exv10w1






Exhibit 10.1




EMPLOYMENT AGREEMENT




     This EMPLOYMENT AGREEMENT, dated as of January 5, 2009 (this “Agreement”), is entered
into by and between XO Holdings, Inc., a Delaware corporation (the “Company”), and Daniel
J. Wagner (“Employee”).



     WHEREAS, the Company desires to hire Employee as the President — Business Services Sales and
Marketing of the Company (or substantially similar sales and marketing position), effective as of
the Effective Date (as defined below), subject to the terms and conditions contained herein.



     WHEREAS, Employee understands and accepts the terms and conditions of employment as set forth
herein and desires to be so employed by the Company in such capacity.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto
set forth herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:



1. Employment





	 	(a)	 	Upon the terms and conditions hereinafter set forth, the Company hereby agrees
to employ Employee and Employee hereby agrees to become so employed. During the Term
of Employment (as defined below), Employee shall be employed in the position of
President — Business Services Sales and Marketing of the Company (or substantially
similar sales and marketing position) reporting to the Chief Executive Officer of the
Company (the “CEO”), the Chairman of the Board of Directors of the Company (the
“Chairman”) and/or the Board of Directors of the Company (the “Board”),
and shall perform such reasonable and lawful duties as are specified from time to time
by the CEO, the Chairman and/or the Board, provided, that in any dispute over
whether any such directions were “reasonable”, Employee shall bear the burden of proof
in any applicable proceedings.
	 
	 	(b)	 	During the Term of Employment, Employee shall devote substantially all of his
professional attention, on a full time basis, to the business and affairs of the
Company and shall use his best efforts to advance the best interest of the Company and
shall comply with all of the policies of the Company, including, without limitation,
such policies with respect to legal compliance, conflicts of interest, confidentiality,
insider trading and business ethics as are from time to time in effect (collectively,
the “Policies”).
	 
	 	(c)	 	During the Term of Employment, Employee hereby agrees that his services will be
rendered exclusively to the Company and Employee shall not directly or indirectly
render services to, or otherwise act in a business or professional capacity on behalf
of or for the benefit of, any other Person (as defined below) as an employee, advisor,
member of a board or similar governing body, sole proprietor, independent contractor,
agent, consultant, representative or otherwise, whether or not compensated, except as
may otherwise be explicitly permitted by the Company in writing in accordance with the
Policies following receipt of notice from Employee regarding any such matter. “Person” or “person”, as used in this
Agreement, means any individual, partnership, limited partnership, corporation, limited
liability company, trust, estate, cooperative, association, organization,
proprietorship, firm, joint venture, joint stock company, syndicate, company, committee,
government or governmental subdivision or agency, or other entity.





 









 








	 	(d)	 	Employee’s services hereunder shall be performed by Employee in the Company’s
principal executive offices, or at such other locations as the Company and Employee may
mutually agree upon from time to time. In connection therewith, Employee acknowledges,
agrees and understands that (i) Employee shall be physically present at Company’s
principal executive offices, or at such other locations as the Company and Employee may
mutually agree upon and/or such location as required by Company approved business
travel, to perform such services, (ii) Employee shall be physically present at
Company’s principal executive offices, or at such other locations as the Company and
Employee may mutually agree upon (other than in connection with Company approved
business travel) by no later than 9:00am (ET) on the first business day of each week
and shall leave such offices no earlier than 5:00pm (ET) on the last business day of
each week and (iii) other than in connection with any vacation of not less than of four
(4) consecutive business days or any sickness or disability or other legally required
leave, any paid-time-off day (e.g., vacation days) taken by Employee on a
Monday or a Friday shall count as two (2) paid-time-off days in determining the number
of paid-time-off days that Employee has taken in any applicable year. By way of
example, if Employee has fifteen (15) remaining paid-time-off days in a particular
calendar year and Employee subsequently takes a vacation commencing on a Thursday which
is a business day (and takes off the following Friday and Monday, which are both
business days) and returns to work on a Tuesday, Employee shall have expended five (5)
paid-time-off days on this vacation (one (1) for the Thursday and two (2) for each of
the Friday and the Monday) and shall have ten (10) remaining paid-time-off days in that
particular calendar year.





2. Term




     The employment period of Employee hereunder shall commence on January 13, 2009 (the
“Effective Date”), and shall continue through December 31, 2012 (the “Expiration
Date”), unless earlier terminated as set forth in this Agreement (the “Term of
Employment”); provided, however, that Employee’s employment hereunder is
contingent upon the following: (i) Employee must successfully pass a background check, which will
include a Motor Vehicle Report, and a Pre-Employment Drug Test (instructions for which will be
provided by Company and which must be completed within 72 hours of execution of this Agreement),
(ii) Employee must sign all appropriate documents included with the employment package to be
provided by Company, and (iii) Company must be in receipt of documentation proving Employee’s
eligibility to work in the United States. If all of the conditions contained in clauses (i), (ii)
and (iii) of this Section 2 are not satisfied, in the sole and absolute discretion of the Company,
then this Agreement shall be void ab initio (other than Section 9(g) which shall remain in
full force and effect).



 









 





3. Compensation




     For all services to be performed by Employee under this Agreement, during the Term of
Employment, Employee shall be compensated in the following manner:



     (a) Base Compensation



     The Company will pay Employee a salary (the “Base Salary”) at an annual rate of
$450,000.00 per full year. The Base Salary shall be payable in accordance with the normal payroll
practice of the Company and subject to all required deductions and withholdings.



     (b) Annual Bonus



     So long as Employee is employed by the Company, in good standing, at the end of each fiscal
year of the Company during the Term of Employment commencing with the fiscal year ending December
31, 2009, Employee will be eligible to receive following the end of such fiscal year a cash bonus
payable in accordance with the terms and conditions, including performance goals, of The XO Annual
Bonus Plan (as in effect on the date of this Agreement, the “Bonus Plan”). The target
amount of any such cash bonus award payable to Employee (if performance goals are achieved) for
each of the fiscal years ending December 31, 2009 and ending December 31, 2010 is 70% of Employee’s
then current Base Salary in the applicable fiscal year, subject to adjustment (increase or
decrease) as provided in Exhibit A. The target amount of any such cash bonus award payable
to Employee (if performance goals are achieved) for the fiscal year ending December 31, 2011 is
$1,500,000.00, subject to adjustment (increase or decrease) as provided in Exhibit A. The
target amount of any such cash bonus award payable to Employee (if performance goals are achieved)
for the fiscal year ending December 31, 2012 is $2,000,000.00, subject to adjustment (increase or
decrease) as provided in Exhibit A. Any such cash bonus award in respect of any such
fiscal year, if due under the Bonus Plan, shall be paid within 30 days after approval by the
Compensation Committee of the Board but not later than December 31 of the year following such
applicable fiscal year. Subject to the foregoing, such bonus, if any, will be payable in
accordance with the terms and conditions, including performance goals, of the Bonus Plan, and the
normal payroll practice of the Company and subject to all required deductions and withholdings.
For the avoidance of doubt, Employee’s annual bonus for the fiscal year ending December 31, 2009,
if any, shall not be pro-rated and shall be calculated as if Employee had been employed as of
January 1, 2009, so long as Employee reports to the Company for his employment on the Effective
Date. Subject to Section 5 below, such cash bonus, if any, shall be earned by Employee (subject to
the terms and conditions, including performance goals, of the Bonus Plan as provided above) if
Employee is employed by the Company on the last day of the applicable fiscal year but will be paid
at the same time the annual cash bonus for such fiscal year is paid to active employees of the
Company.



     (c) One Time Cash Signing Bonus



     So long as Employee is employed by the Company on the Effective Date, the Company will pay to
Employee within 30 days following the Effective Date a one-time cash bonus of $450,000.00. Subject
to the foregoing, such bonus will be payable in accordance with the normal payroll practice of the
Company and subject to all required deductions and withholdings.



 









 





     (d) One Time Additional Relocation Reimbursement



     (i) In order to cover Employee for the relocation expenses of Employee and his immediate
family, so long as (and conditioned upon both the following clauses (x) and (y) being satisfied in
full) (x) Employee is employed by the Company on the date on which Employee and his immediate
family relocates within a reasonable commuting distance of the Company’s principal executive
offices and (y) the full time permanent residence of Employee and his immediate family is located
within a reasonable commuting distance of the Company’s principal executive offices on or prior to
December 31, 2010, the Company will pay to Employee within 30 days following the date on which
Employee and his immediate family relocates within a reasonable commuting distance of the Company’s
principal executive offices, a one-time relocation bonus of $100,000.00. For the avoidance of
doubt, the payment of any such relocation bonus is conditioned on the relocation and establishment
of the full time permanent residence of Employee and his immediate family within a reasonable
commuting distance of the Company’s principal executive offices on or prior to December 31, 2010
such that in the event Employee relocates within a reasonable commuting distance of the Company’s
principal executive offices and establishes his permanent full time residence in such location but
his immediate family does not so relocate within a reasonable commuting distance of the Company’s
principal executive offices or establish its permanent full time residence in such location, in
each case, on or prior to December 31, 2010, no such relocation bonus shall be payable under this
Section 3(d)(i) or otherwise. Any such bonus which is payable will be so paid to Employee
(subject to the terms and conditions of such payment as provided herein) in lieu of any
requirements of any relocation policy or precedent the Company may have in connection therewith and
in consideration of such potential payment, Employee hereby waives any rights Employee may have to
otherwise participate in any such relocation policy or any entitlement with respect to any such
precedent. Subject to the foregoing, such one-time relocation bonus will be payable in accordance
with the normal payroll practice of the Company and subject to all required deductions and
withholdings.



 









 





     (ii) From January 13, 2009 through June 13, 2009, Employee shall be allowed to commute to work
to the Company’s principal executive offices (or such other location as shall be mutually agreed to
by the Company and the Employee) from Rochester, New York and the Company shall reimburse the
reasonable and documented travel and lodging expenses of Employee in connection therewith
consistent with the Company’s travel and expense policy. Reimbursement shall be made in 2009
within 60 days following submission of appropriate documentation of the expense, which
documentation shall be submitted within 30 days of incurrence of the applicable expenses, and in
any event no such expenses shall be eligible for reimbursement if submitted after August 31, 2009.
The amount of expenses eligible for reimbursement during a calendar year may not affect the
expenses eligible for reimbursement in any other calendar year, and the Employee’s right to
reimbursement may not be liquidated or exchanged for any other benefit. On or prior to June 13,
2009, Employee shall relocate within a reasonable commuting distance of the Company’s principal
executive offices and at all times following June 13, 2009, during the Term of Employment,
Employee’s full time permanent residence shall be located within a reasonable commuting distance of
the Company’s principal executive offices. Employee shall use reasonable best efforts to relocate
his immediate family within a reasonable commuting distance of the Company’s principal executive
offices and to establish the full time permanent residence of his immediate family within a
reasonable commuting distance of the Company’s principal executive offices as promptly as
reasonably practicable following the date on which Employee relocates within a reasonable commuting
distance of the Company’s principal executive offices as required by this Section 3(d)(ii).



     (e) Taxes



     All amounts paid to Employee under or pursuant to this Agreement, including, without
limitation, the Base Salary and any bonuses or any other compensation or benefits, whether in cash
or in kind, shall be subject to federal, state and, if applicable, local or foreign tax withholding
and deductions imposed by any one or more federal, state, local and or foreign governments, or
pursuant to any foreign or domestic applicable law, rule or regulation.



4. Benefits/Expense Reimbursement/Paid Time Off.




     Subject to any applicable “waiting period(s)” under the Company’s group health, major medical
and other benefit plans and any 401(k) plans (collectively, the “Benefit Plans”), Employee
shall be eligible, during the Term of Employment, to participate in all Benefit Plans, in each case
as such may be provided by the Company generally to its employees, in the Company’s sole and
absolute discretion from time to time, subject to and on a basis consistent with the terms,
conditions, and overall administration of any such Benefit Plans, and subject to satisfaction of
any eligibility, vesting or other terms and conditions set forth in any applicable governing plan
documents in respect of any such Benefit Plans. Employee shall be entitled to reasonable
reimbursement of reasonable and documented business expenses incurred on behalf of the Company, in
accordance with the Company’s standard policies and procedures in respect thereof. Subject to
Section 1(d) above, Employee shall be entitled to twenty (20) paid-time-off days
(e.g., vacation days) per year to be accrued and used in accordance with the Company’s
standard policies and procedures in respect thereof.



 









 





5. Termination of Employment




     The Term of Employment and the employment of Employee hereunder shall end, on the first to
occur of any of the following (each a “Termination Event”):




	 	(a)	 	The Expiration Date;
	 
	 	(b)	 	The: (i) death of Employee or (ii) reasonable determination of the Company
that Employee has become physically or mentally incapacitated so as to be substantially
unable to perform the essential functions of Employee’s duties to the Company for 90
consecutive days or 90 days in any twelve-month period, even with reasonable
accommodation;
	 
	 	(c)	 	The discharge of Employee by the Company, regardless of whether for Cause or
not for Cause;
	 
	 	(d)	 	The discharge of Employee by the Company in connection with the Company’s
Business Services Unit’s failure to achieve at least 70% of Employee’s annual sales
target in any given fiscal year during the Term of Employment (such sales target to be
established by the CEO or the Board (and to be based on the overall revenue targets for
the Company) and communicated to Employee on or before the end of the first quarter of
such fiscal year); provided, however, that, with respect to any year,
any such discharge by the Company must occur within the first 120 days of the Company’s
fiscal year immediately following the applicable year in which the Company’s failure to
achieve at least 70% of Employee’s annual sales target occurred; or
	 
	 	(e)	 	The resignation of Employee, regardless of whether for Good Reason or not for
Good Reason. “Good Reason” means, without Employee’s prior written consent,
(i) any material diminution in Employee’s title, position, duties or responsibilities
as provided in this Agreement, (ii) any relocation of the worksite of Employee in the
Company’s principal executive offices further than 100 miles from such work site or
(iii) material breach of this Agreement by the Company which material breach remains
uncured (if curable) for a period of 30 days following the date Employee provides
written notice to the Company detailing such material breach; provided, that
Employee agrees to provide the Company with not less than 60 days prior written notice
of any such resignation (whether for Good Reason or for no reason) or the existence of
any condition which Employee believes gives rise to “Good Reason”, in which event the
Company may, in its sole and absolute discretion, declare such resignation to be
effective immediately or at any other day following receipt of such notice.





     The Company may discharge Employee at any time, for any reason or no reason, with or without
Cause. As used in this Agreement, “Cause” means: (i) dishonesty detrimental to the best
interests of the Company or any of its affiliates; (ii) willful conduct of Employee involving any
immoral acts which is reasonably likely to impair the reputation of the Company or any of its
affiliates; (iii) willful disloyalty to the Company or the Board, (iv) willful refusal or failure
of Employee to obey the reasonable and lawful directions of the CEO, the Chairman and/or the
Board; provided, that in any dispute over whether any such directions were “reasonable”,
Employee shall bear the burden of proof in any applicable proceedings, (v) neglect of duties and
responsibilities, in any material respect, assigned to Employee,



 









 







 (vi) commission of, or indictment
for, a felony or conviction or plea of nolo contendere to a misdemeanor (other than a traffic
violation) punishable by imprisonment under federal, state or local law, (vii) the engagement by
Employee in the act of sexual harassment, (viii) the repeated use by Employee of a controlled
substance without a prescription or the repeated use of alcohol which impairs Employee’s ability to
carry out his duties and responsibilities, (ix) the material violation, as determined by the
Company, based on the advice of its counsel, by Employee of any securities or employment laws or
regulations, (x) material violation by Employee of any of the Company’s policies, (xi) material
breach of this Agreement by Employee, including the representations, warranties and covenants of
Employee set forth in Section 9(h), or any other agreement or documents entered into by the Company
and Employee substantially simultaneously with the execution of this Agreement which material
breach remains uncured (if curable) for a period of 30 days following the date the Company provides
written notice to Employee detailing such material breach; provided, however, that
any breach of Section 1(d) hereof by Employee shall be deemed not curable and Employee
shall have no right to cure such breach, or (xii) embezzlement of funds and/or material
misappropriation of property of the Company or any of its affiliates, or any act involving fraud
with respect to the Company or any of its affiliates.



6. Effect of Termination of Employment




     In the event of termination of Employee’s employment hereunder, all rights of Employee under
this Agreement, including all rights to compensation, shall end and Employee shall only be entitled
to be paid (i) any amounts of Employee’s Base Salary previously earned (to the extent accrued and
unpaid), payable in a cash lump sum amount within 30 days of the applicable date of termination,
(ii) in accordance with the Company’s policy, unreimbursed business expenses of Employee, payable
in a cash lump sum amount within 60 days of the applicable date of termination, (iii) in accordance
with the Company’s policy, any amounts payable on account of accrued but unused vacation, payable
in a cash lump sum amount within 30 days of the applicable date of termination, (iv) in the event
Employee is terminated by the Company without Cause, resigns for Good Reason or Employee’s
employment hereunder is terminated pursuant to Section 5(b) above, any amounts of Employee’s annual
cash bonus previously earned in the fiscal year immediately preceding such termination (to the
extent accrued and unpaid), payable in a cash lump sum amount within 90 days of the applicable date
of termination (for the avoidance of doubt, no such amounts shall be payable under this Section
6(iv) in the event Employee is terminated for Cause or resigns without Good Reason), (v) in the
event Employee is terminated by the Company without Cause (other than in the event Employee’s
employment hereunder is terminated pursuant to (A) Section 5(b) above, in which case Employee shall
not be entitled to any payments pursuant to this Section 6(v) or Section 6(vi) below, or (B)
Section 5(d) above, in which case Employee shall not be entitled to any payments pursuant to this
Section 6(v)), or resigns for Good Reason, a one-time severance payment in an amount equal to the
greater of (x) 200% of Employee’s then current annual Base Salary and (y) the amount equal to the
annual cash bonus under the Bonus Plan with respect to the applicable fiscal year in which the
termination of employment occurs that Employee would have earned if Employee had been employed for
the full applicable fiscal year (but only if applicable performance goals are



 









 







actually achieved) multiplied by a fraction the numerator of which shall be equal to the number of days
of such fiscal year up to and including the date of such termination and the denominator of which
shall be 365, payable (1) in the case of any payment pursuant to clause (x) of this Section
6(v), in a cash lump sum amount (less all lawful and required deductions and withholdings)
within 60 days of the applicable date of termination, but in no event later than 2-1/2 months
following the end of the calendar year in which the termination occurs and (2) in the case of any
payment pursuant to clause (y) of this Section 6(v), in a cash lump sum amount (less all
lawful and required deductions and withholdings) when other senior executives of the Company are
paid their respective cash bonuses in the year following the applicable year of termination of
employment (such amount payable pursuant to this Section 6(v), the “Severance
Payment”), and (vi) in the event Employee is terminated by the Company pursuant to Section 5(d)
above, a one-time severance payment in an amount equal to 100% of Employee’s then current annual
Base Salary, payable in a cash lump sum amount (less all lawful and required deductions and
withholdings) within 60 days of the applicable date of termination (a “Below 70% Severance
Payment”), but in no event later than 2-1/2 months following the end of the calendar year in
which the termination occurs; provided, that, Employee shall only be entitled to be
paid any such Severance Payment or Below 70% Severance Payment, as applicable, if and when, (x)
Employee executes and delivers to the Company a release agreement in favor of the Company, its
affiliates and their respective officers, directors, employees, agents and equity holders in
respect of Employee’s employment with the Company and the termination thereof in the form
substantially as set forth in Exhibit B attached hereto and as then provided by the Company
to Employee and executes any other document or agreement reasonably requested by the Company and
(y) such release agreement, once executed by Employee and delivered to the Company, becomes
irrevocable and final under the applicable law. Such release shall be delivered to Employee by the
Company within ten (10) days of the applicable date of termination (the date of such delivery, the
“Delivery Date”) and executed by Employee and delivered to the Company, and shall be
effective and irrevocable (subject to the 7 day revocation period provided in such release), within
45 days of the Delivery Date, and if Employee fails to so provide the Company with such an
effective and irrevocable release (subject to the 7 day revocation period provided in such release)
within such 45-day period, Employee shall have no right to any severance payments of whatever
nature.1



     For the avoidance of doubt, (i) if the Term of Employment expires and Company and Employee do
not mutually agree to extend the Term of Employment, such expiration shall in no event be deemed a
termination of employment without Cause or a resignation of Employee for Good Reason or a
termination pursuant to Section 5(d) above and Employee shall not be entitled to any Severance Payment or Below 70% Severance Payment in connection therewith and





 




			
	1	 	For the avoidance of doubt, (i) in no event shall
Employee be entitled to both the Severance Payment and the Below 70% Severance
Payment, and (ii) in the event Employee is terminated pursuant to Section 5(d)
above, Employee shall be entitled to receive the Below 70% Severance Payment
but not the Severance Payment. By way of example, if Employee is terminated by
the Company without Cause but the Company’s Business Services Unit achieved at
least 70% of Employee’s applicable annual sales target prior to such
termination as provided in Section 5(d), Employee shall be entitled to receive
the Severance Payment but not the Below 70% Severance Payment. However, if
Employee is terminated by the Company without Cause and the Company’s Business
Services Unit had not achieved at least 70% of Employee’s applicable annual
sales target prior to such termination as provided in Section 5(d), Employee
shall be entitled to receive the Below 70% Severance Payment but not the
Severance Payment.




 









 









(ii)
coverage under all of Company’s benefit plans and programs in which Employee is eligible to
participate under Section 4 above will terminate as of the date on which this Agreement terminates
as provided in Section 5 above, except to the extent expressly provided otherwise in such plans,
programs, or under applicable law. In addition, in the event the Term of Employment expires and
the Company and Employee do not mutually agree to extend the Term of Employment but Employee
remains employed by the Company, Employee will be an at will employee of the Company and such
employment of Employee will be subject to any terms and conditions determined by the Company, in
its sole and absolute discretion.




     Notwithstanding any other provision in this Agreement, upon termination of Employee’s
employment with the Company for any reason or no reason, unless otherwise requested by the Company,
Employee shall immediately resign from any and all positions that he holds or has ever held with
the Company and any affiliated entity, including without limitation, to the extent applicable, the
boards (and committees thereof) of the Company and any such affiliates. Employee hereby agrees to
execute any and all documentation to effectuate such resignations upon request by the Company, but
Employee shall be treated for all purposes as having so resigned upon termination of employment
with the Company, regardless of when or whether Employee executes any such documentation.



     Notwithstanding any other provision in this Agreement, upon termination of Employee’s
employment with the Company for any reason or no reason, Employee shall deliver to the Company (and
will not keep in his possession, custody or control, or recreate or deliver to any other Person)
any and all devices, records, recordings, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, computer materials, equipment, other
documents or property, together with all copies thereof (in whatever medium recorded), belonging to
the Company, its affiliates or any of their respective successors or assigns, or any other physical
recordation or embodiment of any Confidential Information (as defined below). Employee further
agrees that any property situated on the Company’s premises and owned by the Company or any
affiliate thereof, including computer disks and other digital, analog or hard copy storage media,
drives, filing cabinets or other work areas, is subject to inspection by Company personnel at any
time with or without notice. Employee further agrees to make any personally-owned computer disks
and other digital, analog or hard copy storage media, drives, or devices available to the Company
for inspection to ensure that Company-owned (or Company affiliate-owned) data have been permanently
removed from any such personally-owned equipment.



     In the event of any Termination Event, Employee shall be under no obligation to seek other
employment in order to receive the payments, if any, due to Employee under this Section 6 and there
shall be no offset against amounts due Employee under this Section 6 on account of any compensation
attributable to any subsequent employment that he may obtain except as specifically provided in
this Section 6.



7. Non-Disclosure; Non Disparage; Inventions




     (a) During the Term of Employment and at all times thereafter, (i) Employee shall keep
confidential and hold in a fiduciary capacity for the benefit of the Company and each of its affiliates, all secret, proprietary or confidential information, knowledge or data, including,
without limitation, trade secrets, sources of supplies and materials, customer lists and their
identity, designs, production and design techniques and methods, identity of investments,



 









 







identity
of contemplated investments, business opportunities, valuation models and methodologies, processes,
technologies, and any intellectual property relating to the business of the Company or its
affiliates, and their respective businesses, (“Confidential Information”). Simultaneously
with Employee’s execution of this Agreement, Employee has executed and delivered to the Company the
Company’s Employee Confidentiality and Intellectual Property Agreement (the “Confidentiality
Agreement”), and Employee covenants and agrees to comply with the terms and conditions thereof.
Employee understands and agrees that any breach of such Confidentiality Agreement shall be deemed
to be a breach of this Agreement for all purposes hereunder.



     (b) During the Term of Employment and at all times thereafter, Employee also agrees to keep
confidential and not disclose any personal information regarding any controlling Person of the
Company, including Carl C. Icahn, or any of its or his affiliates and their employees, and any
member of the immediate family of any such Person (and all such personal information shall be
deemed “Confidential Information” for the purposes of this Agreement).



     (c) During the Term of Employment and at all times thereafter, Employee shall not, without the
prior written consent of the Company (acting at the direction of the Board): (i) except to the
extent compelled pursuant to the order of a court or other governmental body having jurisdiction
over such matter (provided, however, that Employee shall first provide written
notification to the Company of such order requesting disclosure, unless such notification is not
permitted under the order), communicate or divulge any Confidential Information to anyone other
than the Company and those designated by the Company; or (ii) use any Confidential Information for
any purpose other than the performance of his duties pursuant to this Agreement; provided,
however, that Employee may disclose (x) such Confidential Information that becomes
generally known to the public without violation of this Section 7 or (y) Confidential Information
to Employee’s spouse, attorney and/or his personal tax and financial advisors as reasonably
necessary or appropriate to advance Employee’s tax, financial and other personal planning (each an
“Exempt Person”), provided, further, however, that (x) such Exempt Person agrees to keep
confidential and not disclose and such Confidential Information and (y) any disclosure or use of
any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 7
by Employee. Employee will reasonably assist the Company or its designee, at the Company’s
expense, in obtaining a protective order, other appropriate remedy or other reliable assurance that
confidential treatment will be accorded any Confidential Information disclosed pursuant to the
terms of this Agreement.



     (d) Employee agrees not to disparage the Company, its officers, directors, or employees, Carl
C. Icahn, or Related Persons, or any affiliate of any of the foregoing, in each case during and/or
after his employment hereunder. For the purposes of this Agreement, “Related Persons”
means: (1) Carl C. Icahn, any spouse and any child, stepchild, sibling or descendant of Carl C.
Icahn; (2) any estate of Carl C. Icahn or of any person referred to in clause (1); (3) any person
who receives a bequest from or beneficial interest, in any estate under clause (2); (4) any
executor, personal administrator or trustee who holds such beneficial interest in the Company for
the benefit of, or as fiduciary for, any person under clauses (1), (2) or (3) to the
extent of such interest; (5) any Person, directly or indirectly owned or controlled by Carl C.
Icahn or any other person or persons identified in clauses (1), (2), (3) or (4), and (6) any
not-for-profit entity not subject to taxation pursuant to Section 501(c)(3) of the U.S. Internal
Revenue Code (the “Code”) or any successor provision to which Carl C. Icahn or any person
identified in clauses (1), (2), or (3) above contributes his beneficial interest in the Company or
to which such beneficial interest passes pursuant to such person’s will.



 









 








8. Non-Compete





	 	(a)	 	In addition to, and not in limitation of, all of the other terms and provisions
of this Agreement and the Confidentiality Agreement, Employee agrees that during the
Term of Employment, Employee will comply with the provisions of Section 1
above.
	 
	 	(b)	 	Employee hereby covenants and agrees with the Company and its subsidiaries
that, during the Term of Employment and for a period of (i) one (1) year following the
last day of the Term of Employment if Employee’s employment hereunder is terminated
prior to the Expiration Date or (ii) six (6) months following the last day of the Term
of Employment if Employee’s employment hereunder is terminated on or following the
Expiration Date, Employee will not, either directly or indirectly, as principal, agent,
owner, employee, partner, investor, shareholder (other than solely as a holder of not
more than 1% of the issued and outstanding shares of any public corporation),
consultant, advisor or otherwise howsoever own, operate, carry on or engage in the
operation of or have any financial interest in or provide, directly or indirectly,
financial assistance to or lend money to or guarantee the debts or obligations of any
Person carrying on or engaged in any business that is similar to or competitive with
the business conducted by the Company or any of its subsidiaries, whether with respect
to customers, sources of supply or otherwise.
	 
	 	(c)	 	Employee hereby covenants and agrees with the Company and its subsidiaries
that, during the Term of Employment and for one (1) year thereafter, Employee shall not
directly, or indirectly, for himself or for any other Person:






	 	(i)	 	solicit, interfere with or endeavor to entice away from the
Company or any of its subsidiaries or affiliates, any customer or client;
	 
	 	(ii)	 	attempt to direct or solicit any customer or client away from
the Company or any of its subsidiaries or affiliates; or
	 
	 	(iii)	 	interfere with, entice away or otherwise attempt to induce any
employee of the Company or any of its subsidiaries or affiliates to terminate
his/her employment with the Company or any of such subsidiaries or affiliates.




Employee hereby represents and warrants to, and agrees with, the Company that (x) Employee has
reviewed this Agreement, including this Section 8, with his attorney and (y) the enforcement of the
restrictions contained in Section 7 and Section 8 (i.e., the
Non-Disclosure; Non Disparage; Inventions and Non-Compete sections, respectively) would not be
unduly burdensome to
Employee and that such restrictions are reasonably necessary to protect the legitimate interests of
the Company. Employee hereby agrees that the remedy of damages for any breach by Employee of the
provisions of either of these sections will be inadequate and that the Company shall be entitled to
injunctive relief, without posting any bond and Employee agrees not to oppose granting of such
relief on the grounds that the damages would adequately compensate the Company. This section
constitutes an independent and separable covenant that shall be enforceable notwithstanding any
right or remedy that the Company may have under any other provision of this Agreement or otherwise.



 









 








9. Miscellaneous





	 	(a)	 	The Company agrees (i) to indemnify Employee in accordance with the Company’s
Certificate of Incorporation and (ii) to continue and maintain a directors and
officers’ liability insurance policy covering Employee to the extent the Company
provides such coverage for its other executive officers. Notwithstanding the foregoing
and for the avoidance of doubt, the Company shall be under no obligation to provide any
indemnification or insurance coverage to Employee under clauses (i) or (ii) of this
Section 9(a) or otherwise, in connection with any breach by Employee of Section 9(h)
below or any related representation made by Employee in connection with his hiring or
any willful refusal or failure of Employee to obey the reasonable and lawful directions
of the CEO, the Chairman and/or the Board; provided, that in any dispute over
whether any such directions were “reasonable”, Employee shall bear the burden of proof
in any applicable proceedings. In connection with the foregoing, the Company agrees
not to amend the Company’s Certificate of Incorporation if the result of such amendment
would be to affect Employee’s indemnification rights thereunder in a manner that is
materially and adversely different than the effect such amendment would have on other
executive officers of the Company.
	 
	 	(b)	 	All notices and other communications hereunder shall be in writing; shall be
delivered by hand delivery to the other party or mailed by registered or certified
mail, return receipt requested, postage prepaid or by a nationally recognized courier
service such as Federal Express; shall be deemed delivered upon actual receipt; and
shall be addressed as follows:
	 
	 	 	 	If to the Company:
	 
	 	 	 	XO Holdings, Inc.

13865 Sunrise Valley Drive

Herndon, Virginia 20171

Facsimile:  (703) 547-2025

Attention:  General Counsel





 









 











	 	 	 	If to Employee:
	 
	 	 	 	At the last known principal residence address reflected in the payroll records of
the Company, with a copy to:
	 
	 	 	 	Stewart Reifler, Esq.

Vedder Price P.C.

1633 Broadway

New York, New York 10019

Telephone:  (212) 407-7742

Facsimile:   (212) 407-7799
	 
	 	 	 	or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
	 
	 	(c)	 	This Agreement and the Confidentiality Agreement constitute the entire
agreement between the parties hereto with respect to the subject matter hereof and
supersedes all previous written, and all previous or contemporaneous oral negotiations,
understandings, arrangements, and agreements, and may be amended, modified or changed
only by a written instrument executed by Employee and the Company.
	 
	 	(d)	 	This Agreement and all of the provisions hereof shall inure to the benefit of
and be binding upon the legal representative, heirs, distributees, successors (whether
by merger, operation of law or otherwise) and permitted assigns of the parties hereto;
provided, however, that Employee may not delegate or assign any of
Employee’s obligations hereunder, and may not assign any of Employee’s rights
hereunder, and any such purported or attempted assignment or delegation shall be null
and void and of no legal effect. The Company’s affiliates and subsidiaries shall be
and be deemed to be third-party beneficiaries of this Agreement. Employee hereby
consents to the assignment of this Agreement by the Company to any successor in
interest or other assignee.
	 
	 	(e)	 	Any unresolved dispute arising out of this Agreement shall be litigated
exclusively in any court of competent jurisdiction in Fairfax County, Virginia;
provided, that the Company may elect to pursue a court action to seek injunctive relief
to terminate the violation of its proprietary rights, including but not limited to
trade secrets, copyrights or trademarks, or to enforce the provisions of Sections 7 or
8 hereof, in any other court of competent jurisdiction. Each party shall pay its own
costs and fees in connection with any litigation hereunder.
	 
	 	(f)	 	This Agreement will be interpreted and the rights of the parties determined in
accordance with the laws of the United States applicable thereto and the internal laws
of the State of Delaware, without giving effect to the conflict of law principles
thereof.
	 
	 	(g)	 	If for any reason, other than the death or permanent physical incapacity of
Employee, Employee fails to report to the Company for his employment on the Effective Date, 










 









 












	 	 	 	(i) the Company shall have no obligation to employ Employee pursuant
to this Agreement or otherwise and (ii) Employee shall pay to the Company within 2
business days of the Effective Date an amount in cash equal to $250,000, by wire
transfer of immediately available funds to an account designated by the Company
(such payment, the “Liquidated Damages”); provided, however,
that in the event any such failure to report to the Company is due to the
non-permanent physical incapacitation of Employee or other extreme emergency (as
determined by the Company in its reasonable judgment), no Liquidated Damages shall
be payable by Employee and the Company shall employ Employee pursuant to this
Agreement, in each case, if Employee reports to the Company promptly following such
incapacitation or emergency but in no event later than 14 days following the
Effective Date; provided, further, however, that in the
event any such failure to report to the Company is due to the death or permanent
physical incapacity of Employee or if the conditions contained in Section 2(i), (ii)
and (iii) above are not satisfied as provided in such Section 2(i), (ii) and (iii)
(in each case, other than as a result of Employee’s failure to sign the applicable
documentation referred to in Section 2(ii) or Employee’s failure to provide the
Company with the applicable documentation referred to in Section 2(iii)), no
Liquidated Damages shall be payable by Employee and the Company shall have no
obligation to employ Employee pursuant to this Agreement or otherwise. Each of
Employee and the Company hereby agree and acknowledge that the Liquidated Damages
are an integral part of the transactions contemplated hereby, that it would be
impractical and/or extremely difficult to fix or establish the actual damage
sustained by the Company as a result of any such failure to report to the Company
for employment, and that the Liquidated Damages are not intended to be a forfeiture
or penalty, but are intended to and shall, as provided herein, constitute and be
deemed to be the reasonable and agreed upon liquidated damages of the Company in
respect of the possible loss and expenses that may be incurred, including, without
limitation, attorney’s fees, and shall be paid by Employee to the Company as the
Company’s sole and exclusive remedy in respect of any such failure to report to the
Company for employment, other than in connection with any fraud, intentional
misconduct or gross negligence of Employee in connection therewith.
	 
	 	(h)	 	(i) Employee hereby represents, warrants and covenants to the Company that,
other than that certain agreement, dated as of April 18, 1994, by and between Rochester
Tel Telecommunications Corporation, a Delaware corporation, its subsidiaries and
affiliates, and Employee (only if and to the extent such document is legally
enforceable), (a) he is not a party to any contract, commitment or agreement, nor is he
subject to, or bound by, any order, judgment, decree, law, statute, ordinance, rule,
regulation or other restriction of any kind or character, which would prevent or
restrict him from entering into and performing his obligations under this Agreement,
(b) he is free to enter into the arrangements contemplated herein, (c) he is not
subject to any agreement or obligation that would limit his ability to act on behalf of
the Company or any of its subsidiaries, and (d) his termination of his existing
employment, his entry into the employment contemplated herein and his performance of
his duties in respect thereof, will not violate or conflict with any agreement or obligation to which he is subject.




 









 











	 	 	 	(ii) Employee hereby represents, warrants and covenants to the Company that, (a) he
has not delivered to the Company any confidential or proprietary information or
trade secrets of his prior employer, including any pricing information or customer
lists; (b) he will not disclose to the Company any confidential or proprietary
information or trade secrets of his prior employer, including any pricing
information or customer lists; (c) prior to his termination of employment with his
prior employer, he has not solicited, on behalf of the Company, any employee,
consultant or independent contractor of his prior employer to leave his or her
employment or any customer or client of his prior employer to transfer its business
to the Company, (d) he has not otherwise breached any contractual or fiduciary
obligations owed by him to his prior employer with respect to his departure and (e)
he has delivered to the Company true and complete copies of any currently effective
employment agreement, non-competition agreement, non-solicitation agreement or
similar document or agreement containing similar provisions to which he is subject.
	 
	 		 	(iii) Employee shall indemnify and hold harmless the Company and its officers,
directors, employees, shareholders, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing (each, an
“Indemnified Person”), from and against any losses, damages, liabilities or
expenses in respect thereof (collectively, “Losses”), as they may be
incurred, including all reasonable legal fees incurred in connection with
investigating, preparing, defending, paying, arbitrating, settling or compromising
any Losses, whether or not in connection with any pending or threatened litigation
in which any Indemnified Person is a named party or to which any of them may become
subject (including in any settlement thereof), to the extent such Losses arise out
of any knowing or willful breach by Employee of any of the representations,
warranties and/or covenants of Employee set forth in this Section 9(h) or any breach
by Employee of any of the representations, warranties and/or covenants of Employee
set forth in this Section 9(h) based on facts, circumstances or events that should
have been know to Employee under the circumstances (it being understood that
Employee had an obligation to the Company to engage in a due inquiry in connection
therewith).
	 
	 	(i)	 	As soon as reasonably practicable following the Effective Date but in no event
later than ninety (90) days following the Effective Date, Employee shall become a
participant in the Change in Control Severance Plan for Certain Covered Executives
(Director And Above) of XO Communications, Inc. (the “Change in Control Plan”);
provided, however, that any payment which Employee is entitled to
receive, or receives, under the Change in Control Plan or any other Company severance
plan, agreement or arrangement shall be reduced on a dollar for dollar basis by any
Severance Payment or Below 70% Severance Payment, as applicable, that Employee receives
under Section 6 above and Employee forfeits any rights Employee may have to any such
payments under the Change in Control Plan or any other Company severance plan,
agreement or arrangement. In furtherance of the foregoing, Employee
covenants and agrees to promptly return to
the Company any such payments Employee receive in excess of the amount to which
Employee is entitled by effect of this Section 9(i).











 









 












	 	(j)	 	No term or condition of this Agreement shall be deemed to have been waived,
except by a statement in writing signed by the party against whom enforcement of the
waiver is sought. Any written waiver shall not be deemed a continuing waiver unless
specifically stated, shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
	 
	 	(k)	 	This Agreement and all of its provisions (other than the provisions of
Section 3(e), Section 5, Section 6, Section 7,
Section 8, and Section 9 hereof, which shall survive termination of
employment of Employee) shall terminate upon termination of employment of Employee for
any reason.
	 
	 	(l)	 	It is intended that the provisions of this Agreement comply with the
requirements of Section 409A of the Code (“Section 409A”) and all provisions of
this Agreement shall be construed in a manner consistent with the requirements for
avoiding taxes or penalties under Section 409A. If under this Agreement an amount is
to be paid in two or more installments, for purposes of Section 409A each installment
shall be treated as a separate payment. Anything herein to the contrary
notwithstanding, including, without limitation Section 3(e) hereof, to the
extent a delay in payments called for under any provision of this Agreement or other
modification to the timing of any payment hereunder, or a delay in the provision of any
benefit or distribution of equity, if any, hereunder or otherwise, is determined to be
necessary by the Company’s tax advisors to prevent imposition of an additional tax to
Employee under Section 409A, then such payment, benefit or distribution shall not be
made until the first date on which such payment is permitted in compliance with Section
409A(a)(2)(B)(i) and the Treasury Regulations or other interpretative guidance issued
thereunder. A termination of employment shall not be deemed to have occurred for
purposes of any provision of this Agreement providing for the payment of amounts or
benefits upon or following a termination of employment unless such termination is also
a “Separation from Service” within the meaning of Section 409A and, for purposes of any
such provision of this Agreement, references to a “resignation,” “voluntary
termination,” “termination,” “termination of employment” or like terms shall mean
Separation from Service. With regard to any provision in this Agreement that provides
for reimbursement of costs and expenses or in-kind benefits, except as permitted by
Section 409A, (i) the rights to any such reimbursement or in-kind benefits shall not be
subject to liquidation or exchange for another benefit, (ii) the amount of expenses
eligible for reimbursement or in-kind benefits provided during any taxable year shall
not affect the expenses eligible for reimbursement or in-kind benefits to be provided
in any other taxable year, provided, that the foregoing clause (ii) shall not be
violated without regard to expenses reimbursed under any arrangement covered by Section
105(b) of the Code solely because such expenses are subject to a limit related to the
period the arrangement is in effect and (iii) any such payments shall be










 









 












	 	 	 	 made on or before the last day of
Employee’s taxable year following the taxable year in which the applicable expense
occurred. If Employee is a “specified employee” (determined in accordance with
Section 409A of the Code and Treasury Regulation Section 1.409A-3(i)(2)) as of the
Termination Date, and if any payment, benefit or entitlement provided for in this
Agreement or otherwise both (x) constitutes a “deferral of compensation” within the
meaning of Section 409A of the Code and (y) cannot be paid or provided in a manner
otherwise provided herein or otherwise without subjecting Employee to additional
tax, interest and/or penalties under Section 409A of the Code, then any such
payment, benefit or entitlement that is payable during the first 6 months following
the Termination Date shall be paid or provided to Employee in a lump sum cash
payment without interest to be made on the earlier of (x) Employee’s death or (y)
the first business day of the seventh calendar month immediately following the month
in which the applicable date of termination occurs. Whenever a payment under this
Agreement specifies a payment period with reference to a number of days
(e.g., “payment shall be made within thirty (30) days following the date of
termination”), the actual date of payment within the specified period shall be
within the sole discretion of the Company. The Company shall have no obligation to
indemnify Employee with regard to any failure to comply with Section 409A.
	 
	 	(m)	 	Employee acknowledges that he has had the assistance of independent legal
counsel and tax and accounting advice in reviewing and negotiating this Agreement.
	 
	 	(n)	 	Employee shall not issue any press release or otherwise make any public
statement or announcement with respect to the Company (or any affiliate thereof) or
this Agreement, including without limitation, in connection with the provision of the
services hereunder, without the prior written consent of the Company.
	 
	 	(o)	 	If any provision of any agreement, plan, program, policy, arrangement or other
written document between or relating to the Company and Employee conflicts with any
provision of this Agreement, the provisions of this Agreement shall control and prevail
unless expressly provided otherwise in such agreement, plan, program, policy,
arrangement or other written document with specific reference to this Agreement.
	 
	 	(p)	 	This Agreement may be executed in two or more counterparts (and by facsimile),
each of which shall be deemed to be an original, and all of which, taken together,
shall be deemed to be one and the same instrument.





[Signature Page Follows]




 









 








IN WITNESS WHEREOF, the parties hereto have signed this Agreement effective as of the day and year
first above written.



	 	 	 	 	 
	XO HOLDINGS, INC.:

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



	 	 	 	 	 
	EMPLOYEE:

 	 
	By:  	  /s/  Daniel J. Wagner	 
	 	Daniel J. Wagner 	 
	 	 	 	 



[XO Holdings, Inc. — Signature page to Daniel J. Wagner Employment Agreement]





 









 








Exhibit A




The Bonus Plan




 









 





[FORM OF RELEASE]

Exhibit B




GENERAL RELEASE OF ALL CLAIMS





     This General Release of All Claims (the “General Release”) dated as of                      ___,
20___ is made in consideration of the benefits provided to the undersigned employee
(“Employee”) under the Employment Agreement by and between Employee and XO Holdings, Inc.
(the “Company”), dated as of January 5, 2009 (the “Employment Agreement”). Unless
otherwise defined herein, the terms defined in the Employment Agreement shall have the same defined
meaning in this General Release.



     1. For valuable consideration to be paid to Employee, upon expiration of the seven day
revocation period provided in Section 9 herein, as provided for in the Employment Agreement and to
which he is not contractually entitled to absent the execution of this General Release, the
adequacy of which is hereby acknowledged, Employee, for himself, his spouse, heirs, administrators,
children, representatives, executors, successors, assigns, and all other persons claiming through
Employee, if any (collectively, “Releasers”), does hereby release, waive, and forever
discharge the Company and the Company’s former, present or future subsidiaries, parents,
affiliates, related organizations, employees, officers, directors, equity holders, attorneys,
successors and assigns as well as all Beneficial Owners (collectively, the “Releasees”)
from, and does fully waive any obligations of Releasees to Releasers for, any and all liability,
actions, charges, causes of action, demands, damages, or claims for relief, remuneration, sums of
money, accounts or expenses (including, without limitation, attorneys’ fees and costs) of any kind
whatsoever, whether known or unknown or contingent or absolute, which heretofore has been or which
hereafter may be suffered or sustained, directly or indirectly, by Releasers in consequence of,
arising out of, or in any way relating to Employee’s employment with the Company (whether pursuant
to the Employment Agreement or otherwise) or any of its affiliates and the termination of
Employee’s employment. The foregoing release and discharge, waiver and covenant not to sue
includes, but is not limited to, all claims, and any obligations or causes of action arising from
such claims, under common law including any state or federal discrimination, fair employment
practices or any other employment-related statute or regulation (as they may have been amended
through the date of this General Release) prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, color, religion, national origin, age,
gender, marital status, disability, handicap, veteran status or sexual orientation. Without
limitation, specifically included in this paragraph are any claims arising under the Federal
Rehabilitation Act of 1973, Age Discrimination in Employment Act of 1967, as amended
(“ADEA”), the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991, the Equal Pay Act, the Americans With
Disabilities Act, the National Labor Relations Act, the Fair Labor Standards Act, Employee
Retirement Income Security Act of 1974, the Family Medical Leave Act of 1993, the Consolidated
Omnibus Budget Reconciliation Act of 1985, and any similar state statutes, including without
limitation, the Virginia Human Rights Act and the Virginians with Disabilities Act. The foregoing
release and discharge also expressly includes any claims under any state or federal common law
theory, including, without limitation, wrongful or retaliatory discharge, breach of express or
implied contract, promissory estoppel, unjust enrichment, breach of covenant of good faith and fair
dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of
privacy,



 









 







misrepresentation, deceit, fraud or negligence. This also includes a release by Employee
of any claims for alleged physical or personal injury, emotional distress relating to or arising
out of Employee’s employment with the Company or the termination of that employment; and any claims
under the WARN Act or any similar law, which requires, among other things, that advance notice be
given of certain work force reductions. This release and waiver applies to any claims or rights
that may arise after the date Employee signs this General Release, but does not apply to any such
claims arising out of the conduct by any Releasees that takes place after Employee signs this
General Release. All of the claims, liabilities, actions, charges, causes of action, demands,
damages, remuneration, sums of money, accounts or expenses described in this Section 1 shall be
described, collectively as the “Released Claims”.



     2. Excluded from this General Release are any claims which cannot be waived by law. Employee
does, however, waive Employee’s right to any monetary recovery should any agency (such as the Equal
Employment Opportunity Commission) pursue any claims on Employee’s behalf. Employee represents and
warrants that Employee has not filed any complaint, charge, or lawsuit against the Releasees with
any government agency or any court.



     3. Employee agrees never to sue Releasees in any forum for any Released Claims covered by the
above waiver and release language, except that Employee may bring a claim under the ADEA to
challenge this General Release. If Employee violates this General Release by suing Releasees,
other than under the ADEA, Employee shall be liable to the Company for its reasonable attorneys’
fees and other litigation costs incurred in defending against such a suit. Nothing in this General
Release is intended to reflect any party’s belief that Employee’s waiver of claims under ADEA is
invalid or unenforceable, it being the interest of the parties that such claims are waived.



     4. Employee acknowledges and recites that:



     (a) Employee has executed this General Release knowingly and voluntarily;



     (b) Employee has read and understands this General Release in its entirety;



     (c) Employee has been advised and directed orally and in writing (and this subparagraph (c)
constitutes such written direction) to seek legal counsel and any other advice he or she wishes
with respect to the terms of this General Release before executing it;



     (d) Employee’s execution of this General Release has not been forced by any employee or agent
of the Company, and Employee has had an opportunity to negotiate about the terms of this General
Release and that the agreements and obligations herein are made voluntarily, knowingly and without
duress, and that neither the Company nor its agents have made any representation inconsistent with
the General Release;



     (e) Employee understands that he has received valuable consideration for this General Release
and that therefore this General Release is legally binding and that by signing it he gives
up certain rights;



 









 





     (f) Employee knowingly and voluntarily enters this general release in exchange for
the benefits Employee has obtained by signing and that these benefits are in addition to any
benefit Employee would have otherwise received if he did not sign this General Release; and



     (g) Employee has been offered 45 calendar days after receipt of this General Release to
consider its terms before executing it.



     5. The release contained in Paragraph 1 does not, and shall not be construed to, release or
limit the scope of any existing obligation of the Company (i) to pay or provide any compensation or
benefit required to be paid or provided under the Employment Agreement (subject to the terms and
conditions thereof), (ii) to indemnify Employee for his acts as an officer or director of the
Company, as applicable, in accordance with, and subject to, the certificate of incorporation of the
Company and the policies and procedures of the Company that are presently in effect including
Section 9 of the Employment Agreement, or (iii) to Employee and his eligible, participating
dependents or beneficiaries under any existing welfare, retirement or other fringe-benefit plan or
program of the Company in which the Executive and/or such dependents are participants, in each case
subject to the terms, conditions and eligibility requirements of any such plans or programs.



     6. Any unresolved dispute arising out of this General Release shall be litigated exclusively
in any court of competent jurisdiction in Fairfax County, Virginia; provided that the Company may
elect to pursue a court action to seek injunctive relief in any other court of competent
jurisdiction to terminate the violation of its proprietary rights, including but not limited to
trade secrets, copyrights or trademarks. Each party shall pay its own costs and fees in connection
with any litigation hereunder.



     7. This General Release shall be governed by, and construed in accordance with, the laws of
the United States applicable thereto and the internal laws of the State of Delaware, without giving
effect to the conflicts of law principles thereof.



     8. Employee represents that he or she has returned all property belonging to the Company
including, without limitation, keys, access cards, computer software and any other equipment or
property. Employee further represents that he or she has delivered to the Company all documents or
materials of any nature belonging to it, whether an original or copies of any kind, including any
Confidential Information.



     9. Employee agrees to keep confidential the existence of the Employment Agreement, the
existence of this General Release, as well as all of their terms and conditions and not to disclose
to any person or entity the existence, terms and conditions of the Employment Agreement or this
General Release except to his attorney, financial advisors and/or members of his immediate family
provided they agree to keep confidential the existence, terms and conditions of the Employment
Agreement and this General Release. In the event that Employee believes that he or she is
compelled by law to divulge the existence, terms or conditions of the Employment Agreement or this
General Release in a manner prohibited by the following sentence, he or she agrees to notify
Company (by notifying counsel to the Company) of the basis for the belief before actually divulging
such information. Employee hereby confirms that as of the date of signing this General Release, he or she has not disclosed



 









 







the existence, terms or
conditions of the Employment Agreement or this General Release, except as provided for herein.



     10. Employee shall have 7 days from the date hereof to revoke this General Release by
providing written notice of the revocation to the Company, in accordance with the requirements of
Section 9(a) of the Employment Agreement, in which event this General Release shall be
unenforceable and null and void.



 









 




I, Daniel J. Wagner, represent and agree that I have carefully read this General Release; that I
have been given ample opportunity to consult with my legal counsel or any other party to the
extent, if any, that I desire; and that I am voluntarily signing by my own free act.



PLEASE READ THIS GENERAL RELEASE CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.




	 	 	 	 
	 	EMPLOYEE:

 	 
	 	 	 
	 	Daniel J. Wagner 	 
	 	Date:                           , 20__