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Exhibit 5
Jones, Day, Reavis & Pogue
77 West Wacker
Chicago, Illinois 60601-1692
(312) 782-3939
October 26, 2000
XO Communications, Inc.
11111 Sunset Hills Road
Reston, Virginia 22190
Gentlemen:
We have acted as special counsel to XO Communications, Inc., a
Delaware corporation (the "Company"), in connection with the registration of
deferred compensation obligations (the "Obligations") to be offered and sold
under the XO Communications, Inc. Cash Compensation Deferral Plan (the "Plan")
on a registration statement on Form S-8 (the "Registration Statement"), filed
with the Securities and Exchange Commission to which this opinion appears as
Exhibit 5.
We have examined originals or certified or photostatic copies of such
records of the Company, certificates of officers of the Company, and public
officials and such other documents as we have deemed relevant or necessary as
the basis of the opinion set forth below in this letter. In such examination, we
have assumed the genuineness of all signatures, the conformity to original
documents submitted as certified or photostatic copies, and the authenticity of
originals of such latter documents. Based on the foregoing, we are of the
following opinion:
1. The Obligations, when established pursuant to the terms of the Plan,
will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms and the terms of the Plan,
except as enforceability (i) may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
affecting creditors' rights generally, and (ii) is subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2. The provisions of the written Plan documents comply with the
applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), assuming that the employees eligible to
participate in the Plan constitute a select group of management or highly
compensated employees for purposes of ERISA.
Our opinion expressed in paragraph 2 applies only as to the form of
the written Plan documents. Accordingly, but without limitation of the preceding
sentence, we express no opinion as to whether the employees eligible to
participate in the Plan constitute a select group of management or highly
compensated employees or whether the Plan will be considered "funded" for
purposes of ERISA, which are factual issues depending upon the facts and
circumstances in existence from time to time.
In rendering the foregoing opinions, we have relied as to certain
factual matters upon information provided by officers of the Company, and we
have not independently checked or verified the accuracy of such information. In
addition, our examination of matters of law has been limited to the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America, in each case as in effect on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/ JONES, DAY, REAVIS & POGUE
JONES, DAY, REAVIS & POGUE
