REGISTRATION RIGHTS AGREEMENT dated as of August 5, 2004 between XO
COMMUNICATIONS, 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 August 5, 2004
(the "STOCK PURCHASE AGREEMENT") by and between the Company and the Purchasers,
the Purchasers will acquire on the Closing Date an aggregate of 4,000,000 shares
of the Company's 6% Series A Convertible Preferred Stock (the "CONVERTIBLE
PREFERRED STOCK").
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 Convertible Preferred Stock held by
the Purchasers and the shares of Common Stock issuable upon conversion of the
Convertible Preferred Shares.
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.
"ICAHN FAMILY" means and includes: (i) Xxxx X. Icahn, his spouse,
and his children; (ii) the current and former spouses of any person described in
clause (i) of this definition; and (iii) the ancestors, siblings and
descendants, whether by blood, marriage or adoption, of any person described in
clause (i) or (ii) of this definition.
"PERMITTED HOLDER" means and includes: (i) any member of the Icahn
Family; (ii) any conservatorship, custodianship, or decedent's estate of any
member of the Icahn Family, (iii) any trust established for the benefit of,
among others, any Person described in clause (i) or (ii) of this definition; and
(iv)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;
and (v) any foundation or charitable
organization established by a member of the Icahn Family, and having at least
one director, trustee, or member who is a member of the Icahn Family.
"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) the shares of Convertible
Preferred Stock, (ii) any shares of Common Stock issued or issuable upon the
conversion of any Convertible Preferred Shares 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, (c) when such
securities are eligible for sale under clause (k) of Rule 144 of the Securities
Act or any successor provision, or (d) when such securities shall have been sold
as permitted by, and in compliance with, the Securities Act.
"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 or the Purchasers 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.
SECTION 2. Registration Under Securities Act, etc.
2.1 Registration .
(a) Effect the Registration. The Company shall, if requested to do
so by any holder of shares of Convertible Preferred Stock, file for the
registration under the Securities Act
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of all or part of the Registrable Securities as hereinafter provided. The
Company shall use its reasonable best efforts to effect the registration under
the Securities Act (including by means of a shelf registration pursuant to Rule
415 under the Securities Act if the Company is then eligible to use such a
registration) of the Registrable Securities as expeditiously as possible (but in
any event within 180 days of such request). The Company shall notify the other
holders of shares of Convertible Preferred Stock of any request for registration
under this Section 2.1(a) within 10 days of receipt of such request and offer to
register such Registrable Securities of such other holders in such registration.
(b) Registration of Other Securities. If the Company shall effect
the registration pursuant to this Section 2.1 in connection with an underwritten
offering by the Purchasers of Registrable Securities, no securities other than
Registrable Securities shall be included among the securities covered by such
registration if such Registrable Securities included in the registration
pursuant to this Section 2.1, together with other securities requested to be
included in such registration, would result in a request by the managing
underwriters for a reduction in the number of such Registrable Securities and
other securities to be underwritten. If the managing underwriters so request,
then the Company will be required to include in such registration only the
amount of Registrable Securities and other securities which it is so advised can
be included in such registration. In such event, securities shall be registered,
in the following priority: (A) the Registrable Securities, (B) the securities
proposed to be included by the Company, and then (C) any other securities of the
Company requested to be included in such registration by any other holder having
the right to include securities on a pro rata basis in accordance with the
number of securities proposed to be included by the other stockholders with such
rights.
(c) 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.
(d) Expenses. The Company shall pay all Registration Expenses in
connection with registration pursuant to this Section 2.1.
(e) 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.
(f) Selection of Underwriters. The underwriters of each
underwritten offering of the Registrable Securities so to be registered shall be
selected by the Purchasers, subject to the Company's approval, which approval
shall not be unreasonably withheld.
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(g) 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 best 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.
(h) Availability. The registration rights set forth in this
Agreement shall not be available to any holder of shares of Convertible
Preferred Stock (other than a Permitted Holder, each a "THIRD-PARTY HOLDER") (i)
until after the first anniversary of the purchase by such Third-Party Holder of
suchshares of Convertible Preferred Stock, (ii) if in the opinion of counsel to
the Company, all of the Registrable Securities then owned by such Third-Party
Holder 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(k)) or (iii)
if all of the Registrable Securities held by such Third-Party Holder have been
sold in a registration pursuant to the Securities Act or pursuant to said Rule
144.
(i) Delay. If at the time of any request to register Registrable
Securities, the Company is engaged or has fixed plans to engage within thirty
(30) days of the time of the request an acquisition, financing or other
significant transaction which, in the good faith determination of the Board of
Directors of the Company, would be adversely affected by the requested
registration to the material detriment of the Company, the Company may, at its
option, direct that such request be delayed for a period not in excess of one
month from the date of the determination by the Board of Directors. The right to
delay a request of registration may be exercised by the Company not more than
once in any one-year period.
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 best 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;
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(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 best 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;
(e) use its reasonable best 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,
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
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underwriters in underwritten public offerings of securities (and dated the dates
such opinions and comfort letters are customarily dated) and, in the case of the
legal opinion, such other legal matters;
(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 representations and warranties of the Company
contemplated by Section 2.3 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;
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(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) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement;
(l) provide a CUSIP number for all Registrable Securities, no
later than the effective date of the registration statement; and
(m) 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.
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.
2.3 Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by the Purchasers pursuant to the
registration under Section 2.1, the Company shall enter into a customary
underwriting agreement (in the form of underwriting agreement used at such time
by the managing underwriter(s)) with a managing underwriter or underwriters
selected by the Purchasers. Such underwriting agreement shall be satisfactory in
form and substance to the Purchasers and shall contain such representations and
warranties by, and such other agreements on the part of, the Company and such
other terms as are generally prevailing in agreements of the managing
underwriter(s), including, without limitation, their
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customary provisions relating to indemnification and contribution. The
Purchasers shall be party to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Purchasers and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of the Purchasers.
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 Third-Party Holder agrees that it will
not sell or otherwise transfer or dispose of any Registrable Securities held by
such Third-Party Holder 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 Third-Party Holder in writing that suspension of such
rights for the 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.
3. 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
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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.
4. 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.
5. 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:
Cardiff Holdings LLC and Tramore LLC,
c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
R(2) Investments, LDC
c/o Amalgamated Gadget, L.P., as Investment Manager
000 Xxxxxxxx, Xxxxx 0000
Xxxx Xxxxx. XX 00000
(b) If to the Company, to it at:
XO Communications, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attn: General Counsel
6. 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.
7. 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 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
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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.
8. 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. 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.
9. 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.
10. 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.
11. 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.
12. 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 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.
13. 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,
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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.
14. 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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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized.
XO COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President and Acting
Chief Financial Officer
PURCHASERS
CARDIFF HOLDING LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Treasurer
TRAMORE LLC
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
R(2) INVESTMENTS, LDC
By: Amalgamated Gadget, L.P., as its Investment
Manager
By: Scepter Holdings, Inc., its General Partner
By:/s/ Xxxxxx XxXxxxxxx
------------------------------
Name: Xxxxxx XxXxxxxxx
Title: Vice President
