration;




     (j) deliver promptly to counsel to the Purchasers and each underwriter, if any,
participating in the offering of the Registrable Securities, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all memoranda relating
to discussions with the Commission or its staff with respect to such registration statement;




     (k) make such representations and warranties to the underwriters, if any, with respect
to the businesses of the Company and its subsidiaries, the registration statement and
documents incorporated by reference or deemed incorporated by reference therein, if any, in
each case, in form, substance and scope as are customarily made by issuers to underwriters
in underwritten offerings;




     (l) cause the Company’s management to be made available for, and assist in, the
marketing and disposition of such Registrable Securities in the manner and to the extent
reasonably requested by the managing underwriter, if any, including, without limitation,
participation by management in customary road shows, investor conferences and other similar
presentations;




     (m) use its reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of the registration statement;




     (n) provide a CUSIP number for all Registrable Securities, no later than the effective
date of the registration statement; and




     (o) in connection with any underwritten public offering, make available its senior
executive officers, directors and chairman and otherwise provide reasonable assistance to
the underwriters (taking into account the needs of the Company’s business) in their
marketing of Registrable Securities.



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     The Purchasers will furnish to the Company such information regarding the Purchasers and the
distribution of the Registrable Securities as the Company may from time to time reasonably request
in writing.



     The Purchasers agree that upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph (g)(iii) or (v) of this Section 2.2, the Purchasers will,
to the extent appropriate, discontinue their disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until, in the case of paragraph
(g)(v) of this Section 2.2, their receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (g)(v) of this Section 2.2 and, if so directed by the Company, will
deliver to the Company (at the Company’s expense) all copies, other than permanent file copies,
then in their possession, of the prospectus relating to such Registrable Securities current at the
time of receipt of such notice. If the disposition by the Purchasers of their securities is
discontinued pursuant to the foregoing sentence, the Company shall extend the
period of effectiveness of the registration statement by the number of days during the period
from and including the date of the giving of notice to and including the date when the Purchasers
shall have received copies of the supplemented or amended prospectus contemplated by paragraph
(g)(v) of this Section 2.2; and, if the Company shall not so extend such period, the Purchasers’
request pursuant to which such registration statement was filed shall not be counted for purposes
of the requests for registration to which the Purchasers are entitled pursuant to Section 2.1
hereof.



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     2.3. Requested Underwritten Offerings. If, pursuant to Section 2.1,
the Initiating Purchasers intend to distribute the Registrable Securities covered by their request
by means of an underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 2.1, and the Company shall include such information in the Demand
Notice. The managing underwriter will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Purchasers. In such event, the right of any
Purchaser to include such Purchaser’s Registrable Securities in such registration shall be
conditioned upon such Purchaser’s participation in such underwriting and the inclusion of such
Purchaser’s Registrable Securities in the underwriting to the extent provided herein. All
Purchasers proposing to distribute their securities through such underwriting shall (together with
the Company) enter into an underwriting agreement in customary form with the underwriters selected
for such underwriting.



     2.4. Preparation; Reasonable Investigation. In connection with the preparation and
filing of each registration statement under the Securities Act pursuant to this Agreement, the
Company will give the Purchasers, their underwriters, if any, and their respective counsel,
accountants and other representatives and agents the opportunity to participate in the preparation
of such registration statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, and give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its officers and
employees and the independent public accountants who have certified its financial statements, and
supply all other information reasonably requested by each of them, as shall be necessary or
appropriate, in the opinion of the Purchasers and such underwriters’ respective counsel, to conduct
a reasonable investigation within the meaning of the Securities Act.



     2.5. Unlegended Certificates. In connection with the offering of any Registrable
Securities registered pursuant to this Section 2, the Company shall (i) facilitate the timely
preparation and delivery to the Purchasers and the underwriters, if any, participating in such
offering, of unlegended certificates representing ownership of such Registrable Securities being
sold in such denominations and registered in such names as requested by the Purchasers or such
underwriters and (ii) instruct any transfer agent and registrar of such Registrable Securities to
release any stop transfer orders with respect to any such Registrable Securities.



     2.6. No Required Sale. Nothing in this Agreement shall be deemed to create an
independent obligation on the part of the Purchasers to sell any Registrable Securities pursuant to
any effective registration statement.



     2.7. Market Stand-off. Each Purchaser agrees that it will not sell or otherwise
transfer or dispose of any Registrable Securities held by such Purchaser during any period which
the Company determines in its good faith judgment that the filing of a registration statement
under Section 2 or the use of any related prospectus would require the disclosure of material
information that the Company has a bona fide business purpose for preserving as confidential or the
disclosure of which would impede the Company’s ability to consummate a significant transaction, and
that the Company is not otherwise required by applicable securities laws or regulations to
disclose, upon written notice of such determination by the Company, until the date upon which the
Company notifies such Purchaser in writing that suspension of such rights for the



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grounds set forth
in this Section 2.7 is no longer necessary. The Company agrees to give such notice as promptly as
practicable following the date that such suspension of rights is no longer necessary.



     2.8. Rule 144. The Company shall take all actions reasonably necessary to enable
holders of Registrable Securities to sell such securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144, or (ii) any similar rule or
regulation hereafter adopted by the Commission including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the Exchange Act. Upon the
request of the Purchasers, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.



SECTION 3. Miscellaneous




     3.1. Amendments and Waivers. This Agreement may be amended, modified or supplemented
only by written agreement of the party against whom enforcement of such amendment, modification or
supplement is sought.



     3.2. Notice. All notices and other communications hereunder shall be in writing and,
unless otherwise provided herein, shall be deemed to have been given when received by the party to
whom such notice is to be given at its address set forth below, or such other address for the party
as shall be specified by notice given pursuant hereto:




	 	(a)	 	If to the Purchasers, to:




Arnos Corp.

c/o Icahn Associates Corp.

767 Fifth Avenue, 47th Floor

New York, NY 10153

Attn: General Counsel





	 	(b)	 	If to the Company, to it at :




XO Holdings, Inc.

13865 Sunrise Valley Drive

Herndon, Virginia 20171

Attn: General Counsel




     3.3. Assignment; Third Party Beneficiaries. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by the Company, without
the prior written consent of the Purchasers. The Purchasers may, at their election, at any
time or from time to time, assign their rights under this Agreement, in whole or in part, to any
Affiliate (as defined in the Stock Purchase Agreement) or any purchaser or other transferee of
shares of Common Stock held by them.



     3.4. Remedies. The parties hereto agree that money damages or other remedy at law
would not be sufficient or adequate remedy for any breach or violation of, or a default



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under, this
Agreement by them and that, in addition to all other remedies available to them, each of them shall
be entitled to an injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without limitation specific
performance, without bond or other security being required. In any action or proceeding brought to
enforce any provision of this Agreement (including the indemnification provisions thereof), the
successful party shall be entitled to recover reasonable attorneys’ fees in addition to its costs
and expenses and any other available remedy.



     3.5. No Inconsistent Agreements. The Company will not, on or after the date of this
Agreement, enter into any agreement with respect to its securities which is inconsistent with the
rights granted to the Purchasers in this Agreement or otherwise conflicts with the provisions
hereof; provided that the Company may enter into agreements on substantially similar terms as this
agreement with respect to Preferred Stock or other securities sold hereafter. The Company further
represents and warrants that the rights granted to the Purchasers hereunder do not in any way
conflict with and are not inconsistent with any other agreements to which the Company is a party or
by which it is bound.



     3.6. Descriptive Headings. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for reference only and shall not control or otherwise
affect the meaning hereof.



     3.7. Governing Law. This Agreement shall be construed and enforced in accordance
with, and the rights and obligations of the parties hereto shall be governed by, the laws of the
State of New York, without giving effect to the conflicts of law principles thereof. Each of the
parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and the United States of America located in the
County of New York for any action or proceeding arising out of or relating to this Agreement and
the transactions contemplated hereby (and agrees not to commence any action or proceeding relating
thereto except in such courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in Section 5 hereof shall be
effective service of process for any action or proceeding brought against it in any such court.
Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United States of America located
in the County of New York, and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.



     3.8. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts shall together constitute one and
the same instrument.



     3.9. Invalidity of Provision. The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder
of this Agreement in that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction. If any restriction or provision of



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this
Agreement is held unreasonable, unlawful or unenforceable in any respect, such restriction or
provision shall be interpreted, revised or applied in a manner that renders it lawful and
enforceable to the fullest extent possible under law.



     3.10. Further Assurances. Each party hereto shall do and perform or cause to be done
and performed all further acts and things and shall execute and deliver all other agreements,
certificates, instruments, and documents as any other party hereto reasonably may request in order
to carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.



     3.11. Entire Agreement; Effectiveness. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, oral and written, between the
parties hereto with respect to the subject matter hereof.



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EXECUTION VERSION




     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by
their respective officers thereunto duly authorized.



	 	 	 	 	 
	 	XO HOLDINGS, INC.

 	 
	 	By:  	/s/ Carl J. Grivner
 	 
	 	 	Name:  	Carl J. Grivner 	 
	 	 	Title:  	Chief Executive Officer 	 
	 




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EXECUTION VERSION




	 	 	 	 	 	 	 
	 	 	PURCHASERS	 	 
	 
	 	 	 	 	 	 
	 	 	ARNOS CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Keith Cozza	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Keith Cozza	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	BARBERRY CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Keith Cozza	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Keith Cozza	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	HIGH RIVER LIMITED PARTNERSHIP	 	 
	 	 	BY: Hopper Investments LLC, its general partner	 	 
	 	 	BY: Barberry Corp., its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Keith Cozza	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Keith Cozza	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	ACF INDUSTRIES HOLDING CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Keith Cozza	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Keith Cozza	 	 
	 

	 	Title:
	 	Vice President	 	 







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