-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Trn5dJOmcc96Dz4ITIINUEQ1QCnL4yECyxFzJhzvMi9tyq1k2KOq7T233uVAGs9R 4Xe/f1kU+THz5RIVsiAk+A== 0000928475-09-000044.txt : 20090206 0000928475-09-000044.hdr.sgml : 20090206 20090206111809 ACCESSION NUMBER: 0000928475-09-000044 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20090206 DATE AS OF CHANGE: 20090206 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: XO HOLDINGS INC CENTRAL INDEX KEY: 0001111634 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 541983517 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-59237 FILM NUMBER: 09575268 BUSINESS ADDRESS: STREET 1: 13865 SUNRISE VALLEY DRIVE CITY: HERNDON STATE: VA ZIP: 20171 BUSINESS PHONE: 7035472000 MAIL ADDRESS: STREET 1: 13865 SUNRISE VALLEY DRIVE CITY: HERNDON STATE: VA ZIP: 20171 FORMER COMPANY: FORMER CONFORMED NAME: XO COMMUNICATIONS INC DATE OF NAME CHANGE: 20001024 FORMER COMPANY: FORMER CONFORMED NAME: NEXTLINK COMMUNICATIONS INC/NEW DATE OF NAME CHANGE: 20000622 FORMER COMPANY: FORMER CONFORMED NAME: NM ACQUISITION CORP DATE OF NAME CHANGE: 20000411 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 BUSINESS PHONE: 212-702-4300 MAIL ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 FORMER COMPANY: FORMER CONFORMED NAME: ICAHN CARL C ET AL DATE OF NAME CHANGE: 19950612 SC 13D/A 1 sch13damd16020309.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 16)* XO HOLDINGS, INC. (Name of Issuer) Common Stock, par value $0.01 per share (Title of Class of Securities) 98417K106 (CUSIP Number) Marc Weitzen, Esq. General Counsel Icahn Associates Corp. 767 Fifth Avenue, 47th Floor New York, New York 10153 (212) 702-4388 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 5, 2009 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box / /. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Carl C. Icahn S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 687,295,822 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 687,295,822 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 687,295,822 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 88.86% 14 TYPE OF REPORTING PERSON* IN SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Cardiff Holding LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% 14 TYPE OF REPORTING PERSON* OO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON ACF Industries Holding Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 305,842,984 8 SHARED VOTING POWER 311,715,698 9 SOLE DISPOSITIVE POWER 305,842,984 10 SHARED DISPOSITIVE POWER 311,715,698 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 617,558,682 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 87.76% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Highcrest Investors Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 617,558,682 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 617,558,682 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 617,558,682 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 87.76% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Buffalo Investors Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 617,558,682 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 617,558,682 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 617,558,682 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 87.76% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Starfire Holding Corporation S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 617,558,682 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 617,558,682 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 617,558,682 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 87.76% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Unicorn Associates Corporation S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 311,715,698 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 311,715,698 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 311,715,698 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.13% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Arnos Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 311,715,698 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 311,715,698 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 311,715,698 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.13% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON High River Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 41,904,141 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 41,904,141 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 41,904,141 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.71% 14 TYPE OF REPORTING PERSON* OO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Hopper Investments, LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 41,904,141 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 41,904,141 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 41,904,141 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.71% 14 TYPE OF REPORTING PERSON* OO SCHEDULE 13D CUSIP No. 98417K106 1 NAME OF REPORTING PERSON Barberry Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 27,832,999 8 SHARED VOTING POWER 41,904,141 9 SOLE DISPOSITIVE POWER 27,832,999 10 SHARED DISPOSITIVE POWER 41,904,141 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 69,737,140 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.69% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D Item 1. Security and Issuer This statement constitutes Amendment No. 16 to the Schedule 13D relating to the shares of Common Stock, par value $0.01 per share (the "Shares"), of XO Holdings, Inc., a Delaware corporation (the "Issuer"), and amends the Schedule 13D relating to the Shares filed on January 27, 2003 and amended by each of Amendment No. 1 filed on October 24, 2003, Amendment No. 2 filed on January 27, 2004, Amendment No. 3 filed on June 22, 2004, Amendment No. 4 filed on August 10, 2004, Amendment No. 5 filed on February 17, 2006, Amendment No. 6 filed on February 27, 2006, Amendment No. 7 filed on March 31, 2006, Amendment No. 8 filed on May 1, 2006, Amendment No. 9 filed on July 2, 2007, Amendment No. 10 filed on March 17, 2008, Amendment No. 11 filed on July 28, 2008, Amendment No. 12 filed on August 14, 2008, Amendment No. 13 filed on October 2, 2008, Amendment No. 14 filed on October 17, 2008 and Amendment No. 15 filed on January 5, 2009 (as amended by Amendment Nos. 1, 2 ,3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15, the "Original 13D"), on behalf of the Filing Persons (as defined in the Original 13D). Capitalized terms used herein and not otherwise defined have the respective meanings ascribed thereto in the Original 13D. Item 4. Purpose of Transaction Item 4 of the Original 13D is hereby amended by adding the following: On February 5, 2009, ACF Holding, an affiliate of Carl Icahn, the Issuer's chairman and majority stockholder, agreed to extend for 3 months, or until April 15, 2010, the date on which a mandatory redemption payment of approximately $215 million will be payable to ACF Holding in respect of the shares of the Issuer's 6% Class A Convertible Preferred Stock (the "Class A Preferred Stock") held by ACF Holding. This extension will not affect the redemption date of the shares of Class A Preferred Stock not held by ACF Holding. Mr. Icahn expects to engage in discussions with the Issuer regarding a permanent restructuring of the Class A Preferred Stock. There can be no assurance that an acceptable restructuring will be achieved. Item 5. Interest in Securities of the Issuer Item 5 of the Original 13D is hereby amended by adding the following: (a) As of the close of business on February 3, 2009, the Filing Persons may be deemed to beneficially own in the aggregate 687,295,822 Shares constituting approximately 88.86% of the outstanding Shares based upon (i) the 182,075,035 Shares stated to be issued and outstanding by Issuer, (ii) the 95,908,269 Shares beneficially held by the Filing Persons, (iii) the 10,041,858 Shares issuable upon exercise of the Warrants beneficially held by the Filing Persons, (iv) the 43,574,763 Shares issuable upon conversion of the 3,096,549 shares of 6% Class A Convertible Preferred Stock (the "Series A Shares") beneficially held by the Filing Persons, (v) the 381,452,838 Shares issuable upon conversion of the 555,000 shares of 7% Series B Convertible Preferred Stock (the "Series B Shares") beneficially held by the Filing Persons, and (vi) the 156,318,094 votes to which the 225,000 shares of 9.5% Series C Perpetual Preferred Stock (the "Series C Shares") beneficially held by the Filing Persons are entitled. Hopper may, by virtue of its ownership of 100% of the general partnership interest in High River, be deemed to beneficially own the securities as to which High River possesses direct beneficial ownership. Hopper disclaims beneficial ownership of such securities for all other purposes. Barberry may, by virtue of its ownership of 100% of the membership interest in Hopper, be deemed to beneficially own the securities as to which Hopper possesses indirect beneficial ownership. Barberry disclaims beneficial ownership of such securities for all other purposes. Mr. Icahn may, by virtue of his ownership of 100% of the interest in Barberry, be deemed to beneficially own the securities as to which Barberry possesses direct or indirect beneficial ownership. Mr. Icahn disclaims beneficial ownership of such securities for all other purposes. Unicorn may, by virtue of its ownership of 100% of the interest in Arnos, be deemed to beneficially own the securities as to which Arnos possesses direct beneficial ownership. Unicorn disclaims beneficial ownership of such securities for all other purposes. ACF Holding may, by virtue of its ownership of 100% of the interest in Unicorn, be deemed to beneficially own the securities as to which Unicorn possesses indirect beneficial ownership. ACF Holding disclaims beneficial ownership of such securities for all other purposes. Highcrest may, by virtue of its ownership of 100% of the interest in ACF Holding, be deemed to beneficially own the securities as to which ACF Holding possesses direct or indirect beneficial ownership. Highcrest disclaims beneficial ownership of such securities for all other purposes. Buffalo may, by virtue of its ownership of approximately 99% of the interest in Highcrest, be deemed to beneficially own the securities as to which Highcrest possesses indirect beneficial ownership. Buffalo disclaims beneficial ownership of such securities for all other purposes. Starfire may, by virtue of its ownership of 100% of the interest in Buffalo, be deemed to beneficially own the securities as to which Buffalo possesses indirect beneficial ownership. Starfire disclaims beneficial ownership of such securities for all other purposes. Mr. Icahn may, by virtue of his ownership of 100% of the interest in Starfire, be deemed to beneficially own the securities as to which Starfire possesses indirect beneficial ownership. Mr. Icahn disclaims beneficial ownership of such securities for all other purposes. (b) Cardiff no longer beneficially owns any Shares. ACF Holding has the sole power to vote or to direct the vote and to dispose or direct the disposition of (i) 95,908,269 Shares, (ii) 10,041,858 Shares issuable upon exercise of the Warrants, (iii) 3,096,549 Series A Shares (which are convertible into 43,574,763 Shares) and (iv) 225,000 Series C Shares (which are entitled to 156,318,094 votes). Arnos has the sole power to vote or to direct the vote and to dispose or direct the disposition of 453,535 Series B Shares (which are convertible into 311,715,698 Shares). High River has the sole power to vote or to direct the vote and to dispose or direct the disposition of 60,969 Series B Shares (which are convertible into 41,904,141 Shares). Barberry has the sole power to vote or to direct the vote and to dispose or direct the disposition of 40,496 Series B Shares (which are convertible into 27,832,999 Shares). Each of Highcrest, Buffalo, Starfire and Mr. Icahn may, by virtue of its or his ownership interest in ACF Holding, Highcrest, Buffalo and Starfire, respectively, be deemed to share with ACF Holding, the power to vote or to direct the vote and to dispose or to direct the disposition of the (i) 95,908,269 Shares, (ii) 10,041,858 Shares issuable upon exercise of the Warrants, (iii) 3,096,549 Series A Shares (which are convertible into 43,574,763 Shares) and (iv) 225,000 Series C Shares (which are entitled to 156,318,094 votes). Each of Unicorn, ACF Holding, Highcrest, Buffalo, Starfire and Mr. Icahn may, by virtue of its or his ownership interest in Arnos, Unicorn, ACF Holding, Highcrest, Buffalo and Starfire, respectively, be deemed to share with Arnos the power to vote or to direct the vote and to dispose or to direct the disposition of the 453,535 Series B Shares (which are convertible into 311,715,698 Shares). Each of Hopper, Barberry and Mr. Icahn may, by virtue of its or his ownership interest in High River, Hopper and Barberry, respectively, be deemed to share with High River the power to vote or to direct the vote and to dispose or to direct the disposition of the 60,969 Series B Shares (which are convertible into 41,904,141 Shares). Mr. Icahn may, by virtue of his ownership interest in Barberry, be deemed to share with Barberry the power to vote or to direct the vote and to dispose or to direct the disposition of the 40,496 Series B Shares (which are convertible into 27,832,999 Shares). Highcrest, Buffalo, Starfire and Mr. Icahn may, by virtue of its or his ownership interest in ACF Holding, Highcrest, Buffalo and Starfire, respectively, be deemed to share with ACF Holding the power to vote or to direct the vote and to dispose or to direct the disposition of the 225,000 Series C Shares (which are entitled to 156,318,094 votes). (c) Except as described in this item 5, no transactions in the Shares were effected within the past 60 days. (d) Not applicable. (e) Not applicable. Item 7. Material to be Filed as Exhibits 1. Extension Agreement from ACF Holding in respect of the Class A Preferred Stock. SIGNATURE After reasonable inquiry and to the best of each of the undersigned knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: February 5, 2009 CARDIFF HOLDING LLC By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory ACF INDUSTRIES HOLDING CORP. By: /s/ Keith Cozza ---------------- Name: Keith Cozza Title: Vice President HIGHCREST INVESTORS CORP. By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Vice President BUFFALO INVESTORS CORP. By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: President STARFIRE HOLDING CORPORATION By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Treasurer ARNOS CORP. By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Authorized Signatory BARBERRY CORP. By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Treasurer HOPPER INVESTMENTS LLC BY: Barberry Corp., its sole member By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Treasurer HIGH RIVER LIMITED PARTNERSHIP BY: Hopper Investments LLC, its general partner BY: Barberry Corp., its sole member By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Treasurer UNICORN ASSOCIATES CORPORATION By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Vice President /s/ Carl C. Icahn - ----------------- CARL C. ICAHN EX-99 2 sch13damd16020309ex1.txt EXECUTION COPY EXTENSION WITH RESPECT TO THE 6% CLASS A CONVERTIBLE PREFERRED STOCK OF XO HOLDINGS, INC. This Extension ("Extension"), dated as of February 5, 2009, with respect to the shares of 6% Class A Convertible Preferred Stock (the "Class A Preferred Stock") of XO Holdings, Inc. ("XO"), held by ACF Industries Holding Corp. ("ACF Holding"), is made for the benefit of XO. RECITALS A. Capitalized terms used herein without definition shall have the same meanings herein as set forth in XO's Certificate of Designation (the "Certificate of Designations") of the Powers, Preferences and Relative, Participating, Optional and Other Special Rights of the Class A Preferred Stock and Qualifications, Limitations and Restrictions thereof. B. Pursuant to paragraph (e)(i)(A) of the Certificate of Designations, on January 15, 2010, the Company is required to redeem in cash and in the manner provided for in paragraph (e)(ii) of the Certificate of Designations, all of the shares of Class A Preferred Stock then outstanding at a redemption price equal to 100% of the Liquidation Preference per share as of the Redemption Date (such payment, the "Mandatory Redemption Payment"). C. As of the date hereof, ACF Holding is the record holder of 3,096,549 shares of Class A Preferred Stock (the "ACF Holding Shares") which represents approximately 77.4% of the outstanding shares of the Class A Preferred Stock. D. ACF Holding will extend the date on which the Mandatory Redemption Payment is payable to ACF Holding or its successors or assigns in respect of the ACF Holding Shares from January 15, 2010 to a date no later than April 15, 2010. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows: EXTENSION 1. Effective as of the date of this Extension, ACF Holding hereby irrevocably agrees that XO need not make the Mandatory Redemption Payment with respect to the ACF Holding Shares on January 15, 2010 but in lieu thereof XO can, in its sole discretion, make such payment at any time from January 15, 2010 up to and including April 15, 2010 (with respect to each ACF Holding Share, the period commencing January 16, 2010 and ending on the date prior to April 16, 2010 on which the Mandatory Redemption Payment in respect of such ACF Holding Shares actually is made to the holder of such ACF Holding Share is hereafter referred to as the "Extended Redemption Period"); provided, that, notwithstanding the foregoing and notwithstanding anything to the contrary contained in the Certificate of Designations, during the Extended Redemption Period with respect to each ACF Holding Share all of the rights of the holder of such ACF Holding Share and XO under the Certificate of Designations in respect of such ACF Holding Share shall continue in full force and effect up to and including the date on which the Mandatory Redemption Payment in respect of such ACF Holding Share is actually made to the holder of such ACF Holding Share, including without limitation, the rights to the accretion of the Liquidation Preference on such ACF Holding Share, the voting rights in respect of such ACF Holding Share and the conversion rights in respect of such ACF Holding Share. During the Extended Redemption Period, XO may redeem any of the ACF Holding Shares in whole or in part without premium or penalty by paying to the applicable holder of such ACF Holding Shares a redemption price equal to 100% of the Liquidation Preference per share as of the date on which such payment is made in the manner provided for in paragraph (e)(ii) of the Certificate of Designations. 2. ACF Holding shall permit XO to cause a legend (the "Legend") to be added and placed upon each ACF Holding Share certificate as follows: "THE MANDATORY REDEMPTION PAYMENT AS PROVIDED IN THE CERTIFICATE OF DESIGNATIONS HAS BEEN EXTENDED TO AND INCLUDING APRIL 15, 2010. THE REDEMPTION AMOUNT MAY BE PREPAID, IN WHOLE OR IN PART, BY XO IN ITS SOLE DISCRETION AT ANY TIME ON OR AFTER JANUARY 15, 2010 BUT ON OR PRIOR TO APRIL 15, 2010." ACF shall not remove the Legend from any ACF Holding Share certificate and shall apprise any person or entity, or the agent of such person or entity, to whom ACF transfers any of the ACF Holding Shares that the Legend is placed upon the stock certificate(s) for such ACF Holding Shares. 3. Except as expressly provided herein, (a) the execution, delivery and performance of this Extension shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of ACF Holding under the Certificate of Designations or any other organizational documents of XO and (b) the Certificate of Designations and all other organizational documents of XO shall remain in full force and effect and are hereby ratified and confirmed. 4. This Extension and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the internal laws of the State of New York, without regard to conflicts of laws principles. 5. This Extension may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the undersigned has caused this Extension to be duly executed and delivered by its respective officers thereunto duly authorized as of the date first written above. ACF INDUSTRIES HOLDING CORP. By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Vice President Acknowledged and Accepted: XO HOLDINGS, INC. By: /s/ Carl J. Grivner ------------------- Name: Carl J. Grivner Title: Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----