<PAGE>
As filed with the Securities and Exchange Commission on May 7, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
FOCAL COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
----------------
Delaware 4813 36-4167094
(State or other
jurisdiction of
incorporation or
organization)
(Primary Standard Industrial Classification Code Number)
(I.R.S. Employer
Identification
Number)
200 North LaSalle Street, Suite 1100, Chicago, Illinois 60601
(312) 895-8400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
JOSEPH A. BEATTY
Executive Vice President and Chief Financial Officer
Focal Communications Corporation
200 North LaSalle Street, Suite 1100
Chicago, Illinois 60601
(312) 895-8400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Elizabeth C. Kitslaar, Esq. Leigh P. Ryan, Esq.
Jones, Day, Reavis & Pogue Paul, Hastings, Janofsky & Walker LLP
77 West Wacker Drive 399 Park Avenue
Suite 3500 31st Floor
Chicago, Illinois 60601-1692 New York, New York 10022-4697
(312) 782-3939 (212) 318-6000
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to made pursuant to Rule 434,
check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed maximum
Title of each class of aggregate Amount of
securities to be registered offering price (1) registration fee
- -----------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock (par value $0.01 per share)... $115,000,000 $31,970
- -----------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
----------------
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 7, 1999
PROSPECTUS
Shares
[Focal Logo]
Focal Communications Corporation
Common Stock
$ per share
--------
Focal Communications Corporation is selling shares of common stock. The
underwriters named in this prospectus may purchase up to additional shares
of our common stock from us under certain circumstances.
This is an initial public offering of common stock. We currently expect the
initial public offering price to be between $ and $ per share, and have
applied to have the common stock included for quotation on the Nasdaq National
Market under the symbol "FCOM."
--------
Investing in our common stock involves risks. See "Risk Factors" beginning on
page 6.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
--------
<TABLE>
<CAPTION>
Per Share Total
------------ ------------
<S> <C> <C>
Public Offering Price $ $
Underwriting Discount $ $
Proceeds to Focal (before expenses) $ $
</TABLE>
The underwriters are offering the shares subject to various conditions. The
underwriters expect to deliver the shares to purchasers on or about , 1999.
--------
Salomon Smith Barney
Credit Suisse First Boston
Donaldson, Lufkin & Jenrette
Morgan Stanley Dean Witter
, 1999
<PAGE>
[MAP OF UNITED STATES SHOWING OPERATIONAL MARKETS AND MARKETS UNDER
DEVELOPMENT; MAP OF NEW YORK METROPOLITAN AREA ILLUSTRATINGLOCAL NETWORK
CONFIGURATION; INSET OF MANHATTAN DETAILINGLOCAL FIBER LAYOUT, SWITCH
CONNECTIONS, AND DSLAM COLOCATIONS]
We have applied to register the following trademarks which may appear in
this prospectus: Focal(TM), Focal and Design(TM), Focal Communications
Corporation(TM) and FocaLINC(TM).
<PAGE>
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information provided by this
prospectus is accurate as of any date other than the date on the front of the
prospectus.
------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary........................................................ 1
Risk Factors.............................................................. 6
Use of Proceeds........................................................... 15
Capitalization............................................................ 16
Dilution.................................................................. 17
Selected Consolidated Financial and Operating Data........................ 18
Management's Discussion and Analysis of Financial Condition and Results of
Operations............................................................... 20
Business.................................................................. 28
Management................................................................ 46
Security Ownership of Certain Beneficial Owners and Management............ 59
Certain Transactions...................................................... 61
Description of Capital Stock.............................................. 63
Dividend Policy........................................................... 65
Description of Notes...................................................... 66
Shares Eligible for Future Sale........................................... 68
United States Federal Tax Considerations for Non-U.S. Holders of Common
Stock.................................................................... 69
Underwriting.............................................................. 73
Legal Matters............................................................. 75
Experts................................................................... 75
Where You Can Find More Information....................................... 75
Glossary.................................................................. 76
Index to Consolidated Financial Statements................................ F-1
</TABLE>
<PAGE>
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
We make statements in this prospectus that are not historical facts. These
"forward-looking statements" can be identified by the use of terminology such
as "believes," "expects," "may," "will," "should" or "anticipates" or
comparable terminology. These forward-looking statements include, among others,
statements concerning:
. Our business strategy and competitive advantages
. Our anticipation of potential revenues from designated markets
. Statements regarding the growth of the telecommunications industry and
our business
. The markets for our services and products
. Forecasts of when we will enter particular markets or begin offering
particular services
. Our anticipated capital expenditures and funding requirements
. Anticipated regulatory developments
These statements are only predictions. You should be aware that these
forward-looking statements are subject to risks and uncertainties, including
financial and regulatory developments and industry growth and trend
projections, that could cause actual events or results to differ materially
from those expressed or implied by the statements. The most important factors
that could prevent us from achieving our stated goals include, but are not
limited to, our failure to:
. Prevail in legal and regulatory proceedings regarding reciprocal
compensation for Internet-related calls or changes to laws and
regulations that govern reciprocal compensation
. Successfully expand our operations into new geographic markets on a
timely and cost-effective basis
. Successfully introduce and expand our data and voice service offerings
on a timely and cost-effective basis
. Respond to competitors in our existing and planned markets
. Execute and renew interconnection agreements with incumbent carriers on
terms satisfactory to us
. Maintain our agreements for transport facilities
. Maintain acceptance of our services by new and existing customers
. Attract and retain talented employees
. Obtain and maintain any required governmental authorizations, franchises
and permits, all in a timely manner, at reasonable costs and on
satisfactory terms and conditions
. Respond effectively to regulatory, legislative and judicial developments
. Manage administrative, technical and operational issues presented by our
expansion plans
. Address Year 2000 remediation issues
For a discussion of some of these factors, see "Risk Factors" beginning on
page 6.
<PAGE>
PROSPECTUS SUMMARY
This summary highlights information that we believe is especially important
concerning our business and the offering. As a summary, it is necessarily
incomplete and does not contain all of the information that you should consider
before investing in our common stock. You should read the entire prospectus
carefully. Except as otherwise required by the context, references in this
prospectus to "Focal," "we," "us," or "our" refer to the combined businesses of
Focal Communications Corporation and all of its subsidiaries. For a description
of some of the industry terminology used in this prospectus, you should refer
to the "Glossary." You should also read and consider the information in the
"Risk Factors" section of this prospectus before making an investment in shares
of our common stock.
Unless otherwise indicated, the information in this prospectus gives effect
to a recapitalization pursuant to which our Class A common stock, Class B
common stock and Class C common stock will be converted into a single class of
common stock but does not give effect to a -for- 1 stock split. Both
the recapitalization and the stock split will be completed immediately before
the offering is completed.
BUSINESS
Focal is a rapidly growing competitive local exchange carrier, or CLEC. We
provide data, voice and colocation services to large, communications-intensive
users in major cities. Our target customers include large corporations,
Internet service providers and value-added resellers. We offer our customers an
attractive alternative to incumbent local exchange carriers, or ILECs. Since
other CLECs have chosen to compete in smaller cities or target smaller
customers, we believe we have a unique strategy.
We began operations in 1996, initiated service first in Chicago in May 1997
and currently offer service in 12 large, metropolitan markets nationwide. As of
April 30, 1999, we had sold 99,826 access lines, of which 80,218 were installed
and in service. We estimate that at least 70% of these lines are utilized by
our customers to carry data traffic.
A majority of our revenue is currently derived from the provision of
switched data services for our targeted customers. Due to customer demand, we
are deploying additional services such as digital subscriber line, or DSL,
access and nationwide networking using asynchronous transfer mode, or ATM,
technology. Once these services are deployed, we believe we will have an
advantage over other data and voice CLECs offering these services due to our
established relationships with some of the largest corporate and Internet
service provider customers in the nation, our highly reliable network, and our
ability to package switched and high-speed data connections. We also believe
that by providing these data services, we will appeal to a broader customer
base.
We believe we were the first CLEC to employ the "smart-build" approach to
designing networks. As such, we own and operate our switches, and initially
lease, rather than own, transport capacity. Currently, we use leased facilities
for 100% of our transport requirements. However, based on the increase in
volume of customer traffic in some of our markets, we now believe it is
economically attractive for us to own a portion of our transport capacity. We
have signed an agreement with Level 3 Communications and are negotiating with
another company to acquire a combined minimum of 10,800 fiber miles of our own
local fiber transport capacity in 16 markets. By combining leased fiber
transport facilities with owned fiber capacity, we expect to be better able to
control these assets and generate stronger operating results.
To further develop our long distance service offerings, we have signed
agreements with a number of carriers under which we plan to lease approximately
10,000 DS-3 miles of fiber transport capacity connecting each of our existing
and planned markets. Using these facilities, we are developing a nationwide ATM
network
1
<PAGE>
to carry data and voice traffic. For example, we expect to be able to price
long distance voice calls that remain on the Focal network as if they were
local calls--a service we call FocaLINC(TM). In addition, we expect to offer
our corporate customers nationwide toll-free access to their local area
networks--a service we call Virtual Office.
We also offer colocation services. Many of our Internet service provider
customers house their equipment in colocation space we operate within our
switching centers. We provide equipment management services to some of these
customers. We currently have over 64,000 square feet of secure and
environmentally conditioned colocation space available to our customers or
under development. We believe the proximity of existing and future colocation
customers to our network as well as the concentration of Internet traffic
within our space will provide us with an advantage in marketing additional
services in the future.
In order to increase our coverage of major U.S. cities, we plan to provide
our services in four additional markets in 1999 and another four markets in
2000. When we complete our planned expansion, we will provide service in 20
markets, which encompass a total of 50 metropolitan statistical areas. We
estimate there will be approximately 20 million business access lines in these
markets by the end of 1999, which will represent about 36% of the total
business access lines in the nation. We estimate that in 1999 these lines will
generate approximately $18 billion in annual local switched service revenue. In
addition to our local switched service opportunity, Frost & Sullivan projects
that the total U.S. market for high-speed and switched data services will grow
from $18 billion in 1997 to approximately $40 billion by 2002. We estimate that
the addressable market for high-speed and switched data services in our
targeted markets will be approximately $9 billion by the end of 1999.
We believe that our management and operations team has been critical to our
initial success and will continue to differentiate Focal from its competitors.
We have built a skilled and experienced management team with extensive prior
work experience at major telecommunications companies, such as MFS
Communications, Sprint, MCI WorldCom, AT&T and Ameritech.
STRATEGY
Our objective is to become the provider of choice for data and voice
communications services to large, communications-intensive customers in our
target markets. The key elements of our strategy are as follows:
. Leverage Current Customer Relationships--Our customer base includes a
substantial number of large companies and Internet service providers
such as:
<TABLE>
<S> <C> <C> <C>
IBM Sony Citigroup United Airlines
E*Trade Merrill Lynch Mindspring PSINet
CompuServe Nortel Networks Sears Motorola
</TABLE>
We believe that this customer base of communications-intensive users
gives us an advantage in successfully marketing additional services.
Consequently, we plan to leverage the relationships we have built with
our customers and increase our share of their total communications
expenditures by expanding our service offerings and market coverage.
. Expand Data Service Offerings--The majority of our access lines are
utilized for switched data services. We believe a significant
opportunity exists with our existing and targeted customers to
successfully offer a wider array of data services. As a result, we are
currently developing high-speed local area network and Internet access
using DSL technology as well as private line data services.
. Connect our Local Networks Nationally--We believe that the number and
types of services we can provide to communications-intensive customers
in major markets will be greatly enhanced if our networks in these
markets are interconnected. Therefore, we are developing a seamless,
nationwide network based on ATM technology that will interconnect our
switching and colocation centers
2
<PAGE>
in the U.S. We expect this will give us the necessary network platform
to offer additional services such as virtual private network and private
line data and voice services.
. Design and Install a Highly Capital-Efficient Network--We believe we
have optimized our return on invested capital by initially leasing fiber
capacity and by making most of our capital expenditures in switching
facilities and information systems. Going forward, we believe that our
hybrid network, which will combine leased and owned transport capacity,
is the best way to balance capital efficiency and control of network
assets.
. Maximize Network Utilization through Value Added Resellers--We provide
service to value added resellers, or VARs, such as managers of large
multi-dwelling units and companies that market bundled
telecommunications services to small- and medium-sized businesses. This
VAR distribution channel allows us to increase the number of access
lines served by our networks, which further maximizes network
utilization.
Our principal executive offices are located at 200 North LaSalle Street,
Suite 1100, Chicago, Illinois 60601. Our phone number is (312) 895-8400.
THE OFFERING
The following information assumes that the underwriters will not exercise
their over-allotment option. See "Underwriting." The number of shares of common
stock outstanding after the offering excludes a total of 16,970 shares of
common stock reserved for issuance under our equity incentive plans, of which
9,388 shares are reserved for issuance upon exercise of outstanding options at
a weighted average exercise price of $1,247 per share.
<TABLE>
<C> <S>
Common stock offered.................... shares
Common stock outstanding after the
offering............................... shares
Proposed Nasdaq National Market symbol.. FCOM
Use of proceeds......................... We intend to use the net proceeds
from the offering to fund capital
expenditures and operating losses,
working capital and potential
acquisitions, and for general
corporate purposes.
Risk factors............................ Investing in shares of our common
stock involves risks. See "Risk
Factors" for a discussion of matters
you should consider before investing
in shares of our common stock.
</TABLE>
3
<PAGE>
Summary Consolidated Financial and Operating Data
The summary consolidated financial data presented below for the seven month
period ended December 31, 1996, for the years ended December 31, 1997 and 1998
and for the three months ended March 31, 1998 and 1999, have been derived from
Focal's Consolidated Financial Statements and the notes related thereto, which
begin on page F-3. The summary financial data for the three month periods ended
March 31, 1998 and March 31, 1999 have been derived from our unaudited
consolidated financial statements which, in the opinion of management, include
all adjustments, consisting of normal recurring adjustments, necessary for a
fair presentation of our financial condition and results of operations for such
periods. The results of operations for these interim periods are not
necessarily indicative of full year results. You should not assume that the
results of operations below are indicative of the financial results we can
achieve in the future.
<TABLE>
<CAPTION>
Period From
Commencement of Years Ended Three Months Ended March
Operations December 31, 31,
(May 31, 1996) to -------------------------- --------------------------
December 31, 1996 1997 1998 1998 1999
----------------- ------------ ------------ ------------ ------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenues................ $ -- $ 4,023,690 $ 43,531,846 $ 5,102,448 $ 26,003,897
Expenses:
Customer service and
network operations.... -- 2,154,980 15,284,641 1,826,893 10,369,319
Selling, general and
administrative........ 421,777 2,887,372 12,209,821 1,307,625 5,665,896
Depreciation and
amortization.......... 1,150 615,817 6,670,986 890,871 4,026,750
Non-cash compensation
expense............... 108,333 1,300,000 3,069,553 325,000 397,410
---------- ------------ ------------ ------------ ------------
Operating income (loss). (531,260) (2,934,479) 6,296,845 752,059 5,544,522
Interest income
(expense), net......... 17,626 67,626 (9,605,832) (1,093,250) (4,097,502)
Provision for income
taxes.................. -- -- (4,660,000) -- --
Accretion to redemption
value of Class A common
stock.................. -- (103,565) -- -- --
---------- ------------ ------------ ------------ ------------
Net income (loss)
applicable to common
stockholders........... $ (513,634) $ (2,970,418) $ (7,968,987) $ (341,191) $ 1,447,020
========== ============ ============ ============ ============
Basic net income (loss)
per share.............. $ (30.22) $ (35.21) $ (91.05) $ (3.86) $ 16.46
========== ============ ============ ============ ============
Diluted net income
(loss) per share....... $ (30.22) $ (35.21) $ (91.05) $ (3.86) $ 14.44
========== ============ ============ ============ ============
Basic weighted average
common stock
outstanding............ 16,996 84,373 87,526 88,307 87,922
========== ============ ============ ============ ============
Diluted weighted average
common stock
outstanding............ 16,996 84,373 87,526 88,307 100,208
========== ============ ============ ============ ============
Other Financial Data:
EBITDA.................. $ (421,777) $ (1,018,662) $ 16,037,384 $ 1,967,930 $ 9,968,682
Capital expenditures.... 82,303 11,655,524 64,229,247 7,593,061 24,476,209
Summary Cash Flow Data:
Net cash provided by
(used in) operating
activities............. $ (152,576) $ (1,634,017) $ 22,596,957 $ 3,745,255 $ (1,304,626)
Net cash used in
investing activities... (82,303) (11,655,524) (72,189,187) (7,593,061) (23,977,119)
Net cash provided by
financing activities... 4,025,000 11,755,972 173,376,679 154,350,198 5,839,625
Operating Data:
Access lines in service. -- 7,394 52,011 14,528 70,572
Minutes of use
(millions)............. -- 282 3,568 402 2,033
</TABLE>
<TABLE>
<CAPTION>
As of March 31, 1999
-------------------------
As Adjusted
for the
Actual Offering
------------ ------------
(Unaudited)
<S> <C> <C>
Balance Sheet Data:
Cash, cash equivalents and short-term investments..... $114,059,731 $206,059,731
Total assets.......................................... 226,571,111 318,571,111
Long-term debt, including current portion............. 195,545,892 195,545,892
Stockholders' equity.................................. 21,714,695 113,714,695
</TABLE>
4
<PAGE>
You should keep the following matters in mind when you read the information
in the tables above:
. Non-cash compensation expense is a result of two different transactions
and consists of:
--charges totaling $0.1 million for 1996, $1.3 million for each of 1997
and 1998, and $0.3 million for each three-month period ended March 31,
1998 and 1999, which resulted from the vesting over time of shares of
common stock issued to some of our executive officers in November 1996
--charges of $1.8 million for 1998 and $0.1 million for the three months
ended March 31, 1999, which resulted from the vesting and cancellation
of shares of common stock in connection with the September 30, 1998
amendment of vesting agreements with some of our executive officers
. EBITDA represents earnings before interest, income taxes, depreciation
and amortization and other non-cash charges, including non-cash
compensation expense. EBITDA is not a measurement of financial
performance under generally accepted accounting principles. EBITDA is
not intended to represent cash flow from operations and should not be
considered as an alternative to net loss applicable to common
stockholders as an indicator of our operating performance or to cash
flows as a measure of liquidity. We believe that EBITDA is widely used
by analysts, investors and other interested parties in the
telecommunications industry. EBITDA is not necessarily comparable to
similarly titled measures for other companies. See "Consolidated
Financial Statements--Consolidated Statements of Cash Flows" on page F-
6.
. We count access lines as of the end of the period indicated and on a
one-for-one basis using DS-0 equivalents.
. The "As Adjusted" column in the balance sheet data table assumes that we
will sell shares of our common stock at $ per share and
receive net proceeds of $92 million.
5
<PAGE>
RISK FACTORS
In addition to the other information in this prospectus, you should consider
carefully the following risk factors in evaluating our company and its business
before you invest in our common stock.
Limited Operating History--We have a limited history of operations and you
therefore have limited information on which to base your investment decision.
We were incorporated in May 1996 and began providing service in our first
market, Chicago, in May 1997. Therefore, you have limited historical financial
and operating information with which to evaluate our performance.
Probable Future Losses--We expect negative operating cash flows and substantial
operating losses for the foreseeable future.
The development of our business requires significant capital and operational
expenditures to expand our networks, services and customer base. Many of these
expenditures must be completed before any revenue can be realized in a
particular market. These expenditures are expected to increase as we grow our
customer base in existing markets, expand into new markets and diversify our
service offerings.
Reciprocal compensation has historically represented a substantial portion
of our revenues. Reciprocal compensation payments are amounts we receive when
we send local calls to another carrier's network. These payments represented
approximately 75% of our 1998 revenues and 73% of our revenues for the first
quarter of 1999. We expect current rates for reciprocal compensation to
decrease substantially beginning in the fourth quarter of 1999 and to be
potentially eliminated entirely for certain types of calls. As a result,
revenues attributable to reciprocal compensation will decrease substantially.
We expect negative operating cash flow and substantial operating losses
until these trends stabilize, our newer markets and service offerings are
established and mature, and we establish an adequate revenue base. Although we
had operating income in fiscal 1998 and for the three months ended March 31,
1999 of $6.3 million and $5.5 million, respectively, we expect substantial
operating losses for fiscal 1999 and 2000. We may continue to sustain negative
operating cash flow and operating losses as a result of low prices, including
reduced rates attributable to reciprocal compensation, and/or higher costs,
including cash interest costs.
Significant Capital Requirements--Our future growth will require significant
capital.
Our business plan requires us to expand our existing networks and services,
acquire and develop new networks and services in additional markets, deploy our
own fiber capacity in a majority of our markets and fund our initial operating
losses. These activities will require significant capital for the foreseeable
future. Capital required from April 1, 1999 through the third quarter of 2000
for our current business plan is estimated to be approximately $230 million. We
currently plan to fund these requirements with the net proceeds of this
offering, together with:
. Our existing cash balances, cash equivalents and short-term investments
. Borrowing capacity under our $50 million equipment term loan facility
. Future cash flow from ongoing operations
Our expectations of our future capital requirements and cash flows from
operations are based on current estimates. Our actual capital expenditures and
cash flows could differ significantly from these estimates. If we require
additional capital to complete our budgeted expansion or if customer demand
significantly differs from our current expectations, our funding needs may
increase. In addition, we may be unable to produce sufficient cash flow from
ongoing operations to fund our business plan and future growth. This would
require us to alter our business plan, including delaying or abandoning our
expansion or spending plans, which could have a
6
<PAGE>
material adverse effect on our business. In addition, we may elect to pursue
other attractive business opportunities that could require additional capital
investments in our networks. If any of these events were to happen, we could be
required to borrow more money, issue additional debt or equity securities or
enter into joint ventures.
Substantial Debt--We have a substantial amount of debt that could impact our
future prospects and we may not have sufficient cash flow to service our debt.
We currently have a substantial amount of debt in relation to our
stockholders' equity. At March 31, 1999 we had total debt outstanding of $195.5
million and total stockholders' equity of $21.7 million. Interest on our
original issue discount Notes will increase this indebtedness by an additional
$98.9 million by February 15, 2003. The indenture related to our Notes also
permits us to incur additional indebtedness, which we plan to do.
Our high level of debt could adversely affect our future prospects by:
. Impairing our ability to borrow additional money
. Requiring us to use a substantial portion of our cash flow from
operations to pay interest or repay debt which will reduce the funds
available to us for our operations, acquisition opportunities and
capital expenditures
. Placing us at a competitive disadvantage with companies that are less
restricted by their debt agreements
. Making us more vulnerable in the event of a downturn in general economic
conditions
We cannot assure you that we will be able to meet our debt obligations. If
we are unable to generate sufficient cash to meet our obligations or if we fail
to satisfy the requirements of our debt agreements, we will be in default. A
default would permit the debtholders to require payment before the scheduled
due date of the debt, resulting in further financial strain on us and causing
additional defaults under our other indebtedness.
In order to repay our debt and fund our capital expenditures, we must
successfully implement our business strategy. If we are unable to do so, we may
have to reduce or delay our planned capital expenditures, sell assets, sell
additional equity or debt securities or refinance or restructure our debt. Any
delay in our planned capital expenditures could materially and adversely affect
our future revenue prospects. Any sale of assets to raise money to meet our
financial obligations could also occur on unfavorable terms.
Focal Communications Corporation is a holding company which receives all its
revenues from its subsidiaries. Its ability to obtain payments from its
subsidiaries may be restricted by the profitability and cash flows of its
subsidiaries and laws regulating the payment of dividends by a subsidiary to
its parent company. If its subsidiaries are unable to pay dividends, the
holding company may be unable to service its debt. In this situation, creditors
of its subsidiaries and future holders of preferred stock, if any, of its
subsidiaries, would have prior claims on the assets of the subsidiaries over
the claims of the holding company and its stockholders.
Network Expansion--Difficulties in expanding our networks could increase our
estimated costs and delay scheduled completion.
The expansion of our existing networks and the construction of networks in
new markets is a significant undertaking. This will require that we install and
operate additional facilities, switches and related equipment and develop,
introduce and market new products and services, including data services. In
addition, the deployment of additional data services, such as high-speed LAN
and Internet access, will require modifications to our network architecture.
The development and expansion of some of our data services offerings will also
require us to obtain, and install our equipment in the ILECs' central office
colocation space. Administrative, technical, operational, regulatory and other
problems that could arise may be more difficult to address and solve due to the
scope and complexity of our planned expansion. We are also dependent on timely
performance by
7
<PAGE>
third-party suppliers and contractors, including suppliers of network
equipment. Many of these factors and problems are beyond our control. As a
result, our network build-out may not be completed as planned, for the costs
and in the time frame that we currently estimate. We may be materially
adversely affected as a result of any significant increase in the estimated
cost of the network build-out or any significant delay in its anticipated
completion.
Management of Growth--An inability to effectively manage our planned rapid
growth could adversely affect our operations.
Our business plan contemplates rapid expansion of our business for the
foreseeable future. This growth will increase our operating complexity and
require that we, among other things:
. Accurately assess our markets
. Expand our employee base with highly-skilled personnel
. Develop additional financial and management controls and systems
. Control expenses related to our business plan
. Integrate any acquired operations and joint ventures
. Obtain and maintain necessary regulatory approvals
A failure to satisfy any of these requirements or manage our growth effectively
could have a material adverse effect on us.
Internet-Related Reciprocal Compensation--Our entitlement to reciprocal
compensation for Internet traffic is subject to uncertainties that could
adversely affect us.
Several of the ILECs continue to challenge, through legal proceedings, the
CLECs' entitlement to reciprocal compensation payments under existing
interconnection agreements for calls made to ISPs on the grounds that these
calls should be considered interstate in nature. Several of these legal
challenges seek a refund of reciprocal compensation previously paid by the
ILECs. Some ILECs have refused to pay or have indicated they will escrow
reciprocal compensation for inbound Internet service provider, or ISP, traffic.
We have recorded all revenues from reciprocal compensation and related
accounts receivable and have not established any reserve for disputed amounts.
There is a risk that courts and regulatory authorities that previously ordered
payment for reciprocal compensation will revisit this issue and revise their
prior decisions, including possibly permitting the ILECs to recoup reciprocal
compensation payments. A judicial or regulatory determination that we are not
entitled to the reciprocal compensation we have historically recognized, or an
order that we refund reciprocal compensation paid to date, may have a material
adverse effect on us and our results of operations.
Information Support Systems--Any failure to develop and enhance effective
information support systems could have a material adverse effect on us.
Our business plan depends on our ability to develop and enhance
sophisticated information support systems. This is a complicated undertaking
requiring significant resources and expertise, and support from third-party
vendors. Since our business plan provides for growth in the volume and types of
services we offer, we need to develop and enhance these information support
systems on a schedule sufficient to meet our
8
<PAGE>
proposed service roll-out dates. In addition, we will require these information
support systems to expand and adapt with our rapid growth. The failure to
develop and timely enhance effective information support systems could have a
material adverse effect on us and our ability to implement our growth strategy.
Regulation--We are subject to significant regulation that could change in a
manner adverse to us.
Communications services are subject to significant regulation at the
federal, state and local levels. The following factors may have a material
adverse effect on us:
. Delays in receiving required regulatory approvals or onerous conditions
imposed on these approvals
. Difficulties completing interconnection agreements with ILECs
. The enactment of new and adverse legislation or regulatory requirements
or changes in the interpretation of existing legislation and/or changes
in regulatory requirements
Recent federal legislation governing the U.S. telecommunications industry
remains subject to judicial review and additional FCC rule-making. As a result,
we cannot predict the legislation's effect on our future operations or results.
Many regulatory actions regarding important items that impact us are underway
or are being contemplated by federal and state authorities. Changes in current
or future regulations adopted by federal, state or local regulators, or other
legislative or judicial initiatives relating to the telecommunications
industry, could have a material adverse effect on us.
Unlike some of our competitors, particularly the ILECs, we are not currently
subject to some of the burdensome regulations imposed by federal legislation.
Our ability to compete in the local exchange market will depend upon a
continued favorable, pro-competitive regulatory environment, and could be
adversely affected by new regulations or legislation affording greater
flexibility and regulatory relief to our competitors.
In August 1998, the FCC requested comments on new rules that would allow
ILECs to provide their own DSL services free from ILEC regulation through a
separate affiliate. The provision of DSL services by an affiliate of an ILEC
not subject to ILEC regulation could have a material adverse effect on us.
We are currently required to publicly file with governmental authorities our
tariffs describing the prices we charge our customers and the terms and
conditions for some intrastate, interstate and international services.
Challenges to these tariffs by regulators or third parties could cause us to
incur substantial legal and administrative expenses.
Federal and state regulatory agencies also have the right to impose
sanctions and forfeitures, mandate refunds or impose other penalties for
regulatory non-compliance.
Reliance on Leased Transport Facilities--Our reliance on leased transport
facilities could materially and adversely affect our business.
Our network design strategy contemplates us owning and operating our own
switches but initially leasing a substantial portion of our transport
facilities, or network lines, from third parties. Currently, we use leased
facilities for 100% of our transport requirements. Although we have begun to
selectively acquire our own fiber transport capacity in some of our markets, we
expect, for the foreseeable future, to continue to lease a substantial portion
of our transport capacity from other carriers, some of which are competitors in
our service territories.
We are also dependent on third-party suppliers for substantial amounts of
fiber, conduit, computers, software, switches, routers and related components
that we use to expand and upgrade our network. If any of
9
<PAGE>
these relationships is terminated or a supplier fails to provide reliable
services or equipment, and we are unable to reach suitable alternative
arrangements quickly or on favorable terms, we may experience significant
delays and additional costs. If that happens, it could have a material adverse
effect on us.
We currently lease a majority of our transport facilities from one carrier.
Although we believe that adequate alternative sources of transport facilities
exist, if this carrier's facilities become unavailable, our business could be
disrupted. In addition, although we believe we have protection against
unexpected increases in the costs of our leased transport facilities, an
unexpected material increase in these costs could have a material adverse
effect on our results.
Relationship with ILECs--Our reliance on ILEC interconnections and changes to
our agreements with the ILECs could have a material adverse effect on us.
In addition to agreements with transport providers, we are dependent upon
our agreements with the ILECs operating in our existing and targeted markets.
These agreements, called interconnection agreements, specify how we connect our
networks with the network of the ILEC in each of our markets. Federal
legislation regulating the telecommunications industry has enhanced competition
in the local service market by requiring the ILECs to provide access to their
networks through interconnection agreements and to offer unbundled elements of
their network and retail services at prescribed rates to other
telecommunications carriers. A failure to negotiate required interconnection
agreements or renew existing interconnection agreements on favorable terms
could have a material adverse effect on our business.
Our interconnection agreements also require the ILECs to provide sufficient
transmission capacity to keep blocked calls between our networks within
industry limits. Accordingly, we are partially dependent on the ILECs in our
efforts to provide our customers with superior service and avoid blocked calls.
The failure by the ILECs to comply with their obligations under our
interconnection agreements could result in customer dissatisfaction and the
loss of existing and potential customers. In addition, the rates charged to us
under the interconnection agreements may be too high to permit us to offer
usage rates that are low enough to attract a sufficient number of customers and
permit us to operate profitably.
The pace at which we are able to add new customers and services could be
adversely affected if the ILECs do not provide us with necessary network
elements, colocation space, intercompany connections and the means to share
information about customer accounts, service orders and repairs on a timely
basis. In addition, our ability to provide high-speed data services will be
dependent on our obtaining space from the various ILECs for physical colocation
of our equipment in the ILECs' central offices and elsewhere. In many instances
the ILECs do not timely or fully comply with these requirements. Also, the
rules governing which elements the ILECs must provide and the cost methodology
for providing these elements are currently under FCC and judicial review.
Interconnection agreements are subject to review and approval by various
federal and state regulators. In addition, parties to the agreements may seek
to have the agreements modified based upon the outcome of regulatory or
judicial rulings occurring after the dates of the agreements. The outcome of
these rulings, or any modified agreements, could have a material adverse effect
on us. In addition, certain aspects of interconnection agreements, including
the price and economic terms of these agreements, have been subject to
litigation and regulatory action. See "Business--Regulation" for a more
complete description of these developments.
Competition--We compete in the telecommunications industry with participants
that have greater resources, a more established network and a broader customer
base than we do.
Portions of the telecommunications industry are highly competitive. Many of
our existing and potential competitors, including the ILECs and some CLECs,
have financial, personnel, marketing and other resources significantly greater
than ours. Many of these competitors have the added competitive advantage of an
established network and an existing customer base.
10
<PAGE>
Our principal competitor in each of our markets is the ILEC. Although recent
federal legislation and rule-making have afforded us increased opportunities,
they also provide the ILECs with some advantages which could adversely affect
our business. In addition, current competitive advantages afforded to CLECs may
also be adversely affected by changes in existing regulation of
telecommunications services. These changes include permitting ILECs to:
. Reduce their prices because of fewer regulatory restrictions
. Offer selective discount pricing to their customers
. Provide advanced data networks through less-regulated separate
subsidiaries that may be used for voice traffic
. Eliminate the resale of advanced services
. Provide out-of-region long distance service
In addition, significant new competitors in the local exchange market could
arise as a result of:
. Consolidation and strategic alliances in the industry
. Foreign carriers being allowed to compete in the U.S. market
. Further technological advances
. Further deregulation and other regulatory initiatives
Other competitors and potential market entrants include long distance
companies, cable television companies, electric utilities, microwave carriers,
wireless telephone system operators, data service companies and operators of
private networks.
Quarterly Operating Results--Our quarterly operating results may vary
significantly.
We anticipate that our operating results could vary greatly from quarter to
quarter due to:
. The significant expenses associated with the expansion and development
of our networks and services
. The variability of the level of revenues generated through sales of our
services
This type of variability could have a material adverse effect on us.
Reliance on Key Personnel--We may be unable to hire and retain sufficient
qualified personnel; the loss of any of our key executive officers could
materially adversely affect us.
We believe that our future success will depend in large part on our ability
to attract and retain highly skilled, knowledgeable, sophisticated and
qualified managerial, professional and technical personnel. To implement our
business plan and manage our planned growth successfully, we will need to add a
substantial number of additional employees. We have experienced significant
competition in attracting and retaining personnel who possess the skills that
we are seeking. As a result of this competition, we may experience a shortage
of qualified personnel.
Our business is managed by a relatively small number of senior management
and operating personnel. Losing some members of the senior management team or
key operating personnel could have a material adverse effect on us. We may be
unable to retain our senior management or other key employees, or retain other
skilled personnel in the future.
Limited Number of Stockholders--A limited number of stockholders controls us
and their interests may be different from the interests of public stockholders.
Madison Dearborn Capital Partners, L.P., Frontenac VI, L.P. and Battery
Ventures III, L.P., our three principal institutional investors, will control
approximately % of our total voting power after the offering.
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<PAGE>
As a result, these institutional investors and our management will have the
ability to control our future operations and strategy. Conflicts of interest
between these institutional investors and our public stockholders may arise
with respect to sales of shares of common stock owned by these institutional
investors or other matters. For example, sales of shares by these institutional
investors could result in a "Change of Control" under our Notes indenture,
which would require us to offer to repurchase our Notes. In addition, the
interests of our institutional investors and other existing stockholders
regarding any proposed merger or sale of Focal may differ from the interests of
our new public stockholders, especially if the consideration to be paid for the
common stock is less than the price paid by public stockholders.
Potential Conflicts of Interest--Our institutional investors invest in other
telecommunications companies and conflicts of interest may arise from these
investments.
Madison Dearborn, Frontenac and Battery Ventures or their affiliates
currently have significant investments in telecommunications services companies
other than Focal. These institutional investors may in the future invest in
other entities that compete with us. In addition, four of our directors, each
of whom is a principal of one of these institutional investors, serve as
directors of other public telecommunications services companies. As a result,
these four directors may be subject to conflicts of interest during their
tenure as directors of Focal. Because of these potential conflicts, these four
directors may be required to periodically disclose financial or business
opportunities to us and to the other companies to which they owe fiduciary
duties. Following completion of the offering, the Audit Committee of our Board
of Directors will resolve all conflict of interest issues. A majority of the
members of the Audit Committee will be independent directors.
Franchises and Rights-of-Way--Our ability to develop networks will be adversely
affected if we cannot obtain necessary permits and rights-of-way.
We plan to selectively develop our own fiber transport facilities where it
makes economic sense to do so. To do this, we may need to obtain local rights
to utilize underground conduit and pole space, franchises, permits and other
rights-of-way from various public and private entities. The process of
obtaining these franchises, permits and rights-of-way is time consuming and
burdensome. The failure to enter into and maintain these arrangements for a
particular network on acceptable terms and on a timely basis may adversely
affect our ability to develop that network. In addition, the cancellation or
non-renewal of the rights, franchises or permits we do obtain could have a
material adverse affect on us.
Acquisitions--A failure to manage risks associated with acquisitions could have
a material adverse effect on our business and results of operations.
A portion of our future growth may come from acquisitions of other
businesses. The acquisition of businesses will expose us to additional risks.
In order to make successful acquisitions, we must be able to:
. Identify suitable acquisition candidates, negotiate acceptable terms for
their acquisition and arrange suitable financing
. Integrate the operations, including networks and services, of an
acquired company into our operations
. Avoid the potential disruption of our existing business if our
management focuses on any acquisition or its integration at the expense
of our existing business
. Successfully capitalize on any opportunities presented by the
acquisition
We cannot be certain that we will make any acquisitions in the future. Any
acquisitions we do make may not be done in a timely manner or on terms
favorable to us. In addition, we cannot be certain that any acquisition we may
make would be successfully integrated with our existing business.
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<PAGE>
Technological Changes--Our business could be adversely affected if we do not
keep pace with rapid technological changes.
The telecommunications industry is subject to rapid and significant changes
in technology. We believe that for the foreseeable future we will be able to
acquire necessary technologies. We cannot, however, predict the effect of
technological changes on our business. In addition, the introduction of new
products or technologies may reduce the cost or increase the supply of services
similar to those that we plan to provide. As a result, our most significant
competitors in the future may be new entrants to the communications services
industry. These new entrants may not be burdened by an installed base of
outdated equipment. Technological changes and the resulting competition could
have a material adverse effect on us.
Dividends--We do not intend to pay dividends and our indenture restricts our
ability to do so.
We have never declared or paid any cash dividends on our common stock. For
the foreseeable future, we intend to retain any earnings to finance the
development and expansion of our business, and we do not anticipate paying any
cash dividends on our common stock. Payment of any future dividends on our
common stock will depend upon our earnings and capital requirements, the terms
of our debt facilities and other factors our Board of Directors considers
appropriate. Our ability to declare and pay dividends on our common stock is
also currently restricted by covenants in our Notes indenture.
No Trading Market and Volatility--There is no trading market for our common
stock; our stock price may be volatile.
This is the initial public offering of our common stock, and no public
market for our common stock currently exists. We cannot assure you that an
active trading market will develop or be sustained after the offering is
completed. The initial public offering price will be determined through
negotiations between us and the underwriters based on several factors and may
not be indicative of the market price of the common stock after the offering.
The market price of our shares may be significantly affected by factors
including:
. An actual or anticipated fluctuation in our operating results
. New products or services or new contracts by us or our competitors
. Legislative and regulatory developments
. Conditions and trends in the telecommunications industry, general market
conditions and other factors beyond our control
In addition, the stock market has periodically experienced significant price
and volume fluctuations that have particularly affected the market prices of
common stock of telecommunications companies. These changes have often been
unrelated to the operating performance of particular companies. These broad
market fluctuations may also adversely affect the market price of our shares.
Future Stock Sales--Sales of large amounts of our common stock or the
perception that sales could occur may depress our stock price.
After this offering, our existing stockholders will own % of the
outstanding shares of our common stock. In addition, immediately prior to the
offering, there were 9,388 shares of our common stock reserved for issuance
upon exercise of outstanding options granted under our equity incentive plans.
Focal, each of our significant institutional investors, our directors, officers
and some of our employees will, with limited exceptions, be prohibited from
selling shares of our common stock for 180 days after the date of this
prospectus. However, almost all of the shares of our common stock outstanding
prior to this offering are subject to a registration rights agreement that
grants holders of these shares the right to have their shares registered either
on demand or together with shares we intend to sell. We also intend to register
under the Securities Act of 1933 up to approximately 16,970 shares of our
common stock reserved for issuance under our equity incentive plans.
13
<PAGE>
The market price of our common stock could drop as a result of sales of a
large number of our shares in the public market after the offering. The
perception that sales may occur could also have the same result.
Anti-Takeover Provisions--Provisions of our charter, applicable law and our
Notes indenture may delay or prevent a change in control.
Our certificate of incorporation and bylaws, the Delaware corporations
statute and our Notes indenture may make it difficult or even prevent a third
party from acquiring us without the approval of our incumbent Board of
Directors. These provisions, among other things:
. Divide our Board of Directors into three classes, with members of each
class to be elected in staggered three-year terms
. Limit the right of stockholders to remove directors
. Prohibit stockholder action by written consent in place of a meeting
. Limit the right of stockholders to call special meetings of stockholders
. Regulate how stockholders may present proposals or nominate directors
for election at annual meetings of stockholders
. Authorize our Board of Directors to issue preferred stock in one or more
series without any action on the part of stockholders
These provisions could limit the price that investors might be willing to
pay in the future for shares of our common stock, may discourage third party
bidders from bidding for us and could significantly impede the ability of the
holders of our common stock to change our management.
Our business is subject to regulation by the FCC and state regulatory
commissions or similar state regulatory agencies in the states in which we
operate. The FCC and some states have statutes or regulations that would
require an investor who acquires a specified percentage of our securities or
the securities of one of our subsidiaries to obtain approval to own such
securities from the FCC or the state commission.
Dilution--You will experience immediate and substantial dilution in your
investment.
The initial public offering price is substantially higher than the net
tangible book value per share of our common stock. As a result, you will
experience immediate and substantial dilution in net tangible book value when
you buy shares of our common stock in the offering. This means that you are
paying a higher price per share than the amount of our total assets, minus our
total liabilities, divided by the number of outstanding shares. To the extent
that outstanding options to purchase our common stock are exercised or we issue
additional shares of our common stock at prices lower than the then-current net
tangible book value, there will be further dilution to the holders of our
common stock.
Year 2000 Compliance--The Year 2000 issue may cause system failure or
disruption of our services.
The Year 2000 issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of our computer
programs or systems, or those of our suppliers, that have date-sensitive
software may recognize a date using "00" as the year 1900 rather than the year
2000. This could result in a system failure or miscalculation causing
disruption of our operations, including, among other things, a temporary
inability to process transactions, send invoices or engage in similar normal
business activities or interruptions of customer service. If we fail to achieve
Year 2000 readiness with respect to our systems and hardware, we may be
adversely affected.
We have performed an internal assessment of our own material information
systems, including our DMS-500 SuperNode central office switches, and hardware
to determine whether our systems and hardware are Year 2000 compliant. However,
we have not, nor do we plan to, identify, validate as compliant or remediate
14
<PAGE>
integrated circuits in any other systems or hardware. We have received
assurances from all of our major software and hardware vendors that the
products we are currently using are Year 2000 compliant in all material
respects and will function adequately after December 31, 1999.
Our services are also dependent on network systems and transport facilities
maintained by other carriers, including the ILECs and inter-exchange carriers,
or IXCs. The risks associated with the failure of these carriers' systems or
transport facilities include potential interruption of service, blocked calls
and delayed call completion. Interruptions of this type, if prolonged, could
have a material adverse effect on us.
Investment Company Act--We may be required to register as an investment
company, which would adversely affect us.
We now have and after the offering will continue to have substantial cash
balances and short-term investments. As a result, we may be considered an
"investment company" under the Investment Company Act of 1940. The Investment
Company Act requires companies that are engaged primarily in the business of
investing, reinvesting, holding or trading in securities, or that fail
numerical tests regarding composition of assets and sources of income and that
are not primarily engaged in a business other than investing, reinvesting
holding or trading in securities, to register as "investment companies."
Various substantive restrictions are imposed on these "investment companies" by
the Investment Company Act.
Because we are primarily engaged in a business other than investing,
reinvesting, owning, holding or trading securities, we do not believe that we
are an investment company within the meaning of the Investment Company Act. If
we are required to register as an investment company under the Investment
Company Act, we would become subject to substantial regulation with respect to
our capital structure, management, operations, transactions with "affiliated
persons," as defined in the Investment Company Act, and other matters. To avoid
having to register as an investment company, we may have to hold a portion of
our liquid assets as cash or government securities instead of as investment
securities. Having to register as an investment company or holding a material
portion of our liquid assets as cash or government securities to avoid
registration could have a material adverse effect on us.
USE OF PROCEEDS
After deducting estimated underwriter discounts and offering expenses, we
expect to receive net proceeds from the offering of approximately $92 million,
or approximately $106 million if the underwriters exercise their over-allotment
option in full. We intend to use the net proceeds, together with amounts
available from our existing cash balances, our equipment term loan and future
cash flow from ongoing operations, to fund capital expenditures and operating
losses, working capital and potential acquisitions, and for general corporate
purposes. We will have broad discretion in determining the uses and exact
amounts for each use of the net proceeds. Pending these uses, we will invest
the net proceeds in short-term money market and other market-rate, investment-
grade instruments. See "Risk Factors--Investment Company Act" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources."
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<PAGE>
CAPITALIZATION
The following table sets forth our total cash, cash equivalents and short-
term investments and capitalization as of March 31, 1999 on an actual basis and
on an as adjusted basis to give effect to:
. the -for-1 stock split and recapitalization of our common stock into a
single class that will occur immediately before this offering is
completed
. the offering and our receipt of net proceeds from the sale of common
stock in this offering, based on an assumed public offering price of
$ per share
You should read the information in this table in conjunction with our
Consolidated Financial Statements and the notes related thereto included
elsewhere in this prospectus. See also "Use of Proceeds" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources."
<TABLE>
<CAPTION>
As of March 31, 1999
----------------------------------------------
As Adjusted
As Adjusted for the for the
Actual Recapitalization Offering
------------ ------------------- ------------
<S> <C> <C> <C>
Total cash, cash equivalents
and short-term investments.... $114,059,731 $114,059,731 $206,059,731
============ ============ ============
Long-term debt, including
current portion............... $195,545,892 $195,545,892 $195,545,892
Stockholders' equity:
Common stock, Class A, $.01
par value; 100,000 shares
authorized actual and no
shares authorized as
adjusted for the
recapitalization and as
adjusted for the offering;
75,746, 0 and 0 shares
issued and outstanding
actual, as adjusted for the
recapitalization and as
adjusted for the offering,
respectively................ 757 -- --
Common stock, Class B, $.01
par value; 35,000 shares
authorized actual and no
shares authorized as
adjusted for the
recapitalization and as
adjusted for the offering;
22,000, 0 and 0 shares
issued and outstanding
actual, as adjusted for the
recapitalization and as
adjusted for the offering,
respectively................ 220 -- --
Common stock, Class C, $.01
par value; 15,000 shares
authorized actual and no
shares authorized as
adjusted for the
recapitalization and as
adjusted for the offering;
no shares issued and
outstanding actual, as
adjusted for the
recapitalization and as
adjusted for the offering... -- -- --
Preferred stock, $.01 par
value; no shares authorized
actual and 2,000,000 shares
authorized as adjusted for
the recapitalization and as
adjusted for the offering;
no shares issued and
outstanding actual, as
adjusted for the
recapitalization and as
adjusted for the offering... -- -- --
Common stock, $.01 par value;
no shares authorized actual
and 100,000,000 shares
authorized as adjusted for
the recapitalization and as
adjusted for the offering;
0, and shares issued
and outstanding actual, as
adjusted for the
recapitalization and as
adjusted for the offering,
respectively................ -- 977
Additional paid-in capital..... 35,955,194 35,955,194
Deferred compensation.......... (4,339,022) (4,339,022) (4,339,022)
Accumulated deficit............ (9,902,454) (9,902,454) (9,902,454)
------------ ------------ ------------
Total stockholders' equity... 21,714,695 21,714,695 113,714,695
------------ ------------ ------------
Total capitalization....... $217,260,587 $217,260,587 $309,260,587
============ ============ ============
</TABLE>
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DILUTION
The net tangible book value of our common stock as of March 31, 1999 was
$21.7 million or approximately $222 per share. Net tangible book value per
share represents the amount of our stockholders' equity, less intangible
assets, divided by the number of shares of common stock outstanding.
Net tangible book value dilution per share represents the difference between
the following:
(1) the amount paid per share by purchasers of common stock in the
offering
(2) the adjusted net tangible book value per share of purchasers of common
stock in the offering immediately after completion of the offering
After giving effect to our sale of shares of common stock in the
offering, our adjusted net tangible book value as of March 31, 1999, based on
an assumed initial public offering price of $ per share would have been $
or $ per share of common stock. This represents an immediate increase in net
tangible book value of $ per share to existing stockholders and an immediate
dilution of net tangible book value of $ per share to you. The following
table illustrates this dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share of common stock.. $
Net tangible book value per share of common stock as of March 31,
1999............................................................ $
Decrease per share of common stock attributable to vesting upon
consummation of the offering....................................
Increase per share of common stock attributable to new investors.
----
Pro forma net tangible book value per share as of March 31, 1999
after giving effect to the offering.............................
-----
Immediate dilution per share to new investors.................... $
=====
</TABLE>
The table below summarizes on a pro forma basis as of March 31, 1999, after
giving effect to the stock split and recapitalization and based on an assumed
initial public offering price of $ per share, the difference between our
existing stockholders and the new investors in the offering with respect to the
number of shares purchased from us, the total consideration paid and the
average price per share paid.
<TABLE>
<CAPTION>
Shares Total Average
Purchased Consideration Price
-------------- --------------- Per
Number Percent Amount Percent Share
------ ------- ------ ------- -------
<S> <C> <C> <C> <C> <C>
Existing shareholders.................. % $ % % $
New investors..........................
----- ----- ----- ----- -----
Total................................ 100.0% $ 100.0% $
===== ===== ===== ===== =====
</TABLE>
The tables above assume no exercise of outstanding options. As of April 1,
1999, there were 9,388 shares of common stock reserved for issuance upon
exercise of outstanding options at a weighted average exercise price of $1,247
per share. The tables above also assume no exercise of the underwriters' over-
allotment option. To the extent that any shares are issued in connection with
outstanding options or the underwriters' over-allotment option, you will
experience further dilution. See "Management" and "Underwriting."
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<PAGE>
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The selected consolidated financial data presented below for the seven month
period ended December 31, 1996, and as of and for the years ended December 31,
1997 and 1998, have been derived from our Consolidated Financial Statements and
the notes related thereto, which begin on page F-3 of this prospectus. Our
Consolidated Financial Statements for the seven-month period ended December 31,
1996 and as of and for the years ended December 31, 1997 and 1998 have been
audited by Arthur Andersen LLP, our independent auditors. The balance sheet
data as of December 31, 1996 has been derived from our audited consolidated
financial statements not included in this prospectus. The selected financial
data as of and for the three-month periods ended March 31, 1998 and 1999 have
been derived from our unaudited consolidated financial statements which, in the
opinion of management, include all adjustments, consisting of normal recurring
adjustments, necessary for a fair presentation of our financial condition and
results of operations for these periods. The results of operations for interim
periods are not necessarily indicative of full year results. You should read
the information in this table in conjunction with "Capitalization,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operation," "Business" and our Consolidated Financial Statements and the notes
related thereto, and the other financial data appearing elsewhere in this
prospectus.
<TABLE>
<CAPTION>
Period from
Commencement Three Months Ended
of Operations Years Ended December 31, March 31,
(May 31, 1996) to -------------------------- --------------------------
December 31, 1996 1997 1998 1998 1999
----------------- ------------ ------------ ------------ ------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenues................ $ -- $ 4,023,690 $ 43,531,846 $ 5,102,448 $ 26,003,897
Expenses:
Customer service and
network operations... -- 2,154,980 15,284,641 1,826,893 10,369,319
Selling, general and
administrative....... 421,777 2,887,372 12,209,821 1,307,625 5,665,896
Depreciation and
amortization......... 1,150 615,817 6,670,986 890,871 4,026,750
Non-cash compensation
expense.............. 108,333 1,300,000 3,069,553 325,000 397,410
---------- ------------ ------------ ------------ ------------
Operating income (loss). (531,260) (2,934,479) 6,296,845 752,059 5,544,522
Interest income
(expense), net......... 17,626 67,626 (9,605,832) (1,093,250) (4,097,502)
Provision for income
taxes.................. -- -- (4,660,000) -- --
Accretion to redemption
value of Class A common
stock.................. -- (103,565) -- -- --
---------- ------------ ------------ ------------ ------------
Net income (loss)
applicable to common
stockholders........... $ (513,634) $ (2,970,418) $ (7,968,987) $ (341,191) $ 1,447,020
========== ============ ============ ============ ============
Basic net income (loss)
per share.............. $ (30.22) $ (35.21) $ (91.05) $ (3.86) $ 16.46
========== ============ ============ ============ ============
Diluted net income
(loss) per share....... $ (30.22) $ (35.21) $ (91.05) $ (3.86) $ 14.44
========== ============ ============ ============ ============
Basic weighted average
common stock
outstanding............ 16,996 84,373 87,526 88,307 87,922
========== ============ ============ ============ ============
Diluted weighted average
common stock
outstanding............ 16,996 84,373 87,526 88,307 100,208
========== ============ ============ ============ ============
Other Financial Data:
EBITDA.................. $ (421,777) $ (1,018,662) $ 16,037,384 $ 1,967,930 $ 9,968,682
Capital expenditures.... 82,303 11,655,524 64,229,247 7,593,061 24,476,209
Summary Cash Flow Data:
Net cash provided by
(used in) operating
activities............. $ (152,576) $ (1,634,017) $ 22,596,957 $ 3,745,255 $ (1,304,626)
Net cash used in
investing activities... (82,303) (11,655,524) (72,189,187) (7,593,061) (23,977,119)
Net cash provided by
financing activities... 4,025,000 11,755,972 173,376,679 154,350,198 5,839,625
Operating Data:
Access lines in service. -- 7,394 52,011 14,528 70,572
Minutes of use
(millions)............. -- 282 3,568 402 2,033
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
As of December 31, As of March 31,
------------------------------------- -------------------------
1996 1997 1998 1998 1999
---------- ----------- ------------ ------------ ------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash, cash equivalents
and short-term
investments............ $3,790,121 $ 2,256,552 $134,000,941 $152,758,944 $114,059,731
Current assets.......... 3,807,004 4,737,808 144,637,266 158,404,803 131,184,638
Fixed assets, net....... 81,153 11,176,774 69,973,120 18,125,851 90,723,762
Total assets............ 3,888,157 15,914,582 219,574,280 182,228,022 226,571,111
Long-term debt,
including current
portion................ -- 3,536,886 185,295,793 152,093,513 195,545,892
Total stockholders'
equity (deficit)....... (404,954) (2,075,372) 19,328,412 24,111,655 21,714,695
</TABLE>
You should not assume that the results of operations above are indicative of
the financial results we can achieve in the future. You should also keep the
following matters in mind when you read this information:
. Non-cash compensation expense is a result of two different transactions
and consists of:
--charges totaling $0.1 million for 1996, $1.3 million for each of 1997
and 1998 and $0.3 million for each three-month period ended March 31,
1998 and 1999, which resulted from the vesting over time of shares of
common stock issued to some of our executive officers in November 1996
--charges of $1.8 million for 1998 and $0.1 million for the three
months ended March 31, 1999, which resulted from the vesting and
cancellation of shares of common stock in connection with the
September 30, 1998 amendment of vesting agreements with some of our
executive officers
. EBITDA represents earnings before interest, income taxes, depreciation
and amortization and other non-cash charges, including non-cash
compensation expense. EBITDA is not a measurement of financial
performance under generally accepted accounting principles, is not
intended to represent cash flow from operations, and should not be
considered as an alternative to net loss applicable to common
stockholders as an indicator of our operating performance or to cash
flows as a measure of liquidity. We believe that EBITDA is widely used
by analysts, investors and other interested parties in the
telecommunications industry. EBITDA is not necessarily comparable to
similarly titled measures for other companies. See "Consolidated
Financial Statements--Consolidated Statements of Cash Flows," on page F-
6.
. We count access lines as of the end of the period indicated and on a
one-for-one basis using DS-0 equivalents.
19
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
General. We provide data, voice and colocation services to large,
communications-intensive users in major cities. We began operations in 1996 and
initiated service first in Chicago in May 1997. We currently serve a total of
12 markets, which encompass a total of 31 metropolitan statistical areas, or
MSAs, and plan to serve 16 markets, or 42 MSAs, by the end of 1999 and 20
markets, or 50 MSAs, by the end of 2000. We believe our market expansion will
allow us to reach a critical mass of geographic coverage and service capability
for our target customer base of communications-intensive users. As of April 30,
1999, we had sold 99,826 access lines, of which 80,218 were installed and in
service.
Our operating results are expected to change over the next 15 months as a
result of several trends in our business and in the regulatory environment.
First, we anticipate that the mix of lines we sell will shift from being
dominated by ISP customer lines to being more evenly balanced among ISP,
corporate and VAR customer lines due to expanded marketing efforts. Second, we
expect our revenue from and margin on ISP lines to decline as our
interconnection agreements in each state in which we operate come up for
renewal. In response to these trends, we intend to emphasize the sale of new
products that leverage our network to maximize revenues per line and operating
margins. These products include high-speed access to the Internet and LANs
using DSL technology. Third, our continued expansion may result in negative
operating cash flow and operating losses for a period of time. If this occurs,
we expect to again produce positive operating cash flows once these trends
stabilize and operating activities in our newer markets are established and
mature. If, however, these trends do not stabilize or our operating activities
are not established or do not mature as expected, we may continue to sustain
negative operating cash flow and net losses.
Revenue. Our revenue is comprised of monthly recurring charges, usage
charges and initial, non-recurring charges. Monthly recurring charges include
the fees paid by our customers for lines in service, additional features on
those lines, and colocation space. Monthly recurring charges are derived only
from end user customers. Usage charges consist of fees paid by end users for
each call made, fees paid by the ILEC and other CLECs as reciprocal
compensation, and access charges paid by the IXCs for long distance traffic
that we originate and terminate. Non-recurring revenues are typically derived
from fees charged to install new customer lines.
We earn reciprocal compensation revenue for calls made by customers of
another local exchange carrier to our customers. Conversely, we incur
reciprocal compensation expense to other local exchange carriers for calls by
our customers to their customers. Reciprocal compensation has historically been
a significant component of our total revenue due to the preponderance of
inbound applications utilized by our customers. Reciprocal compensation
represented approximately 81% of total revenues in 1997, approximately 75% of
total revenues in 1998 and approximately 73% of total revenues in the first
quarter of 1999.
We expect the proportion of revenues represented by reciprocal compensation
to substantially decrease in the future as a result of the expiration and
subsequent renegotiation of our existing interconnection agreements with the
ILECs and as a result of our focus on increasing the percentage of our lines
that are sold to non-ISP customers. We expect the most significant impact of
the reduction in reciprocal compensation to occur when our existing
interconnection agreement with Ameritech Illinois, which expires during the
fourth quarter of 1999, is renegotiated. Although we expect to renew our
existing interconnection agreements on satisfactory terms, we expect that the
new agreements will result in lower negotiated interconnection rates for future
reciprocal compensation. Revenues from reciprocal compensation could also
decline as a result of adverse judicial or regulatory determinations. See
"Business--Regulation."
20
<PAGE>
We believe we can produce a positive return on capital despite a substantial
reduction in reciprocal compensation revenue resulting from lower rates for
reciprocal compensation. The table below represents 1998 fourth quarter
historical selected financial data for the Chicago market reflecting:
. actual results
. pro forma results with the reciprocal compensation rate adjusted
downward to $0.003 per minute from the current rate of $0.009 per minute
We cannot predict new rates at which reciprocal compensation payments will
be made or the types of traffic eligible for reciprocal compensation. These
rates may be more or less than the rates described in the table below. You
should not assume that the following results are indicative of results we can
achieve in the future.
<TABLE>
<CAPTION>
Pro Forma Results for the
Actual Results Fourth Quarter of 1998 with
For the Fourth the Reciprocal
Quarter of Compensation Rate of
Chicago 1998 $0.003 per Minute of Use
- ------- -------------- ---------------------------
(dollars in millions)
<S> <C> <C> <C>
Revenues......................... $12.9 $ 7.3
EBITDA(1)........................ $ 9.2 $ 3.6
EBITDA Margin.................... 71.4% 49.8%
</TABLE>
- --------
(1) EBITDA represents earnings before interest, income taxes, depreciation and
amortization and other non-cash charges, including non-cash compensation
expense. EBITDA is not a measurement of financial performance under
generally accepted accounting principles, is not intended to represent cash
flow from operations, and should not be considered as an alternative to net
loss applicable to common stockholders as an indicator of our operating
performance or to cash flows as a measure of our liquidity. We believe that
EBITDA is widely used by analysts, investors and other interested parties
in the telecommunications industry. EBITDA is not necessarily comparable to
similarly titled measures for other companies. See "Consolidated Financial
Statements--Consolidated Statements of Cash Flows."
Operating Expenses. Our operating expenses are categorized as customer
service and network operations, selling, general and administrative,
depreciation and amortization, and non-cash compensation expense. Settlement
costs are a significant portion of customer service and network operations
expense and are comprised of leased transport charges and reciprocal
compensation payments. Leased transport charges are the lease payments we make
for the use of fiber transport facilities connecting our customers to our
switches and for our connection to the ILECs' and other CLECs' networks. Our
strategy of initially leasing rather than building our own fiber transport
facilities has resulted in our cost of service being a significant component of
total costs. To date, we have been successful in negotiating lease agreements
that match the duration of our customer contracts, thereby allowing us to avoid
the risk of incurring expenses associated with transport facilities that are
not being used by revenue generating customers.
Historically leasing rather than building our transport network has resulted
in capital expenditures which we believe are lower than those of CLECs of
similar size that own their fiber networks. Our capital expenditures have been
driven by customer service demands and projected near-term revenue streams from
our established markets. In addition, we believe that the percentage of these
"success-based" capital expenditures is higher than those of fiber-based CLECs.
In contrast, we incur operating expenses for leased facilities that are
proportionately higher than those incurred by fiber-based CLECs. The margin
impact of these higher, anticipated operating expenses is expected to be
mitigated, in part, by a higher revenue per line, which we anticipate as a
result of our focus on communications-intensive users. In April and May 1999,
we entered into a number of agreements to use fiber transport facilities for a
combined minimum commitment of $87.9 million over five years. These commitments
will result in increased operating expenses for future periods, which we
believe should be more than offset by future revenues associated with new
services made possible, in part, by these agreements.
21
<PAGE>
Our business plan contemplates selected purchases of our own local fiber
transport capacity to further support our customer network and service demands.
We expect that our purchase of local fiber transport capacity as part of
developing our hybrid network will partially mitigate the increase in transport
expense previously discussed.
Other customer service and network operations expense consists of the costs
of operating our network and the costs of providing customer care activities.
Major components include wages, rent, power, equipment maintenance, supplies
and contract employees.
Selling, general and administrative expense consists of sales force
compensation and promotional expenses as well as the cost of corporate
activities related to regulatory, finance, human resources, legal, executive,
and other administrative activities. We expect our selling, general and
administrative expense to be lower as a percentage of revenue than that of our
competitors because we have relatively high sales productivity associated with
our strategy of serving communications-intensive customers. These customers
generally utilize a large number of switched access lines relative to the
average business customer, resulting in more revenue per sale. Further, fewer
sales representatives are required to service the relatively smaller number of
communications-intensive customers in a given region.
We record monthly non-cash compensation expense related to shares issued to
some of our executive officers in November 1996, and in connection with the
September 30, 1998 amendments to vesting agreements with some of our executive
officers. We will continue to record non-cash compensation expense in future
periods relating to these events through the third quarter of 2002. See Note 10
to our Consolidated Financial Statements.
Quarterly Results
The following table sets forth unaudited financial, operating and
statistical data for each of the specified quarters of 1998 and 1999. The
unaudited quarterly financial information has been prepared on the same basis
as our Consolidated Financial Statements and, in our opinion, contains all
normal recurring adjustments necessary to fairly state this information. The
operating results for any quarter are not necessarily indicative of results for
any future period.
<TABLE>
<CAPTION>
1998 1999
------------------------------------------------ -----------
First Second Third Fourth First
Quarter Quarter Quarter Quarter Quarter
---------- ---------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Revenues................ $5,102,448 $8,078,043 $12,755,293 $17,596,062 $26,003,897
EBITDA.................. $1,967,930 $3,326,828 $4,348,713 $ 6,393,913 $ 9,968,682
Lines sold to date...... 21,082 30,385 41,316 68,184 85,329
Lines in service to
date(1)................ 14,528 24,357 33,188 52,011 70,572
Estimated data lines (%
of installed lines).... 83% 81% 69% 71% 71%
Lines on switch (%)..... 100% 100% 100% 100% 100%
Customer lines colocated
(%).................... N/A N/A N/A N/A 48%
ILEC central offices
interconnected......... N/A 249 297 340 443
ILEC central office
colocations in service
and under development.. 0 0 0 0 23
Average monthly revenue
per line............... $155 $139 $148 $138 $141
Quarterly minutes of use
switched (in millions). 402 683 1,039 1,444 2,033
Markets in operation.... 2 2 6 10 12
MSAs served............. 6 6 13 29 31
Switches operational.... 2 2 4 6 7
Focal customer
colocation space in
service (square feet).. N/A 2,938 9,882 23,302 29,282
Capital expenditures (in
millions).............. $8 $13 $24 $21 $24
Employees............... 82 131 186 233 312
</TABLE>
- --------
(1) Does not include approximately 12,000 access lines in Boston that are being
managed by us on behalf of Level 3 Communications as a result of our
purchase of Level 3's switch in January of 1999. These lines are expected
to eventually migrate to Level 3's network.
22
<PAGE>
Although we have generated positive EBITDA in the most recent six quarters,
we anticipate that as a result of the recent operating and regulatory trends
described above, we may experience negative EBITDA for a period of time until
these trends stabilize and operating activities in our newer markets mature.
Three Months Ended March 31, 1999 Compared to Three Months Ended March 31,
1998
Total revenues for the three months ended March 31, 1999 were $26.0 million
compared to $5.1 million for the three months ended March 31, 1998. This $20.9
million increase is primarily due to our rapid growth in our Chicago and New
York markets. Customer service and network operations expenses totaled $10.4
million for the first quarter of 1999 compared to $1.8 million for the first
quarter of 1998. This increase resulted from our rapid expansion and related
costs for leased facilities, usage settlements, customer care and operational
personnel, equipment maintenance and other operating expenses. Selling, general
and administrative expense also increased due to our expansion from $1.3
million during the three months ended March 31, 1998 to $5.7 million during the
most recent three month period. Similarly, depreciation and amortization
increased from $0.9 million to $4.0 million in the comparative periods as a
result of a significant increase in the level of fixed assets we put into
service between April 1, 1998 and March 31, 1999. Non-cash compensation expense
was $0.4 million for the first quarter of 1999 compared to $0.3 million for the
first quarter of 1998. The increase in non-cash compensation expense is the
result of the September 30, 1998 amendments of vesting agreements with some of
our executive officers.
Interest income increased from $1.0 million in the three months ended March
31, 1998, to $1.3 million in the three months ended March 31, 1999 due to our
receiving interest income from the Notes proceeds for only half of the first
quarter of 1998. Interest expense increased from $2.1 million in the first
quarter of 1998 to $5.4 million in the first quarter of 1999. This increase is
due to an additional $2.9 million of amortization of our Notes and $0.4 million
of interest expense on our secured equipment term loan that was entered into
during December 1998. Interest on the Notes is not payable in cash until August
2003.
Year Ended December 31, 1998 Compared to Year Ended December 31, 1997
Total revenues for 1998 were $43.5 million compared to $4.0 million for
1997. The significant increase is due to the rapid growth in our Chicago and
New York markets during 1998 and the fact that service was first initiated in
Chicago in May 1997. Customer service and network operations expense was $15.3
million in 1998 compared to $2.2 million during 1997. The increase resulted
from our rapid expansion and the related costs of leased facilities, usage
settlements, customer care and operations personnel, equipment maintenance and
other operating expenses. Selling, general and administrative expense also
increased from $2.9 million for 1997 to $12.2 million for 1998 due to our
expansion. Similarly, depreciation and amortization increased from $0.6 million
in 1997 to $6.7 million in 1998 as a result of a significant increase in the
level of fixed assets put into service. Non-cash compensation expense
associated with the vesting over time of shares of common stock issued to some
of our executive officers in November 1996, and the vesting and cancellation of
shares of common stock in connection with the September 30, 1998 amendments to
vesting agreements with some of our executive officers, was $3.1 million for
1998 compared to $1.3 million for 1997. The increase of $1.8 million is due to
the September 30, 1998 amendment to these vesting agreements.
Interest income increased from $0.2 million in 1997 to $6.5 million for 1998
due primarily to the investment of the proceeds received in February 1998 from
the sale of the Notes. Interest expense for 1998 was $16.1 million compared to
$0.1 million for 1997. The increase is primarily due to the amortization of the
discount on the Notes.
Year Ended December 31, 1997 Compared to Seven-Month Period Ended December 31,
1996
We had total revenues of $4.0 million in 1997. We had no revenues in 1996.
The increase is due to the recording of our first revenue during May 1997.
Prior to May 1997, we incurred start-up and operating
23
<PAGE>
expenses in advance of revenue as we prepared to launch our network services in
the Chicago market. Customer service and network operations expense increased
from zero in 1996 to $2.2 million in 1997. There were no customer service or
network activities during 1996. Such activities began as we initiated
construction of our first network in January 1997 and as we began to provide
service in May 1997. Selling, general and administrative expense increased from
$0.4 million in 1996 to $2.9 million in 1997, largely due to a rapid increase
in sales and administrative personnel in 1997. Depreciation and amortization
increased from near zero in 1996 to $0.6 million in 1997 due to the increase in
assets put into service during 1997. Non-cash compensation expense associated
with certain shares issued to some of our executive officers in November 1996
increased from $0.1 million in 1996 to $1.3 million in 1997 based on a full
year's impact of this expense during 1997 as compared to one month of non-cash
compensation expense during 1996.
Interest income increased from $0.02 million in 1996 to $0.2 million in 1997
as a result of significantly greater cash balances we maintained after
receiving additional equity contributions during 1997. Interest expense was
$0.1 million in 1997 due to debt financing incurred by one of our subsidiaries.
We did not have any interest expense during 1996.
Liquidity and Capital Resources
We intend to continue to increase our coverage of major U.S. cities by
expanding our services to four additional markets in 1999 and another four
markets in 2000. This business plan will require that we expand our existing
networks and services, deploy our own fiber capacity in a majority of our
markets and fund our initial operating losses. We will require significant
capital to fund the purchase and installation of telecommunications switches,
equipment, infrastructure and fiber facilities and/or long-term rights to use
fiber transport capacity. The implementation of this plan requires significant
capital expenditures, a substantial portion of which will be incurred before
significant related revenues from our new markets are expected to be realized.
These expenditures, together with associated early operating expenses, may
result in our having substantial negative operating cash flow and substantial
net operating losses for the foreseeable future, including in 1999 and 2000.
Although we believe that our cost estimates and the scope and timing of our
build-out are reasonable, we cannot assure you that actual costs or the timing
of the expenditures, or that the scope and timing of our build-out, will be
consistent with current estimates.
Our capital expenditures were approximately $11.7 million in 1997, $64.2
million in 1998 and $24.5 million for the first quarter of 1999, primarily
reflecting capital spending for the build-out of 17 of 20 of our markets,
including the $7.7 million acquisition of network assets and associated
infrastructure from Level 3 Communications for our Boston market. We estimate
that our capital expenditures in connection with our business plan will be
approximately $125 million for the remainder of 1999. The 1999 expenditures are
expected to be made primarily for the build-out of additional markets, the
expansion of our existing markets and services, including high-speed data
services, and the purchase of local fiber transport capacity in a majority of
our markets.
We estimate that the implementation of our business plan, as currently
contemplated, including the remaining 1999 capital expenditures previously
described, operating losses in newer markets and working capital needs, will
require approximately $230 million from April 1, 1999 through the third quarter
of 2000. Upon completion of this offering, we will have pre-funded these
capital requirements with cash, cash equivalents and short-term investments
currently on hand, borrowing capacity under our $50 million equipment term loan
facility (described below), anticipated cash flows from future operations and
the net proceeds from this offering.
Our expectations of our future capital requirements and cash flows from
operations are based on current estimates. If our plans or assumptions change
or prove to be inaccurate, we may be required to seek additional sources of
capital or seek additional capital sooner than currently anticipated. We may
also choose to raise additional capital to take advantage of favorable
conditions in the capital markets. See "Risk Factors--Significant Capital
Requirements" and "--Substantial Debt."
24
<PAGE>
Net cash used in operating activities was $0.2 million for the seven months
ended December 31, 1996 and $1.6 million for 1997. Net cash provided by
operations was $22.6 million in 1998, an increase of $24.2 million from 1997.
The increase is primarily due to an increase in non-cash reconciling items for
depreciation and amortization, non-cash compensation expense, amortization of
discount on the Notes and an increase in accounts payable and accrued
liabilities. Net cash used in operating activities for the three months ended
March 31, 1999 was $1.3 million, a decrease of $5.0 million from the same
period in 1998. This decrease is primarily the result of the $3.7 million in
income taxes we paid during the first quarter of 1999 and the increase in the
change in accounts receivable between comparable periods totaling $3.3 million,
which was offset by increased depreciation and amortization of $3.1 million
during the first quarter of 1999. Net cash used in investing activities was
$0.1 million for the seven months ended December 31, 1996, $11.7 million for
1997 and $72.2 million for 1998. The increase of $60.5 million from 1997
represents a $52.6 million increase in capital expenditures due to our 1998
expansion into new markets and the purchase of short-term investments of $8.0
million. Short-term investments primarily consist of debt securities, which
typically mature between three months and one year. Net cash used in investing
activities for the first quarter of 1999 was $24.0 million compared to $7.6
million in the first quarter of 1998. This increase of $16.4 million from the
first quarter of 1998 is primarily due to our build-out of additional markets
and includes the $7.7 million acquisition of network assets and associated
infrastructure from Level 3 Communications for our Boston market. Net cash
provided by financing activities consisted of $4.0 million for the seven months
ended December 31, 1996, $11.8 million in 1997 and $173.4 million in 1998. The
increase of $161.6 million from 1997 to 1998 is mainly the result of net
proceeds from the Notes offering of $143.9 million after $6.1 million in
issuance costs and $19.2 million in borrowings under a secured equipment term
loan facility (the "Credit Agreement") during 1998. Net cash provided by
financing activities for the first quarter of 1999 was $5.8 million, a decrease
of $148.5 million from the first quarter of 1998. This decrease is primarily
the result of our receipt of $144.1 million in net proceeds from the issuance
of Notes during the first quarter of 1998.
The Credit Agreement provides that NTFC Capital Corporation will make term
loans to us in an aggregate principal amount of up to $50 million. These loans
are to be used solely for the purchase of telecommunications equipment and
related software licenses. To secure the loans, we have granted NTFC a security
interest in the assets acquired with the loans. Loans must be repaid over a
five-year period from the date of the borrowing, which must be on or prior to
December 31, 1999. Principal and interest payments are due monthly, and
interest accrues based on the five-year swap rate, plus additional basis
points. Interest will accrue at a lower rate if we meet specified financial
tests. As of March 31, 1999, we had $24.5 million outstanding under this term
loan facility.
We have historically incurred net losses and have an accumulated deficit of
$11.3 million as of December 31, 1998 and $9.9 million as of March 31, 1999.
Most recently, we funded a large portion of our future operating losses and
capital expenditures through the 1998 offering of the Notes and by other
financings. On February 18, 1998, we received $150 million in gross proceeds
from the sale of the Notes. The Notes will accrete to an aggregate stated
principal amount of $270 million by February 15, 2003. As of March 31, 1999,
the principal amount of the Notes had accreted to approximately $171.1 million.
No interest is payable on the Notes prior to August 15, 2003. Thereafter, cash
interest will be payable semiannually on August 15 and February 15 of each
year.
Prior to the issuance of the Notes in February 1998, a substantial portion
of our funding needs was met through the private sale of equity securities. In
November 1996, we entered into a stock purchase agreement that provided for the
contribution over time of approximately $26.1 million of equity funding by a
group of investors. As of February 13, 1998, we had received the entire $26.1
million. In addition, in 1997, our Illinois subsidiary borrowed approximately
$3.5 million under a bank credit facility. We used a portion of the net
proceeds from the issuance of the Notes to repay this indebtedness and cancel
this facility.
Impact of the Year 2000 Issue
The year 2000 issue results from computer programs being written using two
digits rather than four to define the year. Any of our computer programs or
systems, or those of our suppliers, that have date-sensitive
25
<PAGE>
software may recognize a date using "00" as the year 1900 rather than the year
2000. This could result in a system failure or miscalculation causing
disruption of operations, including, among other things:
. A temporary inability to process transactions
. A temporary inability to send invoices
. A temporary inability to engage in normal business activities
. Interruptions of customer service
Our Year 2000 compliance program can be divided into several phases. These
phases include:
. Assessing our material information systems and hardware for Year 2000
readiness
. Assessing the Year 2000 readiness of third parties with whom we have
significant business relationships and on whose systems and hardware we
rely
. Contingency planning
As part of our internal assessment phase, we examined our material
information systems, including our DMS-500 SuperNode central office switches,
and hardware to determine whether these systems and hardware are Year 2000
compliant. However, we have not nor do we plan to identify, validate as
compliant or remediate integrated circuits in any other systems or hardware. We
have received assurances from all of our major software and hardware vendors
that the products we use are Year 2000 compliant in all material respects and
will function adequately after December 31, 1999.
Our services are also dependent on network systems and transport facilities
maintained by other carriers, including ILECs and IXCs. We are in the process
of assessing the Year 2000 compliance status of other carriers with whom we
have material relationships. Our assessment relies, without any independent
verification, on the statements and assumptions underlying the statements these
carriers have made in their periodic reports filed with the Securities and
Exchange Commission. The risks associated with the failure of these carriers'
systems or transport facilities include potential interruption of service,
including blocked calls and delayed call completion. Interruptions of this type
would heavily impact our customers and, if prolonged, could have a material
adverse effect on our business, financial condition or results of operations.
Because we currently lease 100% of our transport facilities, we are
dependent on the availability of fiber transport facilities owned by other
carriers. There are few, if any, contingency measures we can take if Year 2000
problems cause these carriers' facilities to fail. We lease transport
facilities from multiple carriers in each market in which we operate in an
attempt to provide redundancy and diversity in service. However, we cannot
assure you that there will not be multiple network failures in a particular
market. If our transport vendors experience facilities failures, our business
may be disrupted and we may suffer a material adverse effect.
To date, we have spent approximately $0.2 million on our Year 2000
compliance program. We expect future Year 2000 remediation expenditures to
total approximately $0.3 million. All of these costs will be expensed as they
are incurred.
We intend to continue our Year 2000 compliance assessment of our software.
If it comes to our attention that any of our software is not Year 2000
compliant, we intend to develop an action plan and further assess the risks of
non-compliance and the resources that would be required to resolve the problem.
We also intend to develop contingency plans to the extent we believe those
plans would be useful.
Based on our current schedule for completion of our Year 2000 compliance
program, we believe that our planning is adequate to secure Year 2000 readiness
of our critical systems. Nevertheless, Year 2000 readiness is subject to a
number of risks and uncertainties, some of which, like the readiness of other
carriers upon whom we rely, are out of our control. We are not able to predict
all the factors that could cause actual results to differ materially from our
current expectations about Year 2000 readiness. The cost of our Year 2000
compliance
26
<PAGE>
program is based upon our management's best estimate. At this time, we believe
that the major risks associated with an inability of our systems or software to
process Year 2000 data correctly are a system failure or miscalculation causing
a disruption of business activities or interruptions in customer service. If
we, or third parties with whom we have significant business relationships, fail
to achieve Year 2000 readiness with respect to critical systems, there could be
a material adverse effect on our business, financial condition or results of
operations. See "Risk Factors--Reliance on Leased Transport Facilities," "--
Relationship with ILECs" and
"--Year 2000 Compliance."
The discussions under "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contain forward-looking statements. Our
future performance is subject to a number of risks and uncertainties that could
cause actual results to differ substantially from our projections. Factors that
could impact the variability of future results include those described under
"Risk Factors."
Quantitative and Qualitative Disclosures about Market Risk
We are exposed to minimal market risks. We manage sensitivity of our results
of operations to these risks by maintaining a conservative investment
portfolio, which primarily consists of debt securities, typically maturing
within one year, and entering into long-term debt obligations with appropriate
pricing and terms. We do not hold or issue derivative, derivative commodity or
other financial instruments for trading purposes. Financial instruments held
for other than trading purposes do not impose a material market risk on us.
We are exposed to interest rate risk, as additional financing is
periodically needed due to the large operating losses and capital expenditures
associated with establishing and expanding our network coverage. The interest
rate that we will be able to obtain on debt financing will depend on market
conditions at that time, and may differ from the rates we have secured on our
current debt.
27
<PAGE>
BUSINESS
Introduction
We are a rapidly growing CLEC that provides data, voice and colocation
services to large corporations, ISPs and VARs in large metropolitan markets. We
began operations in 1996, initiated service first in Chicago in May 1997 and
currently offer service in the following 12 markets:
Chicago New York Philadelphia
San Francisco San Jose Oakland
Orange County, California Los Angeles Northern Virginia
Washington, D.C. Boston Northern New Jersey
As part of our expansion, we plan to offer services in the following eight
additional markets:
<TABLE>
<CAPTION>
By
December
31, 1999: By December 31, 2000:
--------- ---------------------
<S> <C>
Dallas Atlanta
Fort Worth Houston
Detroit Minneapolis
Seattle Cleveland
</TABLE>
When we complete our planned expansion, we will provide service in 20
markets, which encompass a total of 50 metropolitan statistical areas. As of
April 30, 1999, we had sold 99,826 access lines, of which 80,218 were installed
and in service. This compares to 68,184 lines sold and 52,011 lines installed
and in service as of December 31, 1998 and 13,411 lines sold and 7,394 lines
installed and in service as of December 31, 1997. Our primary objective is to
become the provider of choice of data and voice services to communications-
intensive customers in our markets.
A majority of our revenue is currently derived from the provision of
switched data services for our targeted customers. Due to customer demand, we
are deploying additional services such as high-speed data access using DSL
technology and nationwide networking using ATM technology. Once these services
are deployed, we believe we will have an advantage over other data and voice
CLECs offering these services due to our established relationships with some of
the largest corporate and ISP customers in the nation, our highly reliable
network, and our ability to package switched and high-speed data connections.
We also believe that by providing these data services, we will appeal to a
broader customer base.
We believe we were the first CLEC to employ the "smart-build" approach to
designing networks. As such, we own and operate our switches, and initially
lease, rather than own, transport capacity. Currently, we use leased facilities
for 100% of our transport requirements. However, based on the increase in
volume of customer traffic in some of our markets, we now believe it is
economically attractive for us to own a portion of our transport capacity. We
have signed an agreement with Level 3 Communications and are negotiating with
another company to acquire a combined minimum of 10,800 fiber miles of our own
local fiber transport capacity in 16 markets. By combining leased fiber
transport facilities with owned fiber capacity, we expect to be better able to
control these assets and generate stronger operating results.
To further develop our long distance service offerings, we have signed
agreements with a number of carriers under which we plan to lease approximately
10,000 DS-3 miles of fiber transport capacity connecting each of our existing
and planned markets. Using these facilities, we are developing a nationwide ATM
network to carry data and voice traffic. This will allow us to provide virtual
private network services for both data and voice. We also expect to price long
distance voice calls that remain on the Focal network as if they were local
calls using our FocaLINC service.
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<PAGE>
We also offer colocation services. Many of our ISP customers house their
equipment in colocation space we operate within our switching centers, and we
provide equipment management services to some of these customers. We currently
have over 64,000 square feet of secure and environmentally conditioned
colocation space available to our customers or under development. We believe
the proximity of existing and future colocation customers to our network as
well as the concentration of Internet traffic within our space will provide us
with an advantage in marketing additional services in the future.
We believe that our management and operations team has been critical to our
initial success and will continue to differentiate Focal from its competitors.
We have built a skilled and experienced management team with extensive prior
work experience at major telecommunications companies, such as MFS
Communications, Sprint, MCI WorldCom, AT&T and Ameritech.
We were incorporated in Delaware in June 1997 in connection with a Plan of
Reorganization and Agreement dated June 12, 1997, whereby we became the holding
company of Focal Communications Corporation of Illinois and each of its
subsidiaries.
Market Potential
We believe communications-intensive users in large metropolitan markets are
inadequately supplied with highly reliable, local data and voice services. We
also believe that these types of users will increasingly demand diversity in
local communications providers as they do in long distance and private-line
communications services.
As a result, we have chosen to initially do business only in large
metropolitan markets with a high concentration of communications-intensive
customers. We select our target geographical markets using several criteria:
. Sufficient market size
. Favorable state regulatory environment
. The existence of multiple fiber transport providers with extensive
networks
. The existence of, or ability to obtain, attractive interconnection
agreements with the ILEC
The market potential for CLECs is large and growing for both local switched
services and data communications. According to data published by the FCC, local
communications services in the United States in 1997 generated total revenues
of approximately $102 billion. While this represents total local service from
both residential and business customers, we estimate that approximately $44
billion, or 43%, of this revenue represented local switched service by
businesses. We also estimate that business usage will grow to $50 billion in
1999. A market study done by our management estimates that the total local
switched service from the business segment in the 20 large, metropolitan
markets in which we intend to offer service represents approximately 36% of
total business access lines in the nation and will generate approximately $18
billion in 1999.
Data communications is one of the fastest growing areas of the
telecommunications industry. According to Frost & Sullivan, the total U.S.
market for high-speed and switched data services will grow at an annual rate of
approximately 17% from $18 billion in 1997 to approximately $40 billion by
2002. The DSL portion of this market alone is expected to grow at an annual
rate of approximately 44% over the same time period. Much of the growth is
expected to result from increased demand for e-mail, web hosting services, e-
commerce, collaborative workflow and real-time video services and applications.
We estimate that the addressable market for high-speed and switched data
services in our targeted markets will be approximately $9 billion by the end of
1999.
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<PAGE>
The table below summarizes estimates from our market study regarding our
current and planned markets. You should be aware that, with the exception of
the "Operational Markets," the launch period shown in the second column is our
current estimate of when we will begin providing services in our planned
markets. These estimates are subject to change based upon numerous factors,
including timely performance by third party suppliers, receipt of required
regulatory approvals and financing, including completion of this offering. See
"Risk Factors--Management of Growth," "--Regulation," "--Reliance on Leased
Transport Facilities" and "--Relationship with ILECs."
<TABLE>
<CAPTION>
Estimated Addressable 1999 Market
Data(1)
--------------------------------------
Number of
Business Switched Revenue from
Launch Period Access Lines Local Business Calls
------------------- ----------------- --------------------
(dollars in
(in thousands) millions)
<S> <C> <C> <C>
Operational Markets:
Chicago, IL............. May 1997 1,899 $ 1,709
New York, NY............ January 1998 2,420 2,178
Philadelphia, PA........ September 1998 1,324 1,191
San Francisco, CA....... September 1998 589 530
San Jose, CA............ September 1998 361 325
Oakland, CA............. September 1998 521 469
Washington, D.C. ....... December 1998 1,481(2) 1,333(2)
Northern Virginia, VA... December 1998 -- (2) -- (2)
Los Angeles, CA......... December 1998 1,778 1,600
Orange County, CA....... December 1998 1,002 902
Northern New Jersey..... January 1999 1,275 1,147
Boston, MA.............. January 1999 1,306 1,176
Planned Markets:
Detroit, MI............. Second Quarter 1999 1,059 953
Seattle, WA............. Third Quarter 1999 699 629
Dallas, TX.............. Fourth Quarter 1999 774 697
Fort Worth, TX.......... Fourth Quarter 1999 299 269
Atlanta, GA............. First Quarter 2000 886 798
Houston, TX............. First Quarter 2000 935 841
Cleveland, OH........... Second Quarter 2000 786 707
Minneapolis, MN......... Third Quarter 2000 674 607
------ -------
Total:................ 20,068 $18,061
====== =======
</TABLE>
- --------
(1) This addressable market data does not include information for non-switched
data and voice services.
(2) Data for Northern Virginia is included in the data for Washington, D.C.
Strategy
Our objective is to become the provider of choice for data and voice
communications services to large, communications-intensive customers in our
target markets. The key elements of our strategy to achieve this objective are
discussed below.
. Leverage Current Customer Relationships--We orient the profile of our
sales teams and customer care processes to meet the very stringent
requirements of our target customer base of communications-intensive
users. As a result, we have built a customer base that includes a
substantial number of large, sophisticated companies and ISPs such as:
<TABLE>
<S> <C> <C> <C>
IBM Sony Citigroup United Airlines
E*Trade Merrill Lynch Mindspring PSINet
CompuServe Nortel Networks Sears Motorola
</TABLE>
We believe that this customer base of communications-intensive users
gives us an advantage in successfully marketing additional services.
Consequently, we plan to leverage the relationships we have built with
our customers and increase our share of their total communications
expenditures by expanding our service offerings and market coverage.
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<PAGE>
. Expand Data Service Offerings--The majority of our access lines are
utilized for switched data services. These typically involve dial-up
data calls utilizing modems for access to a corporate customer's LAN or
an ISP customer's remote access server. We believe we have developed an
excellent reputation among our customers as a provider of reliable
switched data services. Moreover, we believe a significant opportunity
exists with our targeted customers to successfully offer a wider array
of data services. We expect that home workers and Internet users will
increasingly seek higher speed access to their corporate LANs and the
Internet. As a result, we are currently developing high-speed LAN and
Internet access using DSL technology as well as private line data
services.
. Connect our Local Networks Nationally--We believe that the number and
types of services we can provide to communications-intensive customers
in major markets will be greatly enhanced if our networks in these
markets are interconnected. For example, we expect to sell long distance
calling between our markets for the price of a local phone call to those
customers who utilize our network in each market. In order to facilitate
this connectivity, we are developing a seamless, nationwide backbone
network based on ATM technology that will interconnect our switching and
colocation centers in the U.S. We expect this will give us the necessary
network platform to offer additional services such as virtual private
network and private line data and voice services.
. Design and Install a Highly Capital-Efficient Network. We believe we
have optimized our return on invested capital by initially leasing fiber
capacity and by making most of our capital expenditures in switching
facilities and information systems. Currently, we lease fiber from
multiple vendors in each of our markets. We believe that this strategy
has resulted in a lower, less risky capital investment than that of
other CLECs that build their own fiber facilities right away. Compared
to these other CLECs, a greater proportion of our ultimate capital
requirement is "success-based." As our market penetration and customer
base increases, we intend to purchase fiber transport capacity where it
is economically attractive, as illustrated by our recent agreement with
Level 3 Communications described below. Going forward, we believe that
our hybrid network, which will combine leased and owned transport
capacity, is the best way to balance capital efficiency and control of
network assets.
. Maximize Network Utilization through VARs. We provide service to VARs
such as managers of large multi-dwelling units and companies that market
bundled telecommunications services to small- and medium-sized
businesses. This VAR distribution channel enables us to increase the
number of access lines served by our networks, which further maximizes
network utilization.
Networks
We have installed Northern Telecom DMS-500 SuperNode digital central office
switches in each of our existing markets, and currently plan to deploy similar
switches in our additional markets. As we add customers in a market, it has
generally been cost-effective for us to use leased fiber transport capacity to
connect our customers to our network. We have initially leased local network
trunking facilities from the ILECs in each of our markets in order to connect
our switches to major ILEC central offices serving our central business
district and outlying areas of business concentrations. We have chosen to
design our networks using this "smart-build" approach, which involves
purchasing and maintaining our own switches while leasing our fiber transport
facilities on an as-needed basis. This provides us with added negotiating
leverage in obtaining favorable terms from transport providers and allows us to
offer our customers both redundancy and diversity. In addition, we have
designed our networks to maximize call completion and significantly reduce the
likelihood of blocked calls, which helps us satisfy the needs of our high-
volume customers. This smart-build approach is possible because there are
multiple vendors of local fiber transport facilities in each of our large
metropolitan markets, both current and planned. Our switch-based, leased
transport network architecture has allowed us to:
. Reduce the time and money required to launch a new market
. Minimize financial risk associated with under-utilized networks
. Generate revenue and cash flow more quickly
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<PAGE>
We have the flexibility to add or subtract leased local transport capacity
on an incremental basis with the addition or loss of customers. We believe that
the quantity of existing and planned fiber transport facilities available from
numerous carriers will be sufficient to satisfy our need for local leased
transport facilities and permit us to obtain these facilities at competitive
prices for the foreseeable future. The fiber transport providers in our current
and planned markets compete with each other for our business in order to
maximize the return on their fixed-asset networks, which enables us to obtain
competitive pricing. In addition, because each of our fiber transport capacity
providers is a common carrier, they are required to make their transport
services available to us on terms no less favorable than those provided to
similar customers.
Although we currently lease 100% of our transport facilities, we believe
that it is now economically attractive for us to own a portion of our local
transport capacity because of increased volumes of customer traffic between our
switches and specific ILEC central offices in some of our markets. We recently
signed an agreement with Level 3 Communications and are currently negotiating
an agreement with another carrier for the acquisition of indefeasible rights of
use, or IRUs, covering a combined minimum of 10,800 fiber miles of our own
local fiber transport capacity in 16 markets. Our agreement with Level 3
Communications provides us with an IRU for a specified number of fibers being
constructed or acquired by Level 3. The IRU in each covered market has a
twenty-year term and covers a total of approximately 8,300 fiber miles in our
Chicago, New York, Philadelphia, San Francisco, Los Angeles, Seattle and
Detroit markets. Under this agreement, we are required to pay fees totaling
approximately $18 million, payable in installments based upon the achievement
of construction and installation milestones. The Level 3 agreement also
requires us to pay nominal quarterly operations and maintenance fees based upon
the number of fiber route miles covered.
We have also employed a "smart-build" approach in developing our inter-city
strategy. Initially, we resold long distance transmission service by buying
minutes on a wholesale basis. Going forward, we have decided to lease fiber
optic transport capacity connecting our switches between each of our existing
and planned markets. We will therefore transport our calls from market to
market over our own network and terminate the calls either directly at our
customer's location or at the ILEC switch. For international calls, we have
negotiated agreements with various international carriers for termination of
our international calls throughout the world.
To implement our inter-city network, we have signed agreements with a number of
carriers under which we plan to lease approximately 10,000 DS-3 miles of fiber
transport capacity connecting each of our existing and planned markets. This
inter-city, DS-3 backbone network will initially be based on time division
multiplexing technology. Early in 2000, we plan to convert the inter-city
backbone to ATM technology. We believe the use of ATM switches will provide
greater flexibility in creating and managing both data and voice services over
the same physical network. Once these network elements are in place, we expect
to be able to price inter-city calls that remain on our network as if they were
local calls--a service we call FocaLINC. In addition, we expect to offer our
corporate customers nationwide, toll-free access to their LAN--a service we
call Virtual Office.
We recently executed a five-year private line service agreement with MCI
WorldCom providing for the lease of fiber transport capacity that will be used
to connect our existing and planned markets. Under this agreement, we have
agreed to pay total usage charges for private line services of at least $70
million in the aggregate over the five-year term, including existing private
lines used within our markets to provide local service. The usage charges are
payable as minimum annual volume commitments of $10 million in the first year,
$13.2 million in the second year and $15.6 million in each of the final three
years. If we terminate the agreement prior to the end of the five-year term, we
are required, with limited exceptions, to pay the difference between the
commitment for the relevant year and our actual usage charge, as well as 50% of
the commitment for each subsequent year of the five-year term.
In order to support high-speed access to corporate LANs and the Internet, we
are beginning in 1999 to deploy DSL technology in our key markets. We will seek
to obtain colocation space from the ILECs and install DSL access multiplexers,
or DSLAMs, in colocation cages in ILEC central offices located in densely
populated regions. Once installed, the DSLAMs will terminate into an ATM
switch. Using either leased transport or
32
<PAGE>
Focal's owned transport capacity, the ATM switches will be connected together
to form a wide-area ATM network, which will transport high-speed data from end
users to Focal's corporate and ISP customers. These customers will then manage
the flow of this traffic onto their corporate LANs or the Internet, as
appropriate.
We are a party to a products purchase agreement with Northern Telecom that
expires December 31, 2002. This agreement establishes favorable terms and
conditions for our purchase of Northern Telecom products, including switches,
related software and services. This contract requires us to place orders for
the delivery and installation of Northern Telecom products, including DMS-500
SuperNode central office switches, in a minimum aggregate amount over the term
of the agreement of $75 million, at pre-established prices. If we fail to meet
our minimum requirements on an annual basis, we are required to pay a specified
penalty based on the difference between our requirement and the amount actually
purchased.
We have also entered into a software license agreement with DPI/TFS, Inc.
under which we were granted a non-exclusive and non-transferable license to use
select DPI/TFS billing software. We paid an initial license fee and are
required to pay specified incremental use fees based on the number of access
lines for which we use the software. Unless terminated by us or DPI/TFS as
permitted by the agreement, the license is perpetual.
Products and Services
Data Services
Focal Virtual Office is designed to allow a corporate customer's employees
to dial-in to the corporate customer's local area network using a telephone
number in the employee's local calling area. This allows the employee to access
the local area network for the price of a local call and enables our corporate
customer to avoid the higher cost of maintaining region-wide 800 service for
local area network access. In addition, our Virtual Office customers are able
to use the Focal(TM) Finder service, an interactive tool placed on the
customer's web site that automatically provides a telecommuting employee with
the local calling number to be used for server access.
Focal Multi-Exchange Service, a variant of the Focal Virtual Office service
marketed to ISPs, allows an ISP's customers to cost-effectively access the
ISP's remote access servers. The combination of the multi-exchange service
capacity and our high level of customer care has resulted in strong demand for
our Multi-Exchange Service from ISPs.
We also offer our customers the ability to colocate equipment in our
switching and operations centers. Equipment colocation benefits the customer by
allowing it to inexpensively house its data equipment without having to
maintain secure, environmentally controlled space. In addition, customers that
colocate are eligible for special discounts on our monthly line rates. We also
offer them equipment maintenance services. These services are particularly
well-suited to our ISP customers, who frequently operate remote access servers
and routers in conjunction with our switched services. Currently, we have over
64,000 square feet of customer colocation space available or under development.
We are currently in the test phase of offering DSL access service to provide
high-speed, dedicated access to corporate LANs and the Internet. This service
will be marketed to each of our targeted customer segments-- large
corporations, ISPs and VARs. DSL service is or will be available in a variety
of speeds ranging from 144 kilobits per second to 52 megabits per second. In
addition to data traffic, we plan to offer voice services over DSL access lines
in the future. In this way, we can further leverage the investment in DSLAMs
and ATM switches to generate additional revenue per DSL line. We believe DSL
access service is a natural extension of the switched data services that we
have provided since inception.
With the purchase of our own fiber capacity, we believe we can offer both
intra-city and inter-city private line data services at attractive prices.
Consequently, we plan to more aggressively market private lines for data
applications to new and existing customers.
33
<PAGE>
Voice Services
Inbound Services. Our basic, inbound service allows for the completion of
calls to a new phone number we supply to our customer. Alternatively, local
number portability, or LNP, allows us to provide inbound services using a
customer's existing phone number. While LNP is occasionally unavailable and
cumbersome to implement, it permits us to serve customers without altering
their existing phone numbers. Consequently, we expect LNP to become
increasingly useful to us in taking existing business from our primary
competitors, the ILECs.
Direct inward dial service allows inbound calls to reach a particular
station on a customer's phone system without operator intervention. We market
direct inward dial service to our corporate customers as both a primary and
backup service. As a primary service, the customer uses Focal numbers where a
new line and number are needed, as when a customer hires a new employee. As a
backup service, we can implement an alternative numbering plan for the customer
in case the customer's primary service from the ILEC or another CLEC is
interrupted.
Outbound Services. Our basic outbound services allow local and toll calls to
be completed within a metropolitan region and long distance calls to be
completed worldwide. This direct outward dial service is utilized by end users
in several ways. As a primary service, a customer uses Focal as a replacement
for the ILEC in placing calls to destinations within the region. In our least
cost routing application, a customer can utilize our service in conjunction
with its existing ILEC service to route calls using whichever carrier is least
expensive for that particular type of call or time of day.
Other outbound applications include outbound 800 calling and long distance
overflow service. In order to encourage customers to use our service, we offer
customers an incentive for letting us provide their outbound 800 calls. In the
case of long distance overflow service, we act as a backup to the customer's
existing long distance carrier in order to optimize the number of direct,
special access lines installed from the customer's premises to the long
distance carrier's network.
Our FocaLINC service is designed to price inter-city calls that remain on
our network as if they were local calls. This product will provide a cost-
effective way for our customers in one market to make calls to their offices in
other Focal markets. We believe that FocaLINC will redefine local calling. This
service is still under development, and will not be commercially viable until
we have linked our various city networks with long-haul fiber capacity. We
have, however, signed agreements under which we plan to lease approximately
10,000 DS-3 miles of fiber transport capacity connecting each of our current
and planned markets.
All of the services described above are commonly provisioned over a high-
speed digital communications circuit called a T-1 facility and interface
directly with our customers' private branch exchange or other customer-owned
equipment. Direct interfacing averts our need to provide multiplexing
equipment, which combines a number of communications paths onto one path, at
the customer's location. This is possible due to the high call volume generated
by the large communications-intensive customers we target. Our ability to
directly interface with existing customer equipment further minimizes our
capital investment and maximizes our overall return on capital. We believe our
installation of DSL technology will allow us to more cost-effectively provision
T-1 facilities.
Advanced Services
CDR Express provides our VAR customers with automated delivery of daily call
detail records, or CDRs, via the Internet. This system enables these customers
to accurately bill their customers in a secure environment. CDR Express, as
well as some other Focal products, are located in Your Domain--a section of our
web site specifically dedicated to each customer. Your Domain enables our
customers to access their most recent invoices, call detail records and the
customer order entry forms. Your Domain is protected by a customer's user name
and password. Your Domain can also inform customers of new product offerings
being developed by us. Our Form View product, located in Your Domain, allows
our customers to download order forms and other important documents through the
Internet at their convenience.
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Focal FLOW is an outbound service marketed to VARs that need to be able to
switch outbound traffic among multiple long distance or international carriers.
We partition our central office switch so VARs can utilize the core switching
capability of our equipment at reasonable per minute or per port cost.
Sales and Marketing
Our primary objective is to satisfy the need for highly reliable
communications services for communications-intensive users in the large
metropolitan markets in which we operate by providing diverse, reliable and
sophisticated services. We believe that we have a competitive advantage in
satisfying this need since we are focused on delivering a specific set of
innovative services to our target customers.
Diversity. Focal provides diversity to communications-intensive users by
delivering highly reliable, local communications services as an alternative to
the ILEC. This type of diversity already exists in other areas of
communications services, such as long distance. Communications-intensive
customers clearly embrace the benefits of diversity, particularly because
redundancy minimizes the effects of facilities failures and maximizes
competitive pricing. As a result, most of our target customers typically have
multiple long distance providers, multiple equipment vendors and multiple local
private-line providers. Because of our focused strategy, we believe that we are
uniquely positioned to become the provider of choice for data and voice
communications services for large, communications-intensive corporate users,
VARs and ISPs. Our focused strategy is based on our ability to deliver the
superior level of diverse, reliable and sophisticated services that our
customers require.
Reliability. We provide reliable service to communications-intensive users,
who are highly sensitive to the potential effects of facilities failures, by
designing our networks around the same theme of diversity that we advocate for
our customers. Although local services are perceived as simple, basic services,
the delivery of highly reliable, local services requires sophisticated systems.
We have engineered our switching and transport networks to meet the demanding
traffic and reliability requirements of our target customers. Our network
strategy is based on developing and operating a robust, reliable, high-
throughput local network relative to the ILECs and other CLECs. Because we are
a relatively new entrant to the markets we serve, we must meet or exceed the
performance quality of the existing local networks in order to attract
communications-intensive users to our networks. Unlike smaller users that tend
to pre-qualify vendors based on price, we believe that communications-intensive
users choose vendors based on the performance of their networks, and
specifically, their reliability. As a result, the design and operation of our
network are key success factors in our business development process.
In choosing our equipment, we conducted extensive research to identify the
best hardware for the high-volume users that we serve. As a result of this
research, we selected Northern Telecom's DMS-500 SuperNode central office
switches, which we have engineered to reduce significantly the likelihood of
blocked calls and to maximize call completion. As such, our customers are
unlikely to find themselves unable to complete or receive calls due to
limitations inherent in our switches. We typically connect to a large number of
switches in the ILEC's network. As of March 31, 1999, we had connected to a
total of 443 ILEC switches. We believe this is a competitive advantage because
it increases call completion even if a portion of the ILEC's trunking network
becomes blocked. We optimize the configuration of our network by implementing
overflow routing between the ILEC's network and ours, where available. Because
the customer base of the ILECs and other CLECs is not typically as
communications-intensive as ours, we specifically engineered our network to
accommodate traffic volumes per customer far in excess of that which the ILECs
or other CLECs typically experience. We believe that our design is unique among
ILECs and CLECs and is attractive to our target customer base of
communications-intensive users. In addition, we enhance our reliability by
delivering service from our switches to customers over multiple fiber transport
systems.
We have also implemented safeguards in our network design to maximize
reliability. The DMS-500 SuperNode switch allows us to distribute customer
traffic across multiple bays of equipment, thus minimizing
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<PAGE>
the effects of any customer outage. In addition, these switches were engineered
by Northern Telecom with fully redundant processors and memory in the event of
a temporary failure. Our disaster prevention strategy includes service from
multiple power sources where available, on-site battery backup and diesel
generator power at each switching facility to protect against failures of our
electrical service.
Sophistication. Our target customers are knowledgeable, sophisticated buyers
of communications services that demand a high level of professionalism
throughout a vendor's organization. We believe that the technical
sophistication of our management and operations team has been a critical factor
in our initial success and will continue to differentiate us from our
competitors. Execution of our strategy of penetrating communications-intensive
accounts requires a well-experienced team of sales professionals. As a result,
attracting and retaining experienced sales professionals is important to our
overall success. Our sales professionals' compensation is structured to retain
these valuable employees through the grant of stock options and cash
compensation incentives based on our revenue and operating cash flow
objectives.
We divide our direct sales force into three groups:
. The data services group
. The corporate services group
. The telecom services group
The data services group is responsible for selling to information services
providers, including ISPs. We are able to offer several innovative services to
ISPs, such as environmentally conditioned colocation space, virtually non-
blocking switching and transport facilities and firm installation times. In
addition, our data services group emphasizes the fact that we do not offer our
own Internet access service, which makes us an attractive, non-competitive
service provider for ISPs. Servicing ISPs also maximizes our network
utilization by bringing traffic onto our network during periods, such as
evenings or weekends, when the network would otherwise be under-utilized.
The corporate services group is responsible for selling to large corporate
users. Our sales strategy for these corporate customers is to complement the
customer's service from the ILEC. Our initial sale to a corporate customer
typically involves installing incremental lines for specialized inbound
services, such as Virtual Office, or replacing only a limited number of
outbound lines. After we build the service relationship, we anticipate
increasing our overall penetration of the customer's local service. Over a
period of time, we hope to dominate a corporate customer's local switched
traffic. We emphasize the diversity, reliability and sophistication of our
services in order to earn our place as the local provider of choice for our
corporate customers.
The telecom services group markets directly to VARs and other carriers by
positioning us as a highly-reliable, responsive and cost-effective source of
wholesale local communications services. We believe a wide array of
communications service providers, including long distance companies, will seek
to provide bundled communications services in the large metropolitan markets we
target. We are well-positioned to be the provider of choice for re-bundled
local service. Because we do not intend to directly distribute our services to
residential or small- and medium-sized business customers, we believe that VARs
and other carriers looking to purchase the local service portion of their
bundled service offerings are more likely to purchase service from us rather
than from other ILECs or CLECs that compete with them.
Superior customer service is critical to achieving our goal of capturing
market share. We are continually enhancing our service approach, which utilizes
a trained team of customer sales and service representatives to coordinate
customer installation, billing and service. Comprehensive support systems are
also a critical component of our service delivery. We have installed systems
designed to address all aspects of our business, including service order,
network provisioning, end-user and carrier billing, and trouble reporting. The
efficiency of our operating processes contributes to our ability to rapidly
initiate service to new accounts. Our installation
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<PAGE>
desk follows a customer's order, ensuring the installation date is met.
Additionally, our customer sales representatives respond to all other customer
service inquiries, including billing questions and repair calls.
We believe automation of internal processes contributes to the overall
success of a service provider and that billing is a critical element of any
telephone company's operation. We deliver billing information in a number of
media besides paper, including electronic files and Internet inquiry. Our
Invoice Domain service allows customers to securely access and view their
monthly invoices over the Internet. In addition, this service allows customers
to download call detail records. Similarly, our VAR customers can download call
records on a daily basis through our secure web site. This allows them to
efficiently process invoices for their end-user customers.
Significant Relationships
Ameritech Illinois accounted for approximately 81% of our consolidated
revenues in 1997. Ameritech Illinois and Bell Atlantic New York accounted for
approximately 59% and 16%, and 51% and 22%, of our consolidated revenues in
1998 and for the three months ended March 31, 1999, respectively. The revenues
from these carriers in 1997, 1998 and the three months ended March 31, 1999 are
the result of interconnection agreements we have entered into with them that
provide for reciprocal compensation relating to the transport and termination
of communications traffic. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations" for further discussion regarding
reciprocal compensation. No other entities accounted for more than 10% of 1997
or 1998 revenues.
Competition
Portions of our industry are highly competitive. We face a variety of
existing and potential competitors, including:
. The ILECs in our current and target markets
. Other voice and data CLECs
. Long distance carriers
. Potential market entrants, including cable television companies,
electric utilities, microwave carriers, wireless telephone system
operators and private networks built by large end-users
Our primary competitor in each of our existing and planned markets is the
ILEC. Examples include BellSouth, Bell Atlantic, Ameritech, U S WEST, SBC and
GTE. These ILECs are generally required to file their prices with the state
regulatory agencies in their service areas. Any price changes must be reflected
in these filings. The ILECs have also generally been given the flexibility to
respond to competition with lower pricing. In most cases, proposals for lower
pricing must also be filed with the state utility commissions and the pricing
must be made available to similarly situated customers. We believe this
provides a disincentive for the ILECs to significantly vary or discount prices
even in competitive situations. However, as a CLEC, similar obligations apply
to us. See "--Regulation--State Regulation."
Some of the Regional Bell Operating Companies recently requested, among
other things, that the FCC relax regulation of their provision of advanced data
networks, which may also be used for voice traffic. While the FCC has denied
those requests, it has initiated a rule-making that is intended to establish
the procedures and safeguards necessary before these ILECs could, through
separate subsidiary companies, provide these services on a largely deregulated
basis. If adopted, these rules may provide additional opportunities for
competition from these ILECs. The FCC recently released an order addressing,
among other things, colocation rights of carriers offering advanced data
services, but deferred action on the separate subsidiary issue.
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<PAGE>
The ILECs offer a wider variety of services in a broader geographic area
than ours and have much greater resources than we do. This may encourage an
ILEC to subsidize the pricing for services with which we compete with the
profits of other services in which the ILEC remains the dominant provider. We
believe competition has limited the number of services dominated by ILECs. In
addition, state regulators have exercised their enforcement powers in a way
that makes it unlikely the ILECs would be able to successfully pursue this type
of protective pricing strategy for an extended period.
In addition to competition from ILECs, we also face competition from a
growing number of other CLECs. Although CLECs overall have only captured
approximately 5% of total revenue of the U.S. local telecommunications market,
we nevertheless compete to some extent with other CLECs in our customer
segments. There are typically several other CLECs competing in each
metropolitan market we serve or plan to enter. Examples of data and voice CLECs
in our markets include Allegiance Telecom, Covad Communications Group, MCI
WorldCom, NEXTLINK Communications, NorthPoint Communications Group, Rhythms
NetConnections and Teleport Communications Group, now a part of AT&T. In some
instances, these CLECs have resources greater than ours and offer a wider range
of services. Many of the CLECs in our markets target small- and medium-sized
business customers, which differs from our target customer base of large,
communications-intensive users.
In addition to ILECs and other CLECs, we are increasingly competing with
long distance carriers. A number of long distance carriers have introduced
local telecommunications services to compete with us and the ILECs. These
services include toll calling and other local calling services, which are often
packaged with the carrier's long distance service. While we do not believe the
packaging aspect of the service is particularly attractive to the
communications-intensive customers we target, large long distance carriers
enjoy certain competitive advantages due to their vast financial resources and
brand name recognition. In addition, we believe there is a risk the long
distance carriers may subsidize the pricing of their local services with
profits from long distance services. We anticipate that the entry of the
Regional Bell Operating Companies into the long distance market will reduce the
risk of this type of activity by reducing the profitability of the long
distance carrier's long distance minutes. Further, to the extent the long
distance carrier purchases our service on a wholesale basis and rebundles it at
a subsidized rate, we may benefit as the subsidized, wholesale service could
result in higher market penetration than we would otherwise have achieved. In
addition, we have displaced long distance carriers where the customer was
dissatisfied with the quality of the long distance carrier's local service. We
expect our reputation for exceptional service quality and customer care will
continue to result in us displacing the long distance carrier as the primary
alternative to the ILEC in competitive situations. In addition, we expect that
some of our recent and proposed service offerings, which enable long distance
calls to be priced like local calls, will increase our competitiveness.
For a description of how we compete, see "--Sales and Marketing."
Regulation
The following summary of regulatory developments and legislation is not
complete. It does not describe all present and proposed federal, state and
local regulation and legislation affecting the telecommunications industry.
Existing federal and state regulations are currently subject to judicial
proceedings, legislative hearings and administrative proposals that could
change, in varying degrees, the manner in which our industry operates. We
cannot predict the outcome of these proceedings or their impact on the
telecommunications industry or us.
Overview. Our services are subject to varying degrees of federal, state and
local regulation. The FCC exercises jurisdiction over all the facilities of,
and services offered by, telecommunications common carriers like us to the
extent we use our facilities to provide, originate or terminate interstate or
international communications. State regulatory commissions retain jurisdiction
over most of the same facilities and services to the extent they are used to
provide, originate or terminate intrastate communications. The decisions of
these regulatory bodies are often subject to judicial review, which makes it
difficult for us to predict outcomes in this area.
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<PAGE>
Federal Regulation. We must comply with the requirements of common carriage
under the Communications Act of 1934. Comprehensive amendments to the
Communications Act of 1934 were made by the Telecommunications Act of 1996,
referred to as the Telecom Act, which substantially altered both federal and
state regulation of the telecommunications industry. The purpose of this
legislation was to deregulate the telecommunications industry to a significant
degree, thereby fostering increased competition among carriers. Because
implementation of the Telecom Act is subject to numerous federal and state
policy rule-making and judicial review, we cannot predict with certainty what
its ultimate effect on us will be.
Under the Telecom Act, any entity may enter a telecommunications market,
subject to reasonable state safety, quality and consumer protection
regulations. The Telecom Act makes local markets accessible by requiring the
ILEC to permit interconnection to its network and establishing ILEC obligations
with respect to:
. Colocation of equipment. This allows companies like us to install and
maintain our own network equipment, including DSLAMs, ATM switches, and
fiber optic equipment, in ILEC central offices.
. Reciprocal compensation. This requires the ILECs and CLECs to compensate
each other for telecommunications traffic that originates on the network
of one carrier and is sent to the network of the other.
. Resale of service offerings. This requires the ILEC to establish
wholesale rates for services it provides to end-users at retail rates to
promote resale by CLECs.
. Interconnection. This requires the ILECs to permit their competitors to
interconnect with ILEC facilities at any technically feasible point in
the ILECs' networks.
. Access to unbundled network elements. This requires the ILECs to
unbundle and provide access to some components of their local service
network to other local service providers. Unbundled network elements are
portions of an ILEC's network, such as copper lines or "loops", that
CLECs can lease in order to build their own facilities networks.
. Number portability. This requires the ILECs and CLECs to allow a
customer to retain an existing phone number within the same local area
even if the customer changes telecommunications services providers. All
telecommunications carriers will be required to contribute to the shared
industry costs of number portability, with the first payments being due
in the fourth quarter of 1999.
. Dialing parity. This requires the ILECs and CLECs to establish dialing
parity so that customers do not perceive a quality difference between
networks when dialing.
. Access to rights-of-way. This requires the ILECs and CLECs to establish
non-discriminatory access to telephone poles, ducts, conduits and
rights-of-way.
ILECs are required to negotiate in good faith with other carriers that
request any or all of the arrangements discussed above. If a requesting carrier
is unable to reach agreement with the ILEC within a prescribed time, either
carrier may request arbitration by the applicable state commission. If an
agreement still cannot be reached, carriers are forced to abide by the
obligations established by the FCC and the applicable state commission.
We have entered into a number of interconnection agreements with the ILECs
in our markets and will enter into additional agreements as our build-out
progresses. We have existing interconnection agreements in each of our existing
markets and in several of our planned markets. Nine of the interconnection
agreements covering our existing markets, including the agreement covering
Chicago, expire in 1999. Five of the
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interconnection agreements covering our existing markets, including the
agreement covering New York, expire in 2000. The expiration of these agreements
will require that we negotiate new interconnection terms with the ILECs.
Pending conclusion of these negotiations, the existing interconnection
agreements should continue to govern the payment of reciprocal compensation and
other interconnection terms. See "Risk Factors--Internet-Related Reciprocal
Compensation" and "--Relationship with ILECs."
The FCC is charged with establishing guidelines to implement the Telecom
Act. In August 1996, the FCC released a decision, known as the Interconnection
Decision, that established rules for the interconnection requirements outlined
above and provided guidelines for interconnection agreements by state
commissions. The U.S. Court of Appeals for the Eighth Circuit vacated portions
of the Interconnection Decision. On January 25, 1999, the U.S. Supreme Court
reversed the Eighth Circuit and upheld the FCC's authority to issue regulations
governing pricing of unbundled network elements provided by the ILECs in
interconnection agreements, including regulations governing reciprocal
compensation, which are discussed in more detail below. In addition, the
Supreme Court affirmed an FCC rule that allows requesting carriers to "pick and
choose" the most attractive portions of existing interconnection agreements
with other carriers. The Supreme Court did not, however, address other
challenges raised about the FCC's rules at the Eighth Circuit because those
challenges were not decided by the Eighth Circuit. These challenges will have
to be addressed by the Eighth Circuit in light of the Supreme Court's decision.
In addition, the Supreme Court disagreed with the standard applied by the FCC
for determining whether an ILEC should be required to provide a competitor with
particular unbundled network elements. This issue will be addressed by the FCC
in a new rule-making proceeding that the FCC recently initiated.
The decisions of the Eighth Circuit and Supreme Court have not resolved the
uncertainty about the rules governing the pricing terms and conditions of
interconnection agreements. The Supreme Court's actions in particular may give
rise to the renegotiation of existing agreements. The ILECs may, as a result of
the Supreme Court reversal, seek to stop providing some unbundled elements.
Although state commissions continue to implement and enforce interconnection
agreements, the Supreme Court ruling and future FCC and court rulings may
affect these commissions' authority to implement or enforce interconnection
agreements or lead to additional rule-making by the FCC. The resulting
uncertainty makes it difficult to predict whether we will be able to continue
to rely on our existing interconnection agreements or have the ability to
negotiate acceptable interconnection agreements in the future.
In addition to requiring the ILECs to open their networks to competitors and
reducing the level of regulation applicable to CLECs, the Telecom Act also
reduces the level of regulation that applies to the ILECs, thereby increasing
their ability to respond quickly in a competitive market. For example, the FCC
has applied "streamlined" tariff regulation of the ILECs, which shortens the
requisite waiting period before which tariff changes may take effect. These
developments enable the ILECs to change rates more quickly in response to
competitive pressures. The FCC has also proposed heightened price flexibility
for the ILECs, subject to specified caps. If implemented, this flexibility may
decrease our ability to effectively compete with the ILECs in our markets.
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In March 1999, the FCC issued an order requiring ILECs to provide unbundled
loops and colocation on more favorable terms than had previously been
available. The order permits colocation of equipment that could be used to more
efficiently provide advanced data services such as high-speed DSL service, and
requires less expensive "cageless" colocation. In the March order, the FCC
deferred action on its previous proposal to permit ILECs to offer advanced data
services through separate affiliates, free from some of the obligations of the
Telecom Act. Permitting ILECs to provision data services through separate
affiliates with fewer regulatory requirements could have a material adverse
impact on our ability to compete in the data services sector. These areas of
regulation are subject to change through additional proceedings at the FCC or
judicial challenge.
The Telecom Act also gives the FCC authority to determine not to regulate
carriers if it believes regulation would not serve the public interest. The FCC
is charged with reviewing its regulations for continued relevance on a regular
basis. As a result of this mandate, a number of regulations that apply to CLECs
have been and may in the future continue to be eliminated. We cannot, however,
guarantee that any regulations that are now or will in the future be applicable
to us will be eliminated.
Reciprocal Compensation. We expect that reciprocal compensation payments
will make up a significant portion of our initial revenues in each of our
markets. Reciprocal compensation is the compensation paid by one carrier to
send particular calls to another carrier's network. Because a significant
portion of our customers typically receive more calls than they make, we expect
to receive more reciprocal compensation than we pay for calls that originate on
our networks. As a result of the current regulatory environment and several
trends in our business, which are discussed below, we expect our revenues from
reciprocal compensation to decline significantly.
Some ILECs have refused to pay reciprocal compensation charges that they
estimate are the result of inbound ISP traffic because they believe that this
type of traffic is outside the scope of existing interconnection agreements.
For example, Ameritech disputed a portion of the reciprocal compensation
charges billed to it by us, which it believes are related to Internet access
charges. In March of 1998, the Illinois Commerce Commission ruled in favor of
Focal and other CLECs regarding this dispute. In late March 1998, Ameritech
filed suit in the U.S. District Court for the Northern District of Illinois
seeking reversal of the earlier Commission order. Ameritech was granted a stay
of the Commission order while the appeal was considered, but in July 1998, the
court affirmed the Commission order. Ameritech then appealed the decision to
the U.S. Court of Appeals for the Seventh Circuit and was denied a stay while
the appeal is pending. In October 1998, Ameritech complied with the order and
we received payment for past reciprocal compensation charges that represent
substantially all of the disputed amounts. Reciprocal compensation payments
from Ameritech comprised approximately 81% of our revenues for the year ended
December 31, 1997 and payments from Ameritech and another ILEC comprised
approximately 75% and 73% of our revenues for the year ended December 31, 1998
and the three months ended March 31, 1999, respectively. Briefing in the
Seventh Circuit has been completed, but we cannot predict when the court will
make a final determination or what the outcome will be. Any determination by
the Seventh Circuit that Internet traffic is ineligible for reciprocal
compensation payments would have a material adverse effect on our business and
results of operations.
Some states in which our current and planned markets are located have
ordered the ILECs to pay reciprocal compensation for Internet-related calls. To
date, state commissions in the following states have ruled that reciprocal
compensation arrangements apply to ISP traffic:
<TABLE>
<S> <C> <C> <C>
Alabama Hawaii Nevada Texas
Arizona Idaho New York Utah
Arkansas Illinois North Carolina Virginia
California Indiana Ohio Washington
Colorado Maryland Oklahoma West Virginia
Connecticut Michigan Oregon Wisconsin
Florida Minnesota Pennsylvania
Georgia Missouri Tennessee
</TABLE>
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These rulings are presently on appeal to federal courts in a number of these
states. These states and states that have not yet addressed the issue may
determine that no reciprocal compensation is due for calls made to ISPs. A
finding that reciprocal compensation is not payable for ISP traffic in
Illinois, New York or Pennsylvania would have a material adverse effect on us.
In addition, on February 26, 1999, the FCC issued a declaratory ruling and
Notice of Proposed Rulemaking concerning inbound ISP traffic. The FCC concluded
in its ruling that ISP traffic is jurisdictionally mixed and largely interstate
in nature, and thus within the FCC's jurisdiction. The FCC has requested
comment as to what reciprocal compensation rules should govern this traffic
upon expiration of existing interconnection agreements. The FCC also determined
that no federal rule existed that governed reciprocal compensation for ISP
traffic at the time existing interconnection agreements were negotiated and
concluded that it should permit states to determine whether reciprocal
compensation should be paid for calls to ISPs under existing interconnection
agreements. The FCC order has been appealed by several parties. No procedural
calendar has been established yet.
In light of the FCC's order, state commissions, which previously addressed
this issue and required reciprocal compensation to be paid for ISP traffic, may
reconsider and may modify their prior rulings. Several ILECs, including
Ameritech, are seeking to overturn prior orders that they claim are
inconsistent with the FCC's February 26, 1999 order. Relief sought could
include repayment of reciprocal compensation amounts previously paid by the
ILECs. In addition, at least one ILEC has already filed suit seeking a refund
from another carrier of reciprocal compensation the ILEC has paid to that
carrier. Bell Atlantic sought permission to escrow future reciprocal
compensation payments to CLECs in New York, but its request has been denied by
the New York Public Service Commission, which has opened an inquiry into this
issue that is expected to be completed in August of 1999. Bell Atlantic has
also informed us that it intends to unilaterally escrow these payments in two
smaller markets, New Jersey and Delaware, where the state agencies have not yet
taken final action. In addition, Bell Atlantic has notified us that it will
retroactively reduce its reciprocal compensation payments in New York based on
a reduction to the Bell Atlantic tariff ordered by the New York Public Service
Commission in a proceeding unrelated to the ISP reciprocal compensation issue.
We will vigorously challenge this reduction, which amounts to approximately $1
million, dating back to February 1998.
Upon expiration of our existing interconnection agreements, we must
negotiate new rates for reciprocal compensation with each carrier. Pending
conclusion of these negotiations, the existing interconnection agreements are
expected to continue to govern the payment of reciprocal compensation. Because
of the uncertainty surrounding reciprocal compensation in general and the FCC's
February 26th ruling and our need to renegotiate our existing interconnection
agreements in particular, we expect rates for reciprocal compensation will be
lower under new interconnection agreements than under our existing agreements.
A reduction in rates payable for reciprocal compensation could have a material
adverse effect on us, as could any requirement to refund reciprocal
compensation paid to date.
Tariff and Filing Requirements. Non-dominant carriers, including Focal, must
file tariffs with the FCC listing the rates, terms and conditions of interstate
and international services provided by the carrier. On October 29, 1996, the
FCC adopted an order in which it eliminated the requirement that non-dominant
interstate carriers maintain tariffs on file with the FCC for domestic
interstate services. The FCC's order was issued pursuant to authority granted
in the Telecom Act to forebear from regulating any telecommunications services
provider if specified statutory analyses are satisfied. The FCC's order,
however, has been stayed by a federal court. Accordingly, non-dominant
interstate carriers, including Focal, currently must continue to file
interstate tariffs with the FCC until final determination of the issue. Any
challenges to these tariffs by regulators or third parties could cause us to
incur substantial legal and administrative expenses.
In addition, periodic reports concerning carriers' interstate circuits and
deployment of network facilities also are required to be filed with the FCC.
The FCC generally does not exercise direct oversight over cost justification
and the level of charges for services of non-dominant carriers, although it has
the power to do so. The FCC may also impose prior approval requirements on
transfers of control and assignments of operating
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authorizations. Fines or other penalties also may be imposed for violations of
FCC rules or regulations. The FCC also requires that certified carriers like
Focal notify the FCC of foreign carrier affiliations and secure a determination
that such affiliations, if in excess of a specified amount, are in the public
interest.
State Regulation. Most states regulate entry into the markets for local
exchange and other intrastate services, and states' regulation of CLECs vary in
their regulatory intensity. The majority of states require that companies
seeking to provide local exchange and other intrastate services to apply for
and obtain the requisite authorization from a state regulatory body, such as a
state commission. This authorization process generally requires the carrier to
demonstrate that it has sufficient financial, technical and managerial
capabilities and that granting the authorization will serve the public
interest. As of May 1, 1999, we had obtained local exchange certification or
were otherwise authorized to provide local exchange service in:
California Illinois Michigan Texas
Delaware Indiana New Jersey Virginia
District of Columbia Maryland New York Washington
Florida Massachusetts Pennsylvania
We also had applications pending for local exchange certification or other
authorization in Georgia and Missouri. To the extent that an area within a
state in which we provide service is served by a small or rural exchange
carrier not currently subject to competition, we may not currently have
authority to provide service in those areas at this time.
As a CLEC, we are and will continue to be subject to the regulatory
directives of each state in which we are and will be certified. Most states
require that CLECs charge just and reasonable rates and not discriminate among
similarly situated customers. Some other state requirements include:
. The filing of periodic reports
. The payment of various regulatory fees and surcharges
. Compliance with service standards and consumer protection rules
States also often require prior approvals or notifications for certain
transfers of assets, customers, or ownership of a CLEC and for issuances by
certified carriers of equity securities, notes or indebtedness, although the
terms of this offering do not require any prior approval. States generally
retain the right to sanction a carrier or to revoke certifications if a carrier
violates relevant laws and/or regulations. Delays in receiving required
regulatory approvals could also have a material adverse effect on us. We cannot
assure you that regulators or third parties will not raise material issues with
regard to our compliance or non-compliance with applicable laws or regulations.
In most states, certificated carriers like us are required to file tariffs
setting forth the terms, conditions, and prices for services which are
classified as intrastate. In some states, the required tariff may list a range
of prices for particular services, and in others, such prices can be set on an
individual customer basis. We may, however, be required to file tariff addenda
of the contract terms.
Under the Telecom Act, implementation of our plans to compete in local
markets is and will continue to be, to a certain extent, controlled by the
individual states. The states in which we operate or intend to operate have
taken regulatory and legislative action to open local communications markets to
various degrees of local exchange competition.
Local Regulation. We are also subject to numerous local regulations, such as
building code requirements. These regulations may vary greatly from state to
state and from city to city.
Employees
As of April 30, 1999, we employed 327 full-time employees, none of whom were
covered by a collective bargaining agreement. We believe that our future
success will depend on our continued ability to attract and retain highly
skilled and qualified employees. We believe that our relations with our
employees are good.
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Properties
We lease office space in a number of locations, primarily for network
equipment installations and sales and administrative offices. Our material
leased switching and network properties are listed below:
<TABLE>
<CAPTION>
Square
Location Feet Lease Term
- -------- ------ ----------
<S> <C> <C>
Chicago, Illinois 57,511 June 2004
Chicago, Illinois 10,236 January 2006, with two five-year renewal options
New York, New York 15,196 May 2012, with one five-year renewal option
San Francisco,
California 20,151 July 2008, with two five-year renewal options
Philadelphia,
Pennsylvania 17,608 June 2008, with one thirty-month renewal option
Washington, D.C. 19,414 October 2013
Los Angeles,
California 19,199 January 2009
Southfield, Michigan 22,600 August 2008, with two five-year renewal options
Seattle, Washington 20,000 November 2008, with one five-year renewal option
Cambridge,
Massachusetts 13,274 December 2008, with two five-year renewal options
Dallas, Texas 19,249 June 2009, with two five-year renewal options
Atlanta, Georgia 23,609 May 2009, with two five-year renewal options
Jersey City, New
Jersey 18,500 February 2009, with two five-year renewal options
</TABLE>
A number of these locations also house sales and administrative offices. Our
corporate headquarters are located in one of our Chicago, Illinois facilities.
In addition, we have sales offices in New York and San Jose. We also own
approximately 13 acres of real property in Elk Grove Township, Illinois. This
property, which includes a 52,000 square foot building, houses our second
Chicago switching center, national data center and national network operations
center.
Legal and Administrative Proceedings
With the exception of the matters discussed below, we are not aware of any
litigation against us. In the ordinary course of our business, we are involved
in a number of regulatory proceedings before various state commissions and the
FCC.
On September 16, 1997, we filed a complaint and request for temporary
injunction against Ameritech Illinois with the Illinois Commerce Commission.
The complaint claimed breach of the terms of the interconnection agreement
between us and Ameritech Illinois because Ameritech Illinois refused to pay
reciprocal compensation for our transport and termination of calls to our end-
users that Ameritech Illinois believed were ISPs. In the interests of obtaining
a more timely judgment, we withdrew our complaint without prejudice on October
17, 1997 and filed to intervene in a consolidated suit that included similar
complaints against Ameritech Illinois by several other CLECs. On March 11,
1998, the Illinois Commerce Commission issued an order that required Ameritech
Illinois to pay reciprocal compensation for calls made to ISPs. On March 15,
1998, Ameritech Illinois filed a motion with the Illinois Commerce Commission
to stay the order pending an appeal, which was denied on March 23, 1998. On
March 27, 1998, Ameritech Illinois filed suit in the United States District
Court for the Northern District of Illinois seeking reversal of the Illinois
Commerce Commission order. Ameritech Illinois also sought a stay of this order
from the District Court, which was granted while the case was decided. On July
21, 1998, the District Court upheld the Illinois Commerce Commission's order,
finding that calls to ISPs are local calls and therefore subject to the
reciprocal compensation rules contained in the Telecom Act. The District Court
stayed the decision to permit any party to appeal. Ameritech Illinois then
appealed the decision to the U.S. Court of Appeals for the Seventh Circuit on
August 25, 1998, and was denied a stay while the appeal is pending. In October
1998, Ameritech Illinois complied with the order and we received payment for
past reciprocal compensation charges that represent substantially all of the
disputed amounts. Briefing in the Seventh Circuit has been completed, but we
cannot predict when the court will make a final determination or the outcome of
the Court's decision. Any
44
<PAGE>
determination by the Seventh Circuit that Internet traffic is ineligible for
reciprocal compensation payments would have a material adverse effect on our
business and our results of operations. See "Regulation" for a description of
federal rule-making and other developments affecting reciprocal compensation.
We were named as a defendant, along with other parties, in a case filed in
March 1998 in the Supreme Court of the State of New York, County of New York
involving the wrongful death of an electrician who died while working at our
leased premises in New York. The plaintiffs, the decedent's wife and his
estate, are seeking damages from the defendants of $20 million. The decedent
was not under contract with us, nor was he working at our request. We tendered
the defense of this claim to, and it has been accepted by, our insurance
carrier. The aggregate amount of our insurance coverage is $7 million. We do
not believe that we were the cause of the injuries and subsequent death that
gave rise to this lawsuit.
45
<PAGE>
MANAGEMENT
Executive Officers, Selected Key Employees and Directors
The table below contains information about the ages and positions of Focal's
executive officers, selected key employees, and directors, as of March 31,
1999.
<TABLE>
<CAPTION>
Name Age Position(s)
- ---- --- -----------
<S> <C> <C>
Robert C. Taylor, Jr.... 39 Director, President and Chief Executive Officer
John R. Barnicle........ 34 Director, Executive Vice President and Chief Operating Officer
Joseph A. Beatty........ 35 Executive Vice President and Chief Financial Officer
Brian F. Addy........... 34 Executive Vice President
Renee M. Martin......... 44 Senior Vice President, General Counsel and Secretary
Robert M. Junkroski..... 35 Vice President and Treasurer
Gregory J. Swanson...... 32 Controller
Leonard A. Dedo......... 46 Senior Vice President of Marketing and Alternate Channels
Richard J. Metzger...... 50 Vice President of Regulatory Affairs and Public Policy
James E. Crawford, III.. 53 Director
John A. Edwardson....... 49 Director
Paul J. Finnegan........ 46 Director
Richard D. Frisbie...... 49 Director
James N. Perry, Jr...... 38 Director
Paul G. Yovovich........ 45 Director
</TABLE>
Robert C. Taylor, Jr. Mr. Taylor has been our President and Chief Executive
Officer and a director since August 1996 and is a co-founder of Focal. From
1994 to 1996, Mr. Taylor was the Vice President of Global Accounts for MFS
Communications Corporation, a telecommunications company. At MFS Communications
he was responsible for the operations and management of the Global Services
Group, which included MFS Communications' fifty largest customers. He focused
on developing all activities in Mexico and Canada. From 1993 to 1994, Mr.
Taylor was one of the original senior executives at McLeod Telecommunications
Group, a Cedar Rapids, Iowa based CLEC. Mr. Taylor has also held management
positions with MCI Communications Corporation (1990-1993) and Ameritech (1985-
1990). Mr. Taylor also serves as the Vice Chairman of the Association for Local
Telecommunications Services, the national trade association for facilities-
based providers of competitive local telecommunications services. Mr. Taylor
received his M.B.A. from the University of Chicago Graduate School of Business
and holds a Bachelor of Science degree in Mechanical Engineering.
John R. Barnicle. Mr. Barnicle has been Executive Vice President and Chief
Operating Officer and a director since June 1996. Mr. Barnicle is a co-founder
of Focal and is responsible for day-to-day operations, engineering, marketing
and long-term planning. In 1996, Mr. Barnicle was Vice President of Marketing
for MFS Telecom Companies, a subsidiary of MFS Communications. From 1994 to
1996, Mr. Barnicle was a Vice President of Duff & Phelps Credit Rating Company
and before that held various marketing, operations and engineering positions
with MFS Telecom (1992-1994) and Centel Corporation, a local exchange carrier
(1986-1992). Mr. Barnicle received his M.B.A. with Distinction from DePaul
University and holds a Bachelor of Science degree in Electrical Engineering.
Joseph A. Beatty. Mr. Beatty has been Executive Vice President and Chief
Financial Officer since November 1996 and was also Treasurer from November 1996
through January 1999 and Secretary from November 1996 through April 1998. He
was also a director from May 1996 to November 1996. Mr. Beatty is a co-founder
of Focal and is responsible for all financial operations and information
systems. From 1994 to 1996, Mr. Beatty was a Vice President with NationsBanc
Capital Markets, where he was responsible for investment research coverage of
the telecommunications industry. From 1992 to 1994, Mr. Beatty was a Vice
President of
46
<PAGE>
Duff & Phelps Credit Rating Company with responsibility for credit ratings in
the telecommunications and electric utility sectors. From 1985 to 1992, Mr.
Beatty held various technical management positions with Centel Corporation's
local exchange carrier division. Mr. Beatty received his M.B.A. with a
concentration in Finance from the University of Chicago Graduate School of
Business and is a Chartered Financial Analyst. In addition, Mr. Beatty holds a
Bachelor of Science degree in Electrical Engineering.
Brian F. Addy. Mr. Addy has been Executive Vice President since May 1996.
Mr. Addy is a co-founder of Focal and is responsible for our new market
evaluation and development opportunities. From 1996 to 1998, he led our sales
efforts. He was also a director from May 1996 to November 1996. From 1993 to
1996, Mr. Addy was a Vice President of ProLogis, formerly Security Capital
Industrial Trust, a real estate investment trust, where he was responsible for
acquisitions, development and national marketing. From 1986 to 1993, Mr. Addy
held various management positions with Centel Corporation's cellular, paging,
telephone and telephone systems operating units. Mr. Addy holds a Bachelor of
Science degree in Electrical Engineering.
Renee M. Martin. Ms. Martin has been Senior Vice President, General Counsel
and Secretary since March 1998. Ms. Martin is responsible for our legal,
regulatory, real estate and human resources functions. From 1984 to 1998, Ms.
Martin held various executive positions at Ameritech, most recently as Vice
President and General Counsel Small Business Services, where she directed
corporate legal resources to address contract negotiations, employment issues,
regulatory affairs and litigation, and managed outside legal counsel. From 1982
to 1984, Ms. Martin was an attorney at the law firm of Cook and Franke, S.C.
where she concentrated on general business and corporate law. Ms. Martin
received her J.D. from the University of Wisconsin and holds a Bachelor of Arts
degree in Journalism.
Robert M. Junkroski. Mr. Junkroski has been Vice President and Treasurer
since January 1999 and was Controller from January 1997 to January 1999. He is
responsible for all our accounting, revenue assurance, audit, cash and risk
management and customer credit functions. From 1995 to 1997, Mr. Junkroski was
Controller for Brambles Equipment Services, Inc., an equipment leasing company,
where he was responsible for establishing and maintaining the divisional
accounting, financial reporting and budgeting functions. From 1987 to 1995, Mr.
Junkroski was Controller for Focus Leasing Corporation, an equipment leasing
company, where he was responsible for the development and implementation of the
accounting and financial reporting functions of several emerging companies. Mr.
Junkroski is a Certified Public Accountant, received his M.B.A. with honors
from Roosevelt University concentrating in Finance and Accounting and holds a
Bachelor of Business Administration degree.
Gregory J. Swanson. Mr. Swanson has been Controller since January 1999 and
is our principal accounting officer. He is responsible for all internal and
external accounting and reporting functions. From June 1998 to December 1998,
Mr. Swanson was Director of External Reporting for Allegiance Corporation, a
health care manufacturing and distribution company. Before that he spent
approximately nine years at Arthur Andersen LLP, a public accounting firm,
where he was responsible for audit and business advisory services to technology
and manufacturing companies. Mr. Swanson is a Certified Public Accountant and
holds a Bachelor of Science degree in Accounting.
Leonard A. Dedo. Mr. Dedo has been Senior Vice President of Marketing and
Alternate Channels since November of 1998. Mr. Dedo is responsible for
marketing, product development, business analysis and public relations
activities. From January 1998 through October 1998, Mr. Dedo was Vice President
of Marketing for Billing Concepts Corporation, a billing solution provider for
the telecommunications industry. In 1997, Mr. Dedo was director of carrier
sales for MCI Communications Corporation. From 1985 to 1997, Mr. Dedo held
various executive management positions in sales, marketing and strategic
planning with MCI. Mr. Dedo received his Masters in Management from
Northwestern University. He also holds a Bachelor of Arts degree in Economics.
Richard J. Metzger. Mr. Metzger has been Vice President of Regulatory
Affairs and Public Policy since September 1998. From 1994 to 1998, he served as
General Counsel of the Association for Local
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<PAGE>
Telecommunications Services. From 1984 to 1993, he held various legal positions
with Ameritech including serving as Vice President and General Counsel of
Wisconsin Bell and Michigan Bell. From 1976 to 1984, he was an attorney at the
law firm of Sidley & Austin. Mr. Metzger received his J.D. from the University
of Chicago and holds a Bachelor of Arts degree in Philosophy of Science.
James E. Crawford, III. Mr. Crawford has served as a director of Focal since
November 1996. Since August 1992, he has been a general partner of Frontenac
Company, a venture capital firm. From February 1984 to August 1992, Mr.
Crawford was a general partner of William Blair Venture Management Co., the
general partner of William Blair Venture Partners III, a venture capital fund.
He was also a general partner of William Blair & Company, an investment bank
and brokerage firm affiliated with William Blair Venture Management Co., from
January 1987 to August 1992. Mr. Crawford serves as a director of Optika, Inc.,
Input Software, Inc., Allegiance Telecom and several private companies.
John A. Edwardson. Mr. Edwardson has served as a director of Focal since
February 1999. He has been President and Chief Executive Officer of Borg-Warner
Security Corp., a security services company, since March 1999. From 1994 to
1998, Mr. Edwardson was President of UAL Corporation, the holding company for
United Airlines and also served as UAL's Chief Operating Officer from April
1995 through September 1998. He previously was Executive Vice President and
Chief Financial Officer of Ameritech and held executive positions with
Northwest Airlines. Mr. Edwardson also serves as a director of Borg-Warner
Security Corp. and Household International, Inc.
Paul J. Finnegan. Mr. Finnegan has served as a director of Focal since
November 1996. Since January 1993, Mr. Finnegan has been Managing Director of
Madison Dearborn Partners, Inc., the general partner of Madison Dearborn.
Previously, he served in various positions at First Capital Corporation of
Chicago and its affiliates. Mr. Finnegan currently serves on the Board of
Trustees of The Skyline Fund and the Board of Directors or Managers, as
applicable, of CompleTel, LLC and Allegiance Telecom.
Richard D. Frisbie. Mr. Frisbie has served as a director of Focal since
November 1996. Mr. Frisbie is a founder and has been Managing Partner of
Battery Ventures since 1983. He is responsible for management of the Battery
Funds and focuses principally on communications opportunities. Mr. Frisbie
serves as a director of Allegiance Telecom and several private companies.
James N. Perry, Jr. Mr. Perry has been a director of Focal since November
1996. From January 1993 to January 1999, he served as Vice President of Madison
Dearborn Partners, Inc., and since January of 1999 has served as Managing
Director of Madison Dearborn Partners, Inc. Previously, Mr. Perry served in
various positions at First Capital Corporation of Chicago and its affiliates.
Mr. Perry currently serves as a director or manager, as applicable, of Clearnet
Communications, Inc., Omnipoint Corporation, CompleTel, LLC and Allegiance
Telecom.
Paul G. Yovovich. Mr. Yovovich has served as a director of Focal since March
1997. Mr. Yovovich served as President of Advance Ross Corporation, an
international transaction services and manufacturing company, from 1993 to
1996. He is a private investor. He served in several executive positions with
Centel Corporation from 1982 to 1992, where his last position was that of
President of its Central Telephone Company unit. Before joining Centel, he was
a Vice President in the investment banking unit of Dean Witter. Mr. Yovovich
also serves as a director of 3Com Corporation, APAC TeleServices, Inc., Van
Kampen Open End Funds, an investment company, Comarco, Inc. and several private
companies.
How Our Directors Are Elected
The Board of Directors presently consists of eight members. At present all
directors are elected annually and serve until the next annual meeting of
stockholders or until the election and qualification of their successors.
Effective upon completion of the offering, the Board of Directors will be
divided into three classes, as nearly equal in number as possible. Each
director will serve a three-year term and one class will be elected
48
<PAGE>
at each year's annual meeting of stockholders. Mr. Finnegan and Mr. Frisbie
will be in the class of directors whose term will expire at our 2000 annual
meeting of stockholders. Mr. Barnicle, Mr. Crawford and Mr. Yovovich will be in
the class of directors whose term will expire at our 2001 annual meeting of
stockholders. Mr. Edwardson, Mr. Perry and Mr. Taylor will be in the class of
directors whose term will expire at our 2002 annual meeting of stockholders. At
each annual meeting of stockholders, successors to the class of directors whose
terms expire at the meeting will be elected to serve for three-year terms and
until their successors are elected and qualified.
Our existing stockholders are parties to a Stockholders Agreement dated as
of November 27, 1996. Each stockholder has agreed to vote all of its shares so
that our Board of Directors will consist of:
. Two representatives of Madison Dearborn
. One representative of Frontenac
. One representative of Battery Ventures
. Two of Mr. Addy, Mr. Barnicle, Mr. Beatty or Mr. Taylor
. Two non-employee directors
Currently, Mr. Finnegan and Mr. Perry serve as the Madison Dearborn
representatives, Mr. Crawford serves as the Frontenac representative, Mr.
Frisbie serves as the Battery Ventures representative, Mr. Barnicle and Mr.
Taylor serve as the executive representatives and Mr. Edwardson and Mr.
Yovovich serve as the non-employee directors. The terms of the Stockholders
Agreement relating to election of directors will terminate upon completion of
the offering. Thereafter, each director will be elected by a plurality vote of
our stockholders.
Our Board Committees
The Board has established three committees. They are the:
. Compensation Committee
. Audit Committee
. Nominating Committee
The Compensation Committee establishes salaries, incentives and other forms
of compensation for our directors, executive officers and key employees and
administers our equity incentive plans and other incentive and benefit plans.
Upon completion of the offering, the members of the Compensation Committee will
be Mr. Crawford, Mr. Edwardson, Mr. Perry and Mr. Yovovich.
The Audit Committee oversees the work of our independent auditors, reviews
internal audit controls and evaluates conflict of interest issues. Upon
completion of the offering, the members of the Audit Committee will be Mr.
Edwardson, Mr. Finnegan and Mr. Yovovich.
The Nominating Committee identifies nominees to stand for election to our
Board of Directors. Upon completion of the offering, the members of the
Nominating Committee will be Mr. Taylor, Mr. Perry, Mr. Crawford and Mr.
Yovovich.
Compensation of Our Directors
Except for Mr. Edwardson and Mr. Yovovich, our directors do not currently
receive directors fees or other compensation for serving as directors or for
attending meetings of the Board of Directors or its committees. In April 1997,
Mr. Yovovich was granted an option to purchase 260 shares of our common stock
under our 1997 Plan. Ten percent of the shares covered by the option vested
immediately and an additional 15% of the shares vest every six months
thereafter. In January 1999, Mr. Yovovich was granted an additional option to
purchase
49
<PAGE>
40 shares of common stock under the 1997 Plan, which has the same vesting terms
as his earlier grant. In February 1999, Mr. Edwardson was granted an option
under our 1997 Plan to purchase 260 shares of our common stock on the same
vesting terms as the options previously granted to Mr. Yovovich. We reimburse
directors for out-of-pocket expenses incurred in connection with attendance at
meetings of the Board of Directors or committees of the Board of Directors.
Following the offering, we intend to pay our non-employee directors, other
than designees of our institutional investors, annual director compensation in
an amount and form to be determined by the Compensation Committee prior to
completion of the offering. All directors will continue to be reimbursed for
expenses incurred to attend Board of Directors or committee meetings. In
addition, each non-employee director may receive stock options or other equity
compensation under the Director Plan. See "--Director Plan."
Potential Conflicts of Interest of Some of Our Directors
In addition to serving as members of our Board of Directors, Mr. Crawford,
Mr. Finnegan, Mr. Frisbie and Mr. Perry each serve as directors of other
telecommunications services companies and other private companies. As a result,
these four directors may be subject to conflicts of interest during their
tenure on our Board of Directors. Accordingly, they may be periodically
required to inform us and the other companies to which they owe fiduciary
duties of financial or business opportunities. We do not currently have any
standard procedures for resolving potential conflicts of interest relating to
corporate opportunities or otherwise. Following completion of the offering,
conflict of interest issues will be resolved by our Audit Committee. Mr. Perry
will serve on the Audit Committee.
50
<PAGE>
Compensation of Our Executive Officers
The table below presents information about compensation earned by our Chief
Executive Officer and each of our four other most highly compensated executive
officers whose combined salary and bonus for 1998 exceeded $100,000 for
services rendered in all capacities for our last three fiscal years. The
officers listed in the following table are referred to as the Named Executive
Officers:
Summary Compensation Table
<TABLE>
<CAPTION>
Long-term Compensation
----------------------
Awards(1)
---------
Annual Compensation
Name and Principal -------------------- Securities Underlying All Other
Position Year Salary ($) Bonus ($) Options (#) Compensation (2)($)
- ------------------ ---- ---------- --------- --------------------- -------------------
<S> <C> <C> <C> <C> <C>
Robert C. Taylor, Jr.
Chief Executive Officer 1996 $ 20,000 $ -- -- $ --
1997 120,000 50,000 -- --
1998 150,000 100,000 -- --
John R. Barnicle
Chief Operating Officer 1996 $ 20,000 $ -- -- $ --
1997 120,000 47,000 -- --
1998 140,000 75,000 -- --
Joseph A. Beatty
Chief Financial Officer 1996 $ 20,000 $ -- -- $ --
1997 120,000 45,000 -- 25,000(2)
1998 140,000 75,000 --
Brian F. Addy
Executive Vice President
of
Market Development 1996 $ 20,000 $ -- -- $ --
1997 120,000 38,000 -- --
1998 125,000 50,000 -- --
Renee M. Martin
Senior Vice President
and General Counsel 1996 $ -- $ -- -- $ --
1997 -- -- -- --
1998 127,000 45,000 254 --
</TABLE>
- --------
(1) Does not include 5,000 shares of common stock issued to each of Mr. Taylor,
Mr. Barnicle, Mr. Beatty and Mr. Addy in 1996 that are subject to time-
vesting requirements set forth in their Employment Agreements, of which
1,000 shares vested in each of 1996, 1997 and 1998. The remaining 2,000
shares will vest in 1999, assuming completion of the offering. At the
assumed initial public offering price, these 2,000 shares are worth $ .
See "--Employment Agreements." Also does not include 3,677.885 shares of
common stock issued to each of Mr. Taylor, Mr. Barnicle, Mr. Beatty and Mr.
Addy in 1996 that were subject to performance-vesting requirements set
forth in their Vesting Agreements with some of our institutional investors.
Of these shares, 3,177.885 were canceled in connection with the September
30, 1998 amendments to the Vesting Agreements. The remaining 500 shares are
subject to time-vesting requirements set forth in Restricted Stock
Agreements signed at the time of the September 30, 1998 amendments to these
Vesting Agreements. Of these shares, 400 remain subject to future vesting
requirements. At the assumed initial public offering price, these 400
shares are worth $ . See "--Vesting Agreements." We do not
anticipate paying any dividends on any of these shares.
(2) Represents reimbursement of moving expenses.
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<PAGE>
Stock Option Grants
The table below provides information regarding stock options granted to the
Named Executive Officers during the year ended December 31, 1998. None of the
Named Executive Officers received stock appreciation rights, or SARs.
<TABLE>
<CAPTION>
Potential Realizable Value
at Assumed Annual Rates
of Stock Price Appreciation
Individual Grants(1) for Option Term(2)
-------------------------------------------------------- ----------------------------
% of Total
Number of Options
Securities Granted to Exercise or
Underlying Employees in Base Price
Name Options Granted Fiscal Year (per share) Expiration Date 5% 10%
- ---- --------------- ------------ ----------- --------------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Robert C. Taylor, Jr.... -- -- -- -- -- --
John R. Barnicle........ -- -- -- -- -- --
Joseph A. Beatty........ -- -- -- -- -- --
Brian F. Addy........... -- -- -- -- -- --
Renee M. Martin......... 134 2.2% $1,050 March 31, 2008 $ 88,485 $ 224,239
120 2.2% $1,500 August 20, 2008 $ 113,200 $ 286,874
</TABLE>
- --------
(1) The options granted to Ms. Martin were granted under the 1997 Plan (as
defined below). See "--1997 Plan." No stock option grants were made to any
of the Named Executive Officers in years prior to the year ended December
31, 1998. The 134 options were granted on April 1, 1998 and vest 25% on the
first anniversary of the date of grant and 12.5% every six months
thereafter. The 120 options were granted on August 21, 1998. Of these
options, 20% vested immediately and 10%, 15%, 20% and 35%, respectively,
will vest on the subsequent four anniversaries of the date of grant.
(2) Based on a ten-year option term and annual compounding, the 5% and 10%
calculations are set forth in compliance with the rules of the Securities
and Exchange Commission. The appreciation calculations do not take into
account any appreciation in the price of the common stock to date and are
not necessarily indicative of future values of stock options or the common
stock.
Exercise of Stock Options and Year-End Values
The following table sets forth information regarding the number and value of
unexercised stock options held by each of the Named Executive Officers as of
December 31, 1998. None of the Named Executive Officers exercised stock options
in 1998. None of the Named Executive Officers holds SARs.
<TABLE>
<CAPTION>
Value of
Unexercised In-
Number of the-Money
Unexercised Options ($) at
Options at Fiscal Year
Fiscal Year End End(2)
---------------- ----------------
Exercisable/ Exercisable/
Name Unexercisable(1) Unexercisable
- ---- ---------------- ----------------
<S> <C> <C>
Robert C. Taylor, Jr.......................... -- $ --
John R. Barnicle.............................. -- --
Joseph A. Beatty.............................. -- --
Brian F. Addy................................. -- --
Renee M. Martin............................... 24/230 $36,000/$345,000
</TABLE>
- --------
(1) These shares represent shares issuable pursuant to stock options granted
under our 1997 Plan. See "--1997 Plan."
(2) At December 31, 1998, an estimated market value of $1,500 per share of
common stock was used to determine the value of the in-the-money options.
At the assumed initial public offering price, the unexercisable options
would have a value equal to $ .
52
<PAGE>
1997 Plan
Our 1997 Non-Qualified Stock Option Plan (the "1997 Plan") permits our Board
of Directors broad discretion to grant non-qualified stock options to
directors, officers and other key employees. The total number of shares of
common stock that may be issued or transferred under the 1997 Plan may not
exceed 17,060 shares of common stock, subject to adjustment upon completion of
the stock split to be effected upon completion of this offering. The maximum
share number can also be adjusted if Focal undertakes a stock split, stock
dividend or other similar transactions. The Board of Directors determines who
will receive options and what the terms of the options will be. The terms that
the Board of Directors has discretion to determine include:
. The exercise price of the option
. Any vesting provisions, including whether accelerated vesting will occur
in connection with a Change in Control of Focal
. The term of the option, which cannot exceed 10 years
The option agreements between us and each existing optionee provide that,
upon the occurrence of a Change in Control, the portion of the option that
would have vested in the 12 month period following the Change in Control (if
the optionee remained employed by us during that period) will automatically
become vested as of the date of the Change in Control. In addition, if we
terminate the optionee's employment, actually or constructively, in connection
with or in anticipation of a Change in Control, or within two years after a
Change in Control, all of the optionee's remaining options will automatically
become vested and exercisable as of the date of termination.
"Change in Control" is defined under the 1997 Plan to mean any of the
following:
. a sale of all or substantially all of our assets or a merger or other
similar transaction involving us which results in less than a majority
of the voting power of the surviving corporation being held by the
holders of our common stock immediately prior to the transaction
. during any two year period, a majority of the Board of Directors
consists of persons who are not members of or have not been approved by
the incumbent Board of Directors
or
. the ownership or acquisition of 50% or more of our voting power (other
than by us, any employee benefit plan sponsored by us or Madison
Dearborn) by any person or group
Immediately prior to the offering, there will be options covering 9,388
shares of Focal's common stock outstanding under the 1997 Plan with a weighted
average exercise price of $1,247.
1998 Plan
We also have the 1998 Equity Performance and Incentive Plan (the "1998
Plan") that permits the Board of Directors to grant a variety of awards to
officers and other key employees. The Board of Directors can grant:
. Incentive and non-qualified stock options
. SARs, which are rights to receive an amount equal to a specified portion
of the increase in market value of a common stock over a specified
exercise price between the date of grant and the date of exercise
. Restricted shares, which involve the immediate transfer of shares of
common stock for the performance of services. Restricted shares must be
subject to a "substantial risk of forfeiture" within the meaning of
Section 83 of the Internal Revenue Code
. Deferred shares, which involve an agreement to deliver shares of common
stock in the future in consideration for the performance of services
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<PAGE>
. Performance shares, each of which is a bookkeeping unit equivalent to
one share of common stock
. Performance units, each of which is a bookkeeping unit equivalent to
$1.00
The total number of shares of common stock that may be issued or transferred
under the 1998 Plan may not exceed 11,500, and is dependent upon, among other
things, the number of shares issued, or reserved for issuance, under the 1997
Plan prior to completion of this offering. The maximum share number is subject
to adjustment in the event of a stock split, stock dividend or other similar
transactions.
The Board of Directors has broad discretion in granting and establishing the
terms of awards under the 1998 Plan. However, the 1998 Plan does contain the
following limitations:
. The total number of shares of common stock actually issued or
transferred upon the exercise of incentive stock options may not exceed
5,000 shares of common stock
. No individual can be granted in any calendar year options and stock
appreciation rights for more than 1,000 total shares of common stock
. The number of shares of common stock issued as restricted shares may not
exceed 2,500 shares
. No individual can be granted in any one calendar year performance shares
or performance units having a total maximum value in excess of
$5,000,000, as judged on the grant date
. The per share exercise price of options must be at least equal to the
per share market value on the date of grant
. The term of options may not be more than 10 years
. The amount to be paid to the holder of a stock appreciation right upon
exercise of that right may not exceed 100% of the difference between the
base price for the stock appreciation right and the market value per
share on the date of exercise
. Performance shares and performance units must specify performance
criteria which, if achieved, will result in payment. These awards must
also specify a minimum level of achievement and the method for
determining the amount of payment if the minimum level, but not the
maximum level, of achievement occurs
The broad discretion given to the Board of Directors includes the discretion
to:
. Provide for the payment of dividend equivalents to an optionee or holder
of deferred shares, performance shares or performance units or the
crediting of dividend equivalents against an option exercise price
. Determine any vesting terms of an award, including whether vesting will
accelerate in connection with a Change in Control
. Determine whether an optionee will automatically be granted an
additional option upon exercise of a first option and the terms of the
additional option
. Determine the terms upon which the forfeiture of restricted shares will
lapse
Under the 1998 Plan, the Board of Directors must establish performance
criteria for purposes of performance shares and performance units. The Board of
Directors may also specify performance criteria for stock options, stock
appreciation rights, restricted shares and dividend credits. Performance
criteria may be described in terms of either company-wide objectives or
objectives that are related to the performance of the individual participant or
a division, department, region or function within Focal. Performance criteria
applicable to any award to a participant who is, or is determined by the Board
of Directors likely to become, a "covered employee" within the meaning of
Section 162(m) of the Internal Revenue Code must be limited to specified levels
of, or growth in, one or more of the following criteria:
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. Market value of our stock
. Book value of our stock
. Market share of our business
. Operating profit
. Net income
. Cash flow
. Earnings, including earnings before interest, taxes, depreciation and
other non-cash items
. Debt/capital ratio
. Return on capital
. Return on equity
. Costs or expenses
. Net assets
. Return on assets
. Margins
. Earnings per share growth
. Revenue growth
. Product volume growth, including growth in lines in service or minutes
of use
. Total return to stockholders
Except where a modification would result in an award to a "covered employee" no
longer qualifying as performance-based compensation within the meaning of
Section 162(m) of the Internal Revenue Code, the Board of Directors may modify
a part or all of these performance criteria as it deems appropriate and
equitable in light of events and circumstances, such as changes in our
business, operations, corporate structure or capital structure.
The 1998 Plan will become effective on the date immediately prior to
completion of the offering. The Board of Directors may not grant awards under
the 1998 Plan after August 21, 2008.
No awards have been made under the 1998 Plan, and immediately following
completion of the offering, there will be no awards outstanding under the 1998
Plan.
Director Plan
We also have a 1998 Equity Plan for Non-Employee Directors that permits our
non-employee directors ("Non-Employee Directors") who are not employees,
representatives or affiliates of any of Madison Dearborn, Frontenac or Battery
Ventures (collectively, the " Institutional Investors") to elect to receive all
or a portion of their compensation as directors in the form of shares of common
stock. The Director Plan also permits us to issue to Non-Employee Directors
options to purchase shares of common stock.
Available Shares. The number of shares of common stock that may be issued or
transferred under the Director Plan, plus the number of shares of common stock
covered by outstanding awards, may not in the aggregate exceed 300 shares. The
maximum number of shares may be adjusted if Focal undertakes a stock split,
stock dividend or other similar transactions.
Voluntary Shares. Each Non-Employee Director may elect to have up to 100
percent of his annual director compensation paid in the form of shares of
common stock ("Voluntary Shares") instead of cash. An election is irrevocable
until the end of that year. An election continues in effect for subsequent
calendar years, unless modified or revoked by another election.
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Voluntary Shares will be issued on a quarterly basis in arrears and will
have a value based on the market value per share of the common stock on the
last trading day of the applicable quarter. The total number of Voluntary
Shares to be issued will equal the amount of fees that would otherwise have
been payable to the Non-Employee Director in cash.
Discretionary Options. The Director Plan also permits the Board of Directors
to grant stock options to Non-Employee Directors. The Board of Directors will
determine the terms and conditions of options in accordance with the following
provisions:
. the per share exercise price of an option must be equal to or greater
than the market value per share on the date of grant
. each award must specify the type of consideration to be paid in
satisfaction of the exercise price and the manner of payment of such
consideration, which may be any combination of the following:
--in cash or by check acceptable to us
--by the tender to us of shares of common stock owned by the optionee
and having a total fair market value at the time of exercise equal to
the exercise price
--by delivery of irrevocable instructions to a financial institution or
broker to deliver promptly to us sale or loan proceeds with respect to
the shares sufficient to pay the total option exercise price
--through the written election of the optionee to have shares of common
stock withheld by us from the shares otherwise to be received, with
such withheld shares having an aggregate fair market value on the date
of exercise equal to the aggregate option exercise price of the shares
being purchased
Each discretionary option must provide conditions to be satisfied before the
option becomes exercisable in whole or in part. These conditions could include
a specified period of continuous service as a Non-Employee Director or
achievements of performance objectives.
No discretionary option right may have a term of more than ten years from
the date of grant.
Effective Date and Termination. The Director Plan will become effective on
the date immediately prior to completion of the offering. The Board of
Directors may not make awards under the Director Plan after August 21, 2008.
Effect of Termination of Directorships. If a Non-Employee Director who has
been granted options under the Director Plan is terminated due to death,
disability, hardship or other special circumstances, and his options are not
immediately and fully exercisable, the Board of Directors may, in its sole
discretion, take any action that it deems equitable under the circumstances or
in our best interests. These actions may include waiving or modifying any
limitation or requirement with respect to any award under the Director Plan.
No awards have been made under the Director Plan and immediately following
completion of the offering, there will be no awards outstanding under the
Director Plan.
Employment Agreements
Focal is a party to identical Executive Stock Agreement and Employment
Agreements ( "Employment Agreements") with each of Mr. Taylor, Mr. Barnicle,
Mr. Beatty and Mr. Addy (the "Executive Investors"). The Employment Agreements
provide that each Executive Investor will receive a minimum base salary of
$120,000 (or any greater amount approved by a majority of the Board of
Directors, including the Madison Dearborn designee and one of the Frontenac or
Battery Ventures designees) and bonuses determined by the Board of Directors
and based upon our achievement of performance goals set in advance of each year
in the sole discretion of the Board of Directors. Unless he is terminated for
cause, each Executive Investor is entitled for a period of between six and 12
months following termination of his employment with us (depending on the
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basis for termination) to continue to receive his salary and medical benefits,
less any amounts the Executive Investor receives as compensation for other
employment.
We entered into an employment agreement with Ms. Martin on March 20, 1998,
on substantially the same employment terms as the Executive Investors. Each
Employment Agreement and Ms. Martin's agreement also require the Executive
Investor or Ms. Martin, as applicable, to assign to us all inventions developed
in the course of employment, maintain the confidentiality of our proprietary
information and refrain from competing with and soliciting employees from Focal
during his or her employment and for a period of up to eighteen months after
his or her termination. During this period, after any applicable severance pay
period has expired, the Executive Investor or Ms. Martin, as applicable, is
entitled to receive noncompetition compensation equal to his or her salary and
medical benefits (net of any amounts he or she receives as compensation for
other employment), unless he or she breaches his or her non-disclosure, non-
compete or non-solicitation obligations.
Pursuant to the Employment Agreements and in exchange for shares of common
stock held by the Executive Investors prior to November 27, 1996:
. 5,000 shares of common stock subject to time-vesting requirements set
forth in the Employment Agreements were issued to each of the Executive
Investors on November 27, 1996
and
. 3,677.885 shares of common stock subject to performance-vesting
requirements set forth in the Vesting Agreements (as defined below) were
issued to each of the Executive Investors on November 27, 1996. Of these
shares, 3,177.885 were canceled in connection with the September 30,
1998 amendments to the Vesting Agreements. The remaining 500 shares are
subject to time-vesting requirements set forth in Restricted Stock
Agreements signed on September 30, 1998. See "--Vesting Agreements"
Of the 5,000 shares issued on November 27, 1996 that are subject to time-
vesting requirements under the Employment Agreements, 1,000 shares vested
immediately and the remaining shares vest in equal installments over a four
year period that commenced November 27, 1997 so long as the Executive Investor
remains employed by Focal. Pursuant to this schedule, 1,000 shares vested on
each of November 27, 1997 and 1998. Upon completion of the offering, 1,000
shares of the 2,000 shares that remain subject to vesting under the Employment
Agreements will immediately vest and the remaining 1,000 shares will vest on
November 27, 1999, if the Executive Investor remains in our employ. The
Employment Agreements also contain provisions that provide for partial
acceleration of vesting upon specific business combinations and total
acceleration of vesting upon other business combinations or the Executive
Investor's death or disability.
Each Employment Agreement further provides Focal and other existing
stockholders with rights (which will terminate with respect to vested shares of
common stock upon the completion of the offering) if the Executive Investor
ceases to be employed by Focal for any reason.
Vesting Agreements
Pursuant to the original terms of three separate Vesting Agreements (the
"Vesting Agreements"), each dated November 27, 1996, among Focal, the Executive
Investors and each of our Institutional Investors, each of the Executive
Investors was entitled to earn a number of shares of Class C common stock
equivalent to 3,677.885 shares of common stock if specified financial
performance criteria were satisfied. If any shares of Class C common stock
vested, an equal number of shares of Class A common stock held by the
Institutional Investors would be forfeited by the Institutional Investors.
Pursuant to amendments to the Vesting Agreements, on September 30, 1998, the
Vesting Agreements terminated and:
. The Institutional Investors collectively forfeited 5,000 shares of the
Class A common stock held by them prior to the stock split and
reorganization
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. The Executive Investors each forfeited 3,177.888 shares of Class C
common stock held by them (or a total of 12,711.54 shares for all
Executive Investors)
. 500 shares of Class C common stock held by each Executive Investor were
vested and converted to 500 shares of Class B common stock and became
subject to new time-vesting requirements based on periods of continuous
service with us (the "Restricted Shares"). Twenty percent of the
Restricted Shares immediately vested and the remaining Restricted Shares
will vest 10% on September 30, 1999, 15% on September 30, 2000, 20% on
September 30, 2001 and 35% on September 30, 2002. The Executive
Investors are entitled to voting, dividend and other ownership rights
with respect to the Restricted Shares, but the Restricted Shares are
subject to restrictions on transfer until they vest. Vesting of the
Restricted Shares is accelerated under specified circumstances,
including upon a Change in Control or the Executive Investor's death or
disability. Change in Control has the same definition as in the 1997
Plan
Compensation Committee Interlocks and Insider Participation
The Compensation Committee of the Board of Directors currently consists of
five directors, including Mr. Taylor, our President and Chief Executive
Officer. Upon the completion of the offering, the Compensation Committee of the
Board will consist of four directors, none of whom will be an executive
officer. All matters concerning executive compensation in 1998 were addressed
by the full Board of Directors, including Messrs. Taylor and Barnicle, who were
executive officers of Focal during 1998. None of our executive officers served
as a member of the compensation committee or as a director of any other entity.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The table below sets forth information regarding beneficial ownership of our
common stock as of May 1, 1999 for:
. Each of the Named Executive Officers
. Each of our directors
. All of our executive officers and directors as a group
. Each other person who we know beneficially owns 5% or more of our common
stock
All share amounts in the table have been adjusted to reflect the
recapitalization, but not the stock split. Unless otherwise noted, the address
of each Named Executive Officer and director of Focal is 200 North LaSalle
Street, Suite 1100, Chicago, Illinois 60601.
<TABLE>
<CAPTION>
Number of Shares Percent of Percent of
Name Beneficially Owned (1) Shares Before the Offering Shares After the Offering (2)
- ---- ---------------------- -------------------------- -----------------------------
<S> <C> <C> <C>
Named Executive Officers
Robert C. Taylor, Jr.
(3).................... 5,730.77 5.9% %
John R. Barnicle (4).... 5,591.77 5.7% %
Joseph A. Beatty (5).... 5,730.77 5.9% %
Brian F. Addy (6)....... 5,730.77 5.9% %
Renee M. Martin (7)..... 57.50 *
Directors
James N. Perry, Jr. (8). 43,212.85 44.2% %
Paul T. Finnegan (9).... 43,212.85 44.2% %
James E. Crawford III
(10)................... 20,165.96 20.6% %
Richard D. Frisbie (11). 10,082.73 10.3% %
Paul G. Yovovich (12)... 483.44 * %
John A. Edwardson (13).. 326.00 *
All Executive Officers
and Directors as a
Group (13 persons)
(14)................... 97,178.56 99.1% %
Other 5% Owners
Madison Dearborn Capital
Partnership, L.P. (15). 43,212.85 44.2% %
Frontenac VI, L.P. (16). 20,165.96 20.6% %
Battery Ventures III,
L.P. (17).............. 10,082.73 10.3% %
</TABLE>
- --------
* Less than 1% of the issued and outstanding shares of our common stock.
(1) In accordance with the rules of the Securities and Exchange Commission,
each beneficial owner's holding have been calculated assuming full
exercise of outstanding warrants and options exercisable by the holder
within 60 days after May 1, 1999, but no exercise of outstanding warrants
and options held by any other person. The table above assumes that the
over-allotment option is not exercised by the underwriters. Unless
otherwise indicated below, the persons and entities named in the table
have sole voting and sole investment power with respect to all shares
beneficially owned by them, subject to applicable community property laws.
(2) Assumes no exercise of the underwriters' over-allotment option.
(3) Includes 2,000 and 400 shares of common stock subject to vesting
provisions contained in the executive's Employment Agreement and the
Restricted Stock Agreements, respectively. See "Management--Employment
Agreements" and "--Vesting Agreements." Also includes 2,230.77
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shares of common stock held by Mistral Partners, L.P., a family limited
partnership. Mr. Taylor exercises sole voting and investment power over
shares held by this partnership.
(4) Includes 2,000 and 400 shares of common stock subject to vesting
provisions contained in the executive's Employment Agreement and the
Restricted Stock Agreements, respectively. See "Management--Employment
Agreements" and "--Vesting Agreements." Also includes 700 shares of
common stock held by JRB Partners, L.P., a family limited partnership.
Mr. Barnicle exercises sole voting and investment power over shares held
by this partnership.
(5) Includes 2,000 and 400 shares of common stock subject to vesting
provisions contained in the executive's Employment Agreement and the
Restricted Stock Agreements, respectively. See "Management--Employment
Agreements" and "--Vesting Agreements." Also includes 1,730 shares of
common stock held by Coventry Court Partners, L.P., a family limited
partnership. Mr. Beatty exercises sole voting and investment power over
shares held by this partnership.
(6) Includes 2,000 and 400 shares of common stock subject to vesting
provisions contained in the executive's Employment Agreement and the
Restricted Stock Agreements, respectively. See "Management--Employment
Agreements" and "--Vesting Agreements." Also includes 2,230.77 shares of
common stock held by Ad-Venture Capital Partners, L.P., a family limited
partnership. Mr. Addy exercises sole voting and investment power over
shares held by this partnership.
(7) Consists of shares of common stock subject to options which are
exercisable within 60 days of May 1, 1999.
(8) Mr. Perry, a director, owns no shares in his own name. Consists of shares
of common stock owned by Madison Dearborn. See footnote 15 below. Mr.
Perry's address is c/o Madison Dearborn Partners, Inc., Three First
National Plaza, Suite 3800, Chicago, IL 60602.
(9) Mr. Finnegan, a director, owns no shares in his own name. Consists of
shares of common stock owned by Madison Dearborn. See footnote 15 below.
Mr. Finnegan's address is c/o Madison Dearborn Partners, Inc., Three
First National Plaza, Suite 3800, Chicago, IL 60602.
(10) Mr. Crawford, a director, owns no shares in his own name. Consists of
shares of common stock owned by Frontenac. See footnote 16 below. Mr.
Crawford's address is c/o Frontenac Company, 135 S. LaSalle Street, Suite
3800, Chicago, IL 60603.
(11) Mr. Frisbie, a director, owns no shares in his own name. Consists of
shares of common stock owned by Battery. See footnote 17 below. Mr.
Frisbie's address is c/o Battery Ventures, 20 William Street, Wellesley,
MA 02481.
(12) Includes 297.437 shares of common stock and an additional 186 shares of
common stock subject to options which are exercisable within 60 days of
May 1, 1999.
(13) Includes 300 shares of common stock and an additional 26 shares of common
stock subject to options which are exercisable within 60 days of May 1,
1999.
(14) Includes 96,843.06 shares of common stock and an additional 335.5 shares
of common stock subject to options which are exercisable within 60 days
of May 1, 1999.
(15) Consists of shares of common stock owned by Madison Dearborn. Messrs.
Perry and Finnegan, directors of Focal, are principals of Madison
Dearborn Capital Partners, Inc., the general partner of Madison Dearborn.
Because of these positions, Messrs. Perry and Finnegan share voting and
investment power with respect to the shares owned by Madison Dearborn.
The address of Madison Dearborn is Three First National Plaza, Suite
3800, Chicago, IL 60602. See "Management--Potential Conflicts of Interest
of Some of Our Directors."
(16) Consists of shares of common stock owned by Frontenac. Mr. Crawford, a
director, is a general partner of Frontenac Company, the general partner
of Frontenac. Because of this position, Mr. Crawford shares voting and
investment power with respect to the shares owned by Frontenac. The
address of Frontenac is 135 S. LaSalle Street, Suite 3800, Chicago, IL
60603. See "Management--Potential Conflicts of Interest of Some of Our
Directors."
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(17) Consists of shares of common stock owned by Battery Ventures. Mr. Frisbie,
a director, is a managing general partner of Battery Ventures. Because of
this position, Mr. Frisbie shares voting and investment power with respect
to the shares owned by Battery Ventures. The address of Battery Ventures
is 20 William Street, Wellesley, MA 02481. See "Management--Potential
Conflicts of Interest of Some of Our Directors."
CERTAIN TRANSACTIONS
The Stock Purchase Agreement and Stockholders' Agreement
We have entered into a Stock Purchase Agreement with some of our
stockholders, dated as of November 27, 1996 and amended after that date.
Pursuant to the Stock Purchase Agreement and additional related agreements, our
existing stockholders were granted put rights, voting rights, and registration
rights described below and elsewhere in this prospectus.
The Stock Purchase Agreement contains standard representations and
warranties by Focal and affirmative and restrictive covenants and permits the
Institutional Investors to force us to liquidate after February 2003. Most of
the affirmative and restrictive covenants in the Stock Purchase Agreement and
the right to force liquidation will terminate upon the completion of the
offering. However, after completion of the offering, we will continue to be
required to:
. Deliver financial information to the Institutional Investors and certain
of their transferees in a private sale of shares of common stock
. Provide access by the Institutional Investors, and certain of their
transferees in a private sale of shares of common stock, to our physical
properties, books and records
. Comply with the periodic reporting requirements under the Securities
Exchange Act of 1934 to enable holders of "restricted shares" of common
stock to sell those shares of common stock pursuant to Rule 144 under
the Securities Act of 1933 or a short-form registration statement under
the Securities Act of 1933. See "Shares Eligible For Future Sale"
The Stockholders' Agreement contains provisions relating to:
. Election of our directors (see "Management--How Our Directors Are
Elected")
. Business combinations involving Focal
. Transfer restrictions and rights of first refusal and participation
related to sales of shares of common stock by existing stockholders
All of these provisions and restrictions, other than transfer restrictions
on unvested shares of common stock held by the Executive Investors, will
terminate upon completion of the offering.
See "Description of Our Capital Stock" for a more detailed discussion of the
various rights and restrictions affecting our common stock and our
stockholders. See "Management--Employment Agreements" and "--Vesting
Agreements" for a more detailed discussion of the various provisions of the
Employment Agreements and Vesting Agreements.
Registration Rights
Focal has granted registration rights to all existing holders of its common
stock. The existing holders of common stock have the benefit of the following
demand registration:
. Subject to minimum dollar amounts, Madison Dearborn may demand two
registrations on Form S-1
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. Frontenac and Battery may each demand one registration on Form S-1
. The holders of 8% of all shares of common stock subject to the
registration agreement, approximately 7,813.92 shares of common stock,
may demand an unlimited number of registrations on Form S-2 or Form S-3
In addition, our existing stockholders have unlimited "piggyback"
registration rights under which they have the right to request that we register
their shares of common stock whenever we register any of our securities under
the Securities Act of 1933 and the registration form to be used may be used for
the registration of their shares of common stock. These piggyback registration
rights will not, however, be available:
. If the piggyback registration is in connection with an underwritten
registration and the managing underwriter concludes that including
shares of common stock owned by holders of "piggyback" registration
rights would have an adverse impact on the marketing of the securities
to be sold in the underwritten offering
. For registrations undertaken because of a demand registration
Stock Purchases by Our Directors
In May 1997, Mr. Yovovich purchased 230.77 shares of common stock for a
purchase price of $75,000. In November 1998, he purchased an additional 66.67
shares of common stock for himself and members of his family for a purchase
price of $100,000. In March 1999, Mr. Edwardson purchased 300 shares of common
stock for a purchase price of $472,500.
Some of Our Directors are also Directors of our Competitors
Some of our directors, who serve as representatives of the Institutional
Investors, also serve on the boards of directors of companies with which we may
compete or enter into agreements. Specifically, Mr. Crawford, Mr. Finnegan, Mr.
Frisbie and Mr. Perry are directors of Allegiance Telecom, a Dallas-based CLEC.
Allegiance Telecom is one of our competitors. See "Management--Potential
Conflicts of Interest of Some of Our Directors."
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DESCRIPTION OF CAPITAL STOCK
Upon completion of the offering, Focal's authorized capital stock will
consist of 100,000,000 shares of common stock, $.01 par value per share, and
2,000,000 shares of preferred stock, $.01 par value per share. Giving effect to
the recapitalization to be completed upon completion of the offering, but
without giving effect to the stock split to be completed at that time,
immediately prior to the offering 97,764 shares of common stock will be issued
and outstanding, and no shares of preferred stock will be issued or
outstanding. The discussion set forth below describes our capital stock and our
certificate of incorporation and our by-laws that will be in effect upon
completion of the offering.
Common Stock
Holders of common stock are entitled to one vote per share on all matters to
be voted upon by the stockholders generally, including the election of
directors. Holders of common stock will be entitled to receive dividends, if
any, declared from time to time by the Board of Directors out of funds legally
available for dividends. If Focal is liquidated, dissolved or wound-up, holders
of common stock will share proportionately in all assets available for
distribution. However, dividend and distribution rights of holders of common
stock will be subject to the rights of any holders of any series of preferred
stock as described below. The holders of common stock have no preemptive or
conversion rights. The common stock does not have cumulative voting rights. As
a result, the holder or holders of more than half of the shares of common stock
voting for the election of directors can elect all directors being elected at
that time. All shares of common stock outstanding immediately following the
offering will be fully paid and will not be subject to further calls or
assessments. There are no redemption or sinking fund provisions applicable to
the common stock.
Preferred Stock
The certificate of incorporation gives our Board of Directors the authority,
without further stockholder action, to issue shares of preferred stock in one
or more series and to fix the relative powers, preferences, rights,
qualifications, limitations or restrictions of the preferred stock, including:
. Dividend rates
. Conversion rights
. Voting powers
. Terms of redemption
. Redemption prices
. Amounts payable upon liquidation
. The number of shares constituting any series or the designation of such
series
The issuance of preferred stock may have the effect of delaying, deferring
or preventing a change in control of Focal and may adversely affect the voting
and other rights of the holders of the common stock. These effects may include
the loss of voting control to others. We currently have no plans to issue any
shares of preferred stock.
Delaware Law and Anti-Takeover Provisions
Section 203 of the Delaware General Corporation Law. Upon completion of the
offering, we will be subject to the provisions of Section 203 of the Delaware
General Corporation Law. Section 203 provides that a Delaware corporation may
not engage in any of a broad range of business combinations with a person or
affiliate or associate of the person who is an interested stockholder for a
period of three years from the date that the person became an interested
stockholder, unless any of the following occurs:
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. the transaction resulting in a person's becoming an interested
stockholder, or the business combination, is approved by the Board of
Directors of the corporation before the person becomes an interested
stockholder
. the interested stockholder acquires 85% or more of the outstanding
voting stock of the corporation in the same transaction that makes the
person an interested stockholder, excluding shares owned by persons who
are both officers and directors of the corporation and shares held by
employee stock ownership plans
. on or after the date the person became an interested stockholder, the
business combination is approved by the corporation's board of
directions and by the holders of at least 66 2/3% of the corporation's
outstanding voting stock at a stockholder meeting, excluding shares by
the interested stockholder
An "interested stockholder" is defined as any person that is:
. The owner of 15% or more of the outstanding voting stock of the
corporation
. An affiliate or associate of the corporation and was the owner of 15% or
more of the outstanding voting stock of the corporation at any time
within the three-year period immediately prior to the date on which it
is sought to be determined whether the person is an interested
stockholder
Section 203 may have the effect of delaying, deferring or preventing a
change in control of Focal.
Classified Board of Directors. Following completion of the offering, our
Board of Directors will be divided into three classes of directors. Each class
will serve a staggered three-year term. As a result, approximately one-third of
the Board of Directors will be elected each year. Generally a director will
stand for election only once every three years. The Board of Directors believes
that a classified board will help to assure the continuity and stability of the
board and our business strategies and policies. The classified board provision
could have the effect, however, of discouraging a third party from making a
tender offer or otherwise attempting to obtain control of Focal, even though
the attempt might be beneficial to us and our stockholders. In addition, the
classified board provision could delay stockholders who do not agree with the
policies of the board from removing a majority of the board for two years.
Other Provisions. Following completion of the offering, the certificate of
incorporation and bylaws will provide, in general, that:
. the directors in office from time to time, or, if no directors remain in
office, our stockholders, will fill any vacancy or newly created
directorship on the Board of Directors, with any new director to serve
for the remaining term of the class of directors to which he or she is
elected
. directors may be removed by our stockholders only for cause and by a
vote of the holders of at least 66 2/3% of our stock entitled to vote
generally in the election of directors ("voting stock")
. special meetings of stockholders may be called only by the Board of
Directors or a committee of the Board of Directors expressly authorized
to call a special meeting and,the business permitted to be conducted at
a special meeting is limited to business brought before the meeting by
the Board of Directors
. election of directors and votes regarding amendments to the certificate
of incorporation or bylaws must be by written ballot
. stockholders may not act by written consent and must act on all
proposals at an annual or special meeting
The bylaws also require that stockholders wishing to bring any business,
including director nominations, before an annual meeting of stockholders
deliver written notice to us not later than 60 days or more than 90
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days prior to the date on which we first mailed our proxy materials for the
prior year's annual meeting of stockholders. If, however, our annual meeting is
set for a date that is not within 30 calendar days of the anniversary of the
prior year's meeting, notice by the stockholder must be delivered to us not
later than the close of business on the tenth day following the day on which we
publicly announce the date of our annual meeting. The bylaws further require
that the notice by the stockholder set forth, among other things:
. A description of the business to be brought before the meeting,
including information with respect to a nominated director
. The reasons for conducting the business at the meeting
. Specific information concerning the stockholder proposing the business
and the beneficial owner, if any, on whose behalf the proposal is made
The certificate of incorporation and bylaws provide that the provisions
summarized above and the provisions relating to the classification of the Board
of Directors may not be amended by our stockholders, nor may any provision
inconsistent therewith be adopted by our stockholders, without the affirmative
vote of the holders of at least 66 2/3% of Focal's voting stock, voting
together as a single class.
The foregoing provisions of the certificate of incorporation and bylaws
relating to removal of directors, special meetings of stockholders and advance
notice of stockholder proposals may discourage or make more difficult the
acquisition of control of Focal by means of a tender offer, open market
purchase, proxy contest or otherwise. These provisions may have the effect of
discouraging specific types of coercive takeover practices and inadequate
takeover bids and may encourage persons seeking to acquire control of Focal
first to negotiate with the Board of Directors. We believe that these measures
will benefit us and our stockholders by enhancing our ability to negotiate with
the proponent of any unfriendly or unsolicited proposal to acquire or
restructure Focal. We also believe that the benefits outweigh the disadvantages
of discouraging these proposals because, among other things, negotiation of
these proposals could result in better terms.
Registration Rights
Focal has granted registration rights to all existing holders of common
stock. See "Certain Transactions--Registration Rights" for a description of
these registration rights.
Listing
We have applied to have the common stock included for quotation on the
Nasdaq National Market under the symbol "FCOM."
Transfer Agent and Registrar
We have appointed as the transfer agent and
registrar for our common stock.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our capital stock. We
have no plans to pay dividends on our common stock in the future and presently
intend to retain any earnings to fund the growth of our business. The payment
of any future dividends will be determined by the Board of Directors in light
of conditions then existing, including the results of our operations, financial
condition, cash requirements, restrictions in financing agreements, business
conditions and other factors. Our ability to pay dividends is currently
restricted by covenants contained in the Notes indenture.
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DESCRIPTION OF NOTES
The following description is a summary of the material provisions of the
Notes and the Notes indenture. It does not restate those agreements in their
entirety. We urge you to read the Notes indenture and a sample Note, which we
have previously filed with the Securities and Exchange Commission.
The Notes have the following characteristics:
. They mature on February 15, 2008 and are limited to an aggregate stated
principal amount at maturity of $270,000,000
. They were issued at an issue price of $555.6578 per $1,000 stated
principal amount at maturity (the "Issue Price"), which represents
55.56578% of the stated principal amount at maturity
. They generated gross proceeds to Focal of $150,027,606
. They are senior, unsecured obligations of Focal
. They bear interest on the Issue Price at a rate of 12.125% per annum
computed on a semiannual Note equivalent basis from the Issue Date
. In the period prior to February 15, 2003, interest at a rate of 12.125%
per annum will accrue on the Issue Price of the Notes but will not be
payable in cash ("Deferred Interest")
. From and after February 15, 2003, interest at a rate of 12.125% per
annum ("Current Interest") on the stated principal amount at maturity of
the Notes will be payable in cash semiannually on August 15 and February
15 of each year, beginning on August 15, 2003
. The stated principal amount at maturity is $1,000 per Note and
represents the Issue Price, plus Deferred Interest accrued but unpaid up
to February 15, 2003. Focal will pay interest on overdue principal and
premium, if any, of the Notes and, to the extent lawful, interest on
overdue installments of interest on the Notes at a rate per annum equal
to the interest rate payable on the Notes
We may elect to redeem all or part of the Notes at any time or from time to
time, on or after February 15, 2003 at the redemption prices set forth below,
which are expressed as percentages of stated principal amount at maturity, plus
accrued and unpaid Current Interest, if any, on the stated principal amount at
maturity so redeemed to the redemption date if redeemed during the 12-month
period commencing February 15 of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C>
2003........................................................... 106.063%
2004........................................................... 104.042%
2005........................................................... 102.021%
2006 and thereafter............................................ 100.000%
</TABLE>
In addition, at any time and from time to time prior to February 15, 2001,
we may redeem in the aggregate up to 35% of the original aggregate stated
principal amount at maturity of the Notes with the proceeds from one or more
registered underwritten primary public offerings of common stock. Redemption
will be at a price (expressed as a percentage of the accreted value of the
Notes on the redemption date) of 112.125% so long as at least 65% of the
original aggregate stated principal amount at maturity of the Notes remains
outstanding after each redemption. We do not intend to redeem any Notes with
the net proceeds of the offering.
If a Change of Control (as defined below) occurs, each holder of a Note will
have the right to require us to repurchase all or any part of the holder's
Notes at a purchase price equal to 101% of the accreted value thereof, plus
accrued and unpaid Current Interest, if any, up to but excluding the Change of
Control payment date. If after giving effect to the Change of Control
repurchase offer, at least 95% of the original aggregate stated principal
amount at maturity of the Notes has been redeemed or repurchased, we have the
right to redeem the
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balance of the Notes at a purchase price equal to 101% of the accreted value
thereof, plus accrued and unpaid Current Interest, if any, up to but excluding
the determined redemption date.
A "Change of Control" will occur under the Notes indenture if:
. the sale, conveyance, transfer or lease of all or substantially all of
the assets of Focal to any "person" or "group" (as such term is used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act, including any group
acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(i) under the Exchange
Act), other than Madison Dearborn, Frontenac, Battery Ventures or any of
their affiliates, or subsidiaries of Focal occurs
. any "person" or "group" (as the term is used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act, including any group acting for the purpose
of acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(i) under the Exchange Act), other than Madison
Dearborn, Frontenac, Battery or any of their affiliates, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the total voting power of all classes of the capital
stock the holders of which are entitled to vote for the election of
directors ("voting stock") of Focal (including any warrants, options or
rights to acquire such voting stock), calculated on a fully diluted
basis
. during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board (together with any
directors whose election or appointment by the Board or whose nomination
for election by the stockholders of Focal was approved by a vote of a
majority of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the Board then in office
or
. the merger, amalgamation or consolidation of Focal with or into another
person or the merger of another person with or into Focal shall have
occurred, and the securities of Focal that are outstanding immediately
prior to such transaction and which represent 100% of the aggregate
voting power of the voting stock of Focal are changed into or exchanged
for cash, securities or property, unless pursuant to such transaction
such securities are changed into or exchanged for, in addition to any
other consideration, securities of the surviving corporation that
represent immediately after giving effect to such transaction, at least
a majority of the aggregate voting power of the voting stock of the
surviving corporation
We are also required to offer to repurchase the Notes if all or some of the
net proceeds of an asset sale are not used to purchase telecommunications
equipment or repay other senior indebtedness.
The Notes indenture contains restrictive covenants which, among other
things, restrict our ability to:
. Incur additional indebtedness and, in the case of our subsidiaries,
issue preferred stock
. Pay dividends
. Prepay subordinated indebtedness
. Repurchase capital stock
. Enter into sale and leaseback transactions
. Make investments
. Engage in transactions with affiliates
. Create liens on our assets
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. Cause encumbrances or restrictions to exist on the ability of our
subsidiaries to pay dividends
. Sell assets
. Engage in mergers and consolidations
An event of default will occur under the Notes indenture if, among other
things:
. any principal payment in excess of $1,000,000 with respect to
indebtedness of Focal is not paid when due within any applicable grace
period
. our indebtedness is accelerated by its holders and the principal amount
of the accelerated indebtedness exceeds $5,000,000
. a court enters a final judgment against us in an uninsured or
unindemnified aggregate amount in excess of $10,000,000, which is not
discharged, waived, appealed, stayed, bonded or satisfied for a period
of 60 consecutive days
SHARES ELIGIBLE FOR FUTURE SALE
Prior to the offering, there has been no public market for the common stock.
Future sales of substantial amounts of common stock in the public market, or
the perception that substantial sales could occur, could adversely affect the
prevailing market price of the common stock. Upon completion of the offering,
there will be shares of common stock outstanding. Of these shares, the
shares to be sold in the offering will be freely transferable without
restriction or further registration under the Securities Act of 1933, except
for shares purchased by our "affiliates," as that term is defined in Rule 144
under the Securities Act of 1933. The remaining 97,764 shares of common stock
outstanding will be "restricted securities" under Rule 144, and may in the
future be sold without registration under the Securities Act of 1933 to the
extent permitted by Rule 144 or any other applicable exemption under the
Securities Act of 1933. Holders of all outstanding shares of common stock
immediately prior to the offering may, under certain circumstances, include
their shares in a registration statement filed by Focal for a public offering
of common stock. Existing stockholders also have the right to demand that we
register their shares of common stock for resale. See "Description of Capital
Stock--Registration Rights."
In connection with the offering, we, our executive officers and directors
and some of our employees and other stockholders have agreed that, subject to
specified exceptions, we and they will not offer, sell, contract to sell,
pledge, assign or otherwise dispose of or hedge any shares of common stock or
any securities convertible into or exchangeable for common stock without the
prior written consent of Salomon Smith Barney Inc. for a period of 180 days
after the date of this prospectus. Salomon Smith Barney Inc. has sole
discretion to release any of the shares subject to these lock-up agreements at
any time without notice.
In general, under Rule 144, a person, or persons whose shares are
aggregated, including an affiliate, who has beneficially owned "restricted
securities" for at least one year would be entitled to sell within any three-
month period a number of shares that does not exceed the greater of (i) 1% of
the number of shares of common stock then outstanding, which will equal
approximately shares immediately after the offering or (ii) the average
weekly trading volume of the common stock on the Nasdaq National Market during
the four calendar weeks preceding the filing with the Securities and Exchange
Commission of a notice on Form 144 with respect to the sale. Sales under Rule
144 are also subject to other requirements regarding the manner of sale, notice
and availability of current public information about Focal. Under Rule 144(k),
a person who is not deemed to have been an affiliate of Focal at any time
during the 90 days preceding a sale, and who has beneficially owned the shares
proposed to be sold for at least two years, including the holding period of any
prior owner except an affiliate, is entitled to sell those shares without
complying with the manner of sale, public information, volume limitation or
notice provisions of Rule 144. Of the 97,764 shares of common stock to be
outstanding immediately prior to the offering, 831 shares will be eligible for
sale under Rule 144(k)
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immediately after the offering. None of these shares will be subject to lock-up
agreements. An additional 94,015 shares will be eligible for sale under Rule
144, subject to the limitations described above, immediately after the
offering. All of these shares will be subject to lock-up agreements.
As of the date of this prospectus, we have granted options to purchase an
aggregate of 9,388 shares of common stock to some of our officers, directors
and employees under the 1997 Plan. Approximately 1,482 of the shares subject to
these options are immediately exercisable and 7,906 of these shares will become
exercisable at various times following completion of the offering, subject to
conditions contained in the 1997 Plan and in the agreements covering the
options. Upon completion of the offering, we intend to register the sale of
shares of common stock issued or to be issued under our 1997 Plan, 1998 Plan
and Director Plan. See "Management." Thereafter, these shares may be freely
traded unless they are subject to vesting restrictions, limitations on resale
by "affiliates" under Rule 144 or the 180-day lock-up agreement described
above.
UNITED STATES FEDERAL TAX CONSIDERATIONS
FOR NON-U.S. HOLDERS OF COMMON STOCK
The following is a summary of the material United States federal income and
estate tax consequences of the ownership and disposition of Focal common stock
applicable to non-U.S. holders, as defined below, of such common stock. You are
a "non-U.S. holder" for United States federal income tax purposes if you are a
beneficial owner of Focal common stock and are any of the following:
. A nonresident alien individual as to the United States
. A corporation (or other entity treated as a corporation under the United
States Internal Revenue Code of 1986 and the Treasury Regulations
thereunder) that is not created or organized under the laws of the
United States or of any State
. A partnership (or other entity treated as a partnership under the United
States Internal Revenue Code of 1986 and the Treasury Regulations
thereunder) that is not created or organized under the laws of the
United States or of any State
. An estate that is not subject to United States federal income tax on a
net income basis in respect of income or gain on the common stock
. A trust if either its administration is not subject to the primary
supervision of a United States court or with respect to which no United
States persons (as defined in the United States Internal Revenue Code of
1986) have authority to control all substantial decisions of the trust
If you are an individual who is not a United States citizen, you should be
aware that the rules for determining whether you are a nonresident alien
individual as to the United States (and thus subject to United States federal
income and estate taxation as described below) or a resident alien individual
(and thus subject to United States federal income and estate taxation in the
same manner as a United States citizen) are highly complex. You may be a
resident alien individual as to the United States for United States federal
income tax purposes for any year if any of the following apply:
. You are a lawful permanent resident of the United States at any time
during the year
. You have elected to be treated as a resident alien individual under the
provisions of the United States Internal Revenue Code of 1986
. You are physically present in the United States for at least 31 days
during the year and a number of other conditions are satisfied
You should consult your own tax advisors regarding your status as a non-U.S.
holder of Focal common stock.
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This discussion does not deal with all aspects of United States federal
income and estate taxation and does not consider the specific facts and
circumstances that may be relevant to a particular holder in light of such
holder's personal investment or tax position. In addition, it does not address
the treatment of holders of Focal common stock under the laws of any state,
local or non-United States taxing jurisdiction.
This discussion is based on the federal tax laws of the United States,
including the Internal Revenue Code of 1986, the Treasury Regulations
promulgated thereunder, rulings and pronouncements of the United States
Internal Revenue Service and judicial decisions now in effect, all of which are
subject to change at any time. Any of these changes may be applied
retroactively in a manner that could cause the tax consequences to vary
substantially from the consequences described below, possibly having an adverse
effect on a beneficial owner of Focal common stock.
You are urged to consult with your own tax advisors with regard to the
application of the federal income and estate tax laws to your particular
situation, as well as the applicability and effect of any state, local or non-
United States tax laws to which you may be subject.
Dividends
If you are a non-U.S. holder of Focal common stock, dividends paid to you
are subject to withholding of United States federal income tax at a 30% rate or
at a lower rate if so specified in an applicable income tax treaty. If,
however, the dividends you receive are effectively connected with the conduct
of a trade or business in the United States by you or by a partnership that
holds the common stock and of which you are a partner (and the dividends are
attributable to a permanent establishment that is maintained by you or the
partnership in the United States, if this further requirement must be met under
the terms of an applicable income tax treaty as a condition for subjecting you
to United States federal income taxation on a net income basis on such
dividends), then such "effectively connected" dividends generally are not
subject to withholding tax, provided that you satisfy a number of certification
requirements. Instead, such effectively connected dividends are taxed on a net
income basis at the same graduated rates applicable to United States citizens
and resident alien individuals and United States corporations. In general, you
will not be considered to be engaged in a trade or business in the United
States solely as a result of your ownership of Focal common stock.
Effectively connected dividends received by a non-U.S. holder that is a
corporation may, in some circumstances, be subject to an additional "branch
profits tax" at a 30% rate or at a lower rate if so specified in an applicable
income tax treaty.
Under currently effective United States Treasury Regulations, dividends paid
to an address in a foreign country are presumed to be paid to a resident of
that country, unless the payor has actual knowledge to the contrary, for
purposes of the 30% withholding tax discussed above. Under current
interpretations of these United States Treasury Regulations, this presumption
that dividends paid to an address in a foreign country are paid to a resident
of that country, unless the payor has actual knowledge to the contrary, also
applies for purposes of determining whether a lower rate of withholding tax
applies under an applicable income tax treaty.
Under newly issued United States Treasury Regulations, which will generally
apply to dividends paid after December 31, 1999 (the "final withholding
regulations"), if you claim the benefit of a lower rate of withholding tax
under an applicable income tax treaty, you must satisfy a number of
certification requirements. In addition, in the case of Focal common stock held
by a foreign partnership, the certification requirements generally will apply
to the partners of the partnership, and the partnership itself will have to
provide some information, including a United States taxpayer identification
number. The final withholding regulations also provide look-through rules for
tiered partnerships.
If you are eligible for a reduced rate of United States withholding tax
under an applicable income tax treaty, you may obtain a refund of any excess
amounts withheld by filing a refund claim with the Internal Revenue Service.
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Gain on Disposition of Common Stock
If you are a non-U.S. holder, you generally will not be subject to United
States federal income tax on any gain recognized on a sale or other disposition
of Focal common stock unless:
. The gain is effectively connected with the conduct of a trade or
business in the United States by you or by a partnership that holds the
common stock and of which you are a partner (and the gain is
attributable to a permanent establishment maintained by you or the
partnership in the United States, if this further requirement must be
met under the terms of an applicable income tax treaty as a condition
for subjecting you to United States federal income taxation on a net
income basis on gain from the sale or other disposition of the common
stock)
. You are an individual, you or a partnership of which you are a partner
holds the common stock as a capital asset, and you are present in the
United States for 183 or more days during the year of the sale or other
disposition and several other conditions are satisfied
. You are an individual who is a former citizen or long-term resident
alien of the United States and are subject to tax pursuant to the
provisions of the United States federal income tax laws applicable to
United States expatriates
or
. Focal is or has been a "United States real property holding corporation"
for United States federal income tax purposes and you held, directly or
indirectly, at any time during the five-year period ending on the date
of the sale or other disposition, more than 5% of the total outstanding
common stock of Focal (and you are not eligible for any exemption under
an applicable income tax treaty)
Focal has not been, is not and does not anticipate becoming a "United States
real property holding corporation" for United States federal income tax
purposes.
Effectively connected gains are taxed on a net income basis at the same
graduated rates applicable to United States citizens and resident alien
individuals and United States corporations. Effectively connected gains
recognized by a non-U.S. holder that is a corporation may, in some
circumstances, be subject to an additional "branch profits tax" at a 30% rate
or at a lower rate if so specified in an applicable income tax treaty.
Federal Estate Taxes
Focal common stock owned by an individual non-U.S. holder at the time of
death will be included in the holder's gross estate for United States federal
estate tax purposes and thus may be subject to United States federal estate
tax, at graduated rates of up to 55%, unless an applicable estate tax treaty
provides otherwise.
Information Reporting and Backup Withholding Tax
In general, United States information reporting requirements and backup
withholding tax will not apply to dividends paid to you if you are either:
. Subject to the 30% withholding tax discussed above
or
. Not subject to the 30% withholding tax because an applicable income tax
treaty reduces or eliminates the withholding tax
although dividend payments to you will be reported to the Internal Revenue
Service for purposes of the withholding tax. See "--Dividends." If you do not
meet either of these requirements for exemption and you fail to provide
necessary information (including your United States taxpayer identification
number) or
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otherwise establish your status as an "exempt recipient," you may be subject to
backup withholding of United States federal income tax at a rate of 31% on
dividends paid to you with respect to your Focal common stock.
Under current law, Focal may generally treat dividends paid to a payee with
an address outside the United States as exempt from backup withholding tax and
information reporting requirements unless Focal has actual knowledge that the
payee is a United States person. However, under the final withholding
regulations, dividends paid after December 31, 1999 will generally be subject
to backup withholding and information reporting unless a number of
certification requirements are met. See "--Dividends" for the rules applicable
to foreign partnerships under the final withholding regulations.
United States information reporting requirements and backup withholding tax
generally will not apply to a payment of the proceeds of a sale or other
disposition of Focal common stock made outside the United States through an
office outside the United States of a non-U.S. broker. However, United States
information reporting requirements, but not backup withholding tax, will apply
to a payment of the proceeds of a sale or other disposition of common stock
made outside the United States through an office outside the United States of a
broker that:
. Is a United States person
. Is a non-United States person who derives 50% or more of its gross
income for a specified period preceding the year of the sale or other
disposition from the conduct of a trade or business in the United States
. Is a "controlled foreign corporation" as to the United States for United
States federal income tax purposes
or
. With respect to payments made after December 31, 1999, is a foreign
partnership, if at any time during its tax year:
. one or more of its partners are United States persons, as defined in
applicable Treasury Regulations, who in the aggregate hold more than
50% of the income or capital interests in the partnership
or
. the foreign partnership is engaged in the conduct of a trade or
business in the United States
unless that broker has documentary evidence in its records that the holder or
beneficial owner of the common stock disposed of is a non-U.S. holder (and the
broker has no actual knowledge to the contrary), or the payee otherwise
establishes its entitlement to an exemption.
Payment of the proceeds of a sale or other disposition of Focal common stock
through a United States office of a broker is subject to both United States
information reporting requirements and backup withholding tax at the rate of
31% unless the non-U.S. holder certifies as to its non-U.S. status under
penalties of perjury or otherwise establishes its entitlement to an exemption.
Backup withholding is not an additional tax. A non-U.S. holder generally may
obtain a refund of any excess amounts withheld under the backup withholding
rules by filing a refund claim with the Internal Revenue Service.
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UNDERWRITING
Subject to the terms and conditions stated in the underwriting agreement
dated the date of this prospectus, each underwriter named below has severally
agreed to purchase, and we have agreed to sell to the underwriter, the number
of shares set forth below opposite the name of the underwriter.
<TABLE>
<CAPTION>
Number
of
Name Shares
---- ------
<S> <C>
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley Dean Witter
----
Total
----
</TABLE>
The underwriting agreement provides that the obligations of the several
underwriters to purchase the shares included in this offering are subject to
approval of specific legal matters by counsel and to some other conditions. The
underwriters are obligated to purchase all of the shares, other than those
covered by the over-allotment option described below, if they purchase any of
the shares.
The underwriters, for whom Salomon Smith Barney Inc., Credit Suisse First
Boston Corporation, Donaldson, Lufkin & Jenrette Securities Corporation and
Morgan Stanley Dean Witter are acting as representatives, propose to offer some
of the shares directly to the public at the public offering price set forth on
the cover page of this prospectus and some of the shares to selected dealers at
the public offering price less a concession not in excess of $ per share.
The underwriters may allow, and these dealers may reallow, a concession not in
excess of $ per share on sales to other dealers. If all of the shares are
not sold at the initial offering price, the representatives may change the
public offering price and other selling terms.
We have granted to the underwriters an option, exercisable for 30 days from
the date of this prospectus, to purchase up to additional shares of
common stock at the public offering price less the underwriting discount. The
underwriters may exercise this option solely for the purpose of covering any
over-allotments, if any, in connection with this offering. To the extent the
option is exercised, each underwriter will be obligated, subject to specified
conditions, to purchase a number of additional shares approximately
proportionate to that underwriter's initial purchase commitment.
We, our executive officers and directors, some of our employees and other
stockholders have agreed that, subject to specified exceptions, for a period of
180 days after the date of this prospectus, we and they will not, without the
prior written consent of Salomon Smith Barney Inc., offer, sell, contract to
sell, pledge, assign or otherwise dispose of or hedge any shares of our common
stock or any securities convertible into or exchangeable for common stock.
Salomon Smith Barney Inc. in its sole discretion may release any of the
securities subject to these lock-up agreements at any time without notice.
At our request, some of the underwriters have reserved up to 5% of the
shares being offered (the "Directed Shares") for sale at the initial public
offering price to persons who are directors, officers or employees of Focal, or
who are otherwise associated with Focal and its affiliates, and who have
advised Focal of their desire to purchase these shares. The number of shares of
common stock available for sale to the general
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public will be reduced to the extent of sales of Directed Shares to any of the
persons for whom they have been reserved. Any shares not so purchased will be
offered by the underwriters on the same basis as all other shares of common
stock offered hereby. Focal has agreed to indemnify the underwriters against
specified liabilities and expenses, including liabilities under the Securities
Act of 1933, in connection with the sales of the Directed Shares.
Prior to this offering, there has been no public market for our common
stock. Consequently, the initial public offering for the shares was determined
by negotiations between the representatives and us. Among the factors
considered in determining the initial public offering price were our record of
operations, our current financial condition, our future prospects, our markets,
the economic conditions in and future prospects for the industry in which we
compete, our management, and currently prevailing general conditions in the
equity securities markets, including current market valuations of publicly
traded companies considered comparable to us. There can be no assurance,
however, that the prices at which the shares will sell in the public market
after this offering will not be lower than the price at which they are sold by
the underwriters or that an active trading market in the common stock will
develop and continue after this offering.
We have applied to have the common stock included for quotation on the
Nasdaq National Market under the symbol "FCOM."
The table below shows the underwriting discounts and commissions to be paid
to the underwriters by us in connection with this offering. These amounts are
shown assuming both no exercise and the full exercise of the underwriters'
option to purchase additional shares of common stock.
<TABLE>
<CAPTION>
Paid by Focal
-------------------------
No Exercise Full Exercise
----------- -------------
<S> <C> <C>
Per share....................................... $ $
Total........................................... $ $
</TABLE>
In connection with the offering, Salomon Smith Barney Inc., on behalf of the
underwriters, may purchase and sell shares of common stock in the open market.
These transactions may include over-allotment, syndicate covering transactions
and stabilizing transactions. Over-allotment involves syndicate sales of common
stock in excess of the number of shares to be purchased by the underwriters in
the offering, which creates a syndicate short position. Syndicate covering
transactions involve purchases of the common stock in the open market after the
distribution has been completed in order to cover syndicate short positions.
Stabilizing transactions consist of specific bids or purchases of common stock
made for the purpose of preventing or retarding a decline in the market price
of the common stock while the offering is in progress.
The underwriters also may impose a penalty bid. Penalty bids permit the
underwriters to reclaim a selling concession from a syndicate member when
Salomon Smith Barney Inc., in covering syndicate short positions or making
stabilizing purchases, repurchases shares originally sold by that syndicate
member.
Any of these activities may cause the price of the common stock to be higher
than the price that otherwise would exist in the open market in the absence of
these transactions. These transactions may be effected on the Nasdaq National
Market or in the over-the-counter market, or otherwise and, if commenced, may
be discontinued at any time.
We estimate that the total expenses of this offering will be $ .
We have agreed to indemnify the underwriters against specified liabilities,
including liabilities under the Securities Act of 1933, or to contribute to
payments the underwriters may be required to make in respect of any of those
liabilities.
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LEGAL MATTERS
Jones, Day, Reavis & Pogue in Chicago, Illinois will pass upon for Focal the
validity of the shares of common stock offered under this prospectus. Swidler
Berlin Sheriff Friedman, LLP in Washington, D.C. will pass upon for Focal
specific regulatory legal matters. Paul, Hastings, Janofsky & Walker LLP in New
York, New York will pass upon specific legal matters for the underwriters.
EXPERTS
The financial statements and schedules included in this prospectus and
elsewhere in the registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, a Registration Statement on Form S-1 under the
Securities Act of 1933 with respect to the offering. As permitted by the rules
and regulations of the Securities and Exchange Commission, this prospectus does
not contain all the information contained in the Registration Statement. For
further information about us and the offering, you can read the registration
statement and the exhibits and financial schedules filed with the registration
statement. The statements contained in this prospectus about the contents of
any contract or other document are not necessarily complete. You can read a
copy of each contract or other document filed as an exhibit to the registration
statement.
We are currently subject to the informational reporting requirements of the
Securities Exchange Act of 1934 and we file periodic reports and other
information with the Securities and Exchange Commission. After the offering we
will also file proxy statements with the Securities and Exchange Commission.
You can inspect the registration statement and the exhibits and schedules to
the registration statement, as well as the periodic reports, proxy statements
and other information we file with the Securities and Exchange Commission,
without charge at the Public Reference Section of the Securities and Exchange
Commission located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Section of the Securities and Exchange Commission by calling
the Securities and Exchange Commission at 1-800-SEC-0330. You can also inspect
and copy these filings at the regional offices of the Securities and Exchange
Commission located at Seven World Trade Center, 13th Floor, New York, New York
10048 and the Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. You can obtain copies of all or any portion of these filings
from the Public Reference Section of the Securities and Exchange Commission
upon payment of prescribed fees. Electronic filings made through the Electronic
Data Gathering, Analysis, and Retrieval system are also publicly available
through the Securities and Exchange Commission's Web site (http://www.sec.gov).
We intend to furnish our stockholders with annual reports containing
financial statements audited by independent auditors.
75
<PAGE>
GLOSSARY
Access charges--The charges paid by an IXC to a local exchange carrier for
the origination or termination of the IXC's customer's long distance calls.
Access line--A telephone line that connects a customer to the telephone
company's central office switching equipment.
ATM (Asynchronous Transfer Mode)--High bandwidth, low-delay, connection-
oriented, packet-like switching and multiplexing technique requiring 53-byte,
fixed-sized cells.
Backbone--An element of the network infrastructure that provides high-
speed, high-capacity connections among the network's physical points of
presence, i.e., connection points and service centers. The backbone is used to
transport end user traffic across the metropolitan area and across the United
States.
Bandwidth--Refers to the maximum amount of data that can be transferred
through a computer's backbone or communication channel in a given time. It is
usually measured in Hertz, cycles per second, for analog communications and
bits per second for digital communications.
Carrier--A telephone service provider.
Central office--A carrier's facility where subscriber lines are joined to a
switching office.
Circuit--An electronic, radio or optical connection over which
communications may occur.
CLEC (competitive local exchange carrier)--A category of telephone service
provider that offers services similar to the former monopoly local telephone
company, as recently allowed by changes in telecommunications law and
regulation. A CLEC may also provide other types of telecommunications services
(long distance, Internet access, etc.)
CLEC certification--Granted by a state public service commission or public
utility commission, this allows a telecommunications service provider the
legal standing to offer local exchange telephone services in direct
competition with the ILEC and other CLECs. Such certifications are granted on
a state-by-state basis.
Colocation--A location where a carrier's or customer's equipment
interconnects with the network of a carrier inside the carrier's facility.
Communications Act of 1934--Federal legislation that established rules for
broadcast and nonbroadcast communications, both wireless and wired telephony.
Copper line or loop--A pair of traditional copper telephone lines using
electric current to carry signals.
Data communications--Digital transmissions through wired or wireless
networks, usually linking computers.
Digital--Describes a method of storing, processing and transmitting
information through the use of distinct electronic or optical pulses that
represent the binary digits 0 and 1. Digital transmission and switching
technologies employ a sequence of these pulses to convey information, as
opposed to the continuously variable analog signal. The precise digital
numbers minimize distortion, such as graininess or "snow," in the case of
video transmission, or static or other background distortion in the case of
audio transmission.
DMS-500--A digital central office switch manufactured by Northern Telecom,
that provides both local exchange switching (also known as a "class 5" switch)
and long distance switching (also known as a "class 4" switch) in a single
device.
76
<PAGE>
DSL (Digital Subscriber Line)--A transmission technology enabling high-speed
access in the local copper loop, often referred to as the last mile between the
network service provider--i.e., an incumbent carrier, competitive carrier or an
Internet service provider--and end user.
DSLAM (Digital Subscriber Line Access Multiplexer)--A multiplexer which
houses individual circuit cards used to provide DSL service.
DS-0, DS-1, DS-3--Standard telecommunications industry digital signal
formats, which are distinguishable by bit rate (the number of binary digits (0
and 1) transmitted per second). DS-0 service has a bit rate of up to 64
kilobits per second. DS-1 service has a bit rate of 1.544 megabits per second
and DS-3 service has a bit rate of 45 megabits per second. DS-0 is also
equivalent to one standard telephone line.
FCC (Federal Communications Commission)--The United States government
federal regulatory agency with the authority to regulate all interstate and
international communications media (i.e., radio, television, wire, etc.)
originating or terminating in the United States.
Fiber transport--A physical facility carrying optical signals over fiber
cable.
ILEC (incumbent local exchange carrier)--A company historically providing
local telephone service. Often refers to one of the RBOCs or GTE.
Interconnection agreement--A contract between an ILEC and a CLEC for the
interconnection of the ILEC's and CLEC's networks, for the purpose of mutual
passing of traffic between the networks, allowing customers of one of the
networks to call users served by the other network. These agreements set out
the financial and operational aspects of such interconnection.
ISP (Internet Service Provider)--A company that provides its customers with
access to the Internet.
IXC (Interexchange Carrier)--A provider of telecommunications services
between exchanges, or cities; also called long distance carrier. A long
distance carrier may offer services over its own or another carrier's
facilities.
Local exchange--An area inside of which telephone calls are generally
completed without any toll or long distance charges. Local exchange areas are
defined by the state regulator of telephone services.
LNP (Local number portability)--A technique that allows local exchange
service customers of an ILEC to keep their existing telephone number, while
moving their service to a CLEC.
Minutes of use--A measure of time during which a telecommunications circuit
is maintained.
Modem--An abbreviation of Modulator-Demodulator. An electronic signal-
conversion device used to convert digital signals from a computer to analog
form for transmission over the telephone network. At the transmitting end, a
modem working as a modulator converts the computer's digital signals into
analog signals that can be transmitted over a telephone line. At the receiving
end, another modem working as a demodulator converts analog signals back into
digital signals and sends them to the receiving computer.
MSA (metropolitan statistical area)--A contiguous, geographic area, which
has a population of at least 50,000, defined by the United States government as
having a substantial economic community of interest.
Multiplexing--An electronic or optical process that combines several lower
speed transmission signals into one higher speed signal.
Network--An integrated system composed of switching equipment and
transmission facilities designed to provide for the direction, transport and
recording of telecommunications traffic.
77
<PAGE>
Reciprocal Compensation--The compensation paid by one carrier to send
traffic to another carrier's network.
RBOC (Regional Bell Operating Company)--The five remaining local telephone
companies (formerly part of AT&T) established as a result of the AT&T
divestiture decree. These include BellSouth, Bell Atlantic, Ameritech, U S WEST
and SBC.
Router--A device that accepts the Internet Protocol from a local area
network or another wide area network device and switches/routes Internet
Protocol packets across a network backbone. Some routers also provide protocol
conversion services to transfer Internet Protocol packets over frame relay,
Asynchronous Transfer Mode, and other backbone network services.
Switch--A device that opens or closes circuits or selects the paths or
circuits to be used for transmission of information. Switching is a process of
interconnecting circuits to form a transmission path between users. The DMS-500
by Northern Telecom is an example of a switch.
Switched services--Transmission of switched calls through the local switched
network.
T-1--A digital communications circuit operating at a speed of 1.5 Mbps, also
known as a DS-1 (digital signaling level one) and equivalent to 24 DS-0s.
Time Division Multiplexing--An electronic process that combines multiple
communications channels onto a single, higher-speed channel by interleaving
portions of each in a consistent manner over time.
Trunk or trunking--A circuit between two switches.
VARs (value-added resellers)--Organizations that purchase telecommunications
services on a wholesale basis, generally combine it with other products and
services, and sell the resulting package of services to an end user.
78
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS.................................. F-2
CONSOLIDATED FINANCIAL STATEMENTS:
Consolidated Balance Sheets as of December 31, 1997, 1998 and March 31,
1999................................................................... F-3
Consolidated Statements of Operations for the Period from May 31, 1996
(Commencement of Operations), to December 31, 1996, for the Years Ended
December 31, 1997, 1998 and for the Three Months Ended March 31, 1998
and 1999............................................................... F-4
Consolidated Statements of Stockholders' Equity (Deficit) for the Period
from May 31, 1996 (Commencement of Operations), to December 31, 1996,
for the Years Ended December 31, 1997, 1998 and for the Three Months
Ended March 31, 1999................................................... F-5
Consolidated Statements of Cash Flows for the Period from May 31, 1996
(Commencement of Operations), to December 31, 1996, for the Years Ended
December 31, 1997, 1998 and for the Three Months Ended March 31, 1998
and 1999............................................................... F-6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS................................ F-7
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS.................................. F-22
SCHEDULE II VALUATION AND QUALIFYING ACCOUNTS............................. F-23
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors of
Focal Communications Corporation:
We have audited the accompanying consolidated balance sheets of FOCAL
COMMUNICATIONS CORPORATION AND SUBSIDIARIES (a Delaware corporation) as of
December 31, 1997 and 1998, and the related consolidated statements of
operations, stockholders' equity (deficit) and cash flows for the period from
May 31, 1996 (commencement of operations), to December 31, 1996, and for the
years ended December 31, 1997 and 1998. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Focal
Communications Corporation and Subsidiaries as of December 31, 1997 and 1998,
and the results of their operations and their cash flows for the period from
May 31, 1996 (commencement of operations), to December 31, 1996, and for the
years ended December 31, 1997 and 1998, in conformity with generally accepted
accounting principles.
ARTHUR ANDERSEN LLP
Chicago, Illinois
January 22, 1999 (except withrespect to the matters discussed in Note 15, as to
which the date is May 4, 1999)
F-2
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December December 31, March 31,
ASSETS 31, 1997 1998 1999
------ ----------- ------------ ------------
(Unaudited)
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents........... $ 2,256,552 $126,041,001 $106,598,881
Short-term investments.............. -- 7,959,940 7,460,850
Accounts receivable, net of
allowance for doubtful accounts of
$469,000, $1,189,000, and
$1,960,000 at December 31, 1997,
1998 and March 31, 1999,
respectively....................... 2,355,814 9,792,532 15,975,803
Related-party receivables........... 34,883 -- --
Other current assets................ 90,559 843,793 1,149,104
----------- ------------ ------------
Total current assets.............. 4,737,808 144,637,266 131,184,638
----------- ------------ ------------
Fixed assets, at cost:
Buildings and improvements.......... -- 2,350,000 2,350,000
Communications network.............. 7,906,336 44,774,965 57,015,325
Construction in progress............ 1,938,236 15,103,564 23,496,685
Computer equipment.................. 941,237 3,503,512 4,550,282
Leasehold improvements.............. 652,173 8,577,724 11,089,518
Furniture and fixtures.............. 355,759 1,790,596 2,041,502
Motor vehicles...................... -- 19,289 52,548
----------- ------------ ------------
11,793,741 76,119,650 100,595,860
Less--Accumulated depreciation and
amortization....................... 616,967 6,146,530 9,872,098
----------- ------------ ------------
Fixed assets, net................. 11,176,774 69,973,120 90,723,762
----------- ------------ ------------
Other noncurrent assets............... -- 4,963,894 4,662,711
----------- ------------ ------------
$15,914,582 $219,574,280 $226,571,111
=========== ============ ============
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
(DEFICIT)
------------------------------------
<S> <C> <C> <C>
Current liabilities:
Accounts payable.................... $ 1,502,479 $ 8,365,470 $ 5,152,815
Accrued liabilities................. 367,890 1,941,377 2,513,581
Income taxes payable................ -- 4,055,000 --
Current maturities of long-term
debt............................... 943,621 2,887,036 4,108,935
----------- ------------ ------------
Total current liabilities......... 2,813,990 17,248,883 11,775,331
----------- ------------ ------------
Long-term debt, net of current
maturities........................... 2,593,265 182,408,757 191,436,957
----------- ------------ ------------
Other noncurrent liabilities.......... 179,481 588,228 1,644,128
----------- ------------ ------------
Redeemable common stock:
Class A, $.01 par value; 100,000
shares authorized; 80,307, 0 and 0
shares issued and outstanding at
December 31, 1997, 1998, and March
31, 1999, respectively............. 12,403,218 -- --
----------- ------------ ------------
Commitments and contingencies
Stockholders' equity (deficit):
Common Stock, Class A, $.01 par
value; 100,000 shares authorized;
0, 75,374, and 75,746 shares issued
and outstanding at December 31,
1997, 1998, and March 31, 1999,
respectively....................... -- 753 757
Common Stock, Class B, $.01 par
value; 35,000 shares authorized;
20,000, 22,000 and 22,000 shares
issued at December 31, 1997, 1998,
and March 31, 1999, respectively... 200 220 220
Common Stock, Class C, $.01 par
value; 15,000 shares authorized;
14,711, issued at December 31, 1997
and no shares issued at December
31, 1998 and March 31, 1999,
respectively....................... 147 -- --
Additional paid-in capital.......... 5,096,435 35,413,345 35,955,194
Deferred compensation............... (3,791,667) (4,736,432) (4,339,022)
Accumulated deficit................. (3,380,487) (11,349,474) (9,902,454)
----------- ------------ ------------
Total stockholders' equity
(deficit)........................ (2,075,372) 19,328,412 21,714,695
----------- ------------ ------------
$15,914,582 $219,574,280 $226,571,111
=========== ============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Period from
May 31, 1996
(Commencement
of For the
Operations), year ending For the year For the
to December December ending three months ending
31, 31, December 31, March 31,
------------- ----------- ------------ -----------------------
1996 1997 1998 1998 1999
------------- ----------- ------------ ---------- -----------
(Unaudited)
<S> <C> <C> <C> <C> <C>
REVENUES................ $ -- $ 4,023,690 $ 43,531,846 $5,102,448 $26,003,897
--------- ----------- ------------ ---------- -----------
EXPENSES:
Customer service and
network operations... -- 2,154,980 15,284,641 1,826,893 10,369,319
Selling, general and
administrative....... 421,777 2,887,372 12,209,821 1,307,625 5,665,896
Depreciation and
amortization......... 1,150 615,817 6,670,986 890,871 4,026,750
Non-cash compensation
expense.............. 108,333 1,300,000 3,069,553 325,000 397,410
--------- ----------- ------------ ---------- -----------
Total expenses...... 531,260 6,958,169 37,235,001 4,350,389 20,459,375
--------- ----------- ------------ ---------- -----------
OPERATING INCOME (LOSS). (531,260) (2,934,479) 6,296,845 752,059 5,544,522
--------- ----------- ------------ ---------- -----------
OTHER INCOME (EXPENSE):
Interest income....... 17,626 195,696 6,528,541 1,015,902 1,306,082
Interest expense...... -- (128,070) (16,134,373) (2,109,152) (5,403,584)
--------- ----------- ------------ ---------- -----------
Total other income
(expense).......... 17,626 67,626 (9,605,832) (1,093,250) (4,097,502)
--------- ----------- ------------ ---------- -----------
INCOME (LOSS) BEFORE
INCOME TAXES........... (513,634) (2,866,853) (3,308,987) (341,191) 1,447,020
PROVISION FOR INCOME
TAXES.................. -- -- (4,660,000) -- --
--------- ----------- ------------ ---------- -----------
Net income (loss)....... (513,634) (2,866,853) (7,968,987) (341,191) 1,447,020
ACCRETION TO REDEMPTION
VALUE OF CLASS A COMMON
STOCK.................. -- (103,565) -- -- --
--------- ----------- ------------ ---------- -----------
Net income (loss)
applicable to common
stockholders........... $(513,634) $(2,970,418) $ (7,968,987) $ (341,191) $ 1,447,020
========= =========== ============ ========== ===========
BASIC NET INCOME (LOSS)
PER SHARE OF COMMON
STOCK.................. $ (30.22) $ (35.21) $ (91.05) $ (3.86) $ 16.46
========= =========== ============ ========== ===========
DILUTED NET INCOME
(LOSS) PER SHARE OF
COMMON STOCK........... $ (30.22) $ (35.21) $ (91.05) $ (3.86) $ 14.44
========= =========== ============ ========== ===========
BASIC WEIGHTED AVERAGE
NUMBER OF SHARES OF
COMMON STOCK
OUTSTANDING............ 16,996 84,373 87,526 88,307 87,922
========= =========== ============ ========== ===========
DILUTED WEIGHTED AVERAGE
NUMBER OF SHARES OF
COMMON STOCK
OUTSTANDING............ 16,996 84,373 87,526 88,307 100,208
========= =========== ============ ========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
For the Period from May 31, 1996 (Commencement of Operations), to
December 31, 1996, for the Years Ended December 31, 1997, 1998, and for the
Three Months Ended March 31, 1999
<TABLE>
<CAPTION>
Common Stock, $.01 Par Value
----------------------------------------------
Common Stock Class A Class B Class C Additional
-------------- -------------- ------------- ---------------- Paid-in Deferred Accumulated
Shares Amount Shares Amount Shares Amount Shares Amount Capital Compensation Deficit
------ ------ ------ ------ ------ ------ -------- ------ ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
May 31, 1996
(commencement of
operations) -- $-- -- $ -- -- $-- -- $ -- $ -- $ -- $ --
Issuance of
Common Stock.... 1,500 -- -- -- -- -- -- -- -- -- --
Conversion of
Common Stock to
Class B Common.. (1,125) -- -- -- 20,000 200 -- -- -- -- --
Conversion of
Common Stock to
Class C Common.. (375) -- -- -- -- -- 14,711 147 -- -- --
Deferred
compensation.... -- -- -- -- -- -- -- -- 5,200,000 (5,200,000) --
Amortization of
deferred
compensation.... -- -- -- -- -- -- -- -- -- 108,333 --
Net loss........ -- -- -- -- -- -- -- -- -- -- (513,634)
------ ---- ------ ----- ------ ---- -------- ----- ----------- ----------- -----------
BALANCE,
December 31,
1996 -- -- -- -- 20,000 200 14,711 147 5,200,000 (5,091,667) (513,634)
Accretion of
redeemable
Common Stock.... -- -- -- -- -- -- -- -- (103,565) -- --
Amortization of
deferred
compensation.... -- -- -- -- -- -- -- -- -- 1,300,000 --
Net loss........ -- -- -- -- -- -- -- -- -- -- (2,866,853)
------ ---- ------ ----- ------ ---- -------- ----- ----------- ----------- -----------
BALANCE,
December 31,
1997 -- -- -- -- 20,000 200 14,711 147 5,096,435 (3,791,667) (3,380,487)
Reclassification
resulting from
amendment to
stock purchase
agreement....... -- -- 80,307 803 -- -- -- -- 12,402,415 -- --
Class A Common
capital
contributions... -- -- -- -- -- -- -- -- 13,800,000 -- --
Issuance of
Class A Common
Stock........... -- -- 67 -- -- -- -- -- 100,000 -- --
Cancellation and
conversion of
Common Stock.... -- -- (5,000) (50) 2,000 20 (14,711) (147) 4,014,495 (4,014,318) --
Amortization of
deferred
compensation.... -- -- -- -- -- -- -- -- -- 3,069,553 --
Net loss........ -- -- -- -- -- -- -- -- -- -- (7,968,987)
------ ---- ------ ----- ------ ---- -------- ----- ----------- ----------- -----------
BALANCE,
December 31,
1998 -- -- 75,374 753 22,000 220 -- -- 35,413,345 (4,736,432) (11,349,474)
Issuance of
Class A Common
Stock........... -- -- 372 4 -- -- -- -- 541,849 -- --
Amortization of
deferred
compensation.... -- -- -- -- -- -- -- -- -- 397,410 --
Net Income...... -- -- -- -- -- -- -- -- -- -- 1,447,020
------ ---- ------ ----- ------ ---- -------- ----- ----------- ----------- -----------
BALANCE, March
31, 1999
(Unaudited)..... -- $-- 75,746 $ 757 22,000 $220 -- $ -- $35,955,194 $(4,339,022) $(9,902,454)
====== ==== ====== ===== ====== ==== ======== ===== =========== =========== ===========
<CAPTION>
Total
------------
<S> <C>
May 31, 1996
(commencement of
operations) $ --
Issuance of
Common Stock.... --
Conversion of
Common Stock to
Class B Common.. 200
Conversion of
Common Stock to
Class C Common.. 147
Deferred
compensation.... --
Amortization of
deferred
compensation.... 108,333
Net loss........ (513,634)
------------
BALANCE,
December 31,
1996 (404,954)
Accretion of
redeemable
Common Stock.... (103,565)
Amortization of
deferred
compensation.... 1,300,000
Net loss........ (2,866,853)
------------
BALANCE,
December 31,
1997 (2,075,372)
Reclassification
resulting from
amendment to
stock purchase
agreement....... 12,403,218
Class A Common
capital
contributions... 13,800,000
Issuance of
Class A Common
Stock........... 100,000
Cancellation and
conversion of
Common Stock.... --
Amortization of
deferred
compensation.... 3,069,553
Net loss........ (7,968,987)
------------
BALANCE,
December 31,
1998 19,328,412
Issuance of
Class A Common
Stock........... 541,853
Amortization of
deferred
compensation.... 397,410
Net Income...... 1,447,020
------------
BALANCE, March
31, 1999
(Unaudited)..... $21,714,695
============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Period from
May 31, 1996
(Commencement
of
Operations), For the year For the year
to December ended ended For the three months
31, December 31, December 31, ended March 31,
------------- ------------ ------------ --------------------------
1996 1997 1998 1998 1999
------------- ------------ ------------ ------------ ------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net income (loss)..... $ (513,634) $ (2,866,853) $ (7,968,987) $ (341,191) $ 1,447,020
Adjustments to
reconcile net income
(loss) to net cash
provided by (used in)
operating
activities--
Depreciation and
amortization....... 1,150 615,817 6,670,986 890,871 4,026,750
Deferred lease
costs.............. -- 179,481 408,747 89,741 389,234
Non-cash
compensation
expense............ 108,333 1,300,000 3,069,553 325,000 397,410
Amortization of
discount on senior
discount notes..... -- -- 16,080,249 2,062,174 4,952,327
Provision for losses
on accounts
receivable......... -- 469,000 720,000 577,000 1,145,000
Changes in operating
assets and
liabilities--
Accounts
receivable....... -- (2,824,814) (8,156,718) (3,418,065) (7,328,271)
Related-party
receivables...... (16,883) (18,000) 34,883 (85,466) --
Other current
assets........... -- (90,559) (753,234) (238,072) (305,311)
Accounts payable
and accrued
liabilities...... 268,458 1,601,911 8,436,478 3,883,263 (2,640,451)
Income taxes
payable.......... -- -- 4,055,000 -- (4,055,000)
Other non-current
liabilities...... -- -- -- -- 666,666
---------- ------------ ------------ ------------ ------------
Net cash provided
by (used in)
operating
activities...... (152,576) (1,634,017) 22,596,957 3,745,255 (1,304,626)
---------- ------------ ------------ ------------ ------------
CASH FLOWS FROM
INVESTING ACTIVITIES:
Capital expenditures.. (82,303) (11,655,524) (64,229,247) (7,593,061) (24,476,209)
Change in short-term
investments.......... -- -- (7,959,940) -- 499,090
---------- ------------ ------------ ------------ ------------
Net cash used in
investing
activities...... (82,303) (11,655,524) (72,189,187) (7,593,061) (23,977,119)
---------- ------------ ------------ ------------ ------------
CASH FLOWS FROM
FINANCING ACTIVITIES:
Loan origination fees. -- -- (90,000) -- --
Proceeds from issuance
of long-term debt.... -- 3,697,500 163,103,565 144,083,351 5,807,191
Payments on long-term
debt................. -- (216,528) (3,536,886) (3,533,153) (509,419)
Proceeds from the
issuance of Class A
Common Stock......... 4,025,000 8,275,000 13,900,000 13,800,000 541,853
---------- ------------ ------------ ------------ ------------
Net cash provided
by financing
activities...... 4,025,000 11,755,972 173,376,679 154,350,198 5,839,625
---------- ------------ ------------ ------------ ------------
NET INCREASE (DECREASE)
IN CASH AND CASH
EQUIVALENTS........... 3,790,121 (1,533,569) 123,784,449 150,502,392 (19,442,120)
CASH AND CASH
EQUIVALENTS
beginning of period... -- 3,790,121 2,256,552 2,256,552 126,041,001
---------- ------------ ------------ ------------ ------------
CASH AND CASH
EQUIVALENTS
end of period......... $3,790,121 $ 2,256,552 $126,041,001 $152,758,944 $106,598,881
========== ============ ============ ============ ============
</TABLE>
F-6
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1997 and 1998, and March 31, 1999--(Unaudited)
1. ORGANIZATION AND OPERATIONS
Focal Communications Corporation began operations on May 31, 1996. Focal
Communications Corporation and Subsidiaries (the "Company") is a competitive
local exchange carrier ("CLEC") in the United States and offers a range of
telecommunications services. The Company competes with incumbent local exchange
carriers ("ILECs") by providing high-quality, local telecommunications services
to meet the data, voice and colocation transmission needs of its customers. The
Company's customers include large corporations, Internet service providers and
value-added resellers.
The Company incurred an accumulated deficit of $11,349,474, from May 31,
1996 (commencement of operations), through December 31, 1998. The Company had
an accumulated deficit of $9,902,454 as of March 31, 1999. The Company must
generate significant sales and obtain additional capital to adequately grow its
operations. Future profitability of the Company is dependent upon continued
market acceptance and the Company continuing to adequately provide and maintain
its services. Management believes that current financial forecasts, marketing
strategies and capital raising plans are adequate to address these issues.
2. SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The 1997, 1998, and March 31, 1999 consolidated balance sheets include the
accounts of the Company and all wholly owned subsidiaries. All material
intercompany transactions and balances have been eliminated in consolidation.
Basis of Accounting
The accompanying consolidated financial statements have been prepared on the
accrual basis of accounting.
Unaudited Interim Financial Information
The unaudited consolidated balance sheet as of March 31, 1999, the unaudited
consolidated statement of stockholders' equity for the three months ended March
31, 1999 and the unaudited statements of operations and cash flows for the
three months ended March 31, 1998 and 1999 include, in the opinion of
management, all adjustments (consisting of normal and recurring adjustments)
necessary to present fairly the Company's financial position, results of
operations and cash flows. Operating results for the three months ended March
31, 1999 are not necessarily indicative of the results which may be expected
for the year ended December 31, 1999. All information included in these notes
to consolidated financial statements related to the three months ended March
31, 1999 is unaudited.
Use of Estimates and Assumptions
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
F-7
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Risks and Uncertainties
Reciprocal compensation payments are amounts paid by one carrier to send
particular traffic to another carrier's network. Reciprocal compensation is
currently a significant component of the Company's total revenues representing
approximately 81%, 75% and 73% of the Company's total revenues for 1997, 1998
and for the first quarter of 1999, respectively.
One carrier is disputing its obligation to pay some of the reciprocal
compensation owed to the Company. Although this dispute was ruled on in favor
of the Company by the Illinois Commerce Commission in March 1998 and by federal
court in July 1998, it is currently subject to appeal. Substantially all of the
disputed amounts have since been collected. There is a risk that prior
decisions and any future appeal regarding the settlement of this dispute in
favor of the Company could be revisited, which could allow the carrier to
obtain a refund of prior reciprocal compensation payments.
As a result of several trends in our business and the current regulatory
environment, the Company expects revenues from reciprocal compensation to
decline significantly. A reduction in or elimination of revenues attributable
to reciprocal compensation which is not offset by increases in other revenues
generated by the Company may have a material adverse effect on the Company.
Concentration of Suppliers
The Company currently leases its transport capacity from a limited amount of
suppliers and is dependent upon the availability of fiber transmission
facilities owned by the suppliers. The Company is currently vulnerable to the
risk of renewing favorable supplier contracts, timeliness of the supplier in
processing the Company's orders for customers and is at risk to regulatory
agreements that govern the rates to be charged to the Company.
Financial Instruments
The Company considers all liquid interest-earning investments with a
maturity of three months or less at the date of purchase to be cash
equivalents. Short-term investments primarily consist of debt securities, which
typically mature between three months and one year from the purchase date and
are held to maturity and valued at amortized cost, which approximates fair
value. The carrying value for current assets and current liabilities as of
December 31, 1997, 1998 and March 31, 1999 reasonably approximates fair value
due to the nature of the financial instrument and the short maturity of these
items. Fair value for the Company's long-term debt is based on market quotes,
where available or by discounting expected cash flows at the rates currently
offered to the Company for debt of the same remaining maturities. The fair
value of the Company's long-term debt is approximately $3,500,000, $165,000,000
and $171,641,000 as of December 31, 1997, 1998 and March 31, 1999,
respectively.
Revenue Recognition
Revenue is recognized over the period in which the services are provided.
Monthly recurring charges include fees paid by customers for lines in service,
additional features on those lines and colocation space. These charges are
billed monthly, in advance, and are fully earned during the month. Usage
charges, initial, nonrecurring charges and reciprocal compensation charges are
billed in arrears and are fully earned when billed.
F-8
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Depreciation and Amortization
Depreciation is provided on a straight-line basis over the estimated useful
lives of the assets as follows:
<TABLE>
<CAPTION>
Asset Description Useful Life
----------------- --------------------------------------
<S> <C>
Buildings and improvements......... 20 years
Communications network............. 3-8 years
Computer equipment................. 3 years
Leasehold improvements............. Shorter of asset life or life of lease
Furniture and fixtures............. 2-5 years
Motor vehicles..................... 2-3 years
</TABLE>
When depreciable assets are replaced or retired, the amounts at which such
assets were carried are removed from the respective accounts and charged to
accumulated depreciation and any gains or losses on disposition is recorded
currently in the consolidated statements of operations.
Maintenance and repairs are charged to expense as incurred, while major
replacements and improvements are capitalized.
Impairment of Long-Lived Assets
The Company periodically assesses the recoverability of the carrying cost
of its long-lived assets based on a review of its projected undiscounted cash
flows related to the asset held for use. If assets are determined to be
impaired, then the asset is written down to its fair value based on the
present value of the discounted cash flows of the related asset or other
relevant measures (quoted market prices, third-party offers, etc.). Based on
its review, management does not believe that an impairment of the long-lived
assets has occurred.
Income Taxes
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income
Taxes," pursuant to which deferred income tax assets and liabilities are
determined based on the difference between the financial statement and tax
bases of assets and liabilities, using enacted tax rates currently in effect.
State and local taxes may be based on factors other than income.
Segment Information
In 1998, the Company adopted SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information." SFAS No. 131 supersedes SFAS No. 14,
"Financial Reporting for Segments of a Business Enterprise," replacing the
"industry approach" with the "management approach." The management approach
designates the internal reporting that is used by management for making
operating decisions and assessing performance as the source of the Company's
reportable segments. We operate in a single industry segment, "Communication
Services." Operations are managed and financial performance is evaluated based
on the delivery of multiple communications services to customers over fiber
networks. The adoption of SFAS No. 131 did not affect the Company's results of
operations or financial position but did affect the disclosure of segment
information (Note 13).
Stock-based Compensation
The Company has chosen to account for stock-based compensation using the
intrinsic value method prescribed in Accounting Principles Board Opinion
("APB") No. 25, "Accounting for Stock Issued to Employees." Under APB No. 25,
the exercise price of the employee stock options equals the fair value of the
underlying stock on the date of grant and no compensation expense is recorded.
The Company has adopted the disclosure only provisions of the SFAS No. 123,
"Accounting for Stock-Based Compensation."
F-9
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Accretion to Redemption Value of Class A Common Stock
Accretion to redemption value of redeemable Class A Common Stock represents
the change in the redemption value of all outstanding Class A Common Stock
allocable to each period. The redemption values for all Class A Common shares
are based on fair market value and accretion is calculated using the effective
interest method (Note 11).
Comprehensive Income
In June, 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income." SFAS No. 130 established reporting and
disclosure requirements for comprehensive income and its components within the
financial statements. Other than net loss applicable to Common stockholders,
the Company had no comprehensive income components for the period from May 31,
1996, to December 31, 1996, for the years ended December 31, 1997, 1998 and for
the three months ended March 31, 1999.
Accounting for Derivative Instruments and Hedging Activities
In June, 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133
requires that all derivatives be recognized at fair value as either assets or
liabilities. SFAS No. 133 also requires an entity that elects to apply hedge
accounting to establish the method to be used in assessing the effectiveness of
the hedging derivatives and the measurement approach for determining the
ineffectiveness of the hedge at the inception of the hedge. The methods chosen
must be consistent with the entity's approach to managing risk. The standard is
effective for the Company's 2000 fiscal year. The Company will adopt SFAS No.
133 during 1999. Adoption of SFAS No. 133 is not expected to have a material
effect on the Company based on the Company not currently using derivatives or
participating in hedging activities.
Reclassifications
Certain prior-year amounts have been reclassified to conform to the fiscal
1998 and March 31, 1999 presentation. These changes had no impact on the
Company's previously reported financial position or results of operations.
3. RELATED-PARTY RECEIVABLES
As part of the stock purchase agreement (Note 10), executive shareholders,
as defined, purchased their Class A Common shares with 90-day promissory notes.
The promissory notes are with recourse to each executive and have a prepayment
provision without penalty. The notes are secured by a pledge of all Company
Common Stock and other assets held by the executives. Interest accrues on a
daily basis at a rate equal to the applicable federal rate for obligations of
similar duration. These notes were paid in January 1998.
4. LONG-TERM DEBT
During September 1997, the Company entered into a credit facility with a
bank which provides for, among other things, a committed equipment line of up
to a maximum principal amount of $6,000,000. In February 1998, all amounts
outstanding on this credit facility were repaid and the credit facility was
terminated.
In February 1998, the Company completed its offering of $270 million stated
principal amount at maturity of its 12.125% senior discount notes due 2008 (the
"Notes"), which resulted in gross proceeds of $150,027,606. The Notes bear
interest at the rate of 12.125% per annum (computed on a semiannual Note
equivalent basis). In the period prior to February 15, 2003, interest will
accrue but will not be payable in cash.
F-10
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
From February 15, 2003, interest on the stated principal amount at maturity of
the Notes will be payable in cash semiannually on August 15 and February 15 of
each year, beginning on August 15, 2003.
The Notes are senior unsecured obligations of the Company ranking pari passu
in right of payment with all other existing and future senior indebtedness of
the Company, if any, and will rank senior in right of
payment to all existing and future subordinated indebtedness of the Company, if
any. Holders of secured indebtedness of the Company, however, will have claims
that are prior to the claims of the holders of the Notes with respect to the
assets securing such other indebtedness. The Notes will be effectively
subordinated to all existing and future indebtedness and other liabilities of
the Company's subsidiaries (including accounts payable).
The Notes are redeemable, at the Company's option, in whole or in part, at
any time or from time to time, on or after February 15, 2003, at 106.063% of
their stated principal amount at maturity, plus accrued and unpaid current
interest, declining ratably to 100% of their stated principal amount at
maturity, plus accrued and unpaid current interest, on or after February 15,
2006. In addition, at any time and from time to time, prior to February 15,
2001, the Company may redeem in the aggregate up to 35% of the original
aggregate stated principal amount at maturity of the Notes with the proceeds
from one or more public equity offerings following which there is a public
market, at a redemption price (expressed as a percentage of accreted value on
the redemption date) of 112.125%, plus additional interest, if any; provided
that at least 65% of the original aggregate stated principal amount at maturity
of the Notes remains outstanding after each such redemption.
The Notes indenture contains certain covenants which, among other things,
restrict the ability of the Company and certain of its subsidiaries to incur
additional indebtedness (and, in the case of certain subsidiaries, issue
preferred stock), pay dividends or make distributions in respect of the
Company's or such subsidiaries' capital stock, make other restricted payments,
enter into sale and leaseback transactions, incur liens, cause encumbrances or
restrictions to exist on the ability of certain subsidiaries to pay dividends
or make distributions in respect of their capital stock, issue and sell capital
stock of certain subsidiaries, enter into transactions with affiliates, sell
assets, or amalgamate, consolidate, merge or sell or otherwise dispose of all
or substantially all of their property and assets. These covenants are subject
to exceptions and qualifications. The Company is in compliance with these
covenants as of December 31, 1998 and as of March 31, 1999.
In December 1998, the Company obtained a secured equipment term loan (the
"Facility") from a third party with a maximum borrowing level of $25,000,000.
The Facility provides for, among other things, equipment drawdowns through
December 30, 1999, and requires repayment based on 60 equal monthly
installments of principal and interest for each drawdown. All drawdowns under
the Facility bear interest at the five-year swap rate percent plus additional
basis points, as defined in the Facility. Total drawdowns of $19,192,809 and
$24,490,581 were outstanding under the Facility as of December 31, 1998 and
March 31, 1999, respectively. The Facility provides for certain restrictive
financial and nonfinancial covenants. Among other things, these covenants
require the maintenance of minimum cash flow and revenue levels. The Company
was in compliance with these covenants as of December 31, 1998 and March 31,
1999.
In April 1999, the Company amended the Facility to provide a maximum
borrowing level of $50 million (Note 15).
F-11
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Long-term debt at December 31, 1997, 1998 and March 31, 1999, consists of
the following:
<TABLE>
<CAPTION>
December 31, March 31,
----------------------- ------------
1997 1998 1999
---------- ------------ ------------
<S> <C> <C> <C>
Credit facility with a bank, maximum
borrowing level at $6,000,000........... $3,480,972 $ -- $ --
12.125% senior discount notes due 2008,
net of unamortized discount of
$103,897,016 and $98,944,689 at December
31, 1998 and March 31, 1999,
respectively............................ -- 166,102,984 171,055,311
Secured equipment term loan, maximum
borrowing level at $25,000,000.......... -- 19,192,809 24,490,581
Capital leases on equipment with interest
at 14.66%, $2,327 due monthly through
April, 2000............................. 55,914 -- --
---------- ------------ ------------
3,536,886 185,295,793 195,545,892
Less--Current maturities................. 943,621 2,887,036 4,108,935
---------- ------------ ------------
$2,593,265 $182,408,757 $191,436,957
========== ============ ============
</TABLE>
Aggregate maturities of long-term debt outstanding as of December 31, 1998,
is as follows:
<TABLE>
<S> <C>
1999......................................................... $ 2,887,036
2000......................................................... 3,442,991
2001......................................................... 3,777,502
2002......................................................... 4,143,053
2003......................................................... 4,544,309
Thereafter................................................... 166,500,902
------------
Total.................................................... $185,295,793
============
</TABLE>
5. STOCK OPTIONS
The Company established the Focal Communications Corporation 1997 Non
Qualified Stock Option Plan (the "1997 Plan") effective February 27, 1997. The
1997 Plan is administered by the compensation committee of the Company's Board
of Directors (the "Board"). The Board has sole and complete authority to select
participants and grant options for the Company's Class A Common shares which
shall not exceed 5,260 shares, as defined in the plan. On August 21, 1998, the
1997 Plan was amended and the Board increased the number of shares available
for issuance under the 1997 Plan to up to 17,060.
The Company adopted the Focal Communications Corporation 1998 Equity and
Performance Incentive Plan (the "1998 Plan") on August 21, 1998. The Board has
sole and complete authority to select participants and grant options, and other
equity-based instruments for the Company's Class A Common shares. The total
number of shares authorized for issuance pursuant to the 1998 Plan shall not
exceed 11,500 shares, and is dependent upon, among other things, the number of
shares issued, or reserved for issuance, under the 1997 Plan prior to the
consummation of an initial public offering of Common Stock by the Company.
On August 21, 1998, the Company also adopted the 1998 Equity Plan for Non-
Employee Directors of Focal Communications Corporation (the "1998 Non-Employee
Plan"). The Board has sole and complete authority to select participants and
grant options for the Company's Class A Common shares which shall not exceed
300 shares, as defined in the 1998 Non-Employee Plan.
The total number of shares available under the amended 1997 Plan, the 1998
Plan and the 1998 Non-Employee Plan shall not exceed 17,060 shares.
F-12
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Under the Company's stock option plans, the Board has complete discretion in
determining vesting periods and terms of each participant's options granted.
The options granted to participants under the Company's stock option plans
typically vest at 25% on the first-year anniversary from grant date and vesting
at 12.5% every six months for the remainder of vesting years. The term of each
option has a life of 10 years. In addition, the plans provide for accelerated
vesting upon certain events, as defined.
The following summarizes option activity:
<TABLE>
<CAPTION>
Weighted
Average
Exercise Exercise
Shares Prices Prices
------ ----------- --------
<S> <C> <C> <C>
Outstanding at December 31, 1996................... -- $ -- $ --
Granted during 1997................................ 1,222 290-320 297
----- ----------- ------
Outstanding at December 31, 1997................... 1,222 290-320 297
Granted during 1998................................ 6,110 335-1,500 1,229
Canceled during 1998............................... (142) 315-1,500 134
----- ----------- ------
Outstanding at December 31, 1998................... 7,190 $290-$1,500 $1,090
===== =========== ======
Granted during the three months ended March 31,
1999.............................................. 1,034 $ 1,575 $1,575
Exercised during the three months ended March 31,
1999.............................................. (72) 290-1,500 962
Canceled during the three months ended March 31,
1999.............................................. (30) 1,500-1,575 1,530
----- ----------- ------
Outstanding at March 31, 1999...................... 8,122 $290-$1,575 $1,165
===== =========== ======
</TABLE>
The following table summarizes information about fixed stock options
outstanding at December 31, 1998 and March 31, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
-------------------------------- --------------------
Weighted
Average Weighted Weighted
Remaining Average Average
Range of Exercise Options Contractual Exercise Options Exercise
Prices Outstanding Life Price Exercisable Price
----------------- ----------- ----------- -------- ----------- --------
<S> <C> <C> <C> <C> <C>
$290-$335 1,799 8.6 $ 311 569 $ 301
$1,050-$1,500 5,391 9.6 1,350 -- --
----- --- ------ ----- ------
At December 31, 1998 7,190 9.3 $1,090 569 $ 301
===== === ====== ===== ======
$290-$335 1,767 8.3 $ 311 596 $ 307
$1,050-$1,575 6,355 9.4 1,384 494 1,504
----- --- ------ ----- ------
At March 31, 1999 8,122 9.4 $1,165 1,090 $ 850
===== === ====== ===== ======
</TABLE>
The Company utilized the Black-Scholes option pricing model to estimate the
fair value of options at the date of grant during 1997, 1998 and for the three
months ended March 31, 1999. Had the Company adopted SFAS No. 123, pro forma
net income (loss) applicable to Common stockholders and pro forma basic and
diluted net loss per share of Common Stock would have been approximately
$(3,010,434) and $(35.68), $(8,602,554) and $(98.29), for the years ended
December 31, 1997 and 1998. Pro forma net income applicable to Common
stockholders and pro forma basic and diluted net income per share of Common
Stock would have been approximately $936,000 and $10.65 and $9.34 for the three
months ended March 31,1999, respectively. The pro forma disclosure is not
likely to be indicative of pro forma results which may be expected in future
years because of the fact that options vest over several years, compensation
expense is recognized over the vesting period and additional awards may also be
granted.
F-13
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The Black-Scholes option model estimated the weighted average fair value at
the date of grant of options granted in 1997, 1998, and for the three months
ended March 31, 1999 to be approximately $167, $1,114 and
$1,113 per option, respectively. The remaining contractual life of all options
was approximately nine years. Principal assumptions used in applying the Black-
Scholes model were as follows:
<TABLE>
<CAPTION>
For the
Three Months
Ended
March 31,
1997 1998 1999
--------- --------- ------------
<S> <C> <C> <C>
Risk-free interest rates................. 5.6%-6.7% 4.4%-5.6% 4.57%
Expected life............................ 5 years 5 years 5 years
Expected volatility...................... 41.67% 142.03% 87.29%
Expected dividend yield.................. -- -- --
========= ========= =======
</TABLE>
6. INCOME TAXES
There is no current or deferred tax expense for the period from May 31, 1996
(commencement of operations), to December 31, 1996, for the year ended December
31, 1997 and for the three months ended March 31, 1998 and 1999. Valuation
allowances were provided which offset the tax benefits recorded as deferred tax
assets relating primarily to operating loss carryforwards. The state and local
taxes, net of the federal tax benefit, and the change in valuation allowances
are the only differences between the U.S. federal statutory tax rate and the
Company's effective tax rate for these periods.
For the year ended December 31, 1998, the Company recorded an income tax
provision of $4,660,000. Even though the Company is reporting a loss before
income taxes, the Company has a positive taxable income and is paying income
taxes. This is primarily the result of the nondeductibility, for tax purposes,
of the interest accrued on the Company's 12.125% discount Notes. This interest
expense is subject to the high yield discount obligation ("HYDO") rules which
limits the amount of original issue discount ("OID") which can be deducted in
the current taxable period. This interest will become deductible for tax
purposes in the period in which the Notes are redeemed or when the interest is
paid. The deferred tax consequences related to the interest accrued and other
temporary differences in reporting items for financial statement and income tax
purposes are recognized, if appropriate. Realization of future tax benefits
related to the deferred tax assets is dependent on many factors, including the
Company's ability to generate taxable income. Management has considered these
factors and has concluded that a full valuation allowance for financial
reporting purposes is required for the deferred tax assets.
The income tax provision for the year ended December 31, 1998, consists of
the following:
<TABLE>
<S> <C>
Current taxes--
U.S. federal................................................. $4,100,000
State and local.............................................. 560,000
----------
4,660,000
----------
Deferred taxes--
U.S. federal................................................. --
State and local.............................................. --
----------
--
----------
Income tax provision....................................... $4,660,000
==========
</TABLE>
F-14
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
U.S. income tax benefit at the statutory tax rate is reconciled below to the
Company's overall provision for income taxes for the year ended December 31,
1998:
<TABLE>
<S> <C>
Tax at U.S. federal income tax rate......................... $(1,125,000)
State and local taxes, net of U.S. federal tax benefit...... 560,000
Non-cash compensation expense............................... 1,044,000
Change in valuation allowance............................... 4,005,000
Other....................................................... 176,000
-----------
Provision for income taxes.............................. $ 4,660,000
===========
</TABLE>
The income tax effect of temporary differences comprising the net deferred
tax assets and tax liabilities as of December 31, 1997, 1998 and March 31, 1999
consists of the following:
<TABLE>
<CAPTION>
December
December 31, 31, March 31,
------------ ----------- -----------
1997 1998 1999
------------ ----------- -----------
<S> <C> <C> <C>
Deferred income tax liabilities--
Depreciation........................... $(227,000) $(2,331,000) $(2,998,000)
Deferred income tax assets--
Net operating loss carryforwards....... 724,000 -- --
Interest on 12.125% discount notes..... -- 6,432,000 8,413,000
Allowance for doubtful accounts........ 17,500 476,000 784,000
Employment related accruals............ 187,500 130,000 218,000
--------- ----------- -----------
929,000 7,038,000 9,415,000
Less--Valuation allowance................ (702,000) (4,707,000) (6,417,000)
--------- ----------- -----------
Net deferred tax assets.............. $ -- $ -- $ --
========= =========== ===========
</TABLE>
The Company has an alternative minimum tax ("AMT") credit carryforward as of
December 31, 1998 and March 31, 1999, of approximately $320,000 for tax
purposes to offset the Company's future regular federal income tax liability.
The AMT benefit has not been recorded as an asset due to the uncertainty of its
realization. The AMT credit does not expire.
7. INCOME (LOSS) PER SHARE
SFAS No. 128, "Earnings Per Share," requires the Company to calculate its
earnings per share based on basic and diluted earnings per share, as defined.
Basic and diluted income (loss) per share for the period from May 31, 1996
(commencement of operations), to December 31, 1996, for the years ended
December 31, 1997, 1998 and for the three months ended March 31, 1998 and 1999,
was computed by dividing net income (loss) applicable to Common stockholders by
the weighted average number of shares of Common Stock (Class A Common Stock and
the vested Class B Common Stock).
Diluted earnings per common share are adjusted for the assumed exercise of
dilutive options and unvested Class B Common shares. Since the adjustments
required for the calculation of diluted weighted average common shares
outstanding are anti-dilutive, this calculation has been excluded from the
diluted loss per share calculation for the period from May 31, 1996
(commencement of operations), to December 31, 1996, for the years ended
December 31, 1997, 1998 and for the first quarter of 1998. Under the
requirements of SFAS
F-15
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
No. 128 the Company's basic and diluted weighted average number of shares
outstanding at December 31, 1996, 1997, 1998 and at March 31, 1998 and 1999 is
as follows:
<TABLE>
<CAPTION>
December 31, December 31, December 31, March 31, March 31,
1996 1997 1998 1998 1999
------------ ------------ ------------ --------- ---------
<S> <C> <C> <C> <C> <C>
Basic Weighted Average
Number of Common Shares
Outstanding............ 16,996 84,373 87,526 88,307 87,922
Dilutive Stock Options
and Unvested Class B
Common Stock........... 1,447 12,048 11,043 13,304 12,286
------ ------ ------ ------- -------
Dilutive Weighted
Average Number of
Common Shares
Outstanding............ 18,443 96,421 98,569 101,611 100,208
====== ====== ====== ======= =======
</TABLE>
8. EMPLOYEE BENEFIT PLAN
The Company has a 401(k) Plan (the "Plan") covering substantially all
eligible employees. Under the Plan, participants may make pretax contributions
from 1% to 15% of eligible earnings, as defined. The
Company may elect to contribute to the Plan at its discretion. There have been
no Company contributions to the Plan for the period from May 31, 1996, to
December 31, 1996, and for the year ended December 31, 1997. In February, 1998,
the Company elected to match 30% of the first 10% that an employee contributes
to the Plan. The Company's matching contributions totaled approximately
$145,000 and $84,000 for the year ended December 31, 1998 and for the three
months ended March 31, 1999, respectively.
9. COMMITMENTS AND CONTINGENCIES
Under the terms of various short- and long-term contracts, the Company is
obligated to pay office rents and rent for leasing fiber transmission
facilities. The Company is obligated to pay office rents with its operations
through 2012. The office rent contracts provide for certain scheduled increases
and for possible escalation of basic rentals based on a change in the cost of
living or on other factors. The Company expects to enter into other contracts
for additional office space, other facilities, equipment and maintenance
services in the future. A summary of such fixed commitments at December 31,
1998, is as follows:
<TABLE>
<CAPTION>
Year Amount
---- -----------
<S> <C>
1999.......................................................... $ 3,388,548
2000.......................................................... 3,667,922
2001.......................................................... 3,614,522
2002.......................................................... 3,721,598
2003.......................................................... 3,787,627
Thereafter.................................................... 20,438,214
-----------
Total..................................................... $38,618,431
===========
</TABLE>
Rent expense under operating leases for office rent and rent for leasing
fiber transmission facilities was approximately $6,488, $651,159, $1,522,499
and $1,125,044, respectively, for the period from May 31, 1996, to December 31,
1996, for the years ended December 31, 1997, 1998 and for the three months
ended March 31, 1999.
In April and May of 1999, the Company entered into two agreements for the
rights to use fiber transport capacity with a combined total minimum commitment
of $87.9 million (Note 15).
10. STOCK PURCHASE AGREEMENT
On November 27, 1996, the Company entered into a Stock Purchase Agreement
(the "Agreement") with Institutional Investors and Executives ("Investors"), as
defined. The Agreement resulted in 79,384 shares of
F-16
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Class A Common Stock, par value $.01 per share being issued for an aggregate
purchase price of $4 million, and subsequent transactions in which Investors
were required to make pro rata contributions to the capital of the Company
(with no additional shares being issued) of up to an additional $21.8 million
(total investment of up to $25.8 million). Total capital contributions to the
Company for the issuance of Class A Common were $4,025,000, $8,275,000 and
$13,900,000, respectively, for the period from May 31, 1996, to December 31,
1996, and for the years ended December 31, 1997 and 1998, respectively.
Subsequent to the closing of the Agreement, the Company sold 77 shares and
846 shares of Class A Common shares to Designees (as defined in the Agreement)
of the Institutional Investors, for a total purchase price of $25,000 and
$275,000 for the period from May 31, 1996 to December 31, 1996 and for the year
ended December 31, 1997, respectively.
As part of the Agreement, the existing Common Stock held by the Executives
was converted into newly issued Class B Common and Class C Common shares (the
"Exchange"). The closing of the Exchange and issuance of Class B Common and
Class C Common shares took place simultaneously with the initial closing of the
issuance of Class A Common shares under the Agreement. In connection with this
transaction, compensation expense totaling approximately $5.2 million will be
charged to income over the vesting period of the Class B Common shares issued
that did not vest immediately. Total non-cash compensation expense of $108,333
was recorded for the period from May 31, 1996, to December 31, 1996; $1,300,000
for 1997 and 1998; and $325,000 for each of the three month periods ended March
31, 1998 and 1999.
The Company amended certain vesting agreements of the Executives and
Institutional Investors on September 30, 1998, which effected the cancellation
of 12,711 shares of the Company's Class C Common Stock then outstanding,
cancellation of 5,000 shares of the Company's Class A Common Stock held by
certain institutional shareholders and the conversion of 2,000 shares of the
Company's Class C Common Stock into Class B Common Stock. The new converted
Class B Common Stock is subject to certain restrictions, and was issued to the
Company's executives (founding shareholders) in satisfaction of the obligations
of the Company and such shareholders set forth in certain vesting agreements as
defined in the Agreement. In connection with such transactions, non-cash
compensation expense totaling approximately $4 million will be charged to
income over the vesting period of the restricted Class B Common shares issued.
Total non-cash compensation expense relating to this matter of $1,769,553 and
$72,410 was recorded during 1998 and for the first quarter of 1999,
respectively. A summary of the Company's Class A, B and C Common Stock is as
follows:
Class A Common--A total of 100,000 shares are authorized, of which 80,307,
75,374 and 75,746 were issued and outstanding as of December 31, 1997, 1998 and
March 31, 1999, respectively. Institutional Investors, as defined, who hold
Class A Common shares had the right to put the shares to the Company at fair
market value but the Agreement was amended and the put right was replaced by a
provision which would require the Company to voluntarily liquidate (Note 11).
The Class A Common Stock held by Institutional Investors have demand
registration rights; all Class A Common stockholders have voting rights,
piggyback registration rights, participate in earnings and dividends and other
preference features, as defined.
Class B Common--A total of 35,000 shares have been authorized and 20,000,
22,000 and 22,000 shares are issued and outstanding as of December 31, 1997,
1998 and March 31, 1999, respectively. Class B Common stockholders have demand
registration rights, voting rights, piggyback registration rights, participate
in earnings and dividends and other preference features, as defined. The Class
B Common issued upon the Exchange will vest 20% on the closing of the Agreement
and 20% on each of the four anniversaries of the closing date of the Agreement.
Accelerated vesting will occur on the dates of certain (as defined) events: (a)
qualified sale of the Company; (b) qualified reorganization; and (c) public
offering of the Company's stock. For the Class B Common converted from Class C
Common, the Restricted Stock Agreement ("RSA") provides, among other
F-17
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
things, vesting of 20% at the closing of the RSA (September 30, 1998), 10%,
15%, 20% and 35% on each of the consecutive anniversaries of the closing of the
RSA, respectively, with immediate vesting upon a Change in Control, as defined
in the RSA.
Class C Common--A total of 15,000 shares have been authorized and 14,711 and
0 shares are issued and outstanding as of December 31, 1997 and 1998,
respectively. The Company amended certain vesting agreements of the Executives
and Institutional Investors on September 30, 1998, which effected the
cancellation of 12,711 shares of the Company's Class C Common Stock then
outstanding and the conversion of 2,000 shares of the Company's Class C Common
Stock into Class B Common Stock.
11. REDEEMABLE COMMON STOCK
As defined in the Agreement (Note 10), Institutional Investors which hold an
aggregate of 78,461 shares of Class A Common shares had the right to put the
shares to the Company on or after November 27, 2003, at
the greater of the initial purchase price per share of Class A Common owned by
the Institutional Investors or fair market value, as defined in the Agreement.
On January 23, 1998, the Agreement was amended and the aforementioned put right
was replaced by a provision which would allow the Class A Common Institutional
Investors, Executive Investors and Designees of Institutional Investors, as
defined, to require the Company to voluntarily liquidate. The Institutional
Investors at any time and from time to time on or after November 27, 2003, but
not after the consummation of a public offering, shall have the right to
require the Company to voluntarily liquidate the assets of the Company. Upon
receipt of notice of the required liquidation, the Company may elect to
purchase all but not less than all of the Institutional Investors' Class A
Common shares.
Although management had not obtained an appraisal of the fair market value
of the Company during 1997, certain public equity transactions have occurred
within the industry upon which management has based its estimate on the
potential redemption value of the aforementioned shares to be $333 per share as
of December 31, 1997. The Company recorded accretion totaling $0 and $103,565
for the period from May 31, 1996, to December 31, 1996, and for the year ended
December 31, 1997.
12. SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid for interest and non-cash investing and financing activities for
the period from May 31, 1996 (commencement of operations), to December 31,
1996, for the years ended December 31, 1997, 1998 and for the three months
ended March 31, 1999, was as follows:
<TABLE>
<CAPTION>
Three Months
ended
March 31,
1996 1997 1998 1999
----- --------- -------- ------------
<S> <C> <C> <C> <C>
Cash paid during the year for interest. $ -- $ 94,533 $ 69,079 $ 452,069
Fixed assets acquired under capital
leases................................ $ -- $ 68,589 $ -- $ --
Payments made under capital leases..... $ -- $ 12,675 $ 51,908 $ --
Accretion to redemption value of Class
A
Common Stock........................... $-- $103,565 $ -- $ --
Cash paid for income taxes............. $ -- $ -- $605,000 $3,725,000
</TABLE>
13. SEGMENT INFORMATION
In 1998, the Company adopted SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information." The Company is organized primarily on the
basis of strategic geographic operating segments that provide communications
services in each respective geographic region. All of the Company's geographic
F-18
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
operating segments as of December 31, 1998 and March 31, 1999 have been
aggregated into one reportable segment, "Communications Services," for the year
and as of December 31, 1998 and as of and for the three months ended March 31,
1999. The Company has two strategic geographic operating segments as of
December 31, 1997, and they have been aggregated into one reportable segment,
"Communications Services," for the year and as of December 31, 1997. For the
period from May 31, 1996, to December 31, 1996, the Company did not separately
track its only geographic operating segment from its corporate operations, and
it is not practicable to restate its results by operating segment for that
period.
The accounting policies of the segments are the same as those described in
the "Summary of Significant Accounting Policies." The Company's chief operating
decision maker views earnings before interest, taxes, depreciation and
amortization ("EBITDA") as the primary measure of profit and loss. The
following represents information about revenues and EBITDA which excludes non-
cash compensation, total assets and
capital expenditures for the Communications Services reportable segment as of
and for the years ended December 31, 1997, 1998 and for the three months ended
March 31, 1999:
<TABLE>
<CAPTION>
March 31,
1997 1998 1999
----------- ----------- -----------
<S> <C> <C> <C>
Revenues............................. $ 4,023,690 $43,531,846 $26,003,897
EBITDA............................... (986,815) 15,161,031 10,000,062
Total assets......................... 13,006,600 73,436,768 94,287,205
Capital expenditures................. 11,655,524 64,229,247 24,476,209
=========== =========== ===========
</TABLE>
The following reconciles total segment EBITDA to consolidated net income
(loss) before income taxes for the years ended December 31, 1997, 1998 and for
the three months ended March 31, 1999:
<TABLE>
<CAPTION>
Three months
ended
1997 1998 March 31, 1999
----------- ------------ --------------
<S> <C> <C> <C>
Total EBITDA for reportable
segment....................... $ (986,815) $ 15,161,031 $10,000,062
Corporate EBITDA............... (31,847) 876,353 (31,380)
Depreciation and amortization.. (615,817) (6,670,986) (4,026,750)
Interest expense............... (128,070) (16,134,373) (5,403,584)
Interest income................ 195,696 6,528,541 1,306,082
Non-cash compensation.......... (1,300,000) (3,069,553) (397,410)
----------- ------------ -----------
Net income (loss) before
income taxes.............. $(2,866,853) $ (3,308,987) $ 1,447,020
=========== ============ ===========
</TABLE>
The following reconciles segment total assets to consolidated total assets
as of December 31, 1997, 1998 and March 31, 1999:
<TABLE>
<CAPTION>
December December 31, March 31,
31, 1997 1998 1999
----------- ------------ ------------
<S> <C> <C> <C>
Total assets for reportable
segment........................... $13,006,600 $ 73,436,768 $ 94,287,205
Cash, cash equivalents and short-
term investments.................. 2,037,861 133,307,515 114,059,731
Other current assets............... 41,864 1,125,124 199,235
Fixed assets, net.................. 828,257 6,740,979 13,362,229
Other noncurrent assets............ -- 4,963,894 4,662,711
----------- ------------ ------------
Total consolidated assets...... $15,914,582 $219,574,280 $226,571,111
=========== ============ ============
</TABLE>
F-19
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The Company currently only operates in the United States. Revenues by major
customer for the years ended December 31, 1997, 1998 and for the three months
ended March 31, 1999, are as follows:
<TABLE>
<CAPTION>
Three months
ended
1997 1998 March 31, 1999
---------- ----------- --------------
<S> <C> <C> <C>
Revenues from major customer A..... $3,266,853 $25,747,481 $13,265,330
Revenues from major customer B..... $ -- $ 6,735,663 $ 5,761,531
========== =========== ===========
</TABLE>
14. SELECTED QUARTERLY INFORMATION (UNAUDITED)
<TABLE>
<CAPTION>
1st Quarter 2nd Quarter 3rd Quarter 4th Quarter
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
1997--
Revenues................. $ -- $ 86,908 $ 1,226,076 $ 2,710,706
Loss from operations..... (757,521) (1,145,689) (786,384) (244,885)
Net loss applicable to
Common stockholders..... (740,492) (1,119,257) (791,445) (319,224)
=========== =========== =========== ===========
Basic and diluted net
loss per share.......... $ (8.87) $ (13.34) $ (9.39) $ (3.72)
=========== =========== =========== ===========
1998--
Revenues................. $ 5,102,448 $ 8,078,043 $12,755,293 $17,596,062
Income from operations... 752,059 1,886,430 418,968 3,239,388
Net loss applicable to
Common stockholders..... (341,191) (583,399) (4,653,717) (2,390,680)
=========== =========== =========== ===========
Basic and diluted net
loss per share.......... $ (3.86) $ (6.61) $ (52.73) $ (28.04)
=========== =========== =========== ===========
1999--
Revenues................. $26,003,897
Income from operations... 5,544,522
Net income (loss)
applicable to Common
stockholders............ 1,447,020
===========
Basic net income per
share................... $ 16.46
===========
Diluted net income per
share................... $ 14.44
===========
</TABLE>
The Company's net loss applicable to Common stockholders and basic and
diluted net loss per share increased significantly in the third quarter of 1998
from the second quarter of 1998 due primarily to the immediate recognition of
approximately $1,697,000 of non-cash compensation resulting from the amendment
to the stock purchase agreement. Additionally, the Company determined that it
would become liable for income taxes in the third quarter, and a tax provision
of approximately $2,197,000 was recorded.
15. SUBSEQUENT EVENTS
On March 25, 1999, the Company amended its product purchase agreement with a
vendor, which provides for, among other things, a minimum commitment to
purchase $25 million in communications network equipment every 12 months, or an
aggregate over the term of the agreement of $75 million, at pre-established
prices.
On April 15, 1999, the Company amended the Facility to increase the maximum
borrowing level from $25 million to $50 million.
On April 28, 1999, the Company signed an agreement for the acquisition of
indefeasible rights of use for fiber transport capacity for a minimum of 8,300
fiber miles. The term of the agreement is 20 years and the total minimum
commitment is approximately $17.9 million. The agreement requires an initial
payment of approximately $3.6 million in the second quarter of 1999.
F-20
<PAGE>
FOCAL COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
On May 4, 1999, the Company signed an agreement with another carrier for the
lease of fiber transport capacity for a five year term and a minimum commitment
of $70 million. The Company has committed to $10 million in year one; $13.2
million in year two; and $15.6 million for each of the remaining three years of
the agreement.
F-21
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors of Focal Communications Corporation:
We have audited, in accordance with generally accepted auditing standards,
the consolidated financial statements of Focal Communications Corporation and
its Subsidiaries included in this annual report and issued our report thereon
dated January 22, 1999. Our audits were made for the purpose of forming an
opinion on the basic financial statements taken as a whole. The schedule of
Valuation and Qualifying Accounts, is presented for purposes of complying with
the Securities and Exchange Commission's rules and is not a part of the basic
financial statements. This schedule has been subjected to the auditing
procedures applied in the audits of the basic financial statements and, in our
opinion, fairly states in all material respects the financial data required to
be set forth therein in relation to the basic financial statements taken as a
whole.
Arthur Andersen LLP
Chicago, Illinois
January 22, 1999
F-22
<PAGE>
Schedule II
FOCAL COMMUNICATIONS CORPORATION
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
Balance
at the
Beginning Charged to Charged Balance at
of the Cost and to other the End of
Accounts Period Expense Accounts Deductions the Period
- -------- --------- ---------- -------- ---------- ----------
<S> <C> <C> <C> <C> <C>
1996:
Allowance for Doubtful
Accounts................ $ -- $ -- $-- $ -- $ --
1997:
Allowance for Doubtful
Accounts................ $ -- $ 469,000 $-- $ -- $ 469,000
1998:
Allowance for Doubtful
Accounts................ $469,000 $1,348,000 $-- $628,000 $1,189,000
</TABLE>
F-23
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
Focal Communications Corporation
Common Stock
[FOCAL LOGO]
--------
PROSPECTUS
, 1999
--------
Salomon Smith Barney
Credit Suisse First Boston
Donaldson, Lufkin & Jenrette
Morgan Stanley Dean Witter
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses to be borne by Focal
in connection with the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............ $ 31,970
NASD Filing Fee................................................ 12,000
NASDAQ Listing Fee............................................. *
Printing....................................................... 100,000
Legal Fees and Expenses........................................ 350,000
Accounting Fees and Expenses................................... 75,000
Transfer Agent Fees and Expenses............................... *
Miscellaneous.................................................. *
--------
Total...................................................... $ *
========
</TABLE>
- --------
* To be provided by amendment.
Item 14. Indemnification of Directors and Officers
Delaware General Corporation Law. We have statutory authority to indemnify
our officers and directors. The applicable provisions of the DGCL state that,
to the extent an officer or director is successful on the merits or otherwise,
a corporation may indemnify any person who was or is a party or who is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (each, a "Person"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by such Person, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. In any
threatened, pending or completed action by or in the right of the corporation,
a corporation also may indemnify any such Person for costs actually and
reasonably incurred by him in connection with that action's defense or
settlement, if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the corporation; however, no
indemnification shall be made with respect to any claim, issue or matter as to
which such Person shall have been adjudged to be liable to the corporation,
unless and only to the extent that a court shall determine that such indemnity
is proper.
Under the applicable provisions of the DGCL, any indemnification shall be
made by the corporation only as authorized in the specific case upon a
determination that the indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct. Such determination shall be made:
(1) By the Board of Directors by a majority vote the directors who are
not parties to such action, suit or proceeding, even if less than a quorum;
(2) By a committee of such directors designated by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
if less than a quorum;
(3) If there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion; or
II-1
<PAGE>
(4) By the stockholders.
Focal's certificate of incorporation and bylaws provide for indemnification
to the full extent permitted by the laws of the State of Delaware against and
with respect to threatened, pending or completed actions, suits or proceedings
arising from or alleged to arise from, a party's actions or omissions as a
director, officer, employee or agent of Focal or of any subsidiary of Focal or
of any other corporation, partnership, joint venture, trust or other entity
which he has served in such capacity at the request of Focal if such acts or
omissions occurred or were or are alleged to have occurred, while said party
was a director, officer employee or agent of Focal.
Item 15. Recent Sales of Unregistered Securities
Since its inception, Focal has issued the following securities without
registration under the Securities Act (the disclosure, including the number of
shares, set forth below does not give effect to the recapitalization and stock
split referred to in the prospectus). As used below, the term "Focal," for all
times prior to June 12, 1997 (the date of the Plan of Reorganization and
Agreement whereby Focal became the holding company of Focal Communications of
Illinois and its subsidiaries), refers to Focal Communications Corporation of
Illinois.
On May 18, 1996, in connection with Focal's formation, Focal issued 1 share
of common stock to Robert C. Taylor, Jr. for consideration of $1.00.
On October 19, 1996, Focal issued an aggregate of 1,499 shares of common
stock to the Executive Investors for consideration of $1,499.
On November 27, 1996, Focal issued an aggregate of 79,461.542 shares of
Class A common stock to the Institutional Investors, the Executive Investors
and an institution for an aggregate initial purchase price of $4,025,000.
On November 27, 1996, Focal issued an aggregate of 20,000 shares of Class B
common stock and 14,711.54 shares of Class C common stock to the Executive
Investors upon conversion of the 1,500 shares of common stock previously held
by them into shares of Class B common stock and Class C common stock pursuant
to the terms of Focal's Amended and Restated Certificate of Incorporation. The
issuance of these securities was exempt from registration under the Securities
Act pursuant to Section 3(a)(9) of the Securities Act, as exempt securities.
On May 20, 1997, Focal issued an aggregate of 846.15 shares of Class A
common stock to a director, two other individuals and a partnership for an
aggregate purchase price of $275,000.
On June 30, 1997, Focal issued an aggregate of 80,307.57 shares of Class A
common stock, 20,000 shares of Class B common stock and 14,711.54 shares of
Class C common stock to the Institutional Investors, the Executive Investors, a
director, two other individuals, a partnership and an institution in exchange
for an equal number of shares of such classes of common stock of Focal
Communications Corporation of Illinois, pursuant to a Plan of Reorganization
and Agreement between Focal and Focal Communications Corporation of Illinois
whereby Focal became the holding company of Focal Communications Corporation of
Illinois and its subsidiaries.
No underwriters were engaged in connection with the foregoing sales of
securities. Except as specifically otherwise provided above, the above-
described transactions were exempt from registration under the Securities Act
pursuant to Section 4(2) of the Securities Act, as transactions not involving
any public offering.
On February 12, 1998, Focal issued $270,000,000 stated amount at maturity of
12.125% Senior Discount Notes due February 15, 2008 (the "Notes"). Focal
received approximately $150.0 million in gross proceeds and $144.0 million in
net proceeds (after discounts and commissions of approximately $6.0 million and
other
II-2
<PAGE>
transaction costs) from the issuance of the Notes. The Notes were issued to (1)
"qualified institutional buyers" (as defined in Rule 144A under the Securities
Act), and (2) outside the United States in compliance with Regulation S under
the Securities Act, and therefore, the issuance of the Notes was exempt from
registration under the Securities Act. Salomon Brothers Inc, Morgan Stanley &
Co. Incorporated and NationsBanc Montgomery Securities LLC were the initial
purchasers of the Notes.
On November 23, 1998, Focal issued 66.667 shares of Class A common stock to
a director and to a director and his wife as custodian for their children for
an aggregate purchase price of $100,000.
On March 15, 1999, Focal issued 300 shares of Class A common stock to a
director for a purchase price of $472,500.
On March 27, 1999, an employee of Focal was issued 72.25 shares of Class A
common stock upon exercise of stock options granted under its 1997 Plan for an
aggregate purchase price of $69,352.50.
On April 25, 1999, an employee of Focal was issued 18 shares of Class A
common stock upon exercise of stock options granted under its 1997 Plan for an
aggregate purchase price of $27,000.
No underwriters were engaged in connection with the sales of securities set
forth in the four preceding paragraphs, and these transactions were exempt from
registration under the Securities Act pursuant to Section 4(2) of the
Securities Act, as transactions not involving any public offering, or pursuant
to Rule 701 under the Securities Act as sales of securities pursuant to certain
compensatory benefit plans.
Item 16. Exhibits And Financial Statement Schedules
(A) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
1.1 Form of U.S. Underwriting Agreement.+
2.1 Plan of Reorganization and Agreement by and among Focal
Communications Corporation and its Subsidiaries, dated June 12,
1997. (Incorporated by reference to Exhibit No. 2.1 to the
Registrant's Registration Statement on Form S-4 originally filed
with the Securities and Exchange Commission on August 13, 1998
(Registration No. 333-49397) (the "S-4"))
3.1 Certificate of Incorporation. (Incorporated by reference to
Exhibit No. 3.1 of the S-4)
3.2 Amendment to Certificate of Incorporation. (Incorporated by
reference to Exhibit No. 3.2 to Focal's Annual Report on Form
10-K for year ended December 31, 1998 originally filed with the
Securities and Exchange Commission on March 31, 1998 (the "1998
10-K"))
3.3 Form of Amended and Restated Certificate of Incorporation.+
3.4 By-Laws. (Incorporated by reference to Exhibit No. 3.2 of the S-
4)
3.5 Form of Amended and Restated By-Laws.+
4.1 Indenture with Harris Trust and Savings Bank, dated February 18,
1998. (Incorporated by reference to Exhibit No. 4.1 of the S-4)
4.2 Initial Global 12.125% Senior Discount Note Due February 15,
2008, dated February 18, 1998. (Incorporated by reference to
Exhibit No. 4.2 of the S-4)
4.3 Stock Purchase Agreement with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures III, L.P., Brian F.
Addy, John R. Barnicle, Joseph Beatty, and Robert C. Taylor Jr.,
dated November 27, 1996. (Incorporated by reference to Exhibit
No. 4.5 of the S-4)
4.4 Amendment No. 1 to Stock Purchase Agreement with Madison
Dearborn Capital Partners, L.P., Frontenac VI, L.P., Battery
Ventures III, L.P., Brian F. Addy, John R. Barnicle, Joseph
Beatty, and Robert C. Taylor Jr., dated January 23, 1998.
(Incorporated by reference to Exhibit No. 4.6 of the S-4)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
4.5 Amendment No. 2 to Stock Purchase Agreement with Madison
Dearborn Capital Partners, L.P., Frontenac VI, L.P., Battery
Ventures III, L.P., Brian F. Addy, John R. Barnicle, Joseph
Beatty and Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.8 to the
Registrant's Quarterly Report on Form 10-Q for the period ending
September 30, 1998, originally filed with the Securities and
Exchange Commission on November 16, 1998 (the "3rd Quarter 1998
10-Q"))
4.6 Vesting Agreement with Madison Dearborn Capital Partners, L.P.,
Brian F. Addy, John R. Barnicle, Joseph Beatty and Robert C.
Taylor, Jr., dated as of November 27, 1996. (Incorporated by
reference to Exhibit No. 4.1 of the 3rd Quarter 1998 10-Q)
4.7 Vesting Agreement with Frontenac VI, L.P., Brian F. Addy, John
R. Barnicle, Joseph Beatty and Robert C. Taylor, Jr., dated as
of November 27, 1996. (Incorporated by reference to Exhibit No.
4.2 of the 3rd Quarter 1998 10-Q)
4.8 Vesting Agreement with Battery Ventures III, L.P., Brian F.
Addy, John R. Barnicle, Joseph Beatty and Robert C. Taylor, Jr.,
dated as of November 27, 1996. (Incorporated by reference to
Exhibit No. 4.3 of the 3rd Quarter 1998 10-Q)
4.9 Amendment No. 1 to Vesting Agreement and Consent as of August
21, 1998, between Focal Communications Corporation with Madison
Dearborn Capital Partners, L.P., Frontenac VI, L.P., Battery
Ventures III, L.P., Brian F. Addy, John R. Barnicle, Joseph
Beatty and Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.4 of the 3rd Quarter
1998 10-Q)
4.10 Amendment No. 1 to Vesting Agreement and Consent as of August
21, 1998, between Focal Communications Corporation with Madison
Dearborn Capital Partners, L.P., Frontenac VI, L.P., Battery
Ventures III, L.P., Brian F. Addy, John R. Barnicle, Joseph
Beatty and Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.5 of the 3rd Quarter
1998 10-Q)
4.11 Amendment No. 1 to Vesting Agreement and Consent as of August
21, 1998, between Focal Communications Corporation with Madison
Dearborn Capital Partners, L.P., Frontenac VI, L.P., Battery
Ventures III, L.P., Brian F. Addy, John R. Barnicle, Joseph
Beatty and Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.6 of the 3rd Quarter
1998 10-Q)
4.12 Form of Restricted Stock Agreement, dated September 30, 1998
between Focal Communications Corporation and each of Brian F.
Addy, John R. Barnicle, Joseph Beatty, and Robert C. Taylor, Jr.
(Incorporated by reference to Exhibit No. 4.7 of the 3rd Quarter
1998 10-Q)
4.13 Stockholders Agreement with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures III, L.P., Brian F.
Addy, John R. Barnicle, Joseph Beatty, and Robert C. Taylor,
Jr., dated November 27, 1996. (Incorporated by reference to
Exhibit No. 4.11 of the S-4)
4.14 Amendment No. 1 to Stockholders Agreement with Madison Dearborn
Capital Partners, L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R. Barnicle, Joseph Beatty and
Robert C. Taylor, Jr., dated as of July 7, 1998. (Incorporated
by reference to Exhibit No. 4.9 of the 3rd Quarter 1998 10-Q)
4.15 Amendment No. 2 to Stockholders Agreement with Madison Dearborn
Capital Partners, L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R. Barnicle, Joseph Beatty and
Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.10 of the 3rd
Quarter 1998 10-Q)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
4.16 Amendment No. 3 to Stockholders Agreement with Madison Dearborn
Capital Partners, L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R. Barnicle, Joseph Beatty, and
Robert C. Taylor, Jr., dated February 16, 1999. (Incorporated by
reference to Exhibit No. 4.16 to the 1998 10-K)
4.17 Executive Stock Agreement and Employment Agreement with Brian F.
Addy, dated November 27, 1996. (Incorporated by reference to
Exhibit No. 4.12 of the S-4)++
4.18 Executive Stock Agreement and Employment Agreement with John R.
Barnicle, dated November 27, 1996. (Incorporated by reference to
Exhibit No. 4.13 of the S-4)++
4.19 Executive Stock Agreement and Employment Agreement with Joseph
A. Beatty, dated November 27, 1996. (Incorporated by reference
to Exhibit No. 4.14 of the S-4)++
4.20 Executive Stock Agreement and Employment Agreement with Robert
C. Taylor, Jr., dated November 27, 1996. (Incorporated by
reference to Exhibit No. 4.15 of the S-4)++
4.21 Amendment No. 1 to Executive Employment Agreement and Consent
with Brian F. Addy, dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.11 of the 3rd Quarter 1998 10-Q)++
4.22 Amendment No. 1 to Executive Employment Agreement and Consent
with John R. Barnicle, dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.12 of the 3rd
Quarter 1998 10-Q)++
4.23 Amendment No. 1 to Executive Employment Agreement and Consent
with Joseph Beatty, dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.13 of the 3rd Quarter 1998 10-Q).++
4.24 Amendment No. 1 to Executive Employment Agreement and Consent
with Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.14 of the 3rd
Quarter 1998 10-Q)++
4.25 Registration Agreement with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures III, L.P., Brian F.
Addy, John R. Barnicle, Joseph Beatty, and Robert C. Taylor,
Jr., dated November 27, 1996. (Incorporated by reference to
Exhibit No. 4.16 of the S-4)
4.26 Amendment No. 1 to Registration Agreement with Madison Dearborn
Capital Partners, L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R. Barnicle, Joseph Beatty and
Robert C. Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No. 4.15 of the 3rd
Quarter 1998 10-Q)
5.1 Opinion of Jones, Day, Reavis & Pogue regarding validity of
shares.+
10.1 Interconnection Agreement with Ameritech Information Industry
Services, dated October 28, 1996. (Incorporated by reference to
Exhibit No. 10.1 of the S-4)
10.2 Interconnection Agreement with Ameritech Information Industry
Services, dated October 24, 1997. (Incorporated by reference to
Exhibit No. 10.2 of the S-4)
10.3 Interconnection Agreement with New York Telephone Company, dated
November 10, 1997. (Incorporated by reference to Exhibit No.
10.3 of the S-4)
10.4 Amended and Restated Interconnection Agreement with Ameritech
Information Industry Services, dated March 16, 1998.
(Incorporated by reference to Exhibit No. 10.4 of the 1998 S-4)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.5 Interconnection Agreement with Bell Atlantic-Pennsylvania, dated
April 27, 1998. (Incorporated by reference to Exhibit No. 10.26
of the S-4)
10.6 Interconnection Agreement with Bell Atlantic-Delaware, dated
April 27, 1998. (Incorporated by reference to Exhibit No. 10.25
of the S-4)
10.7 Interconnection Agreement with Bell Atlantic-New Jersey, dated
April 27, 1998. (Incorporated by reference to Exhibit No. 10.24
of the S-4)
10.8 Interconnection Agreement with GTE--California, dated June 12,
1998. (Incorporated by reference to Exhibit No. 10.23 of the S-
4)
10.9 Interconnection Agreement with Pacific Bell, dated June 15,
1998. (Incorporated by reference to Exhibit No. 10.22 of the S-
4)
10.10 Interconnection Agreement with Bell-Atlantic-District of
Columbia dated October 1, 1998. (Incorporated by reference to
Exhibit No. 10.1 to Focal's Quarterly Report on Form 10-Q for
the Period Ended March 31, 1999 (the "1st Quarter 1999 10-Q"))
10.11 Interconnection Agreement with Bell-Atlantic-Maryland dated
October 2, 1998. (Incorporated by reference to Exhibit No. 10.2
to the 1st Quarter 1999 10-Q)
10.12 Interconnection Agreement with Bell Atlantic-Virginia dated
October 2, 1998. (Incorporated by reference to Exhibit No. 10.3
to the 1st Quarter 1999 10-Q)
10.13 Interconnection Agreement with U.S. West-Washington State dated
January 15, 1999. (Incorporated by reference to Exhibit No. 10.4
to the 1st Quarter 1999 10-Q)
10.14 Interconnection Agreement with Ameritech Information Industry
Services, on behalf of and as agent for Ameritech Michigan dated
February 10, 1999. (Incorporated by reference to Exhibit No.
10.5 to the 1st Quarter 1999 10-Q)
10.15 Interconnection Agreement with Bell Atlantic-Massachusetts dated
February 15, 1999. (Incorporated by reference to Exhibit No.
10.6 to the 1st Quarter 1999 10-Q)
10.16 First Amendment to the Interconnection Agreement with Ameritech
Information Industry Services, dated September 8, 1998.
(Incorporated by reference to Exhibit No. 10.1 of the 3rd
Quarter 1998 10-Q)
10.17 Network Products Purchase Agreement with Northern Telecom Inc.,
dated January 21, 1997. (Incorporated by reference to Exhibit
No. 10.5 of the S-4)*
10.18 Amendments No. 1 and No. 2 to Network Products Purchase
Agreement with Northern Telecom Inc., both dated March 6, 1998.
(Incorporated by reference to Exhibit No. 10.6 of the S-4)*
10.19 Amendment No. 3 to Network Products Purchase Agreement with
Northern Telecom Inc., dated March 25, 1999. (Incorporated by
reference to Exhibit No. 10.7 to the 1st Quarter 1999 10-Q)*
10.20 Software License with DPI/TFS, Inc., dated April 10, 1997.
(Incorporated by reference to Exhibit No. 10.17 of the S-4)*
10.21 Second Amendment to Lease Agreement for property located at 200
North LaSalle, Chicago, IL, dated November 15, 1997.
(Incorporated by reference to Exhibit No. 10.9 of the S-4)
10.22 Lease Agreement for property located at 200 North LaSalle,
Chicago, IL, dated December 31, 1996. (Incorporated by reference
to Exhibit No. 10.7 of the S-4)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.23 First Amendment to Lease Agreement for property located at 200
North LaSalle, Chicago, IL, dated May 14, 1997. (Incorporated by
reference to Exhibit No. 10.8 of the S-4)
10.24 Loan and Security Agreement with NTFC Capital Corporation dated
December 30, 1998. (Incorporated by reference to Exhibit No.
10.17 of the 1998 10-K)*
10.25 Amendment No. 1 to Loan and Security Agreement with NTFC Capital
Corporation dated as of April 15, 1999.
10.26 Purchase Agreement with XCOM Technologies, Inc., dated January
6, 1999. (Incorporated by reference to Exhibit No. 10.8 to the
1st Quarter 1999 10-Q)
10.27 Third Amendment to Lease Agreement for property located at 200
North LaSalle, Chicago, IL, dated March 2, 1998. (Incorporated
by reference to Exhibit No. 10.10 of the S-4)
10.28 Fourth Amendment to Lease Agreement for property located at 200
North LaSalle, Chicago, IL, dated April 4, 1998. (Incorporated
by reference to Exhibit No. 10.18 of the S-4)
10.29 Fifth Amendment to Lease Agreement for property located at 200
North LaSalle, Chicago, IL, dated October 14, 1998.
(Incorporated by reference to Exhibit No. 10.9 to the 1st
Quarter 1999 10-Q)
10.30 Sixth Amendment to Lease Agreement for property located at 200
North LaSalle, Chicago, IL, dated February 18, 1999.
(Incorporated by reference to Exhibit No. 10.10 to the 1st
Quarter 1999 10-Q)
10.31 Lease Agreement for property located at 32 Old Slip, New York,
NY, dated May 20, 1997. (Incorporated by reference to Exhibit
No. 10.11 of the S-4)
10.32 Lease Agreement for property located at 650 Townsend Street, San
Francisco, CA, dated January 26, 1998. (Incorporated by
reference to Exhibit No. 10.12 of the S-4)
10.33 First Amendment to Lease Agreement for property located at 650
Townsend Street, San Francisco, CA, dated March 3, 1998.
(Incorporated by reference to Exhibit No. 10.11 to the 1st
Quarter 1999 10-Q)
10.34 Second Amendment to Lease Agreement for property located at 650
Townsend Street, San Francisco, CA, dated June 16, 1998.
(Incorporated by reference to Exhibit No. 10.12 to the 1st
Quarter 1999 10-Q)
10.35 Third Amendment to Lease Agreement for property located at 650
Townsend Street, San Francisco, CA, dated February 16, 1999.
(Incorporated by reference to Exhibit No. 10.13 to the 1st
Quarter 1999 10-Q)
10.36 Lease Agreement for property located at 701 Market Street,
Philadelphia, Pennsylvania, dated March 10, 1998. (Incorporated
by reference to Exhibit No. 10.13 of the S-4)
10.37 Lease Agreement for property located at 1120 Vermont Avenue, NW,
Washington, D.C., dated as of May 4, 1998. (Incorporated by
reference to Exhibit No. 10.19 of the S-4)
10.38 First Amendment to Lease Agreement for property located at 1120
Vermont, NW, Washington, D.C., dated July 23, 1998.
(Incorporated by reference to Exhibit No. 10.6 of the 3rd
Quarter 1998 10-Q)
10.39 Lease Agreement for property located at 1200 West Seventh
Street, Los Angeles, California, dated as of May 19, 1998.
(Incorporated by reference to Exhibit No. 10.20 of the 1998 S-4)
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
10.40 First Amendment to Lease Agreement for property located at 1200
West 7th Street, Los Angeles, CA, dated July 8, 1998.
(Incorporated by reference to Exhibit No. 10.5 of the 3rd
Quarter 1998 10-Q)
10.41 Lease Agreement for property located at 1511 6th Avenue,
Seattle, WA, dated August 7, 1998. (Incorporated by reference to
Exhibit No. 10.2 of the 3rd Quarter 1998 10-Q)
10.42 Lease Agreement for property located at 23800 West Ten Mile
Road, Southfield, MI, dated August 31, 1998. (Incorporated by
reference to Exhibit No. 10.3 of the 3rd Quarter 1998 10-Q)
10.43 Lease Agreement for property located at One Penn Plaza, New
York, NY, dated September 25, 1998. (Incorporated by reference
to Exhibit No. 10.4 of the 3rd Quarter 1998 10-Q)
10.44 Lease Agreement for property located at 1950 Stemmons Freeway,
Dallas, TX, dated December 15, 1998. (Incorporated by reference
to Exhibit No. 10.14 to the 1st Quarter 1999 10-Q)
10.45 Lease Agreement for property located at One Main Street,
Cambridge, MA, dated January 6, 1999. (Incorporated by reference
to Exhibit No. 10.15 to the 1st Quarter 1999 10-Q)
10.46 Lease Agreement for property located at 250 Williams Street,
Atlanta, GA, dated February 5, 1999. (Incorporated by reference
to Exhibit No. 10.16 to the 1st Quarter 1999 10-Q)
10.47 Lease Agreement for property located at Christopher Columbus
Drive & Washington Street, Jersey City, NJ, dated February 19,
1999. (Incorporated by reference to Exhibit No. 10.17 to the 1st
Quarter 1999 10-Q)
10.48 Employment Agreement with Renee M. Martin, dated March 20, 1998.
(Incorporated by reference to Exhibit No. 10.16 of the S-4)++
10.49 Amendment No. 1 to Executive Employment Agreement with Renee M.
Martin, dated as of August 21, 1998. (Incorporated by reference
to Exhibit No. 10.10 of the 3rd Quarter 1998 10-Q)++
10.50 1997 Nonqualified Stock Option Plan, amended and restated as of
August 21, 1998. (Incorporated by reference to Exhibit No. 10.7
of the 3rd Quarter 1998 10-Q)++
10.51 Form of Amended and Restated Stock Option Agreement.
(Incorporated by reference to Exhibit No. 10.33 of the 1998 10-
K)++
10.52 1998 Equity and Performance Incentive Plan. (Incorporated by
reference to Exhibit No. 10.8 of the 3rd Quarter 1998 10-Q)++
10.53 1998 Equity Plan for Non-Employee Directors. (Incorporated by
reference to Exhibit No. 10.9 of the 3rd Quarter 1998 10-Q)++
10.54 Agreement for Sale of Real Property between Focal Communications
Corporation and United Air Lines, Inc. dated August 13, 1998.
(Incorporated by reference to Exhibit No. 10.36 of the 1998 10-
K)
10.55 IRU Agreement dated April 28, 1999, by and between Focal
Financial Services, Inc. and Level 3 Communications, LLC.*
10.56 Private Line Service Agreement, dated May 4, 1999, by and
between Focal Communications Corporation and WorldCom
Technologies, Inc.*
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<C> <S>
21.1 Subsidiaries of the Registrant. (Incorporated by reference to
Exhibit No. 21.1 to the 1998 10-K)
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Day, Reavis & Pogue. (to be included as part
of its opinion filed as Exhibit 5.1)
24.1 Powers of Attorney.
</TABLE>
- --------
*Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission.
+To be filed by Amendment
++Management contract or compensatory plan
(B) Financial Statement Schedules.
Schedule II Valuation of Qualifying Accounts
Item 17. Undertakings
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on May 7, 1999.
Focal Communications Corporation
/s/ Robert C. Taylor, Jr.
By: _________________________________
Robert C. Taylor, Jr.
President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 7, 1999.
<TABLE>
<CAPTION>
Signature Title(s)
--------- --------
<S> <C>
/s/ Robert C. Taylor, Jr. President, Chief Executive Officer and
___________________________________________ Director (Principal Executive Officer)
Robert C. Taylor, Jr.
/s/ John R. Barnicle Executive Vice President, Chief Operating
___________________________________________ Officer and Director
John R. Barnicle
/s/ Joseph A. Beatty Executive Vice President and Chief
___________________________________________ Financial Officer (Principal Financial
Joseph A. Beatty Officer)
/s/ Gregory J. Swanson Controller (Principal Accounting Officer)
___________________________________________
Gregory J. Swanson
/s/ James E. Crawford, III* Director
___________________________________________
James E. Crawford, III
/s/ John A. Edwardson* Director
___________________________________________
John A. Edwardson
/s/ Paul J. Finnegan* Director
___________________________________________
Paul T. Finnegan
/s/ Richard D. Frisbie* Director
___________________________________________
Richard D. Frisbie
/s/ James N. Perry, Jr.* Director
___________________________________________
James N. Perry, Jr.
/s/ Paul G. Yovovich* Director
___________________________________________
Paul G. Yovovich
</TABLE>
- --------
* Signed by Joseph A. Beatty pursuant to a power of attorney filed as an
exhibit to this registration statement.
II-10
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
1.1 Form of U.S. Underwriting Agreement. To be filed by Amendment
2.1 Plan of Reorganization and Agreement by Incorporated by reference
and among Focal Communications Corporation
and its Subsidiaries, dated June 12, 1997.
(Incorporated by reference to Exhibit No.
2.1 to the Registrant's Registration
Statement on Form S-4 originally filed
with the Securities and Exchange
Commission on August 13, 1998
(Registration No. 333-49397) (the "S-4"))
3.1 Certificate of Incorporation. Incorporated by reference
(Incorporated by reference to Exhibit
No. 3.1 of the S-4)
3.2 Amendment to Certificate of Incorporation. Incorporated by reference
(Incorporated by reference to Exhibit No.
3.2 to Focal's Annual Report on Form 10-K
for year ended December 31, 1998
originally filed with the Securities and
Exchange Commission on March 31, 1998 (the
"1998 10-K"))
3.3 Form of Amended and Restated Certificate To be filed by Amendment
of Incorporation.
3.4 By-Laws. (Incorporated by reference to Incorporated by reference
Exhibit No. 3.2 of the S-4)
3.5 Form of Amended and Restated By-Laws. To be filed by Amendment
4.1 Indenture with Harris Trust and Savings Incorporated by reference
Bank, dated February 18, 1998.
(Incorporated by reference to Exhibit No.
4.1 of the S-4)
4.2 Initial Global 12.125% Senior Discount Incorporated by reference
Note Due February 15, 2008, dated February
18, 1998. (Incorporated by reference to
Exhibit No. 4.2 of the S-4)
4.3 Stock Purchase Agreement with Madison Incorporated by reference
Dearborn Capital Partners, L.P., Frontenac
VI, L.P., Battery Ventures III, L.P.,
Brian F. Addy, John R. Barnicle, Joseph
Beatty, and Robert C. Taylor Jr., dated
November 27, 1996. (Incorporated by
reference to Exhibit No. 4.5 of the S-4)
4.4 Amendment No. 1 to Stock Purchase Incorporated by reference
Agreement with Madison Dearborn Capital
Partners, L.P., Frontenac VI, L.P.,
Battery Ventures III, L.P., Brian F. Addy,
John R. Barnicle, Joseph Beatty, and
Robert C. Taylor Jr., dated January 23,
1998. (Incorporated by reference to
Exhibit No. 4.6 of the S-4)
4.5 Amendment No. 2 to Stock Purchase Incorporated by reference
Agreement with Madison Dearborn Capital
Partners, L.P., Frontenac VI, L.P.,
Battery Ventures III, L.P., Brian F. Addy,
John R. Barnicle, Joseph Beatty and Robert
C. Taylor, Jr., dated as of August 21,
1998. (Incorporated by reference to
Exhibit No. 4.8 to the Registrant's
Quarterly Report on Form 10-Q for the
period ending September 30, 1998,
originally filed with the Securities and
Exchange Commission on November 16, 1998
(the "3rd Quarter 1998 10-Q"))
4.6 Vesting Agreement with Madison Dearborn Incorporated by reference
Capital Partners, L.P., Brian F. Addy,
John R. Barnicle, Joseph Beatty and Robert
C. Taylor, Jr., dated as of November 27,
1996. (Incorporated by reference to
Exhibit No. 4.1 of the 3rd Quarter 1998
10-Q)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
4.7 Vesting Agreement with Frontenac VI, L.P., Incorporated by reference
Brian F. Addy, John R. Barnicle, Joseph
Beatty and Robert C. Taylor, Jr., dated as
of November 27, 1996. (Incorporated by
reference to Exhibit No. 4.2 of the 3rd
Quarter 1998 10-Q)
4.8 Vesting Agreement with Battery Ventures Incorporated by reference
III, L.P., Brian F. Addy, John R.
Barnicle, Joseph Beatty and Robert C.
Taylor, Jr., dated as of November 27,
1996. (Incorporated by reference to
Exhibit No. 4.3 of the 3rd Quarter 1998
10-Q)
4.9 Amendment No. 1 to Vesting Agreement and Incorporated by reference
Consent as of August 21, 1998, between
Focal Communications Corporation with
Madison Dearborn Capital Partners, L.P.,
Frontenac VI, L.P., Battery Ventures III,
L.P., Brian F. Addy, John R. Barnicle,
Joseph Beatty and Robert C. Taylor, Jr.,
dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.4 of the 3rd
Quarter 1998 10-Q)
4.10 Amendment No. 1 to Vesting Agreement and Incorporated by reference
Consent as of August 21, 1998, between
Focal Communications Corporation with
Madison Dearborn Capital Partners, L.P.,
Frontenac VI, L.P., Battery Ventures III,
L.P., Brian F. Addy, John R. Barnicle,
Joseph Beatty and Robert C. Taylor, Jr.,
dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.5 of the 3rd
Quarter 1998 10-Q)
4.11 Amendment No. 1 to Vesting Agreement and Incorporated by reference
Consent as of August 21, 1998, between
Focal Communications Corporation with
Madison Dearborn Capital Partners, L.P.,
Frontenac VI, L.P., Battery Ventures III,
L.P., Brian F. Addy, John R. Barnicle,
Joseph Beatty and Robert C. Taylor, Jr.,
dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.6 of the 3rd
Quarter 1998 10-Q)
4.12 Form of Restricted Stock Agreement, dated Incorporated by reference
September 30, 1998 between Focal
Communications Corporation and each of
Brian F. Addy, John R. Barnicle, Joseph
Beatty, and Robert C. Taylor, Jr.
(Incorporated by reference to Exhibit No.
4.7 of the 3rd Quarter 1998 10-Q)
4.13 Stockholders Agreement with Madison Incorporated by reference
Dearborn Capital Partners, L.P., Frontenac
VI, L.P., Battery Ventures III, L.P.,
Brian F. Addy, John R. Barnicle, Joseph
Beatty, and Robert C. Taylor Jr., dated
November 27, 1996. (Incorporated by
reference to Exhibit No. 4.11 of the S-4)
4.14 Amendment No. 1 to Stockholders Agreement Incorporated by reference
with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R.
Barnicle, Joseph Beatty and Robert C.
Taylor, Jr., dated as of July 7, 1998.
(Incorporated by reference to Exhibit No.
4.9 of the 3rd Quarter 1998 10-Q)
4.15 Amendment No. 2 to Stockholders Agreement Incorporated by reference
with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R.
Barnicle, Joseph Beatty and Robert C.
Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No.
4.10 of the 3rd Quarter 1998 10-Q)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
4.16 Amendment No. 3 to Stockholders Agreement Incorporated by reference
with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R.
Barnicle, Joseph Beatty, and Robert C.
Taylor, Jr., dated February 16, 1999.
(Incorporated by reference to Exhibit No.
4.16 to the 1998 10-K)
4.17 Executive Stock Agreement and Employment Incorporated by reference
Agreement with Brian F. Addy, dated
November 27, 1996. (Incorporated by
reference to Exhibit No. 4.12 of the S-
4)++
4.18 Executive Stock Agreement and Employment Incorporated by reference
Agreement with John R. Barnicle, dated
November 27, 1996. (Incorporated by
reference to Exhibit No. 4.13 of the S-
4)++
4.19 Executive Stock Agreement and Employment Incorporated by reference
Agreement with Joseph A. Beatty, dated
November 27, 1996. (Incorporated by
reference to Exhibit No. 4.14 of the S-
4)++
4.20 Executive Stock Agreement and Employment Incorporated by reference
Agreement with Robert C. Taylor, Jr.,
dated November 27, 1996. (Incorporated by
reference to Exhibit No. 4.15 of the S-
4)++
4.21 Amendment No. 1 to Executive Employment Incorporated by reference
Agreement and Consent with Brian F. Addy,
dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.11 of the
3rd Quarter 1998 10-Q)++
4.22 Amendment No. 1 to Executive Employment Incorporated by reference
Agreement and Consent with John R.
Barnicle, dated as of August 21, 1998.
(Incorporated by reference to Exhibit No.
4.12 of the 3rd Quarter 1998 10-Q)++
4.23 Amendment No. 1 to Executive Employment Incorporated by reference
Agreement and Consent with Joseph Beatty,
dated as of August 21, 1998. (Incorporated
by reference to Exhibit No. 4.13 of the
3rd Quarter 1998 10-Q)++
4.24 Amendment No. 1 to Executive Employment Incorporated by reference
Agreement and Consent with Robert C.
Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No.
4.14 of the 3rd Quarter 1998 10-Q)++
4.25 Registration Agreement with Madison Incorporated by reference
Dearborn Capital Partners, L.P., Frontenac
VI, L.P., Battery Ventures III, L.P.,
Brian F. Addy, John R. Barnicle, Joseph
Beatty, and Robert C. Taylor Jr., dated
November 27, 1996. (Incorporated by
reference to Exhibit No. 4.16 of the S-4)
4.26 Amendment No. 1 to Registration Agreement Incorporated by reference
with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures
III, L.P., Brian F. Addy, John R.
Barnicle, Joseph Beatty and Robert C.
Taylor, Jr., dated as of August 21, 1998.
(Incorporated by reference to Exhibit No.
4.15 of the 3rd Quarter 1998 10-Q)
5.1 Opinion of Jones, Day, Reavis & Pogue To be filed by Amendment
regarding validity of shares.
10.1 Interconnection Agreement with Ameritech Incorporated by reference
Information Industry Services, dated
October 28, 1996. (Incorporated by
reference to Exhibit No. 10.1 of the S-4)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
10.2 Interconnection Agreement with Ameritech Incorporated by reference
Information Industry Services, dated
October 24, 1997. (Incorporated by
reference to Exhibit No. 10.2 of the S-4)
10.3 Interconnection Agreement with New York Incorporated by reference
Telephone Company, dated November 10,
1997. (Incorporated by reference to
Exhibit No. 10.3 of the S-4)
10.4 Amended and Restated Interconnection Incorporated by reference
Agreement with Ameritech Information
Industry Services, dated March 16, 1998.
(Incorporated by reference to Exhibit No.
10.4 of the 1998 S-4)
10.5 Interconnection Agreement with Bell Incorporated by reference
Atlantic--Pennsylvania, dated April 27,
1998. (Incorporated by reference to
Exhibit No. 10.26 of the S-4)
10.6 Interconnection Agreement with Bell Incorporated by reference
Atlantic--Delaware, dated April 27, 1998.
(Incorporated by reference to Exhibit No.
10.25 of the S-4)
10.7 Interconnection Agreement with Bell Incorporated by reference
Atlantic--New Jersey, dated April 27,
1998. (Incorporated by reference to
Exhibit No. 10.24 of the S-4)
10.8 Interconnection Agreement with GTE-- Incorporated by reference
California, dated June 12, 1998.
(Incorporated by reference to Exhibit No.
10.23 of the S-4)
10.9 Interconnection Agreement with Pacific Incorporated by reference
Bell, dated June 15, 1998. (Incorporated
by reference to Exhibit No. 10.22 of the
S-4)
10.10 Interconnection Agreement with Bell- Incorporated by reference
Atlantic--District of Columbia dated
October 1, 1998. (Incorporated by
reference to Exhibit No. 10.1 to Focal's
Quarterly Report on Form 10-Q for the
Period Ended March 31, 1999 (the "1st
Quarter 1999 10-Q"))
10.11 Interconnection Agreement with Bell- Incorporated by reference
Atlantic--Maryland dated October 2, 1998.
(Incorporated by reference to Exhibit No.
10.2 to the 1st Quarter 1999 10-Q)
10.12 Interconnection Agreement with Bell Incorporated by reference
Atlantic--Virginia dated October 2, 1998.
(Incorporated by reference to Exhibit No.
10.3 to the 1st Quarter 1999 10-Q)
10.13 Interconnection Agreement with U.S. West-- Incorporated by reference
Washington State dated January 15, 1999.
(Incorporated by reference to Exhibit No.
10.4 to the 1st Quarter 1999 10-Q)
10.14 Interconnection Agreement with Ameritech Incorporated by reference
Information Industry Services, on behalf
of and as agent for Ameritech Michigan
dated February 10, 1999. (Incorporated by
reference to Exhibit No. 10.5 to the 1st
Quarter 1999 10-Q)
10.15 Interconnection Agreement with Bell Incorporated by reference
Atlantic--Massachusetts dated February 15,
1999. (Incorporated by reference to
Exhibit No. 10.6 to the 1st Quarter 1999
10-Q)
10.16 First Amendment to the Interconnection Incorporated by reference
Agreement with Ameritech Information
Industry Services, dated September 8,
1998. (Incorporated by reference to
Exhibit No. 10.1 of the 3rd Quarter 1998
10-Q)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
10.17 Network Products Purchase Agreement with Incorporated by reference
Northern Telecom Inc., dated January 21,
1997. (Incorporated by reference to
Exhibit No. 10.5 of the S-4)*
10.18 Amendments No. 1 and No. 2 to Network Incorporated by reference
Products Purchase Agreement with Northern
Telecom Inc., both dated March 6, 1998.
(Incorporated by reference to Exhibit No.
10.6 of the S-4)*
10.19 Amendment No. 3 to Network Products Incorporated by reference
Purchase Agreement with Northern Telecom
Inc., dated March 25, 1999. (Incorporated
by reference to Exhibit No. 10.7 to the
1st Quarter 1999 10-Q)*
10.20 Software License with DPI/TFS, Inc., dated Incorporated by reference
April 10, 1997. (Incorporated by reference
to Exhibit No. 10.17 of the S-4)*
10.21 Second Amendment to Lease Agreement for Incorporated by reference
property located at 200 North LaSalle,
Chicago, IL, dated November 15, 1997.
(Incorporated by reference to Exhibit No.
10.9 of the S-4)
10.22 Lease Agreement for property located at Incorporated by reference
200 North LaSalle, Chicago, IL, dated
December 31, 1996. (Incorporated by
reference to Exhibit No. 10.7 of the S-4)
10.23 First Amendment to Lease Agreement for Incorporated by reference
property located at 200 North LaSalle,
Chicago, IL, dated May 14, 1997.
(Incorporated by reference to Exhibit No.
10.8 of the S-4)
10.24 Loan and Security Agreement with NTFC Incorporated by reference
Capital Corporation dated December 30,
1998. (Incorporated by reference to
Exhibit No. 10.17 of the 1998 10-K)*
10.25 Amendment No. 1 to Loan and Security Filed herewith
Agreement with NTFC Capital Corporation
dated as of April 15, 1999.
10.26 Purchase Agreement with XCOM Technologies, Incorporated by reference
Inc., dated January 6, 1999. (Incorporated
by reference to Exhibit No. 10.8 to the
1st Quarter 1999 10-Q)*
10.27 Third Amendment to Lease Agreement for Incorporated by reference
property located at 200 North LaSalle,
Chicago, IL, dated March 2, 1998.
(Incorporated by reference to Exhibit No.
10.10 of the S-4)
10.28 Fourth Amendment to Lease Agreement for Incorporated by reference
property located at 200 North LaSalle,
Chicago, IL, dated April 4, 1998.
(Incorporated by reference to Exhibit No.
10.18 of the S-4)
10.29 Fifth Amendment to Lease Agreement for Incorporated by reference
property located at 200 North LaSalle,
Chicago, IL, dated October 14, 1998.
(Incorporated by reference to Exhibit No.
10.9 to the 1st Quarter 1999 10-Q)
10.30 Sixth Amendment to Lease Agreement for Incorporated by reference
property located at 200 North LaSalle,
Chicago, IL, dated February 18, 1999.
(Incorporated by reference to Exhibit No.
10.10 to the 1st Quarter 1999 10-Q)
10.31 Lease Agreement for property located at 32 Incorporated by reference
Old Slip, New York, NY, dated May 20,
1997. (Incorporated by reference to
Exhibit No. 10.11 of the S-4)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
10.32 Lease Agreement for property located at Incorporated by reference
650 Townsend Street, San Francisco, CA,
dated January 26, 1998. (Incorporated by
reference to Exhibit No. 10.12 of the S-4)
10.33 First Amendment to Lease Agreement for Incorporated by reference
property located at 650 Townsend Street,
San Francisco, CA, dated March 3, 1998.
(Incorporated by reference to Exhibit No.
10.11 to the 1st Quarter 1999 10-Q)
10.34 Second Amendment to Lease Agreement for Incorporated by reference
property located at 650 Townsend Street,
San Francisco, CA, dated June 16, 1998.
(Incorporated by reference to Exhibit No.
10.12 to the 1st Quarter 1999 10-Q)
10.35 Third Amendment to Lease Agreement for Incorporated by reference
property located at 650 Townsend Street,
San Francisco, CA, dated February 16,
1999. (Incorporated by reference to
Exhibit No. 10.13 to the 1st Quarter 1999
10-Q)
10.36 Lease Agreement for property located at Incorporated by reference
701 Market Street, Philadelphia,
Pennsylvania, dated March 10, 1998.
(Incorporated by reference to Exhibit No.
10.13 of the S-4)
10.37 Lease Agreement for property located at Incorporated by reference
1120 Vermont Avenue, NW., Washington,
D.C., dated as of May 4, 1998.
(Incorporated by reference to Exhibit No.
10.19 of the S-4)
10.38 First Amendment to Lease Agreement for Incorporated by reference
property located at 1120 Vermont, NW,
Washington, D.C., dated July 23, 1998.
(Incorporated by reference to Exhibit No.
10.6 of the 3rd Quarter 1998 10-Q)
10.39 Lease Agreement for property located at Incorporated by reference
1200 West Seventh Street, Los Angeles,
California, dated as of May 19, 1998.
(Incorporated by reference to Exhibit No.
10.20 of the 1998 S-4)
10.40 First Amendment to Lease Agreement for Incorporated by reference
property located at 1200 West 7th Street,
Los Angeles, CA, dated July 8, 1998.
(Incorporated by reference to Exhibit No.
10.5 of the 3rd Quarter 1998 10-Q)
10.41 Lease Agreement for property located at Incorporated by reference
1511 6th Avenue, Seattle, WA, dated August
7, 1998. (Incorporated by reference to
Exhibit No. 10.2 of the 3rd Quarter 1998
10-Q)
10.42 Lease Agreement for property located at Incorporated by reference
23800 West Ten Mile Road, Southfield, MI,
dated August 31, 1998. (Incorporated by
reference to Exhibit No. 10.3 of the 3rd
Quarter 1998 10-Q)
10.43 Lease Agreement for property located at Incorporated by reference
One Penn Plaza, New York, NY, dated
September 25, 1998. (Incorporated by
reference to Exhibit No. 10.4 of the 3rd
Quarter 1998 10-Q)
10.44 Lease Agreement for property located at Incorporated by reference
1950 Stemmons Freeway, Dallas, TX, dated
December 15, 1998. (Incorporated by
reference to Exhibit No. 10.14 to the 1st
Quarter 1999 10-Q)
10.45 Lease Agreement for property located at Incorporated by reference
One Main Street, Cambridge, MA, dated
January 6, 1999. (Incorporated by
reference to Exhibit No. 10.15 to the 1st
Quarter 1999 10-Q)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description Location
------- ------------------------------------------ -------------------------
<C> <S> <C>
10.46 Lease Agreement for property located at Incorporated by reference
250 Williams Street, Atlanta, GA, dated
February 5, 1999. (Incorporated by
reference to Exhibit No. 10.16 to the 1st
Quarter 1999 10-Q)
10.47 Lease Agreement for property located at Incorporated by reference
Christopher Columbus Drive & Washington
Street, Jersey City, NJ, dated February
19, 1999. (Incorporated by reference to
Exhibit No. 10.17 to the 1st Quarter 1999
10-Q)
10.48 Employment Agreement with Renee M. Martin, Incorporated by reference
dated March 20, 1998. (Incorporated by
reference to Exhibit No. 10.16 of the S-
4)++
10.49 Amendment No. 1 to Executive Employment Incorporated by reference
Agreement with Renee M. Martin, dated as
of August 21, 1998. (Incorporated by
reference to Exhibit No. 10.10 of the 3rd
Quarter 1998 10-Q)++
10.50 1997 Nonqualified Stock Option Plan, Incorporated by reference
amended and restated as of August 21,
1998. (Incorporated by reference to
Exhibit No. 10.7 of the 3rd Quarter 1998
10-Q)++
10.51 Form of Amended and Restated Stock Option Incorporated by reference
Agreement. (Incorporated by reference to
Exhibit No. 10.33 of the 1998 10-K)++
10.52 1998 Equity and Performance Incentive Incorporated by reference
Plan. (Incorporated by reference to
Exhibit No. 10.8 of the 3rd Quarter 1998
10-Q)++
10.53 1998 Equity Plan for Non-Employee Incorporated by reference
Directors. (Incorporated by reference to
Exhibit No. 10.9 of the 3rd Quarter 1998
10-Q)++
10.54 Agreement for Sale of Real Property Incorporated by reference
between Focal Communications Corporation
and United Air Lines, Inc. dated August
13, 1998. (Incorporated by reference to
Exhibit No. 10.36 of the 1998 10-K)
10.55 IRU Agreement dated April 28, 1999, by and Filed herewith
between Focal Financial Services, Inc. and
Level 3 Communications, LLC. *
10.56 Private Line Service Agreement, dated May Filed herewith
4, 1999, between Focal Communications
Corporation and WorldCom Technologies,
Inc. *
21.1 Subsidiaries of the Registrant. Incorporated by reference
(Incorporated by reference to Exhibit
No. 21.1 to the 1998 10-K)
23.1 Consent of Arthur Andersen LLP. Filed herewith
23.2 Consent of Jones, Day, Reavis & Pogue. To be filed by amendment
(included as part of its opinion filed as
Exhibit 5.1)
24.1 Powers of Attorney. Filed herewith
</TABLE>
- --------
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission
++ Management Contract or Compensatory Plan
<PAGE>
Exhibit 10.25
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
----------------------------------------------
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Agreement"), is dated
as of April 15, 1999, by and between the following parties:
LENDER/SECURED PARTY: NTFC CAPITAL CORPORATION, a Delaware corporation with
offices at 501 Corporate Centre Drive, Franklin,
Tennessee 37067 ("Lender")
BORROWER/DEBTOR: FOCAL COMMUNICATIONS CORPORATION, a Delaware
corporation with its principal place of business at 200
North LaSalle Street, Chicago, Illinois 60601
("Borrower")
This First Amendment to Loan and Security Agreement amends that certain Loan and
Security Agreement between the parties dated as of December 30, 1998 (the "Loan
Agreement") and includes the general terms and conditions contained herein and
all the exhibits and schedules attached hereto, all of which are incorporated
herein. In the event of a conflict between the general terms and conditions and
any schedule, the additional terms and conditions stated in the schedule shall
control.
By executing this First Amendment to Loan and Security Agreement, Lender agrees
to make loans to Borrower, and Borrower agrees to borrow from Lender and to
provide collateral to secure such loans, all on the terms and conditions set
forth herein.
ARTICLE 1: AMENDMENTS TO LOAN AGREEMENT
---------------------------------------
The Loan Agreement is hereby amended as follows:
1.01. The Promissory Note dated as December 30, 1998, executed in
connection with the Loans outstanding at the time of this First Amendment shall
be canceled and superseded by an Amended and Restated Promissory Note in the
form of Exhibit A hereto, dated as of the date of this First Amendment, and duly
executed and delivered by the Borrower.
1.02. Schedule 2.01 to the Loan Agreement is amended by deleting the
present Schedule 2.01 and replacing it with Exhibit B attached hereto.
1.03. Schedule 4.25 to the Loan Agreement is amended by deleting the
present Schedule 4.25 and replacing it with Exhibit C attached hereto.
1.04 Schedule 4.26 to the Loan Agreement is amended by deleting the present
Schedule 4.26 and replacing it with Exhibit D attached hereto.
<PAGE>
ARTICLE 2: AFFIRMATIONS
-----------------------
2.01. Borrower hereby represents and warrants that (a) the representations
and warranties contained in Article 4 of the Loan Agreement are true and correct
on and as of the date hereof as though made on and as of the date hereof, and
(b) on the date hereof no Default or Event of Default has occurred and is
continuing or exists or will occur or exist after giving effect to this First
Amendment.
ARTICLE 3: CONDITIONS PRECEDENT
-------------------------------
3.01. The effectiveness of this First Amendment shall be subject to
Lender's receipt of (a) a fully executed Amended and Restated Promissory Note,
reflecting the increased Total Commitment under the Loan of up to $50,000,000
and (b) such additional UCC filings and other documents as Lender may reasonably
require to secure the Loans.
ARTICLE 4: MISCELLANEOUS
------------------------
4.01. Except as amended as provided above, the Loan Agreement shall remain
in full force and effect, and the Loan Agreement, as amended, is hereby ratified
by Borrower and Lender.
4.02. Borrower represents and warrants that the execution and terms of this
First Amendment and the Amended and Restated Promissory Note delivered herewith
have been duly authorized by all necessary and appropriate corporate action.
4.03. Except to the extent otherwise provided in Schedule 2.02, this First
Amendment shall be governed by and construed in accordance with the internal
laws of the State of Tennessee.
4.04. All capitalized terms used herein shall, unless otherwise
specifically defined herein, have the meanings assigned to such terms in the
Loan Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment to Loan and Security Agreement as of the day and year first above
written.
LENDER: BORROWER:
- --------- ---------
NTFC CAPITAL CORPORATION FOCAL COMMUNICATIONS CORPORATION
BY: L.W. Middleton BY: Robert M. Junkroski
- ------------------------- -----------------------
TITLE: Vice President TITLE: Vice President and Treasurer
- ------------------------- -----------------------------
DATE: April 15, 1999 DATE: April 15, 1999
- ------------------------- ----------------------------
3
<PAGE>
EXHIBIT A
---------
AMENDED AND RESTATED PROMISSORY NOTE
$50,000,000.00 April __, 1999
FOR VALUE RECEIVED, FOCAL COMMUNICATIONS CORPORATION, a Delaware
corporation with its principal place of business at 200 North LaSalle Street,
Chicago, Illinois 60601 ("Borrower") promises and agrees to pay to the order of
NTFC CAPITAL CORPORATION, a Delaware corporation, its successors, assigns or any
subsequent holder of this Note (the "Lender") at its offices located at 501
Corporate Centre Drive, Franklin, Tennessee 37067, or at such other place as may
be designated in writing by Lender, in lawful money of the United States of
America in immediately available funds the lesser of Fifty Million Dollars
($50,000,000) or all amounts advanced hereunder pursuant to Section 2.02 of the
Loan Agreement (defined below), as noted on any and all amortization schedules
attached hereto, together with interest thereon and other amounts due as
provided below. The amortization schedules attached hereto are for convenience
only, and the failure of the Lender to attach an amortization schedule, or any
error or incorrect notation by the Lender on any amortization schedule, shall
not diminish the obligations of the Borrower under this Note. This Note shall
mature on the latest of (i) January 1, 2004, (ii) the sixtieth (60th) Payment
Date, or (iii) the first Business Day of the sixty-first (61st) month after the
first Advance hereunder (the "Maturity Date").
This Note is issued pursuant to that certain Loan and Security Agreement
dated December 30, 1998, by and between Borrower and Lender, as amended by the
First Amendment to Loan Agreement dated as of the date of this Note (as it may
be further modified, amended or restated from time to time, the "Loan
Agreement"). It is an amendment and restatement of and replaces the Promissory
Note dated as of December 30, 1998 from Borrower to Lender. Any term not
otherwise defined in this Note shall have the same meaning as in the Loan
Agreement. Reference is made to the Loan Agreement, which, among other things,
permits the acceleration of the maturity hereof upon the occurrence of certain
events and for prepayments in certain circumstances and upon certain terms and
conditions. This Note is secured by, among other things, the Collateral
described in the Loan Agreement and the Security Documents.
Each Advance hereunder shall bear interest from the date of such Advance
until such amount is due and payable (whether on any Payment Date, at the
Maturity Date, by acceleration, or otherwise) based on a rate equal to the five
(5) year "Swap Rate" as shown on the Telerate screen page 19901 on the date of
such Advance hereunder, plus 395 basis points (the "Interest Rate"). Interest
shall be paid monthly with principal, and shall accrue based on a 365 day year.
The Interest Rate is subject to adjustment as follows: When the Borrower has met
the conditions set forth below for two consecutive fiscal quarters, the 395
basis point margin stated above will be reduced to the
<PAGE>
applicable margin as set forth in the table below, and the new margin will apply
so long as the required Cash Flow Coverage continues to exist. Should the
Borrower fail to maintain the required Cash Flow Coverage that permitted the
reduced margin for one fiscal quarter, then the margin shall return to the
appropriate margin until a reduction is again permitted hereunder.
<TABLE>
<CAPTION>
Condition Margin
--------- ------
<S> <C>
Cash Flow Coverage (greater than or equal to) 1:1 350 Basis Points
Cash Flow Coverage (greater than or equal to) 1.5:1 325 Basis Points
Cash Flow Coverage (greater than or equal to) 2:1 300 Basis Points
Cash Flow Coverage (greater than or equal to) 2.5:1 275 Basis Points
</TABLE>
For purposes of this provision, Cash Flow Coverage is defined as (EBITDA +
Interest Income)/Scheduled Principal Payments + Required Interest Payments
on all outstanding Debt)
Commencing with the Initial Payment Date (defined below), principal amounts
outstanding hereunder on each Advance and interest thereon at the applicable
Interest Rate shall be amortized and paid in sixty (60) monthly equal
installment payments, commencing on the first Business Day of the first Calendar
Month to commence at least thirty (30) days after the date of such Advance (the
"Initial Payment Date") and on the first Business Day of each calendar month
thereafter (each, a "Payment Date"), in accordance with a separate amortization
schedule attached hereto. In the event of any additional Advances hereunder an
additional amortization schedule will be attached for each additional Advance,
reflecting the principal amount of such Advance and the applicable Interest
Rate. All such amortization schedules shall provide for equal monthly
amortization of principal and interest through the Maturity Date. If any
principal, interest, or other charge or expense remains outstanding on the
Maturity Date, such amount shall be added to the payment due on the Maturity
Date.
Notwithstanding the foregoing, if Borrower shall fail to pay within ten
(10) days after the due date any principal amount or interest or other amount
payable under this Note, Borrower shall pay to Lender, to defray the
administrative costs of handling such late payments, an amount equal to interest
on the amount unpaid, to the extent permitted under applicable law, at a rate
equal to the lesser of three percent (3%) higher than the then applicable
interest rate or the maximum permissible interest rate under applicable law (the
"Default Rate") (instead of the Interest Rate), from the due date until such
overdue principal amount, interest or other unpaid amount is paid in full (both
before and after judgment) whether or not any notice of default in the payment
thereof has been delivered under the Loan Agreement. In addition, but without
duplication, upon the occurrence and during the continuance of an Event of
Default, all outstanding amounts hereunder shall bear interest at the Default
Rate (instead of the Interest Rate) until such amounts are paid in full or such
Event of Default is waived in writing by Lender.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Borrower that the Lender or any
2
<PAGE>
subsequent holder of this Note shall never be entitled to receive, collect,
reserve or apply, as interest, any amount in excess of the maximum rate of
interest permitted to be charged by applicable law, as amended or enacted, from
time to time. In the event Lender, or any subsequent holder of this Note, ever
receives, collects, reserves or applies, as interest, any such excess, such
amount which would be excessive interest shall be deemed a partial prepayment of
principal and treated as such (except that no prepayment premium will be payable
thereon), or, if the principal indebtedness and all other amounts due are paid
in full, any remaining excess funds shall immediately be paid to the Borrower.
In determining whether or not the interest paid or payable, under any specific
contingency, exceeds the highest lawful rate, the Borrower and the Lender shall,
to the maximum extent permitted under applicable law, (a) exclude voluntary
prepayments and the effects thereof as it may relate to any fees charged by the
Lender, and (b) amortize, prorate, allocate, and spread, in equal parts, the
total amount of interest throughout the entire term of the indebtedness;
provided that if the indebtedness is paid and performed in full prior to the end
of the full contemplated term hereof, and if the interest received for the
actual period of existence hereof exceeds the maximum lawful rate, the Lender or
any subsequent holder of the Note shall refund to the Borrower the amount of
such excess or credit the amount of such excess against the principal portion of
the indebtedness, as of the date it was received, and, in such event, the Lender
shall not be subject to any penalties provided by any laws for contracting for,
charging, reserving or receiving interest in excess of the maximum lawful rate.
All amounts received for payment under this Note shall at the option of
Lender be applied first to any unpaid expenses due Lender under this Note or
under any other documents evidencing or securing the obligations of Borrower to
Lender, then to any unpaid late charges, then to any unpaid interest accrued at
the Default Rate, then to all other accrued but unpaid interest due under this
Note and finally to the reduction of outstanding principal due under this Note.
Upon the occurrence of any one or more of the Events of Default specified
in the Loan Agreement (each, an "Event of Default"), all amounts then remaining
unpaid on this Note shall be, or may be declared to be, immediately due and
payable as provided in the Loan Agreement, without further notice, at the option
of the Lender. Lender may waive any Event of Default before or after the same
has been declared and restore this Note to full force and effect without
impairing any rights hereunder, such right of waiver being a continuing one, but
one waiver shall not imply any additional or subsequent waiver. Time is of the
essence of this Note.
Demand, presentment, notice and protest are expressly waived, except for
notices to Borrower otherwise expressly required in the Loan Agreement. Borrower
and any and all endorsers, guarantors and other parties liable on this Note, and
any and all general partners of Borrower or any endorsers, guarantors or other
parties liable on this Note (collectively, the "Obligors") jointly and severally
waive presentment for payment, protest, notice of protest, notice of nonpayment
of this Note, demand and all legal diligence in enforcing collection, and hereby
expressly consent to (i) any and all delays, extensions, renewals or other
modifications of this Note or any waivers of any term hereof, (ii) any release
or discharge by Lender of any of the Obligors, (iii) any release, substitution
or exchange of any security for the payment hereof, (iv) any failure to act
3
<PAGE>
on the part of Lender, and (vi) any indulgence shown by Lender from time to time
(without notice or further assent from any of the Obligors) and hereby agree
that no such action, failure to act or failure to exercise any right or remedy
by Lender shall in any way affect or impair the obligations of any of the
Obligors.
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS
LOCATED IN DAVIDSON OR WILLIAMSON COUNTY, TENNESSEE, INCLUDING WITHOUT
LIMITATION FEDERAL COURTS SITTING IN THE MIDDLE DISTRICT OF TENNESSEE AND THE
CHANCERY COURT FOR DAVIDSON OR WILLIAMSON COUNTY, TENNESSEE, FOR ANY SUIT
BROUGHT OR ACTION COMMENCED IN CONNECTION WITH THIS NOTE, ANY DOCUMENTS EXECUTED
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING WITHOUT LIMITATION THE LOAN
AGREEMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWER, AND AGREES NOT TO
CONTEST OR CHALLENGE VENUE OR JURISDICTION IN ANY SUCH COURTS.
Borrower irrevocably consents to the service of process of any such courts
in any such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, return receipt requested, to Borrower at the
address opposite its signature below or to such other address as Borrower may
have furnished to Lender in writing, and agrees that such service shall become
effective fifty (50) days after such mailing. However, nothing herein shall
affect the right of Lender or Borrower to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Lender or Borrower in any other jurisdiction.
BORROWER HEREBY KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVES ITS RIGHTS TO
DEMAND A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING THIS NOTE, ANY
DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH INCLUDING WITHOUT
LIMITATION THE LOAN AGREEMENT OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER.
BORROWER AGREES THAT LENDER MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF BORROWER'S EXPRESS WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
IN ANY ACTION TO ENFORCE THIS NOTE, BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS UNDER THE LAWS OF ANY STATE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY,
PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN ACTUAL DIRECT DAMAGES.
In the event this Note is placed in the hands of one or more attorneys for
collection or enforcement or protection of the holder's rights described herein
or in the Loan Agreement or the other Loan Documents, the Borrower agrees to pay
all reasonable attorneys' fees and all court and other out-of-pocket costs
incurred by the holder hereof (as of which shall be due on demand and shall bear
interest at the rate then payable hereunder from five (5) days after such demand
is made until paid).
4
<PAGE>
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Tennessee. If any provision of this Note should
for any reason be invalid or unenforceable, the remaining provisions hereof
shall remain in full force and effect.
This Note may not be changed, extended or terminated except in writing. No
waiver of any term or provision hereof shall be valid unless in writing signed
by Lender.
Executed as of April __, 1999.
FOCAL COMMUNICATIONS CORPORATION
By:__________________________________
Title:_______________________________
5
<PAGE>
AMORTIZATION SCHEDULE(S)
6
<PAGE>
EXHIBIT B
---------
SCHEDULE 2.01 TO
----------------
LOAN AND SECURITY AGREEMENT
---------------------------
MAXIMUM LOAN AMOUNTS
--------------------
Maximum principal amount of all Loans: Up to Fifty Million (US) Dollars
($50,000,000) ("Total Commitment")
<PAGE>
EXHIBIT C
---------
SCHEDULE 4.25 TO
----------------
LOAN AND SECURITY AGREEMENT
---------------------------
UCC FILING OFFICES
------------------
Illinois Secretary of State, UCC Division
Howlett Bldg., Room 030
2nd and Edwards St.
Springfield, IL 62756
Pennsylvania Department of State
UCC Division
308 North Office Bldg.
Harrisburg, PA 17120
Philadelphia County
Office of the Prothonotary
Broad & Mkt.
Philadelphia, PA 19107
Michigan Department of State
UCC Division
P.O. Box 30197
Lansing, MI 48909-7697
Secretary of State, UCC Division
1500 11th Street
Sacramento, CA 95814-1738
Recorder of Deeds, D.C.
515 "D" St., NW, Room 310
Washington, D.C. 20001
Department of Licensing, UCC Section
P.O. Box 9660
Olympia, Washington 98507-9660
Corporations Section,
Secretary of State
1019 Brazos
Austin, TX 78701
11
<PAGE>
EXHIBIT D
---------
SCHEDULE 4.26 TO
----------------
LOAN AND SECURITY AGREEMENT
---------------------------
PRINCIPAL OFFICES AND LOCATION OF COLLATERAL
--------------------------------------------
<TABLE>
<CAPTION>
Name Address County
- ---------------------- ----------------------------- -------------
<S> <C> <C>
Focal Communications 701 Market St. Philadelphia
of Pennsylvania Philadelphia, PA 19106
Focal Communications 1200 W. 7th St., Suite L2-250 Los Angeles
of California Los Angeles, CA 90017
650 Townsend, Suite 200 San Francisco
San Francisco, CA 94103
Focal Communications Decatur Building King
of Washington 1511 6th Avenue
Seattle, WA 98101
Focal Communications 1120 Vermont Ave. D.C.
of the Mid-Atlantic Washington, D.C. 20005
Focal Communications 23800 West Ten Mile Road Oakland
of Michigan The Vanguard Center
Southfield, MI 48034
Focal Communications 1950 Stemmons Fwy Dallas
Corporation of Texas Dallas, TX 75207
</TABLE>
12
<PAGE>
AMENDED AND RESTATED PROMISSORY NOTE
$50,000,000.00 April 15, 1999
FOR VALUE RECEIVED, FOCAL COMMUNICATIONS CORPORATION, a Delaware
corporation with its principal place of business at 200 North LaSalle Street,
Chicago, Illinois 60601 ("Borrower") promises and agrees to pay to the order of
NTFC CAPITAL CORPORATION, a Delaware corporation, its successors, assigns or any
subsequent holder of this Note (the "Lender") at its offices located at 501
Corporate Centre Drive, Franklin, Tennessee 37067, or at such other place as may
be designated in writing by Lender, in lawful money of the United States of
America in immediately available funds the lesser of Fifty Million Dollars
($50,000,000) or all amounts advanced hereunder pursuant to Section 2.02 of the
Loan Agreement (defined below), as noted on any and all amortization schedules
attached hereto, together with interest thereon and other amounts due as
provided below. The amortization schedules attached hereto are for convenience
only, and the failure of the Lender to attach an amortization schedule, or any
error or incorrect notation by the Lender on any amortization schedule, shall
not diminish the obligations of the Borrower under this Note. This Note shall
mature on the latest of (i) January 1, 2004, (ii) the sixtieth (60th) Payment
Date, or (iii) the first Business Day of the sixty-first (61st) month after the
first Advance hereunder (the "Maturity Date").
This Note is issued pursuant to that certain Loan and Security Agreement
dated December 30, 1998, by and between Borrower and Lender, as amended by the
First Amendment to Loan Agreement dated as of the date of this Note (as it may
be further modified, amended or restated from time to time, the "Loan
Agreement"). It is an amendment and restatement of and replaces the Promissory
Note dated as of December 30, 1998, from Borrower to Lender. Any term not
otherwise defined in this Note shall have the same meaning as in the Loan
Agreement. Reference is made to the Loan Agreement, which, among other things,
permits the acceleration of the maturity hereof upon the occurrence of certain
events and for prepayments in certain circumstances and upon certain terms and
conditions. This Note is secured by, among other things, the Collateral
described in the Loan Agreement and the Security Documents.
Each Advance hereunder shall bear interest from the date of such Advance
until such amount is due and payable (whether on any Payment Date, at the
Maturity Date, by acceleration, or otherwise) based on a rate equal to the five
(5) year "Swap Rate" as shown on the Telerate screen page 19901 on the date of
such Advance hereunder, plus 395 basis points (the "Interest Rate"). Interest
shall be paid monthly with principal, and shall accrue based on a 365 day year.
The Interest Rate is subject to adjustment as follows: When the Borrower has met
the conditions set forth below for two consecutive fiscal quarters, the 395
basis point margin stated above will be reduced to the applicable margin as set
forth in the table below, and the new margin will apply so long as the required
Cash Flow Coverage continues to exist. Should the Borrower fail to maintain the
required Cash Flow Coverage that permitted the reduced margin for one
1
<PAGE>
fiscal quarter, then the margin shall return to the appropriate margin until a
reduction is again permitted hereunder.
Condition Margin
--------- ------
Cash Flow Coverage (Equal to or Greater Than) 1:1 350 Basis Points
Cash Flow Coverage (Equal to or Greater Than) 1.5:1 325 Basis Points
Cash Flow Coverage (Equal to or Greater Than) 2:1 300 Basis Points
Cash Flow Coverage (Equal to or Greater Than) 2.5:1 275 Basis Points
For purposes of this provision, Cash Flow Coverage is defined as (EBITDA +
Interest Income)/Scheduled Principal Payments + Required Interest Payments
on all outstanding Debt)
Commencing with the Initial Payment Date (defined below), principal amounts
outstanding hereunder on each Advance and interest thereon at the applicable
Interest Rate shall be amortized and paid in sixty (60) monthly equal
installment payments, commencing on the first Business Day of the first Calendar
Month to commence at least thirty (30) days after the date of such Advance (the
"Initial Payment Date") and on the first Business Day of each calendar month
thereafter (each, a "Payment Date"), in accordance with a separate amortization
schedule attached hereto. In the event of any additional Advances hereunder an
additional amortization schedule will be attached for each additional Advance,
reflecting the principal amount of such Advance and the applicable Interest
Rate. All such amortization schedules shall provide for equal monthly
amortization of principal and interest through the Maturity Date. If any
principal, interest, or other charge or expense remains outstanding on the
Maturity Date, such amount shall be added to the payment due on the Maturity
Date.
Notwithstanding the foregoing, if Borrower shall fail to pay within ten
(10) days after the due date any principal amount or interest or other amount
payable under this Note, Borrower shall pay to Lender, to defray the
administrative costs of handling such late payments, an amount equal to interest
on the amount unpaid, to the extent permitted under applicable law, at a rate
equal to the lesser of three percent (3%) higher than the then applicable
interest rate or the maximum permissible interest rate under applicable law (the
"Default Rate") (instead of the Interest Rate), from the due date until such
overdue principal amount, interest or other unpaid amount is paid in full (both
before and after judgment) whether or not any notice of default in the payment
thereof has been delivered under the Loan Agreement. In addition, but without
duplication, upon the occurrence and during the continuance of an Event of
Default, all outstanding amounts hereunder shall bear interest at the Default
Rate (instead of the Interest Rate) until such amounts are paid in full or such
Event of Default is waived in writing by Lender.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Borrower that the Lender or any
subsequent holder of this Note shall never be entitled to receive, collect,
reserve or apply, as interest, any amount in excess of the maximum rate of
interest permitted to be
2
<PAGE>
charged by applicable law, as amended or enacted, from time to time. In the
event Lender, or any subsequent holder of this Note, ever receives, collects,
reserves or applies, as interest, any such excess, such amount which would be
excessive interest shall be deemed a partial prepayment of principal and treated
as such (except that no prepayment premium will be payable thereon), or, if the
principal indebtedness and all other amounts due are paid in full, any remaining
excess funds shall immediately be paid to the Borrower. In determining whether
or not the interest paid or payable, under any specific contingency, exceeds the
highest lawful rate, the Borrower and the Lender shall, to the maximum extent
permitted under applicable law, (a) exclude voluntary prepayments and the
effects thereof as it may relate to any fees charged by the Lender, and (b)
amortize, prorate, allocate, and spread, in equal parts, the total amount of
interest throughout the entire term of the indebtedness; provided that if the
indebtedness is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the maximum lawful rate, the Lender or any subsequent
holder of the Note shall refund to the Borrower the amount of such excess or
credit the amount of such excess against the principal portion of the
indebtedness, as of the date it was received, and, in such event, the Lender
shall not be subject to any penalties provided by any laws for contracting for,
charging, reserving or receiving interest in excess of the maximum lawful rate.
All amounts received for payment under this Note shall at the option of
Lender be applied first to any unpaid expenses due Lender under this Note or
under any other documents evidencing or securing the obligations of Borrower to
Lender, then to any unpaid late charges, then to any unpaid interest accrued at
the Default Rate, then to all other accrued but unpaid interest due under this
Note and finally to the reduction of outstanding principal due under this Note.
Upon the occurrence of any one or more of the Events of Default specified
in the Loan Agreement (each, an "Event of Default"), all amounts then remaining
unpaid on this Note shall be, or may be declared to be, immediately due and
payable as provided in the Loan Agreement, without further notice, at the option
of the Lender. Lender may waive any Event of Default before or after the same
has been declared and restore this Note to full force and effect without
impairing any rights hereunder, such right of waiver being a continuing one, but
one waiver shall not imply any additional or subsequent waiver. Time is of the
essence of this Note.
3
<PAGE>
Demand, presentment, notice and protest are expressly waived, except for
notices to Borrower otherwise expressly required in the Loan Agreement. Borrower
and any and all endorsers, guarantors and other parties liable on this Note, and
any and all general partners of Borrower or any endorsers, guarantors or other
parties liable on this Note (collectively, the "Obligors") jointly and severally
waive presentment for payment, protest, notice of protest, notice of nonpayment
of this Note, demand and all legal diligence in enforcing collection, and hereby
expressly consent to (i) any and all delays, extensions, renewals or other
modifications of this Note or any waivers of any term hereof, (ii) any release
or discharge by Lender of any of the Obligors, (iii) any release, substitution
or exchange of any security for the payment hereof, (iv) any failure to act on
the part of Lender, and (vi) any indulgence shown by Lender from time to time
(without notice or further assent from any of the Obligors) and hereby agree
that no such action, failure to act or failure to exercise any right or remedy
by Lender shall in any way affect or impair the obligations of any of the
Obligors.
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS
LOCATED IN DAVIDSON OR WILLIAMSON COUNTY, TENNESSEE, INCLUDING WITHOUT
LIMITATION FEDERAL COURTS SITTING IN THE MIDDLE DISTRICT OF TENNESSEE AND THE
CHANCERY COURT FOR DAVIDSON OR WILLIAMSON COUNTY, TENNESSEE, FOR ANY SUIT
BROUGHT OR ACTION COMMENCED IN CONNECTION WITH THIS NOTE, ANY DOCUMENTS EXECUTED
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING WITHOUT LIMITATION THE LOAN
AGREEMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWER, AND AGREES NOT TO
CONTEST OR CHALLENGE VENUE OR JURISDICTION IN ANY SUCH COURTS.
Borrower irrevocably consents to the service of process of any such courts
in any such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, return receipt requested, to Borrower at the
address opposite its signature below or to such other address as Borrower may
have furnished to Lender in writing, and agrees that such service shall become
effective fifty (50) days after such mailing. However, nothing herein shall
affect the right of Lender or Borrower to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Lender or Borrower in any other jurisdiction.
BORROWER HEREBY KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVES ITS RIGHTS TO
DEMAND A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING THIS NOTE, ANY
DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH INCLUDING WITHOUT
LIMITATION THE LOAN AGREEMENT OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER.
BORROWER AGREES THAT LENDER MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF BORROWER'S EXPRESS WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
IN ANY ACTION TO ENFORCE THIS NOTE, BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS UNDER THE LAWS OF ANY STATE TO
4
<PAGE>
CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER
DAMAGES OTHER THAN ACTUAL DIRECT DAMAGES.
In the event this Note is placed in the hands of one or more attorneys for
collection or enforcement or protection of the holder's rights described herein
or in the Loan Agreement or the other Loan Documents, the Borrower agrees to pay
all reasonable attorneys' fees and all court and other out-of-pocket costs
incurred by the holder hereof (as of which shall be due on demand and shall bear
interest at the rate then payable hereunder from five (5) days after such demand
is made until paid).
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Tennessee. If any provision of this Note should
for any reason be invalid or unenforceable, the remaining provisions hereof
shall remain in full force and effect.
This Note may not be changed, extended or terminated except in writing. No
waiver of any term or provision hereof shall be valid unless in writing signed
by Lender.
Executed as of April 15, 1999.
FOCAL COMMUNICATIONS CORPORATION
By: Robert M. Junkroski
-------------------------------------
Title: Vice President and Treasurer
----------------------------------
5
<PAGE>
Focal Communications Corporation
Amortization Schedule
March 19, 1999
9.63%
<TABLE>
<CAPTION>
Payment Beginning Total Ending
Number Date Balance Interest Principal Payment Balance
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0 3/19/99 $5,808,837.57
1 5/1/99 $5,808,837.57 $ 65,900.86 $ 56,899.14 $122,800.00 $5,751,938.43
2 6/1/99 $5,751,938.43 $ 47,044.55 $ 75,755.45 $122,800.00 $5,676,182.99
3 7/1/99 $5,676,182.99 $ 44,927.38 $ 77,872.62 $122,800.00 $5,598,310.36
4 8/1/99 $5,598,310.36 $ 45,788.04 $ 77,011.96 $122,800.00 $5,521,298.41
5 9/1/99 $5,521,298.41 $ 45,158.17 $ 77,641.83 $122,800.00 $5,443,656.58
6 10/1/99 $5,443,656.58 $ 43,086.91 $ 79,713.09 $122,800.00 $5,363,943.49
7 11/1/99 $5,363,943.49 $ 43,871.18 $ 78,928.82 $122,800.00 $5,285,014.67
8 12/1/99 $5,285,014.67 $ 41,831.25 $ 80,968.75 $122,800.00 $5,204,045.93
9 1/1/00 $5,204,045.93 $ 42,563.39 $ 80,236.61 $122,800.00 $5,123,809.32
10 2/1/00 $5,123,809.32 $ 41,792.64 $ 81,007.36 $122,800.00 $5,042,801.96
11 3/1/00 $5,042,801.96 $ 38,478.23 $ 84,321.77 $122,800.00 $4,958,480.20
12 4/1/00 $4,958,480.20 $ 40,444.13 $ 82,355.87 $122,800.00 $4,876,124.32
13 5/1/00 $4,876,124.32 $ 38,489.41 $ 84,310.59 $122,800.00 $4,791,813.73
14 6/1/00 $4,791,813.73 $ 39,084.70 $ 83,715.30 $122,800.00 $4,708,098.43
15 7/1/00 $4,708,098.43 $ 37,163.10 $ 85,836.90 $122,800.00 $4,622,461.54
16 8/1/00 $4,622,461.54 $ 37,703.37 $ 85,096.63 $122,800.00 $4,537,364.91
17 9/1/00 $4,637,364.91 $ 37,009.28 $ 85,790.72 $122,800.00 $4,451,574.19
18 10/1/00 $4,451,574.19 $ 35,138.25 $ 87,861.75 $122,800.00 $4,383,912.43
19 11/1/00 $4,363,912.43 $ 35,594.50 $ 87,205.50 $122,800.00 $4,276,706.94
20 12/1/00 $4,276,706.94 $ 33,757.94 $ 89,042.06 $122,800.00 $4,187,664.88
21 1/1/01 $4,187,664.88 $ 34,156.93 $ 88,643.07 $122,800.00 $4,099,021.81
22 2/1/01 $4,099,021.81 $ 33,525.51 $ 89,274.49 $122,800.00 $4,009,747.31
23 3/1/01 $4,009,747.31 $ 29,621.60 $ 93,178.40 $122,800.00 $3,916,568.91
24 4/1/01 $3,916,588.91 $ 32,033.24 $ 90,766.76 $122,800.00 $3,825,802.15
25 5/1/01 $3,825,802.15 $ 30,261.49 $ 92,518.51 $122,800.00 $3,733,283.64
26 6/1/01 $3,733,283.64 $ 30,534.17 $ 92,265.83 $122,800.00 $3,841,017.81
27 7/1/01 $3,641,017.81 $ 28,818.91 $ 93,981.09 $122,800.00 $3,547,036.71
28 8/1/01 $3,547,036.71 $ 29,010.87 $ 93,789.13 $122,800.00 $3,453,247.58
29 9/1/01 $3,453,247.58 $ 28,243.78 $ 94,556.22 $122,800.00 $3,358,691.37
30 10/1/01 $3,358,691.37 $ 26,584.27 $ 96,215.73 $122,800.00 $3,262,475.64
31 11/1/01 $3,262,475.64 $ 26,683.48 $ 96,116.52 $122,800.00 $3,166,359.11
32 12/1/01 $3,166,359.11 $ 25,061.95 $ 97,738.05 $122,800.00 $3,068,621.06
33 1/1/02 $3,068,621.06 $ 25,097.96 $ 97,702.04 $122,800.00 $2,970,919.02
34 2/1/02 $2,970,919.02 $ 24,298.86 $ 98,501.14 $122,800.00 $2,872,417.88
35 3/1/02 $2,872,417.88 $ 21,219.69 $ 101,580.31 $122,800.00 $2,770,837.57
36 4/1/02 $2,770,837.57 $ 22,662.41 $ 100,137.59 $122,800.00 $2,670,699.99
37 5/1/02 $2,670,699.99 $ 21,138.77 $ 101,661.23 $122,800.00 $2,569,038.76
38 6/1/02 $2,569,038.76 $ 21,011.92 $ 101,788.08 $122,800.00 $2,467,250.68
39 7/1/02 $2,467,250.68 $ 19,528.46 $ 103,271.54 $122,800.00 $2,363,979.14
40 8/1/02 $2,363,979.14 $ 19,334.76 $ 103,465.24 $122,800.00 $2,260,513.90
41 9/1/02 $2,260,513.90 $ 18,488.53 $ 104,311.47 $122,800.00 $2,156,202.43
42 10/1/02 $2,156,202.43 $ 17,066.49 $ 105,733.51 $122,800.00 $2,050,468.92
43 11/1/02 $2,050,468.92 $ 16,770.59 $ 106,029.41 $122,800.00 $1,944,439.50
44 12/1/02 $1,944,439.50 $ 15,390.37 $ 107,409.63 $122,800.00 $1,837,029.88
45 1/1/03 $1,837,029.88 $ 15,024.89 $ 107,775.11 $122,800.00 $1,729,254.77
46 2/1/03 $1,729,254.77 $ 14,143.41 $ 108,656.59 $122,800.00 $1,620,598.18
47 3/1/03 $1,620,598.18 $ 11,972.00 $ 110,828.00 $122,800.00 $1,509,770.18
48 4/1/03 $1,509,770.18 $ 12,348.27 $ 110,451.73 $122,800.00 $1,399,318.44
49 5/1/03 $1,399,318.44 $ 11,075.70 $ 111,724.30 $122,800.00 $1,287,594.15
50 6/1/03 $1,287,594.15 $ 10,531.11 $ 112,268.89 $122,800.00 $1,175,325.26
51 7/1/03 $1,175,325.26 $ 9,302.78 $ 113,497.22 $122,800.00 $1,175,325.26
52 8/1/03 $1,061,828.04 $ 8,684.59 $ 114,115.41 $122,800.00 $ 947,712.62
53 9/1/03 $ 947,712.62 $ 7,751.25 $ 115,048.75 $122,800.00 $ 832,663.88
54 10/1/03 $ 832,663.88 $ 6,590.59 $ 116,209.41 $122,800.00 $ 716,454.47
55 11/1/03 $ 716,454.47 $ 5,859.81 $ 116,940.19 $122,800.00 $ 599,514.28
56 12/1/03 $ 599,514.28 $ 4,745.20 $ 118,054.80 $122,800.00 $ 481,459.48
57 1/1/04 $ 481,459.48 $ 3,937.81 $ 118,862.19 $122,800.00 $ 362,597.29
58 2/1/04 $ 362,597.29 $ 2,957.55 $ 119,842.45 $122,800.00 $ 242,754.83
59 3/1/04 $ 242,754.83 $ 1,852.30 $ 120,947.70 $122,800.00 $ 121,807.13
60 4/1/04 $ 121,807.13 $ 993.53 $ 121,807.13 $122,800.66 $ 0.00
- ---------------------------------------------------------------------------------------------------------
$1,559,163.09 $5,808,837.57
</TABLE>
<PAGE>
IRU AGREEMENT
THIS IRU AGREEMENT ("Agreement") is made and entered into as of the 28th
day of April, 1999, by and between LEVEL 3 COMMUNICATIONS, LLC, a Delaware
limited liability company ("Grantor") and Focal Financial Services, Inc., a
Delaware corporation, for itself and as agent for Focal operating subsidiaries,
including, but not limited to, Focal Communications Corporation of Illinois,
Focal Communications Corporation of New York and Focal Communications
Corporation of California (collectively "Focal") ("Grantee").
RECITALS
A. Grantor intends to construct or acquire and/or is currently
constructing or acquiring multiconduit fiber optic communications systems in
several metropolitan areas within the United States (the "Grantor Systems") as
generally depicted and/or described on Exhibit "A" attached hereto (the "System
Routes"). It is expressly contemplated that additional System Routes in new
metropolitan areas will be added by mutual agreement of the parties and such
System Routes will be incorporated herein by the addition of new schedules.
B. Grantor further intends to install within one or more of the conduits
of the Grantor Systems fiber optic cable ("Cable").
C. Grantee desires to obtain the exclusive right to use fibers in the
Cable (the "Relevant Fibers"), which are further described in Exhibit B.
D. Grantor is willing to grant to Grantee the exclusive right to use the
Relevant Fibers subject to the terms and conditions contained herein.
In consideration of the foregoing recitals and the covenants and agreements
set forth below, Grantor and Grantee hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.01 "Acceptance Date" shall mean the date when Grantee delivers (or is
deemed to have delivered) notice of acceptance of a Completion Notice with
respect to a specific System Route in accordance with Article 7.
1.02 "Acceptance Testing Procedures" shall have the meaning set forth in
Article 6.
1.03 "Affiliate" shall mean, with respect to any specified Person, any
other Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person ("control," "controlled by" and "under common control with" shall mean
the possession, directly or indirectly, of the power to direct or cause the
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direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or credit arrangement, as trustee or executor,
or otherwise).
1.04 "Cable" shall have the meaning set forth in the Recitals.
1.05 "Completion Date" shall mean the respective dates for completion of
the Grantor System in each metropolitan area as set forth in Exhibit F attached
hereto.
1.06 "Costs" shall mean *** the actual reasonable direct costs paid or
payable in accordance with the established accounting procedures generally used
by Grantor and which Grantor utilizes in billing third parties for reimbursable
projects, *** (i) internal labor costs, including direct wages and salaries ***
and overhead (provided that overhead shall be calculated at *** of direct wages
and salaries), and (ii) other direct costs and out of pocket expenses on a
direct pass-through basis. Such Costs are subject to reasonable audit and
verification by Grantee. In the event Costs are used to reimburse an Affiliate
of the Grantor for goods or services, such costs shall be limited to the actual
Costs (as defined herein) without markup of such Affiliate. A "direct cost" is
any cost that can be identified specifically with the particular objectives in
Section 5.02, 8.02 and 10.01 of this Agreement for which Costs are reimbursable.
1.07 "Effective Date" shall have the meaning set forth in Section 4.01.
1.08 "Force Majeure Event" shall have the meaning set forth in Article 17.
1.09 "Governmental Authority" shall mean any federal, state, regional,
county, city, municipal, local, territorial, or tribal government, whether
foreign or domestic, or any department, agency, bureau or other administrative
or regulatory body obtaining authority from any of the foregoing, including
without limitation, courts, public utilities and sewer authorities.
1.10 "Grantee Delay Event" shall mean the failure of Grantee to timely
observe and perform its obligations and agreements hereunder, only to the extent
such failure delays the construction and installation of the Grantor System
along the System Route.
1.11 "Grantor System" shall have the meaning set forth in the Recitals.
1.12 "Impositions" shall mean all taxes, fees, levies, imposed duties
charges or withholdings of any nature (including without limitation ad valorem,
real property, gross receipts, taxes and franchise, license and permit fees),
together with any penalties, fines or interest thereon arising out of the
transactions contemplated by this Agreement and/or imposed upon the Grantor
System, or any part thereof, by any Governmental Authority.
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1.13 "IRU" shall have the meaning set forth in Article 2.
1.14 "IRU Fee" shall have the meaning set forth in Section 3.01.
1.15 "Person" shall mean any natural person, corporation, partnership,
limited liability company, business trust, joint venture, association, company
or Governmental Authority.
1.16 "Prime Rate" shall mean, as of any relevant date, the interest rate
most recently published in the Money Rates Section of The Wall Street Journal as
the prime rate.
1.17 "Proprietary Information" shall have the meaning set forth in Section
21.01.
1.18 "Recurring Charge" shall have the meaning set forth in Section 11.01.
1.19 "Relevant Fibers" shall have the meaning set forth in the Recitals.
1.20 "Required Rights" shall have the meaning set forth in Section 5.01.
1.21 "Route Miles" shall mean the actual number of route miles for the
System Route.
1.22 "Scheduled Maintenance" shall have the meaning set forth in Exhibit
"D."
1.23 "System Route" shall have the meaning set forth in the Recitals.
1.24 "Term" shall mean a period of twenty (20) years from the Acceptance
Date for the Relevant Fibers within each Grantor System, unless sooner
terminated in accordance herewith.
1.25 "Unscheduled Maintenance" shall have the meaning set forth in Exhibit
"D."
ARTICLE 2.
GRANT OF IRU
2.01 As of the Effective Date, Grantor hereby grants to Grantee, and
Grantee hereby acquires from Grantor, (i) an exclusive indefeasible right of use
of, for the purposes and subject to the limitations described herein, the
Relevant Fibers along the System Route (the "IRU"). Without limiting the
foregoing, during the Term of this Agreement, Grantor shall not grant the right
to use or enter into similar agreements or arrangements of any kind whatsoever
with other Persons with respect to the Relevant Fibers.
2.02 Within ninety (90) days of the Acceptance Date, Grantor shall provide
Grantee with as-built drawings (including, without limitation, general
information regarding route description and the distances involved) for the
Grantor System. Grantor shall, on the Acceptance Date for
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each Grantor System, deliver specifications for the Relevant Fibers located
within such Grantor System to Grantee.
2.03 If, at any time during the Term, Grantor determines (which
determination shall be at Grantor's sole discretion) to install and make
available to third parties additional fibers (whether of the same type as the
Relevant Fibers or otherwise) either (a) along the same System Route as the
Relevant Fibers, or (b) within extensions to the then-existing Grantor System
(each a "Fiber Upgrade"), then Grantor shall deliver written notice thereof
(each a "Fiber Upgrade Notice") to Grantee.
2.04 The Fiber Upgrade Notice shall specify, to the extent then known to
Grantor, (a) the location of the Fiber Upgrade, (b) the fiber to be made
available therein (Grantee shall be permitted to take an additional number of
fibers that does not exceed the number of fibers initially ordered by Grantee
within the applicable Grantor System; Grantor shall give reasonable
consideration to any request by Grantee for fibers exceeding such amount), (c)
any applicable restrictions on the availability of additional fibers, (d)
Grantor's anticipated timing for completion of the Fiber Upgrade, and (e) the
additional IRU Fees to be charged to Grantee in the event that Grantee elects to
participate in the Fiber Upgrade (which IRU Fees shall, on a per fiber basis, be
less than the fees generally charged by Grantor to grantees purchasing the same
or smaller quantities as Grantee and which have not, prior to the date of the
Fiber Upgrade, purchased the right to use fiber from Grantor). Grantee shall
have a period of thirty (30) days from the receipt of the Fiber Upgrade Notice
within which to inform Grantor, in writing, of its commitment to participate in
the proposed Fiber Upgrade. In the event that Grantor does not receive written
notice from Grantee within such period, Grantee shall be deemed to have waived
any right to participate in the subject Fiber Upgrade (but Grantee shall not be
deemed to have waived its rights, including its right to receive written notice
as set forth in Section 2.03 above, respecting future Fiber Upgrades. The Term
for use of any upgraded fibers shall be, unless otherwise agreed in writing by
the parties, for a period which commences upon delivery of such fibers and which
ends twenty (20) years thereafter; provided, however, that to the extent that
such term extends beyond twenty (20) years from the commencement of the Term
with respect to the Relevant Fibers initially delivered hereunder, and such
extended term requires Grantor to extend or renew a Required Right, Grantor
shall have the right to increase the Recurring Charge in order to reflect the
pass through (on a pro rata basis based upon the number of fibers within the
Grantor System) of any increase in the payments, fees, charges, costs or other
expenses incurred or to be incurred by Grantor in connection with the extension
or renewal of such Required Right. The determination of the amount of the
increase (if any) shall be made no later than twenty five (25) years after the
commencement of the Term with respect to the Relevant Fibers initially delivered
hereunder and in any event as soon as possible after Grantor becomes aware of
any such increase in payments, fees, charges, costs or other expenses, and
Grantor shall provide Grantee with reasonable documentation or other evidence
substantiating the increase in the Recurring Charge.
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ARTICLE 3.
IRU FEE
3.01 In consideration of the IRU, Grantee agrees to pay to Grantor the
sums, and at the time or times, described on Exhibit "B" (the "IRU Fee").
3.02 In addition to the IRU Fee, Grantee shall pay directly or reimburse
Grantor for all other sums, costs, fees and expenses which are expressly
provided to be paid by Grantee under this Agreement, including, without
limitation, the Recurring Charge.
3.03 Grantor will send Grantee invoices for payments of the IRU Fee and
other amounts due and owing hereunder, and Grantee shall pay such invoiced
amounts within thirty (30) days after receipt of such invoice. Similarly, for
any sums, costs, fees, refunds and expenses owed by Grantor to Grantee, unless
specified otherwise herein, Grantee will send Grantor an invoice setting forth
the amounts owed, and Grantor shall pay such amounts within thirty (30) days
after receipt of such notice. Any sums not paid when due hereunder shall bear
interest at the Prime Rate plus ***.
ARTICLE 4.
TERM
4.01 The IRU with respect to the Relevant Fibers in each separate Grantor
System shall become effective (the "Effective Date"), and Grantee shall commence
having the exclusive right to use the Relevant Fibers, on the first day when
both (i) the Acceptance Date with respect to such Relevant Fibers has occurred;
and (ii) Grantor has received payment in full, without any withholding for
disputed amounts *** of all of the IRU Fee for the Relevant Fibers within such
Grantor System. Subject to the provisions of Article 18, the IRU shall terminate
at the expiration of the Term. Grantee shall not be permitted to use the
Relevant Fibers in any Grantor System for any purpose other than testing until
after the Effective Date.
4.02 Upon the expiration of the Term, the Relevant Fibers and all rights
to the use thereof shall revert to Grantor (without reimbursement of any of the
IRU Fee or other sums, costs, fees or expenses previously made with respect
thereto unless Grantee is entitled to such reimbursement the terms of this
Agreement), and from and after such time Grantee shall have no further rights or
obligations hereunder with respect thereto unless such rights or obligations are
specifically provided herein to survive the Term or are referred to in Section
26.07.
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4.03 Unless prohibited by law, Grantor and Grantee acknowledge and agree
that Grantee shall be treated for accounting and federal and all applicable
state tax purposes as the exclusive beneficial owner of the Relevant Fibers.
Except as otherwise required by law, Grantor and Grantee shall file (or caused
to be filed with respect to any consolidated returns) their respective tax
returns and other returns and reports for their respective Impositions on such
basis, and not take any positions inconsistent therewith.
4.04 This Agreement shall become effective on the date hereof and shall
terminate on the expiration of the Term or any earlier termination provided for
hereunder, except those provisions of this Agreement which are expressly
provided herein to survive such termination shall remain binding on the parties
hereto.
ARTICLE 5.
REQUIRED RIGHTS
5.01 Grantor agrees to obtain and maintain in full force and effect for
and during the Term all rights, licenses, franchises, permits, authorizations,
rights-of-way, easements and other similar agreements that are necessary in
order to permit Grantor to (i) construct, install and keep installed, maintain,
and where necessary repair the Relevant Fibers in accordance with this
Agreement; (ii) provide Grantee with the IRU; and (iii) perform all of
Grantor's other obligations under this Agreement (collectively, the "Required
Rights").
5.02 Notwithstanding Section 5.01, if, after the Acceptance Date, Grantor
is legally required by a Force Majeure Event or by any Person having the
authority to so require (each a "Relocating Authority") to relocate the Grantor
System or any portion thereof, Grantor shall have the right to proceed with such
relocation, including, but not limited to, the right, in good faith, to
reasonably determine the extent and timing of, and methods to be used for such
relocation; provided that Grantee shall be kept fully informed of all
determinations made by Grantor in connection with such relocation and such
relocation is performed in a manner that minimizes the extent and duration of
any interruption in Grantee's use of the Relevant Fibers. Unless such
relocation constitutes Scheduled Maintenance or is the result of Grantor's
negligence, non-compliance with industry standards, willful misconduct or
Grantor's breach of this Agreement, Grantee shall reimburse Grantor for its
proportionate share of the Costs of such relocation (to the extent Grantor has
not been reimbursed by third parties), allocated on the basis of the total
number of fibers within the affected portion of the Grantor System.
Notwithstanding the foregoing, in the event that Grantor is required to relocate
the Grantor System containing any Relevant Fibers, Grantee shall have the right,
by delivery of written notice to Grantor no later than fifteen (15) days after
Grantee is informed of such relocation, to elect to terminate the Term with
respect to the affected segment of the Grantor System within which such Relevant
Fibers are located and not to pay any allocated share of the Costs associated
with the relocation of such Relevant Fibers. Grantee shall not be entitled to
any refund of the IRU Fee in the event that Grantee elects to terminate the Term
hereunder.
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5.03 Grantor agrees to maintain at its principal place of business complete
and accurate records of its business and transactions that are relevant to the
determination of the Costs under all applicable provisions of this Agreement
(including without limitation under Sections 5.02, 8.02 and 10) and any payments
to be made under this Agreement which are based on Costs. Grantor agrees to
maintain all of the information referred to in this Section for *** from the
date of its preparation, and Grantor agrees that Grantee shall have the right to
inspect or audit any such records during usual business hours and upon
reasonable advance notice to Grantor; any such request for audit must be
delivered no later than *** after the Costs which are the subject of the audit
were invoiced to Grantee. The audit or inspection shall be at Grantee's sole
expense unless a discrepancy resulting in an overpayment by Grantee of *** or
more is discovered, in which event Grantor shall pay Grantee's expenses for the
audit or inspection. Any reimbursement and payment of Grantee's expenses
required from Grantor as a result of such audits or inspections shall be made
within thirty (30) days of Grantor's receipt of an invoice for such payment.
5.04 If the relocation is the result of Grantor's negligence, conduct
that is not in compliance with industry standards, willful misconduct or
Grantor's breach of this Agreement, Grantee shall have no reimbursement
obligations towards Grantor whatsoever for the Costs of any such relocation. In
addition, if a relocation results as described in the foregoing sentence and
such relocation materially and adversely impacts the provision of Grantee's
operations or services, Grantee upon five (5) days notice to Grantor may
terminate this Agreement with respect to such Grantor System without any penalty
or further obligations or liability to Grantor respecting such affected Grantor
System. In that event, Grantee shall receive a refund of the unused portion of
the IRU Fee paid by Grantee for such affected Grantor System (prorated on a
straight-line basis).
ARTICLE 6.
ACCEPTANCE TESTING PROCEDURES
Grantor shall test the Relevant Fibers in accordance with the procedures
and standards specified in Exhibit "C" ("Acceptance Testing Procedures").
Grantor shall provide Grantee with at least seven (7) days notice of its testing
schedule and Grantee shall have the right to observe all such testing. If
Grantor has determined that the results of the Acceptance Testing Procedures
with respect to the Relevant Fibers have been satisfied, Grantor shall provide
Grantee with a copy of such test results.
ARTICLE 7.
COMPLETION
When Grantor reasonably determines the Relevant Fibers have satisfied the
Acceptance Testing Procedures with respect to the System Route, Grantor shall
provide written notice of same to Grantee (a "Completion Notice"). Grantee
shall acknowledge, in writing, receipt of the
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Completion Notice within one (1) business day after receipt. Grantee shall,
within fifteen (15) days of its acknowledged receipt of the Completion Notice,
either accept, request clarification or reject the Completion Notice
(specifying, if rejected or if clarification is sought, the defect or failure in
the Acceptance Testing Procedures and/or the items or matters to be remedied or
clarified) by delivery of written notice to Grantor. In the event Grantee
rejects the Completion Notice, Grantor shall promptly, and at no cost to
Grantee, remedy the defect or failure specified in Grantee's notice. Thereafter
Grantor shall again give Grantee a Completion Notice with respect to the System
Route. Subject to Grantee's rights under Section 18.03 to terminate this
Agreement as provided for therein, the foregoing procedure shall apply again and
successively thereafter until Grantor has remedied all defects or failures
specified by Grantee. Any failure of Grantee to timely reject or request
clarification with respect to a Completion Notice shall be deemed to constitute
acceptance for purposes of this Agreement and Grantee shall be deemed to have
delivered a notice of acceptance on the fifteenth (15th) day after Grantee's
acknowledged receipt of the Completion Notice. In addition, any use by Grantee
of the Relevant Fibers for the purpose of delivering communications traffic
(other than traffic which is transmitted only and solely for the purpose of
testing the performance of the Relevant Fibers) shall be deemed to constitute
acceptance.
ARTICLE 8.
ACCESS
8.01 Grantor shall control all activities concerning access to the
Grantor System, including the Relevant Fibers.
8.02 Any work required respecting the Grantor System or the Relevant
Fibers required by Grantee for any reason, including, without limitation,
splicing of the Relevant Fibers or the installation of handholes or other access
points along the System Route, shall be undertaken only by Grantor at Grantee's
request, shall be performed in a timely manner consistent with industry accepted
practices and, except as otherwise provided in this Agreement, Grantee shall
reimburse Grantor for the Costs (as defined in Section 1.06) incurred by Grantor
in connection therewith.
8.03 Grantee shall not have any obligation to reimburse Grantor for any
Costs pursuant to Section 8.02 if such Costs were incurred or arose out of
Grantor's negligence, conduct that is not in compliance with industry standards,
willful misconduct or Grantor's breach of this Agreement.
ARTICLE 9.
OPERATIONS
9.01 Grantee shall not materially, adversely affect the use by any other
Person of the Grantor System and/or any electric or optronic equipment used by
such Person in connection therewith; provided, however, that Grantee shall not
be required to alter its pre-existing use of
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the Relevant Fibers in order to avoid adversely affecting new and presently
unanticipated uses of the Grantor System by another Person. Grantor shall not
interfere with, or materially, adversely affect, or permit another Person under
the control of Grantor to interfere with, or materially, adversely affect,
Grantee's use of the Relevant Fibers and/or any optronics, electronics,
electric, optronic or other equipment or related facilities used by Grantee in
connection therewith; provided, however, that Grantor shall not be required to
alter pre-existing uses of the Grantor System in order to avoid adversely
affecting new and presently unanticipated uses of the Relevant Fibers by
Grantee. If a Person materially, adversely affects Grantee's use of the Relevant
Fibers and such Person is in any way leasing, licensing or otherwise using
(through an IRU or otherwise) any part of the Grantor System, Grantor shall
immediately require that such Person cease using the Grantor System until it
does so without causing such interference or material adverse effect. Without
limiting the foregoing, Grantor shall take all reasonable measures to prevent
all other Persons from interfering with or materially, adversely affecting
Grantee's use of the Relevant Fibers and/or any optronics, electronics,
electric, optronic or other equipment or related facilities used by Grantee in
connection therewith.
9.02 Grantee acknowledges and agrees that Grantor is not supplying nor is
Grantor obligated to supply to Grantee any optronics or electronics or optical
or electrical equipment, any related facilities, or (except as agreed in any
colocation agreement executed by the parties) any space for the placement
thereof, all of which are the sole responsibility of Grantee.
9.03 Upon not less than one hundred twenty (120) days written notice from
Grantor to Grantee, Grantor may at its option, subject to Grantee's prior
written approval (which approval shall not be unreasonably delayed or withheld)
substitute for the Relevant Fibers, an equal number of alternative fibers of
like or better quality within the System Route or portion thereof, provided that
in such event, such substitution (i) shall be in accordance with Grantee's
applicable specifications and operating procedures; (ii) shall be effected at
the sole cost of Grantor, including, without limitation, all disconnect and
reconnect costs, fees and expenses; (iii) shall be tested in accordance with and
shall satisfy the Acceptance Testing Procedures; and (iv) shall not interrupt
the operation or the performance of Grantee's network or business.
ARTICLE 10.
MAINTENANCE AND REPAIR OF THE GRANTOR SYSTEM
10.01 From and after the Acceptance Date, the maintenance and repairs of
the Grantor System, including, without limitation, the Relevant Fibers, shall be
provided in accordance with the maintenance requirements and procedures set
forth in Exhibit "D" attached hereto. When performing maintenance and repairs,
Grantor shall in all cases use commercially reasonable efforts to minimize
disruption of Grantee's business operation and treat the Relevant Fibers with at
least as high a priority (subject to applicable law) as Grantor treats any and
all other fibers or Persons, including itself and any fibers it uses. The costs
of all Scheduled Maintenance of the Relevant Fibers shall be borne by Grantor as
a part of the Recurring Charge; however, Grantee
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shall (but only if and to the extent that such Unscheduled Maintenance is not
caused by Grantor's negligence, conduct not in compliance with industry
standards, willful misconduct or breach of this Agreement) reimburse Grantor for
its proportionate share of the Costs of any Unscheduled Maintenance and repair
and/or restoration of the Relevant Fibers, which allocation shall be based on
the total fiber count within the affected segment of the Grantor System.
***
ARTICLE 11.
RECURRING CHARGES
11.01 Subject to the adjustment described in Section 11.02, Grantee shall
pay to Grantor each year, commencing with the Acceptance Date and continuing
until this Agreement expires or is earlier terminated, the product obtained
when: (a) $****** is multiplied by (b) the number of Route Miles in the System
Route (the "Recurring Charge").
11.02 The Recurring Charge shall be increased on each anniversary of the
Acceptance Date by the increase, if any, in the Consumer Price Index, All Urban
Consumers (CPI-U), U.S. City Average, published by the United States Department
of Labor, Bureau of Labor Statistics (1982-84 = 100), for the preceding twelve
(12) month period. In the event such index shall cease to be computed or
published, Grantor may, in its reasonable discretion, designate a successor
index to be used in determining any increase to the Recurring Charge.
11.03 The Recurring Charge shall be invoiced by Grantor in four (4) equal
installments in advance on the first day of each quarter, and shall be paid in
accordance with Section 3.03. In the event the Acceptance Date or expiration of
the Term occurs other than on the first day of the quarter, the Recurring Charge
shall be prorated.
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ARTICLE 12.
IMPOSITIONS
12.01 Grantor and Grantee acknowledge and agree that it is their mutual
objective and intent to (i) minimize, to the extent feasible, the aggregate
Impositions payable with respect to the Grantor Systems and the Relevant Fibers
and the administrative expenses associated therewith and (ii) share such
Impositions according to their respective interests in the Grantor Systems and
the Relevant Fibers, and that they will cooperate with each other and coordinate
their mutual efforts to achieve such objectives in accordance with the
provisions of this Article 12.
12.02 Grantor shall be responsible for and shall timely pay any and all
Impositions with respect to the construction or operation of the Grantor System
which Impositions are imposed or assessed prior to the Acceptance Date of a
relevant Segment. Notwithstanding the foregoing obligations, Grantor shall have
the right to challenge any such Impositions so long as the challenge of such
Impositions does not materially adversely affect the rights to be delivered to
Grantee pursuant hereto.
12.03 Following the Acceptance Date for each relevant Segment of the
Grantor System and except with respect to Impositions constituting ad valorem
property taxes levied against the Relevant Fibers (which are addressed in
Section 12.04 below), Grantor shall timely pay any and all Impositions imposed
upon or with respect to each Grantor System to the extent such Impositions have
not been or may not feasibly be separately assessed or imposed upon or against
the respective interests of Grantor and Grantee (such as franchise fees that are
assessed on a per foot basis against the entire Grantor System) in such Grantor
System. Upon receipt of a notice of any such Imposition, Grantor shall promptly
notify Grantee of such Imposition and Grantee shall pay or reimburse Grantor for
its proportionate share of such Imposition, which share shall be determined (i)
to the extent possible, based upon the manner and methodology used by the
particular Governmental Authority imposing such Imposition (e.g., on the cost of
----
the relative property interests, Grantor's actual, historic or projected revenue
derived therefrom, or any combination thereof); or (ii) if the same cannot be so
determined, then based upon Grantee's proportionate share of the total fiber
count in the affected portion of the Grantor System. Grantee shall be
responsible for payment of its proportionate share of any Impositions only
respecting the period of time commencing on the Acceptance Date for each Segment
and ending upon the conclusion of the Term for each Segment.
12.04 Following the Acceptance Date for each Grantor System and except to
the extent prohibited by applicable laws or regulations, Grantee shall
separately file returns for and pay any and all ad valorem property taxes
imposed on or assessed against the Relevant Fibers. In the event that
applicable laws or regulations require Grantor to file returns for and pay any
and all ad valorem property taxes imposed on or assessed against the Relevant
Fibers, Grantor shall do so and Grantor shall be entitled to reimbursement from
Grantee (under Section 12.03) for the ad valorem property tax payments made
respecting the Relevant Fibers.
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12.05 Notwithstanding any provision herein to the contrary, Grantor shall
have the right to contest any Imposition described in Section 12.03 above,
(including by nonpayment of such Imposition provided such nonpayment does not
materially adversely affect the rights to be delivered to Grantee pursuant
hereto). The out-of-pocket costs and expenses (including reasonable attorney
fees) incurred by Grantor in any such contest shall be shared by Grantor and
Grantee in the same proportion as to which the parties would have shared in such
Impositions, as they were originally assessed. Any refunds or credits resulting
from a contest brought pursuant to this Section 12.05 shall be divided between
Grantor and Grantee in the same proportion as to which such refunded or credited
Impositions were borne by Grantor and Grantee. Grantor shall provide written
notice of any contest respecting an Imposition to Grantee.
12.06 Grantor and Grantee agree to cooperate fully in the preparation of
any returns or reports relating to the Impositions. Grantor and Grantee further
acknowledge and agree that the provisions of this Article 12 are intended to
allocate the Impositions expected to be assessed against or imposed upon the
parties with respect to the Grantor System based upon the procedures and methods
of computation by which Impositions generally have been assessed and imposed to
date, and that material changes in the procedures and methods of computation by
which such assessments are assessed and imposed could significantly alter the
fundamental economic assumptions underlying the transactions hereunder to the
parties.
ARTICLE 13.
USE OF RELEVANT FIBERS
13.01 Grantee represents and warrants that it will use the Relevant Fibers
and the IRU hereunder in compliance with all applicable government codes,
ordinances, laws, rules and regulations. Similarly, Grantor represents and
warrants that it will keep and maintain the Grantor Systems and operations
thereof in compliance with all applicable government codes, ordinances, laws,
rules and regulations.
13.02 Grantor agrees not to use the Relevant Fibers for the purposes of
transmission of communications, or any other electro-optical use, during the
Term of this Agreement.
13.03 Subject to the provisions of this Agreement, Grantee may use the
Relevant Fibers and the IRU for any lawful purpose. Grantee acknowledges and
agrees that it has no right to use any fibers, other than the Relevant Fibers,
included or incorporated in the Grantor System, and that Grantee shall keep any
and all of the Grantor System free from any liens, rights or claims of any third
party attributable to Grantee. Grantor shall keep any and all of the Relevant
Fibers and the Grantor Systems free from any liens, rights or claims of any
third party attributable to Grantor which may materially and adversely affect
the right of Grantee to use the Relevant Fibers hereunder.
13.04 Notwithstanding anything to the contrary contained in this Agreement,
during the *** period following the Effective Date, Grantee covenants and agrees
that Grantee
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shall not, that Grantee shall have no right to, and that Grantor may enjoin
Grantee from any attempt to, assign, sell, lease, sublease, transfer, grant an
indefeasible right of use or other similar right or interest in the IRU or the
Relevant Fibers to anyone other than an Affiliate of Grantee.
13.05 Grantee and Grantor shall promptly notify each other of any matters
pertaining to, or the occurrence (or impending occurrence) of, any event of
which it is aware that could give rise to any damage or impending damage to or
loss of the Grantor System.
13.06 Grantee and Grantor agree to cooperate with and support each other
in complying with any requirements applicable to their respective rights and
obligations hereunder by any Governmental Authority.
ARTICLE 14.
INDEMNIFICATION
14.01 Subject to the provisions of Article 15, Grantor hereby agrees to
indemnify, defend, protect and hold harmless Grantee and its employees, officers
and directors, from and against, and assumes liability for: (i) any injury
(including death), loss or damage (including reasonable attorney's fees and
costs) to any Person (including, without limitation, bystanders or invitees, but
excluding any employees of Grantee), tangible property or facilities of any
Person to the extent arising out of or resulting from the performance by Grantor
of any construction, maintenance, repair or other services performed by Grantor
hereunder, breach of this Agreement by, or negligence, willful misconduct or
conduct not in compliance with industry standards of, Grantor, its officers,
employees, servants, affiliates, agents, contractors, licensees, invitees and
vendors arising out of or in connection with the performance by Grantor of its
obligations under this Agreement; and (ii) any claims, liabilities or damages
arising out of any violation by Grantor of any regulation, rule, statute or
court order of any Governmental Authority in connection with the performance by
Grantor of its obligations under this Agreement.
14.02 Subject to the provisions of Article 15, Grantee hereby agrees to
indemnify, defend, protect and hold harmless Grantor, and its employees,
officers and directors, from and against, and assumes liability for: (i) any
injury (including death), loss or damage (including reasonable attorney's fees
and costs) to any Person (including, but not limited to, bystanders and invitees
but excluding any employees of Grantor), tangible property or facilities of any
Person to the extent arising out of or resulting from the breach of this
Agreement by, or the negligence or willful misconduct of, Grantee, its officers,
employees, servants, affiliates, agents, contractors, licensees, invitees and
vendors arising out of or in connection with the exercise by Grantee of its
rights under this Agreement; and (ii) any claims, liabilities or damages arising
out of any violation by Grantee of any regulation, rule, statute or court order
of any Governmental Authority in connection with the exercise by Grantee of its
rights under this Agreement.
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<PAGE>
14.03 Grantor and Grantee agree to promptly provide each other with notice
of any claim that may result in an indemnification obligation hereunder. The
indemnifying party may defend such claim with counsel of its own choosing,
subject to the consent of the other party, which consent shall not be
unreasonably withheld or delayed. No settlement or compromise of any such claim
shall occur without the consent of the indemnified party, which consent shall
not be unreasonably withheld or delayed.
14.04 Grantor and Grantee each expressly recognize and agree that its
obligation to indemnify, defend, protect and save the other harmless is not a
material obligation to the continuing performance of its other obligations, if
any, hereunder. In the event that a party shall fail for any reason to so
indemnify, defend, protect and save the other harmless, the injured party hereby
expressly recognizes that its sole remedy in such event shall be the right to
bring legal proceedings against the other party for its damages as a result of
the other party's said failure to indemnify, defend, protect and save harmless.
These obligations shall survive the expiration or termination of this Agreement.
14.05 Notwithstanding the foregoing provisions of this Article 14, to the
extent Grantor is required under the terms and provisions of any Required Right
with a Governmental Authority to indemnify such Governmental Authority from and
against any and all claims, suits, judgments, liabilities, losses and expenses
arising out of service interruption, cessation, unreliability of or damage to
the Grantor System, regardless of whether such claims, suits, judgments,
liabilities, losses or expenses arise from the sole or partial negligence,
willful misconduct or other action or inaction of such Governmental Authority
and its employees, servants, agents, contractors, subcontractors or other
Persons using the property covered by such Required Right, Grantee hereby
releases such Governmental Authority from, and hereby waives, as against such
Governmental Authority, all claims, suits, judgments, liabilities, losses and
expenses arising out of service interruption, cessation, unreliability of or
damage to the Grantor System regardless of whether such claims, suits,
judgments, liabilities, losses or expenses arise from the sole or partial
negligence, willful misconduct or other action or inaction, of such Governmental
Authority or its employees, servants, agents, contractors, subcontractors or
other Persons using the property covered by such Required Right.
ARTICLE 15.
LIMITATION OF LIABILITY
Notwithstanding any provision of this Agreement to the contrary and except
to the extent caused by the willful misconduct of a party (which shall be deemed
to have occurred with respect to employees or agents causing such damages only
if (i) such employees or agents have been authorized by the party to so act, or
(ii) the party employing has been grossly negligent in the hiring and/or
supervising of such employee), neither party shall be liable to the other party
for any special, incidental, indirect, punitive or consequential damages,
whether foreseeable or not, arising out of, or in connection with such party's
failure to perform its respective obligations
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<PAGE>
hereunder, including, but not limited to, loss of profits or revenue (whether
arising out of transmission interruptions or problems, any interruption or
degradation of service or otherwise), or claims of customers, whether occasioned
by any construction, reconstruction, relocation, repair or maintenance performed
by, or failed to be performed by, the other party or any other cause whatsoever,
including negligence or strict liability. Except as set forth in Section 14.05,
nothing contained herein shall operate as a limitation on the right of either
party hereto to bring any action whatsoever against any third party.
ARTICLE 16.
INSURANCE
16.01 During the term of this Agreement, Grantor shall obtain and maintain
the following insurance: (i) Commercial General Liability including coverage for
(a) premises/operations, (b) independent contractors, (c) products/completed
operations, (d) personal and advertising injury, (e) contractual liability, and
(f) explosion, collapse and underground hazards, with combined single limit of
not less than $5,000,000.00 each occurrence or its equivalent; (ii) Worker's
Compensation in amounts required by applicable law and Employer's Liability with
a limit of at least $1,000,000.00 each accident; (iii) Automobile Liability
including coverage for owned/leased, non-owned or hired automobiles with
combined single limit of not less than $1,000,000.00 each accident; and (iv) any
other insurance coverages required under or pursuant to the Required Rights.
16.02 Grantee expressly acknowledges that Grantor shall be deemed to be in
compliance with the provisions of this Article if it maintains an approved self-
insurance program providing for a retention of up to $1,000,000.00. If Grantor
provides any of the foregoing coverages on a claims made basis, such policy or
policies shall be for at least a three (3) year extended reporting or discovery
period.
16.03 Unless otherwise agreed, all insurance policies shall be obtained
and maintained with companies rated A or better by Best's Key Rating Guide and
Grantor shall, upon request, provide an insurance certificate confirming
compliance with the requirements of this Article 16.
16.04 Grantor shall obtain from the insurance companies providing the
coverages required by this Agreement, the permission of such insurers to allow
Grantor to waive all rights of subrogation and Grantor does hereby waive all
rights of said insurance companies to subrogation against Grantee, its
affiliates, subsidiaries, assignees, officers, directors and employees. To the
extent of Grantor's indemnification obligation, Grantor shall name Grantee as an
additional insured on Grantor's Commercial General Liability and Automobile
Liability policies.
15
<PAGE>
16.05 In the event Grantor fails to maintain the required insurance
coverages and a claim is made or suffered, Grantor shall indemnify and hold
harmless Grantee from any and all claims for which the required insurance would
have provided coverage.
16.06 Until the Effective Date, Grantor shall bear all risk of loss of and
damage or destruction to the Grantor System (including the Relevant Fibers).
Commencing as of the Effective Date, any loss, damage or destruction of or to
the Grantor System not otherwise required to be insured hereunder shall be
treated as either Scheduled Maintenance or Unscheduled Maintenance, as
applicable.
ARTICLE 17.
FORCE MAJEURE
Except as may be otherwise specifically provided in this Agreement, neither
party shall be in default under this Agreement if and to the extent that any
failure or delay in such party's performance of one or more of its obligations
hereunder is caused by any of the following conditions, and such party's
performance of such obligation or obligations shall be excused and extended for
and during the period of any such delay: act of God; fire; flood; materials
shortages or unavailability or other delay in delivery not resulting from the
responsible party's failure to timely place orders therefor; government codes,
ordinances, laws, rules, regulations or restrictions; war or civil disorder; or
any other cause beyond the reasonable control of such party (evaluated in
accordance with generally accepted industry practices) (each a "Force Majeure
Event"). The party claiming relief under this Article shall promptly notify
the other in writing of the existence of the event relied on and the cessation
or termination of said event.
ARTICLE 18.
DEFAULT AND TERMINATION
18.01 If Grantee fails to observe and perform the material terms and
provisions of this Agreement and such failure continues for a period of thirty
(30) days after written notice from Grantor (or if such failure is not
susceptible of a cure within such thirty (30) day period, cure has not been
commenced and diligently pursued thereafter to completion), then Grantor may (A)
terminate this Agreement and the Term, in whole or in part, in which event
Grantor shall have no further duties or obligations hereunder, and (B) subject
to Article 15, pursue any legal remedies it may have under applicable law or
principles of equity relating to such default, including an action for damages,
specific performance and/or injunctive relief.
18.02 If Grantor fails to observe and perform the material terms and
provisions of this Agreement and such failure continues for a period of thirty
(30) days after written notice from Grantee (or if such failure is non-monetary
in nature and is not susceptible of a cure within such thirty (30) day period,
cure has not been commenced and diligently pursued thereafter to
16
<PAGE>
completion), then Grantee may (A) terminate this Agreement and the Term, in
whole or in part, in which event Grantee shall have no further duties or
obligations hereunder, and (B) subject to Section 18.03 and Article 15, pursue
any legal remedies it may have under applicable law or principles of equity
relating to such default, including an action for damages, specific performance
and/or injunctive relief. Nothing in this Section 18.02 shall limit Grantee's
rights to terminate this Agreement pursuant to other provisions of this
Agreement that do not give Grantor any opportunity to cure, and Section 18.02 is
not intended to require that Grantee must first give Grantor the opportunity to
cure prior to terminating the Agreement and seeking the relief permitted
therein.
18.03 Notwithstanding anything contained in this Agreement to the
contrary, Grantee's sole and exclusive remedies with respect to any failure of
Grantor to deliver the Relevant Fibers by the Completion Date shall be as
follows:
(a) *** and
(b) in the event that Grantor has failed to deliver the Relevant
Fibers to Grantee within *** after the Completion Date, then Grantee shall be
entitled to terminate the IRU in such Grantor System and recover back from
Grantor the percentage of the IRU Fee already paid by Grantee, plus interest at
the Prime Rate plus *** from the date of Grantee's payment until the date of the
refund.
***
ARTICLE 19.
ASSIGNMENT
19.01 Neither party shall assign, encumber or otherwise transfer this
Agreement to any other Person without the prior written consent of the other
party, which consent shall not be
- ------------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
17
<PAGE>
unreasonably withheld; provided, each party shall have the right, without the
other party's consent, but with prior written notice to the other party, to
assign or otherwise transfer this Agreement (i) as collateral to any
institutional lender of such party subject to the prior rights and obligations
of the parties hereunder; and (ii) to any Affiliate of such party, or to any
entity into which such party may be merged or consolidated or which purchases
all or substantially all of the assets of such party; provided that such party
shall not be released from its obligations hereunder and such party agrees to
ensure that any assignee or transferee is on notice of all of the provisions of
this Agreement, and shall be subject to all such provisions (except with respect
to lenders to the extent provided below). Any assignee or transferee shall
continue to be subject to all of the provisions of this Agreement (except that
any lender referred to in clause (i) above shall not incur any obligations under
this Agreement nor shall it be restricted from exercising any right of
enforcement or foreclosure with respect to any related security interest or
lien, so long as the purchaser in foreclosure is subject to the provisions of
this Agreement). Without limiting the foregoing, any sale, conveyance,
assignment or other transfer of any kind whatsoever of all or any part of the
Grantor System shall be subject to this Agreement which shall survive such sale,
conveyance, assignment or other transfer.
19.02 Any and all increased Required Right payments, fees, charges, costs
or expenses which result under the Required Rights or otherwise as a result of
any permitted assignment or transfer of this Agreement by a party shall be paid
by such party.
19.03 This Agreement and each of the parties' respective rights and
obligations under this Agreement, shall be binding upon and shall inure to the
benefit of the parties hereto and each of their respective permitted successors
and assigns.
19.04 Nothing contained in this Article 19 shall be deemed or construed to
prohibit Grantor from selling, transferring, leasing, licensing, granting
indefeasible rights of use or entering into similar agreements or arrangements
with other Persons respecting any fibers (other than the Relevant Fibers) and
conduit constituting a part of the Grantor System.
ARTICLE 20.
REPRESENTATIONS AND WARRANTIES
20.01 Each party represents and warrants that: (i) it has the power and
authority to enter into, execute and deliver this Agreement; (ii) it has taken
all requisite corporate action to approve the execution, delivery and
performance of this Agreement; (iii) this Agreement constitutes a legal, valid
and binding obligation enforceable against such party in accordance with its
terms, subject to bankruptcy, insolvency, creditors' rights and general
equitable principles; (iv) it shall not commit a breach of any other agreement
as a result of executing this Agreement or as a result of the obligations
imposed upon it hereunder; and (iv) its execution of and performance under this
Agreement shall not violate any applicable existing regulations, rules, statutes
or court orders of any local, state or federal government agency, court or body.
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<PAGE>
20.02 Grantor represents and warrants that the Segments of the Grantor
Systems that it will construct pursuant hereto and in which Grantee receives the
IRU will be designed, engineered, installed, and constructed substantially in
accordance with the terms and provisions of this Agreement, any and all
applicable building, construction and safety codes, as well as any and all other
applicable governmental laws, codes, ordinances, statutes and regulations;
provided Grantee's sole rights and remedies with respect to any breach of such
representation shall be (i) to inspect the construction, installation and
splicing of the Relevant Fibers incorporated in such Segment and to participate
in the acceptance testing, as provided herein; (ii) if, during the course of
such construction, installation and testing any deviation from the
specifications set forth herein is discovered which is reasonably likely to
materially adversely affect the operation or performance of the Relevant Fibers,
the construction or installation of the affected portion of such Segment shall
be repaired to such specification by Grantor at Grantor's sole cost and expense;
and (iii) if, at any time prior to the date that is twelve (12) months after the
Grantor's delivery of the relevant as-built drawings as required in Section
2.02, Grantee shall notify Grantor in writing of its discovery of a deviation
from the specifications set forth herein which is reasonably likely to
materially adversely affect the operation or performance of the Relevant Fibers,
with respect to such Segment (which notice shall be given within thirty (30)
days of such discovery), then the construction or installation of the affected
portion of such Segment shall be repaired to such specification by Grantor at
Grantor's sole cost and expense. Notwithstanding the foregoing, in the event
that Grantee discovers a deviation from the plans for construction or
installation of the Grantor System which deviation is not reflected on the as-
built drawings, and such deviation is reasonably likely to materially adversely
affect the operation or performance of the Relevant Fibers, then Grantee shall
have a period of ninety (90) days after Grantee's discovery of such defect
within which to notify Grantor and the construction or installation of the
affected portion of such Segment shall be repaired to such specification at
Grantor's sole cost and expense.
20.03 Grantor represents and warrants that it has obtained and shall
maintain throughout the Term of this Agreement, and shall require any of its
subcontractors to obtain and maintain throughout the Term of this Agreement,
such insurance policies as set forth in Article 16.
20.04 Each party represents and warrants to the other that there are no
pending, or to the knowledge of such party, threatened actions, suits, claims,
condemnations, or other proceedings (i) which would materially and adversely
affect the Relevant Fibers being delivered hereunder by Grantor, the Grantor
Systems, or the ability of either party to consummate the transactions and
perform the obligations contemplated hereby, (ii) which would result in any
charge being levied against, or lien assessed on the Relevant Fibers being
delivered by Grantor hereunder which lien would materially and adversely affect
Grantor's ownership or Grantee's use of the Relevant Fibers, or (iii) in which
either party is or will be a party by reason of either party's interests in the
Relevant Fibers.
20.05 Grantor represents and warrants that as of the date hereof, Grantor
is not aware of any material adverse claim or any material threat to terminate
any of the rights granted to Grantee hereunder.
20.06 The foregoing representations and warranties shall survive the
execution and delivery of this Agreement.
19
<PAGE>
20.07 If there is an interruption, impairment in, defect in or failure of
the Relevant Fibers to perform in accordance with the applicable vendor's or
manufacturer's specifications with respect to the Relevant Fibers, Grantor
shall, upon Grantee's request, assign to Grantee the particular vendor's or
manufacturer's warranty. In the event any maintenance or repairs to the Grantor
System are required as a result of a breach of any warranty made by any
manufacturers, contractors or vendors, unless Grantee shall elect to pursue such
remedies itself, which Grantee shall have the right to do at its sole
discretion, Grantor shall pursue at its own cost and expense all remedies
against such manufacturers, contractors or vendors on behalf of Grantee, and
Grantor shall reimburse Grantee's costs for any maintenance and repairs Grantee
has incurred as a result of any such breach of warranty.
20.08 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, GRANTOR MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE RELEVANT FIBERS OR THE GRANTOR
SYSTEM, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
ARTICLE 21.
CONFIDENTIALITY
21.01 Grantor and Grantee hereby agree that if either party provides
confidential or proprietary information to the other party ("Proprietary
Information"), such Proprietary Information shall be held in confidence, and the
receiving party shall afford such Proprietary Information the same care and
protection as it affords generally to its own confidential and proprietary
information (which in any case shall be not less than reasonable care) in order
to avoid disclosure to or unauthorized use by any third party. The parties
acknowledge and agree that all information disclosed by either party to the
other in connection with or pursuant to this Agreement shall be deemed to be
Proprietary Information to the extent that written information is clearly marked
in a conspicuous place as being confidential or proprietary and verbal
information is indicated as being confidential or proprietary when given and
promptly confirmed in writing as such thereafter. All Proprietary Information,
unless otherwise specified in writing, shall remain the property of the
disclosing party, shall be used by the receiving party only for the intended
purpose, and such written Proprietary Information, including all copies thereof,
shall be returned to the disclosing party or destroyed after the receiving
party's need for it has expired or upon the request of the disclosing party.
Proprietary Information shall not be reproduced except to the extent necessary
to accomplish the purpose and intent of this Agreement, or as otherwise may be
permitted in writing by the disclosing party.
21.02 The foregoing provisions of Section 21.01 shall not apply to any
Proprietary Information which (i) becomes publicly available other than through
the disclosing party; (ii) is required to be disclosed by a governmental or
judicial law, order, rule or regulation; (iii) is independently developed by the
receiving party; or (iv) becomes available to the receiving party without
restriction from a third party, provided such third party was authorized to
receive the information.
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<PAGE>
21.03 Notwithstanding Sections 21.01 and 21.02 either party may disclose
Proprietary Information to its employees, agents, and legal and financial
advisors and providers to the extent necessary or appropriate in connection with
the negotiation and/or performance of this Agreement or in obtaining financing,
provided that each such party is notified of the confidential and proprietary
nature of such Proprietary Information and is subject to or agrees to be bound
by similar restrictions on its use and disclosure.
21.04 Nothing herein shall limit the right of either party from publicly
disclosing the existence of and general subject matter of this Agreement.
21.05 In the event either party shall be required to disclose all or any
part of this Agreement in, or attach all or any part of this Agreement to, any
regulatory filing or statement, each party agrees to discuss and work
cooperatively, in good faith, with the other party, to protect, to the extent
possible, those items or matters which the other party deems confidential and
which may, in accordance with applicable laws, be deleted therefrom.
21.06 The provisions of this Article 21 shall survive expiration or
termination of this Agreement.
ARTICLE 22.
NOTICE
All notices or other communications which are required or permitted herein
shall be in writing and sufficient if delivered personally, sent by prepaid
overnight air courier, or sent by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
IF TO GRANTOR (prior to July 1, 1999):
LEVEL 3 COMMUNICATIONS, LLC
1450 Infinite Drive
Louisville, Colorado 80027
Attn: General Counsel
(after July 1, 1999):
LEVEL 3 COMMUNICATIONS, LLC
1025 Eldorado Drive
Broomfield, Colorado 80021
Attn: General Counsel
IF TO GRANTEE:
FOCAL FINANCIAL SERVICES, INC.
200 North LaSalle Street
Chicago, Illinois 60601
Attn: Chief Operating Officer
21
<PAGE>
with a copy to:
FOCAL COMMUNICATIONS CORP.
200 North LaSalle Street
Chicago, Illinois 60601
Attn: General Counsel
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given when delivered if delivered
personally, on the business day after dispatch if sent by overnight air courier,
or on the third business day after posting if sent by mail.
ARTICLE 23.
ENTIRE AGREEMENT; AMENDMENT
This Agreement and the attached Exhibits, which are incorporated herein to
the same extent as if fully set forth herein, sets forth the entire agreement
and understanding of the parties with respect to the subject matter hereof.
This Agreement may be amended or modified only by written instrument duly
executed by each of the parties. Each party to this Agreement further
acknowledges that no promises, representations, inducements, agreements, or
warranties, other than those set forth herein, have been made to induce the
execution of this Agreement by said party, and each party acknowledges that it
has not executed this Agreement in reliance on any promise, representation,
inducement, or warranty not contained herein. Without limiting the foregoing or
any other provision of this Agreement, all prior contracts, agreements,
conveyances, grants or understandings of any kind whatsoever between the parties
that relate in any way to the Property, and the terms thereof, rights therein,
or obligations thereunder, are hereby fully and completely terminated,
extinguished and of no further force and effect.
ARTICLE 24.
RELATIONSHIP OF THE PARTIES
The relationship between Grantee and Grantor shall not be that of partners,
agents, or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes.
ARTICLE 25.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one and the same instrument.
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<PAGE>
ARTICLE 26.
MISCELLANEOUS
26.01 Notwithstanding anything in this Agreement to the contrary, if all
of the Grantor Systems, or such portion thereof as will make the Relevant Fibers
unusable for the purposes contemplated herein, is taken by eminent domain, this
Agreement shall terminate on the date when possession thereof is taken by the
condemning authority and neither party shall have any further liability to the
other party. Each party to this Agreement shall be entitled to seek and recover
such condemnation award as may be allowed to it under applicable law, and
neither Grantor nor Grantee shall have any rights in any award recovered by the
other.
26.02 If any provision of this Agreement as applied to either party or to
any circumstance, shall be adjudged by a court to be invalid, illegal or
unenforceable, the same shall not affect the validity, legality, or
enforceability of the portion of the provision, if any, that is not invalid,
illegal or unenforceable, the application of such provision in any other
circumstances, or the validity, legality, or enforceability of any other
provision of this Agreement. Further, all terms and conditions of this
Agreement shall be deemed enforceable to the fullest extent permissible under
applicable law, and, when necessary, the court in any action between the parties
is requested to reform any and all terms or conditions to give them as much
effect as possible.
26.03 No waiver, which shall only be effective if written, of any breach
or default hereunder shall be deemed to be a waiver of any preceding or
subsequent breach or default.
26.04 If any legal action or arbitration is brought by either party under
this Agreement, the prevailing party shall be entitled to an award of its actual
attorneys' fees and costs (including any amount through any appellate
proceedings). The prevailing party shall mean that party whose obtained relief
is closest to its requested relief.
26.05 The parties to this Agreement do not intend for any third party to
be a third party beneficiary of any provision of this Agreement or this
Agreement in its entirety.
26.06 This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and shall be governed by the
laws of Illinois without reference to the choice of law provisions thereof.
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<PAGE>
26.07 All provisions of this Agreement that require Grantor to pay any
refunds or other amounts to Grantee shall survive the termination of this
Agreement, including without limitation provisions that contemplate such payment
to be made at or after the termination of this Agreement.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of
the date first above written.
LEVEL 3 COMMUNICATIONS, LLC, a
Delaware limited liability company
By /s/ Kathleen Peron
---------------------------------------
Title: Vice President
FOCAL FINANCIAL SERVICES, INC., for itself and as
agent for Focal Communications Corporation of
Illinois, Focal Communications Corporation of New
York and Focal Communications Corporation of
California
By /s/ John R. Barnicle
---------------------------------------
John R. Barnicle
Title: Chief Operating Officer
Exhibit "A" - System Route
Exhibit "B" - IRU Fee
Exhibit "C" - Acceptance Testing Procedures
Exhibit "D" - Maintenance
Exhibit "E" - Escalation Procedure
Exhibit "F" - Availability Dates
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<PAGE>
Exhibit "A" - System Route
1. For identification purposes the System Routes containing the Relevant Fiber
are illustrated on the maps attached hereto. The Grantor will terminate the
Grantee Fibers on an industry-standard optical termination panel
(demarcation point), to be provided by Grantor, of sufficient size to
accommodate the fiber count defined in this Agreement, with SC-type
connectors, and to be located within Grantor's Point of Presence (POP)
within a building. All optronics or electronic (for example, SONET
terminals) equipment necessary for Grantee to terminate the Grantee Fibers
within the LEC Central Offices, Carrier Hotels, and other buildings is the
responsibility of the Grantee.
25
<PAGE>
Exhibit "A" - System Route
Attachment 1 - System Route Map
(See Attached)
26
<PAGE>
Exhibit B - Pricing Information
Dark Fiber Pricing:
City/Loop IRU Price Fibers
Chicago - CBD *** ***
New York City - CBD *** ***
Philadelphia - CBD *** ***
San Francisco-CBD *** ***
Los Angeles - CBD *** ***
Seattle - CBD *** ***
Southfield, MI Subloop *** ***
Total Dark Fiber IRU Fee ***
IRU Payment Schedule:
Contract signing (*** of IRU Fee): ***
Conduit Completion (*** of IRU Fee):
Chicago ***
New York City ***
Philadelphia ***
San Francisco ***
Los Angeles ***
Seattle ***
Southfield, MI ***
***
Fiber Installation (*** of IRU Fee):
Chicago ***
New York City ***
Philadelphia ***
San Francisco ***
Los Angeles ***
Seattle ***
Southfield, MI ***
***
Acceptance (*** of IRU Fee):
Chicago ***
New York City ***
Philadelphia ***
San Francisco ***
Los Angeles ***
Seattle ***
Southfield, MI ***
***
- --------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
27
<PAGE>
Operations & Maintenance (O&M) Fees:
Charge Per Route Mile Per Year $***
Annual O&M Payment Schedule:
Chicago ***
New York City ***
Philadelphia ***
San Francisco ***
Los Angeles ***
Seattle ***
Southfield, MI ***
***
Building Access Allocation:
Grantor will deliver a portion of the Cable to the following buildings for the
Building Access Fee as indicated. Charges for this construction will be paid by
Grantee per the following Building Access Payment Schedule. Grantee shall
inform Grantor of its desired number of fibers to each of the following
buildings no later than thirty (30) days after execution hereof. Grantee will
be responsible for all fees (one-time and on-going) associated with obtaining
building owner authorization allowing Grantor to perform construction of
building laterals and in-building riser facilities. Grantor will obtain
necessary permits and the laterals and riser facilities will be considered part
of the Grantor System. Should Grantee opt not to have Grantor construct to any
of these locations, the Building Access Fee will be added back to the IRU Fees
on a pro-rata basis.
Location Building Access Fee
*** ***
*** ***
*** ***
*** ***
*** ***
Building Access Payment Schedule:
Contract signing *** of Building Access Fee): ***
Grantor Receipt of building permits,
Required Franchise, etc. (*** of Building Access Fee):
*** ***
- --------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
28
<PAGE>
*** ***
*** ***
*** *** ***
Additional Building Access Work:
In the event that Grantee desires to have Grantor perform additional work
respecting the installation of fibers in a building, Grantee may request that
Grantor secure bids for such work from contractors generally used by Grantor for
the performance thereof. Grantor will (if Grantor elects to perform such work
for Grantee) deliver to Grantee three (3) or more valid bids for the performance
of such work (which bids may be solicited by Grantor specifically for the
performance of the work requested by Grantee or may be bids that Grantor already
procured for the performance of such work or similar work), and Grantee may
select a contractor from the bids so submitted. Grantor shall be responsible
for all dealings with the contractor (including contractual matters, payment,
project management and directions respecting the scope of the contractor's
engagement) and Grantee shall pay Grantor an amount equal to the actual cost for
the performance of such work, plus ***.
***.
Grantor will deliver a mutually agreed upon portion of the Cable to the Central
Offices and Carrier Hotels as designated below. The delivery of the Cable at
the Carrier Hotels will be to a Grantor POP or designated point of demarcation
or common entry access point as designated by the building owner or building
management company. Grantee will be responsible for any additional distribution
of the related cable or other facilities to other location within the Carrier
Hotels.
Central Office delivery of the Cable will be to a Grantor colocation area inside
the Central Office unless otherwise restricted by the operating entity of the
Central Office. Grantee is responsible for all necessary applications, orders,
engineering, coordination and all associated fees and to connect the Cable
and/or related facilities to a Grantee secured colocation facility located in
the Central Office.
Chicago Central Business District:
***
***
***
***
***
***
***
***
***
- ----------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
29
<PAGE>
New York Central Business District:
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
Philadelphia Central Business District
***
***
***
***
***
***
San Francisco Central Business District
***
***
***
***
***
***
***
Los Angeles Central Business District
***
***
***
***
***
Seattle Central Business District
***
***
***
***
- ---------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
30
<PAGE>
***
Southfield - Southfield Loop
***
***
- ------------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
31
<PAGE>
Exhibit "C" - Specifications and Acceptance Testing Procedures
Grantor will construct and maintain the Relevant Conduit and Grantee Fibers in
accordance with industry standards unless this Exhibit C sets forth different
standards, in which case Grantor agrees that the standards set forth in this
Exhibit C shall control.
Fiber Optic Cable Splicing, Testing And Acceptance Standards
- ------------------------------------------------------------
THE FOLLOWING APPLIES ONLY WHEN GRANTOR INSTALLS, REPLACES, RESTORES OR REPAIRS
GRANTEE'S FIBER.
1. Grantor shall perform all tests for the Relevant Conduit and Grantee Fibers
within the time frames set forth for the Complete Dates. Upon completion of
such tests, Grantor shall deliver the test results to Grantee.
2. Grantor will terminate the Relevant fibers to the Fiber Distribution Panel
(FDP), to be provided by Grantor and located within Grantor's Point of
Presence (POP) within a building, with SC-type connectors.
3. When Grantor has installed the Grantee Fibers, Grantor shall verify and
record the continuity of all Grantee Fibers strands within the Relevant
Conduit. Grantor shall also test and record power level readings on all
fiber strands in both directions of transmission using the 1310 & 1550 nm
wavelength. Grantor shall also perform bi-directional OTDR (Optical Time
Domain Reflectometer) end-to-end test to verify and insure that no Grantee
Fibers have been crossed at any of the splice points between the Locations.
Grantor shall provide Grantee with copies of test results, including,
without limitation, all bi-directional OTDR traces for all the fiber strands
within the Grantee Fiber. To verify end-to-end fiber continuity, power level
readings taken with a laser source and power meter shall be recorded for
every fiber strand of the Grantee Fiber. Each fiber strand color must be
recorded along with its buffer tube color or the ribbon color. The laser
source transmit power level using the 1310 & 1550 nm wavelength shall always
be recorded together with the receive power level reading at the receiving
end of the test.
3. All splices shall meet the performance and quality standards set forth in
this Exhibit C. All splices in the Grantee Fibers shall be fusion spliced.
Mechanical splices are only allowed during temporary restoration and will be
replaced with fusion splices within 7 days. All tests and measurements shall
be done using 1310 & 1550 nm wavelength and as follows:
a. Grantor shall perform tests after the fiber cable is installed and the
splicing enclosures have been completed and are in their final resting
configuration with the manhole or handhole covers closed. This
ensures that no micro or macro bending problems with the cable or
fiber strands will contribute to the loss/attenuation measurements.
32
<PAGE>
b. All OTDR traces shall be taken from both ends of a section (between
adjacent Locations) and recorded using the 1310 & 1550 nm wavelength.
Loss/attenuation measurements for each splice point from both
directions shall be taken and recorded.
c. The end-to-end loss value as measured with an industry-accepted laser
source and power meter should have an attenuation rating of less than
or equal to 0.4 dB/km at 1310 nm and 0.30 dB/km at 1550 nm.
d. Grantor's loss/attenuation objective for each fiber optic splice is
0.1 dB. When measured in one direction with an OTDR test set.
Loss/attenuation reading shall be 0.15 dB or less. If after four
attempts this parameter is not met, the splice will remain provided
the average loss/attenuation value of all splices on an individual
fiber basis shall not exceed 0.1 dB for the entire ring or Subsystem
identified in Exhibit "A".
e. For bi-directional OTDR testing, the distance from Location "A" and
Location "Z" shall be recorded for each splice point. The
loss/attenuation at each splice point shall be recorded at both
wavelengths (1310 nm & 1550 nm) in each direction. Grantor shall then
average the two readings to obtain the final average splice
loss/attenuation for each splice point of each fiber strand within the
fiber optic cable.
f. Following emergency restoral, Grantor personnel shall perform span
test documenting End-to-End attenuation measurement of each fiber and
will be completed in both directions at 1310 & 1550 nm wavelengths.
Upon permanent repair, new splice loss readings should be no greater
than the original splice loss specifications.
4. Upon completion of the foregoing tests, Grantor shall complete, execute and
deliver to Grantee written notice that Grantor's installation efforts are
complete and the Relevant Conduit and Grantee Fibers is ready for Grantee
acceptance testing.
CONSTRUCTION SPECIFICATIONS
- ---------------------------
THE FOLLOWING APPLIES TO RELEVANT CONDUIT AND GRANTEE FIBER IF INSTALLED BY
GRANTOR.
1. Installation and construction will be in accordance with specifications
listed herein (with the exception of conduit installed by others and leased
by Grantor) and meet sound commercial practices and Teleco industry
standards. The National Electrical Code shall be followed in every case
except where local regulations are more stringent, in which case local
regulations shall govern.
33
<PAGE>
2. Minimum depth required in the placement of conduit/innerduct shall be
*** inches, where this is not possible additional protection will be added to
protect the Relevant Conduit, i.e., concrete, concrete slurry, steel plates,
etc.
The minimum cover across streams, rivers and other waterways is *** inches
below the cleanout elevation or existing grade, whichever is greater.
Steel conduit will be placed at all such crossings unless the crossing is
directional bored at a greater depth.
At locations where conduit crosses other subsurface utilities or other
structures, a minimum of *** inches of vertical clearance and the
applicable minimum depth shall be maintained. In the event that *** inches
cannot be obtained, the cable shall be encased in steel pipe rather than
conduit. No Grantee Fiber shall be installed by Grantor without being
surrounded by innerduct, conduit or steel pipe.
3. All paved city, state, federal and interstate highways and railroad
crossings will be encased in steel conduit or HDPE, SDR-9, or SDR-11. If
the crossing is at grade, steel is not required if the cable is placed with
*** inches of cover or more, and the crossing is directional bored. All
crossings of major streams, rivers, bays and navigable waterways will be
placed in innerduct, HDPE, PVC or steel conduit.
All jack and bores will use steel conduit.
All directional bores will use innerduct, HDPE, PVC, or steel conduct.
All Relevant Conduit shall be Physically Route Diverse underground and
contained in a conduit or innerduct (no aerial route).
Any cable placed in swamp or wetland areas will be placed in Innerduct,
HDPE, PVC, or steel conduit.
Appropriate authority will determine all conduits placed on bridges.
Innerduct(s) shall be installed in all steel conduits or Fiberglass (FRE).
No cable will be placed directly in any split/solid steel conduit without
innerduct. Innerduct(s) shall extend beyond the end of all conduits a
minimum of 18 inches.
4. The maximum pulling force to be applied to the fiber optic cable shall be
*** pounds. Bends of small radii (less than 20 times the outside diameter
of the cable) and twists that may damage the cable shall be avoided during
cable placement.
The cable shall be lubricated and placed in accordance with the cable
manufacturer specifications.
A pulling swivel breakaway rate at *** pounds shall be used at all times.
All splices will be contained in a handhole or manhole.
- -----------------------
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
34
<PAGE>
5. All work will be done in strict accordance with federal, state, local, and
applicable private rules and laws regarding safety and environmental
issues, including those set forth by OSHA and the EPA. In addition, all
work and the resulting fiber system will comply with the current
requirements of all governing entities (FCC, NEC, DEC and other national,
state and local codes).
6. Upon completion of installation of the Relevant Conduit, the Relevant
Conduit will be proofed by Grantor to verify continuity and integrity by
pulling a solid aluminum or steel mandrel or by blowing a pig. The outside
diameter of the mandrel or pig shall be a minimum of one inch (1") and four
inches (4") long.
7. The entire fiber optic cable system will be properly protected from foreign
voltage and grounded with an industry-accepted system.
8. As-built drawings will contain a minimum of the following:
a. Information showing the location of route
b. Splice locations
c. Manhole and handhole locations
d. Conduit information (type, length, size, color, etc.)
e. Cable information (manufacturer, type of fiber, type of cable, final
cable lengths)
f. Notation of all deviations from specifications (depth, etc.)
9. Drawing will be updated with actual field data during and after
construction. Updates to the as-builts will be provided within 60 days of
completion of any change, such as route relocations.
35
<PAGE>
Exhibit "D" - Maintenance
Maintenance Procedures
1. Scheduled Maintenance. "Scheduled Maintenance" shall mean routine
maintenance and repair of the Relevant Conduit, including the following
activities:
a. Patrol of the System Route on a regularly scheduled basis (Grantor shall
provide such schedule upon request).
b. Establishment and operation of a "Call-Before-You-Dig" program.
c. Performance of all required cable locates.
d. Grantor will perform routine maintenance and repair checks and services,
including preventative inspections, as determined necessary by Grantor to
maintain the Grantee Fibers within the Specifications. Grantee may also
request reasonable routine maintenance or service on the Grantee Fibers by
detailing such requested maintenance or service in a notice to Grantor.
Grantor shall treat the Grantee Fibers with the same standard of care as
its own fibers, but in no event with less than reasonable care.
2. Unscheduled Maintenance. "Unscheduled Maintenance" shall mean any non-
routine maintenance and repair of the Relevant Conduit which is not included as
Scheduled Maintenance, including repairs required as a result of cable cuts or
natural or man-made disasters. Unscheduled Maintenance is generally divided
into two (2) categories:
a. "Emergency Unscheduled Maintenance," which is repair activity performed in
response to an alarm identification by Grantor's Operations Center,
notification by Grantee or notification by third party of any failure,
interruption or impairment of the Relevant Conduit, or any event likely to
cause the failure, interruption or impairment of the Relevant Conduit or
Grantee Fiber.
b. "Non-Emergency Unscheduled Maintenance," which is repair activity
performed in response to any potential integrity-affecting situation so as to
prevent any failure, interruption or impairment in the Relevant Conduit or
Grantee Fiber.
Grantor shall use commercially reasonable efforts to correct as soon as
practicable any failure, interruption or impairment in the operation of the
Grantee Fibers, including without limitation, cuts or any other events that
cause the Grantee Fibers to fail to operate within the Specifications. Grantee
shall be notified and provided contact information for any and all restoration
sub-contractors retained by Grantor. When performing Emergency work, Grantor
shall use commercially reasonable efforts to minimize risk to Grantee Fibers and
shall provide Grantee, when feasible, with immediate notice of the proposed
emergency work.
36
<PAGE>
Grantee, at its own expense, shall have the right to have an employee or
representative present to supervise Grantor in any installation, maintenance and
repair of the Grantee Fibers. Grantee will not be permitted any other access to
the Grantee Fibers except as expressly set forth herein.
Grantee shall immediately report the need for Unscheduled Maintenance. Grantor
will verify the problem and dispatch personnel immediately to take corrective
action.
3. Operations Center. Grantor shall operate and maintain an Operations Center
("OC") staffed twenty-four (24) hours a day, seven (7) days a week by trained
and qualified personnel. Grantor's maintenance employees shall be available for
dispatch twenty-four (24) hours a day, seven (7) days a week. Grantor shall have
its first maintenance employee at the site requiring Emergency Unscheduled
Maintenance activity within *** after the time Grantor becomes aware of an event
requiring Emergency Unscheduled Maintenance, unless delayed by circumstances
beyond the reasonable control of Grantor. Grantor shall maintain a toll-free
telephone number to contact personnel at the OC. Grantor's OC personnel shall
dispatch maintenance and repair personnel along the system to handle and repair
problems detected in the Grantor System, Relevant Conduit and/or Grantee Fiber:
(i) through the Grantee's remote surveillance equipment and/or upon notification
by Grantee to Grantor, or (ii) upon notification by a third party.
4. Cooperation and Coordination. Grantor shall notify Grantee at least ten (10)
business days prior to the date of any Planned Service Work Period ("PSWP") of
any Scheduled Maintenance and as soon as possible after becoming aware of the
need for Unscheduled Maintenance. Grantee shall have the right to be present
during the performance of any Scheduled Maintenance or Unscheduled Maintenance
so long as this requirement does not interfere with Grantor's ability to perform
its obligations under this Agreement. In the event that Scheduled Maintenance
is canceled or delayed for whatever reason as previously notified, Grantor shall
notify Grantee at Grantor's earliest opportunity, and will comply with the
provisions of the previous sentence to reschedule any delayed activity.
Scheduled Maintenance which is reasonably expected to produce any signal
discontinuity must be coordinated between the parties upon at least 30 days
notice to Grantee. Generally, this work should be scheduled after midnight and
before 6:00 a.m. local time. Major system work, such as fiber rolls and hot
cuts, will be scheduled for PSWP weekends. A calendar showing approved PSWP
will be agreed upon in the last quarter of every year for the year to come. The
intent is to avoid jeopardy work on the first and last weekends of the month and
high-traffic holidays.
5. General Requirements. Grantor shall maintain the Grantor System in a manner
which will permit Grantee's use, in accordance with the terms and conditions of
the Agreement. Grantee will be solely responsible for providing and paying for
any and all maintenance of all electronic, optronic and other equipment,
materials and facilities used by Grantee in connection with the operation of the
Grantee Fibers, none of which is included in the maintenance services to be
provided hereunder.
6. Maintenance of Grantee Fibers. Grantor shall perform appropriate Scheduled
Maintenance on the Grantee Fibers in accordance with Grantor's then current
preventative maintenance procedures which shall not substantially deviate from
standard industry practice. Grantor shall have qualified representatives on
site any time Grantor has reasonable advance knowledge that another person or
- ---------------
***Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
37
<PAGE>
entity is engaging in construction activities or otherwise digging within five
(5) feet of any cable to insure that such cable is not disturbed. Grantor shall
maintain sufficient capability to teleconference with Grantee during an
Emergency Unscheduled Maintenance in order to provide regular communications
during the repair process. When correcting or repairing cable discontinuity or
damage, including but not limited to in the event of Emergency Unscheduled
Maintenance, Grantor shall use reasonable efforts to repair traffic-affecting
discontinuity within the time frames set forth in the Agreement. In order to
accomplish such objective, it is acknowledged that the repairs so effected may
be temporary in nature. In such event, within twenty-four (24) hours after
completion of any such Emergency Unscheduled Maintenance, Grantor shall commence
its planning for permanent repair, and thereafter promptly shall notify Grantee
of such plans, and shall implement such permanent repair as soon as practicably
possible. Restoration of open fibers on fiber strands not immediately required
for service shall be completed on a mutually agreed-upon schedule. If the fiber
is required for immediate service, the repair shall be repaired immediately. In
performing repairs, Grantor shall comply with the splicing specifications as set
forth in Exhibit "C". Grantor's representatives that are responsible for initial
restoration of a cut cable shall carry on their vehicles the typically
appropriate equipment that would enable a temporary splice, with the objective
of restoring operating capability in as little time as possible. Grantor shall
maintain and supply an inventory of spare cable in storage facilities supplied
and maintained by Grantor at strategic locations to facilitate timely
restoration.
7. Restoration. Grantor shall respond to any failure of the Grantee Fibers to
operate in accordance with the specifications set forth in Article 10 (in any
event, an "Outage") as quickly as possible (allowing for delays caused by
circumstances beyond the reasonable control of Grantor) in accordance with the
procedures set forth herein. When restoring a cut cable in the Grantor System
and/or Relevant Conduit, the parties agree to work together to restore all
traffic as quickly as possible. Grantor, promptly upon arriving on the site of
the cut, shall determine the course of action to be taken to restore the cable
and shall begin restoration efforts. Grantor shall splice fibers tube by tube
or ribbon by ribbon or fiber bundle by fiber bundle, rotating between tubes or
ribbons operated by the parties having an interest in the cable, including
Grantee, Grantor and all future fiber users of the system (collectively, the
"Interest Holders"), in accordance with the following described priority and
rotation mechanics; provided that, lit fibers in all buffer tubes or ribbons or
fiber bundles shall have priority over any dark fibers in order to allow
transmission systems to come back on line; and provided further that, Grantor
will continue such restoration efforts until all lit fibers in all buffer tubes
or ribbons are spliced and all traffic restored. In general, priority among
Interest Holders affected by a cut shall be determined on a rotating
restoration-by-restoration and Segment-by-Segment basis, to provide fair and
equitable restoration priority to all Interest Holders. Grantor will provide
upon Segment completion a System-wide rotation mechanism on a Segment-by-Segment
basis so that the initial rotation order of the Interest Holders in each Segment
is varied (from earlier to later in the order), such that as restorations occur,
each Interest Holder has approximately equivalent rotation order positions
across the Grantor System and/or Relevant Conduit. Additional participants in
the Grantor System that become Interest Holders after the date hereof shall be
added to the restoration rotation mechanism. The goal of emergency restoration
splicing shall be to restore service as quickly as possible. This may require
the use of some type of mechanical splice, such as the "3M FiberLock" to
complete the temporary restoration. Permanent restorations will take place as
soon as possible after the temporary splice is complete.
38
<PAGE>
8. Subcontracting. Grantor may subcontract any of the maintenance services
hereunder; provided that Grantor shall require the subcontractor(s) to perform
in accordance with the requirement and procedures set forth herein. The use of
any such subcontractor shall not relieve Grantor of any of its obligations
hereunder.
39
<PAGE>
Exhibit "E" - Escalation
The Technical Services organization at (toll free) 1-877-4Level 3 (1-877-453-
8353) is responsible for the generation of repair tickets, first level testing,
and the coordination of expeditious resolution of issues with our customers'
service.
Customer Care is your single point of contact. Your Level 3 Communications
Technical Services Representative will own the repair ticket through its life
cycle. This means that your Technical Service Representative will proactively
provide you with status reports on your repair ticket through resolution. During
the research and resolution process you will receive an update within one half-
hour of your trouble report and every hour thereafter until your issue has been
resolved.
Repair tickets are assigned a status and will automatically escalate in the
following manner:
CALL TYPES & PROCESS
1-877-4Level 3 (1-877-453-8353) option #1
Information Request-(Request for assistance or information regarding service.
Circuit is not down, but require assistance of a technical nature.)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
1st Level 2nd Level 3rd Level 4th Level 5th Level 6th Level
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Customer Customer Customer Customer Customer Customer
Care TSR Care Sr. Care Care Sr. Care Sr. Care Vice
Rep. Manager Manager Director president
- ---------------------------------------------------------------------------------------------------
Immediate 4 hours 6 hours 8 hours 10 hours No escalation
- ---------------------------------------------------------------------------------------------------
</TABLE>
1-877-4Level 3 (1-877-453-8353) option #1
Service Impaired ACD option #1- (Circuit is completely down, or there is
degradation in service. i.e. line errors)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
1st Level 2nd Level 3rd Level 4th Level 5th Level 6th Level
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Customer Customer Customer Customer Customer Customer
Care TSR Care Sr. Care Care Sr. Care Sr. Care Vice
Rep. Manager Manager Director president
- ---------------------------------------------------------------------------------------------------
Immediate 4 hours 6 hours 8 hours 10 hours No escalation
- ---------------------------------------------------------------------------------------------------
</TABLE>
1-877-4Level 3 (1-877-453-8353) option #1
Major Outage ACD option #1- (Several Customers are experiencing a service outage
due to a higher level equipment trouble, fiber outage or switch related
problems.)
40
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
1st Level 2nd Level 3rd Level 4th Level 5th Level 6th Level
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Customer Customer Customer Customer Customer Customer
Care TSR Care Sr. Care Care Sr. Care Sr. Care Vice
Rep. Manager Manager Director president
- ---------------------------------------------------------------------------------------------------
Immediate Immediate Immediate Immediate Immediate Immediate
- ---------------------------------------------------------------------------------------------------
</TABLE>
Your Level 3 Communications Technical Services Representative will execute this
escalation through the appropriate channels.
If you are not satisfied with the service that you receive please escalate your
concerns in the following order to expedite ticket resolution. All levels of
escalation can be reached through 1-877-4Level 3 (1-877-453-8353), option # 1.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Escalation Level Contact
- --------------------------------------------------------------------------------
<S> <C>
1st Level Level 3 Communications Technical Services
Representative
- --------------------------------------------------------------------------------
2nd Level Level 3 Communications Senior Technical
Services Representative
- --------------------------------------------------------------------------------
3rd Level Manager: Repair &
Telephony Products
--------------------------------------------
Manager: Repair & IP Services
- --------------------------------------------------------------------------------
4th Level Senior Director: Customer Care
- --------------------------------------------------------------------------------
5th Level Vice President: Customer Service and Support
- --------------------------------------------------------------------------------
</TABLE>
41
<PAGE>
Exhibit F
Availability Dates
Provided below are the proposed availability dates for the respective building
access as indicated. Delivery will be as described in Exhibit B. Central
Office delivery is to the operating entity designated entry point (zero manhole)
as dates do not include time interval to deliver fiber to the Grantor colocation
facility inside the Central Office.
City/Building Date Grantee Available
Chicago Central Business District
*** ***
*** ***
*** ***
*** ***
New York
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
Philadelphia Central Business District
*** ***
*** ***
San Francisco Central Business District
*** ***
*** ***
*** ***
Los Angeles Central Business District
*** ***
*** ***
Seattle, WA
*** ***
*** ***
- ---------------
***Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission
42
<PAGE>
120 Lenora (Central Office) 6/15/99
Detroit - Southfield, MI
*** 120 Days After Permits Granted
*** 6/10/99
- ---------------
***Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
43
<PAGE>
CONFIDENTIAL - PROPRIETARY INFORMATION
--------------------------------------
PRIVATE LINE SERVICE AGREEMENT
This Private Line Service Agreement ("Agreement") is made by and between
WorldCom Technologies, Inc. ("WTI"), for itself and on behalf of its U.S.-based
affiliates (collectively, "MCI WorldCom") and
Customer Name: FOCAL COMMUNICATIONS CORP., for itself and on behalf of its
U.S.-based affiliates (hereinafter, "Customer")
Address: 200 N. LaSalle Street, Chicago, Illinois 60601
- --------------------------------------------------------------------------------
Customer agrees to a term and Annual Volume Commitment ("AVC") as set forth in
Schedule A, attached hereto and incorporated herein. Effective upon Customer's
and WTI's execution of this Agreement (the "Effective Date"), Customer shall pay
the rates and receive the discounts for IXC Private Line Service associated with
the selected Term and AVC as set forth on Schedule A. Except as expressly
provided to the contrary, the discounts and /or rates set forth in Schedule A
are in lieu of, and not in addition to, any discounts, promotions and/or credits
(Tariffed or otherwise). AVC and Usage Charges (as hereinafter defined) are
calculated net of discounts. All charges for other services, if any, will be as
set forth in the Tariffs applicable to those services at the time they are
provided to Customer.
SERVICE PROVISIONING AND RECEIPT: MCI WorldCom will provide to Customer IXC
Private Line services pursuant to WTI Tariff FCC No. 1, and all other applicable
tariffs of MCI WorldCom and its U.S.-based affiliates, (collectively, the
"Tariff"). This Agreement incorporates by reference the terms of the Tariff. MCI
WorldCom may modify the Tariff from time to time in accordance with law and
thereby affect the services furnished to Customer. In the event of inconsistency
between the terms of the Tariff and this Agreement, this Agreement will be
deemed controlling. The rates set forth in the Tariff do not include, and the
discounts set forth in this Agreement and the Tariff do not apply to, the
following: charges for MCI WorldCom services other than those set forth in this
Agreement; non-tariffed products, access or egress (or related) charges imposed
by third parties; taxes or tax-like surcharges; and other tariffed charges.
Customer agrees to pay all these additional charges, to the extent applicable,
in addition to the charges set forth in this Agreement. If MCI WorldCom
voluntarily or involuntarily as a result of government or judicial action
cancels the Tariff in whole or in part, then effective on such cancellation this
Agreement shall, as to canceled Tariff provisions previously applicable to this
Agreement, incorporate by reference the substantively similar provisions of MCI
WorldCom's standard Guide to Services and Pricing ("Guide"), as amended by MCI
WorldCom from time to time. For purposes of such provisions, all references to
the Tariff shall include reference to the Guide.
TARIFF OPTION: MCI WorldCom shall, if required, file a Tariff option (a "Tariff
Option") consistent with the terms of Schedule A, which is incorporated into
this Agreement by reference.
SERVICE CONSIDERATIONS: This Agreement shall be binding upon acceptance by MCI
WorldCom. Acceptance of this Agreement by MCI WorldCom is subject to Customer
meeting the terms and conditions set forth in the Tariff. The initial Term of
this Agreement shall begin on the Effective Date. Neither Party shall disclose
the terms of this Agreement to any third party unless (i) the information
becomes publicly available other than through the disclosing party; (ii) is
required to be disclosed by a governmental or judicial law, order, rule or
regulation; (iii) is independently developed by the receiving party; or (iv)
becomes available to the receiving party without restriction from a third party,
provided such third party was authorized to receive the information.
Notwithstanding the above, either party may disclose the terms of this Agreement
to its employees, agents and legal and financial advisors and providers to the
extent necessary or appropriate in connection with the negotiation and/or
performance of this Agreement or in obtaining financing, provided that each such
party is notified of the confidential and proprietary nature of such information
and is subject to or agrees to be bound by similar restrictions on its use and
disclosure. Nothing herein shall limit the right of either party from publicly
disclosing the existence of and general subject matter of this Agreement.
Page 1 of 6
<PAGE>
CONFIDENTIAL - PROPRIETARY INFORMATION
--------------------------------------
APPLICABLE SERVICES: This Agreement includes only those services set forth in
this Agreement and its attachments.
UNDERUTILIZATION CHARGES: For Customers with an AVC as set forth in Schedule A,
if at the end on any Annual Period (as hereinafter defined), Customer's Usage
Charges (as hereinafter defined) during such Annual Period fails to meet or
exceed the AVC, Customer shall pay, in addition to all other charges under this
Agreement, the difference between the AVC and Customer's Usage Charges during
such Annual Period. For purposes of this Agreement, "Annual Period" means the
consecutive twelve (12) month period commencing on the Effective Date and each
consecutive twelve (12) month period thereafter during the Term or any renewal
Term thereof. For purposes of this Agreement, "Usage Charges" means Customer's
recurring usage charges for Private Line Services provided under this Agreement,
calculated net of discounts. Usage Charges do not include the following: (i)
taxes and tax related surcharges; (ii) charges for equipment and collocation;
(iii) charges incurred where MCI WorldCom acts as agent for Customer in the
acquisition of goods or services; (iv) standard non-recurring charges; and (v)
certain other Tariffed charges, including, without limitation, Universal Service
Fund charges.
PENDING CHARGES COUNT TOWARD AVC IN CERTAIN EVENTS: Notwithstanding the
foregoing paragraph, if MCI WorldCom causes a delay in installation of Private
Line Service (up to the OC-3 level) of more than sixty (60) days after receipt
of a service order, and such delay results in Customer's failure to meet the AVC
for that Annual Period, then Customer will receive credit for all such pending
orders (beginning with the sixty-first (61st) day and thereafter) for purposes
of determining whether Customer has satisfied the AVC for that Annual Period. On
a case by case basis, MCI Worldcom may inform Customer at the time of a service
order request that the expected installation interval will be longer than sixty
(60) days. If, following such notification, Customer agrees to such specified
installation interval, then such interval shall be apply for that Service Order
only. In such event, if MCI WorldCom causes a delay in installation of Private
Line Service (up to the OC-3 level) of more than the specified installation
interval, and such delay results in Customer's failure to meet the AVC for that
Annual Period, then Customer will receive credit for all such pending orders
(beginning with the first day following the specified installation interval and
thereafter) for purposes of determining whether Customer has satisfied the AVC
for that Annual Period. If any delay in installation is due to Customer delays,
then pending charges for such delays will not count toward satisfying the AVC
for that Annual Period.
TERM MINIMUM: If at the end of the Term set forth in Schedule A, Customer's
Usage Charges during the Term fail to meet or exceed Seventy Million Dollars
($70,000,000) (the "Term Minimum"), then the Term shall be extended by up to six
(6) additional months. At the end of such Term extension, if Customer's Usage
Charges during the Term fail to meet or exceed the Term Minimum, Customer shall
pay, in addition to all other charges under this Agreement, the difference
between the Term Minimum and Customer's Usage Charges during the Term, as
extended. In no event will Usage Charges that would have been associated with
pending orders be included for purposes of determining whether Customer has
satisfied the Term Minimum.
EARLY TERMINATION CHARGES: If Customer terminates the Agreement prior to the
expiration of the Term, Customer will be required to pay, in addition to all
accrued but unpaid charges through the date of such termination, the difference
between Customer's actual Usage Charges and the AVC for the year of termination.
For each subsequent year of the Term, Customer shall be required to pay 50% of
the AVC. Customer may terminate this Agreement prior to the expiration of the
Term without payment of early termination charges if, and only if, Customer
enters into another agreement with MCI WorldCom for the delivery of Private Line
Services with a term which is at least as long in duration as the Term hereof
and which requires Customer to purchase Private Line Services in a volume,
measured by revenue, which is equal to or greater than the revenue commitment
contained herein. In addition, Customer may terminate this Agreement prior to
the expiration of the Term without payment of early termination charges as set
forth in the "Competitive Evaluation" and "Renegotiation" sections of this
Agreement.
TERMINATION OF SERVICE ORDERS: If (i) Customer terminates a service order for
Private Line Services prior to the end of the service term set forth in the
service order, but (ii) the service order has been installed for at least six
(6) months at the time of termination, then Customer shall not be required to
pay any early termination charge for
Page 2 of 6
<PAGE>
CONFIDENTIAL - PROPRIETARY INFORMATION
--------------------------------------
such service order termination. If (iii) Customer terminates a service order for
Private Line Services prior to the end of the service term set forth in the
service order, and (iv) the service order has been installed for less than six
(6) months at the time of termination, then Customer shall pay the monthly
recurring charges for the cancelled service for the remaining term of the
cancelled service order. It is agreed that MCI WorldCom's damages in the event
of service cancellation would be difficult or impossible to ascertain; these
provisions are intended, therefore, to establish liquidated damages in the event
of cancellation and are not intended as a penalty.
SERVICE LEVEL AGREEMENT: MCI WorldCom will grant service outage credits
calculated as set forth in Schedule B, attached hereto and incorporated herein.
RENEGOTIATION: If Customer's Usage Charges during the Term exceed Seventy
Million Dollars ($70,000,000), then Customer may request that Customer and MCI
WorldCom attempt to negotiate in good faith a mutually agreeable amendment to
this Agreement that increases Customer's commitment and the discounts provided
hereunder. In the event that the parties fail to agree on such an amendment,
then *** the expiration of the Term *** by providing MCI WorldCom with thirty
(30) days prior ***.
***
CONVERSION FROM EXISTING MCI WORLDCOM TERM AGREEMENTS: If Customer meets the
conditions stated under "Termination without Liability" in the Tariff,
enrollment in this Agreement will cause an existing MCI or WTI term plan
agreement for IXC private line services to terminate automatically without
incurring Early Termination Charges. Termination and underutilization liability
charges may apply if Customer is ineligible for conversion from existing MCI or
WTI term plans without liability and/or all services are not converted.
EXCLUSION FROM LIMITATION OF LIABILITY: Where a party to this Agreement has
engaged in gross negligence or willful misconduct, no limitation of liability
provision, whether set forth in a tariff, service guide, order form, or
otherwise, shall have any applicability to such party and shall not protect such
party or limit that party's liability. Nothing contained herein shall operate as
a limitation on the right of either party hereto to bring an action for damages
against any third party (other than an affiliate of a party), including claims
for indirect, special or consequential damages, based on any acts or omissions
of such third party.
INDEMNIFICATION: MCI WorldCom shall indemnify, defend and hold Customer harmless
from claims, loss, damage, expense (including attorneys fees and court costs) or
liability arising from all claims, loss, damage, expense (including attorneys
fees and court costs) or liability for property damage or personal injury to the
extent that such claims arise out of or are caused by MCI WorldCom's negligence
or willful misconduct. Customer shall indemnify, defend and hold MCI WorldCom
harmless from claims, loss, damage, expense (including attorneys fees and court
costs) or liability
- ---------------
***Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
Page 3 of 6
<PAGE>
CONFIDENTIAL - PROPRIETARY INFORMATION
--------------------------------------
for property damage or personal injury to the extent that such claims arise out
of or are caused by Customer's negligence or willful misconduct.
GOVERNING LAW: This Agreement, and all causes of action arising out of this
Agreement, will be subject to the Communications Act of 1934, as amended (the
"Act"), or, if any part of this Agreement is not governed by the Act, by the
domestic law of the State of New York without regard to its choice of law
principles.
ASSIGNMENT: Neither party may transfer or assign the obligations or rights
hereunder without the express prior written consent of the other party, except
to an affiliated entity (which for purposes hereof shall mean any entity that
controls, is controlled by or is under common control with such assigning
party). This Agreement shall apply to all such permitted transferees or
assignees. Any attempted transfer or assignment hereof not in accordance
herewith shall be null and void.
ENTIRE AGREEMENT: This Agreement, including the Tariff and the Attachments
referenced below, is the complete agreement of the parties for domestic IXC
private line services and supercedes any prior agreement or representations,
whether oral or written, with respect thereto, including without limitation any
agreements for domestic IXC private line services; provided, however, that
Customer's existing agreement(s) for local private lines and access will
continue in full force and effect. Except for Tariff modifications initiated by
MCI WorldCom, no amendment to this Agreement will be valid unless each such
change is accepted in writing by an authorized representative of both parties.
Any capitalized terms not expressly defined in an Attachment to this Agreement
shall have the meaning given to such term in this Agreement.
IN WITNESS WHEREOF, the parties have accepted and signed this Agreement and the
individuals signing below warrant and represent that they have the full legal
and regulatory authority to enter into this Agreement for and on behalf of the
respective parties.
WORLDCOM TECHNOLOGIES, INC. FOCAL COMMUNICATIONS CORP.
By:/s/ Frank Grillo By:/s/ Dan Montgomery
--------------------------------- ---------------------------------
(Authorized Representative) (Authorized Representative)
Frank Grillo, V.P. Marketing Dan Montgomery, V.P.
--------------------------------- ---------------------------------
(Name and Title) (Name and Title)
May 4, 1999 4/28/99
--------------------------------- ---------------------------------
(Date) (Date)
Page 4 of 6
<PAGE>
CONFIDENTIAL - PROPRIETARY INFORMATION
--------------------------------------
Private Line Service Agreement
Schedule A
A: Customer agrees to a five (5) year commitment with the following AVC:
Year 1: Ten million dollars ($10,000,000)
Year 2: Thirteen million, two hundred thousand dollars ($13,200,000)
Years 3, 4 and 5: Fifteen million, six hundred thousand dollars ($15,600,000)
per Annual Period
Term of Agreement: The term of the Agreement shall begin on the Effective Date
- -----------------
and end sixty (60) months thereafter (the "Term").
Term of Service Order: Customer shall request the delivery of Private Line
- ---------------------
Services by executing a service order, which shall set forth the place of
delivery, circuit contracted term, pricing and other details. All service orders
shall incorporate the terms and conditions of the Agreement. A separate service
order must be completed for each circuit ordered. The term of each service order
shall be thirty-six (36) months, unless a different term is expressly and
conspicuously set forth in the service order. Each service order shall survive
the termination or expiration of the Agreement; provided, however, that MCI
WorldCom may terminate one or more service orders if MCI WorldCom terminates the
Agreement due to Customer default. After the expiration of a service order,
service covered by that service order may be canceled without penalty upon
thirty (30) days' prior written notice.
- --------------------------------------------------------------------------------
ACCEPTANCE DEADLINE: This Agreement shall be of no force and effect and the
offer contained herein shall be deemed withdrawn unless this Agreement is
executed by Customer and delivered to MCI WorldCom on or before May 3, 1999.
- --------------------------------------------------------------------------------
B: Customer must satisfy the following conditions during each Annual Period:
(1) At least fifty percent (50%) of Customer's AVC usage will be Local Private
Line services.
DATA
----
The following pricing will be applied to Customer's charges for Private Line
Service during the Term:
PRIVATE LINE
Service Type Pricing* Minimum
------------ -------- -------
DS-1 $*** per VGE mile per month $500 per circuit
DS-3 $*** per VGE mile per month $2,000 per circuit
*Pricing applies to IXC charges only.
*Pricing applies to on-net (also known as "Tier A") cities only.
SONET
Service Type Pricing* Minimum
------------ -------- -------
OC-3 $*** per VGE mile per month $6,000 per circuit
*Pricing applies to on-net (also known as "Tier A") cities only.
Local private lines and access will be priced per existing Local Private Line
contract.
- -------------
***Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
Page 5 of 6
<PAGE>
CONFIDENTIAL - PROPRIETARY INFORMATION
--------------------------------------
Service Level Agreement
Schedule B
A. MCI WorldCom will grant a credit allowance whenever an interruption occurs
because of a failure on the MCI WorldCom-owned network. An interruption period
begins when Customer reports a service, facility or circuit to be interrupted
and releases it for testing and repair. An interruption period ends when the
service, facility or circuit is operative. If Customer reports a service,
facility or circuit to be inoperative but declines to release it for testing and
repair, it is considered to be impaired, but not interrupted.
B. An interruption occurs when the following service levels are not attained:
Service Availability: 99.99%
Target Bit Error Rate (end-to-end link): less than 1 x 10-/11/ at T1 Rate
(equivalent rate for DS0 1x10-/6/)
Target Severely Errored Seconds (end-to-end link): less than 0.008%
. Availability refers to Customer's access point to the MCI WorldCom
Backbone Network, including their MCI WorldCom provided
facilities-based local access circuit.
. Availability does not include regularly scheduled or emergency
maintenance events, or Customer caused outages or disruptions.
. Customer may report service unavailability events of longer than 15
consecutive minutes to MCI WorldCom customer service within 48 hours
of the event. If the event is confirmed by MCI WorldCom customer
service, Customer will receive a credit off of the monthly recurring
charge as follows:
Duration Credit off of Monthly Recurring Charge*
--------- ---------------------------------------
Less than 1 hour No credit
1 to 2 hours One-half of one day
2 to 6 hours One day
6 to 12 hours Two days
12 to 24 hours 3 Days
Two or more interruptions of 15 minutes or more during any one 24-hour
period shall be considered as one interruption.
Interruptions over 24 hours will be credited 4 days for each full 24-hour
period. No more than 30 days credit will be allowed for any one month
period.
*Calculated on the basis of the monthly recurring charges for the affected
circuit only (so that one day of credit would equal one-thirtieth of the
monthly recurring charges). In no event shall Customer be entitled to more
than one month of credit for any given circuit for all outages during such
month.
C. For purposes of calculating credit allowances, every month is considered to
have 30 days. A credit allowance is applied on a pro rata basis against the
rates specified hereunder and is dependent upon the length of the interruption.
Only those facilities on the interrupted portion of the circuit will receive a
credit. A service interruption will be deemed to have occurred only if service
becomes unusable to Customer as a result of failure of MCI WorldCom's facility,
equipment or personnel used to provide the service in question, and only where
the interruption is not the result of: (i) the negligence or acts of Customer
or its agents; (ii) the failure or malfunction of Customer equipment or
systems; (iii) circumstances or causes beyond the control of MCI WorldCom.
Page 6 of 6
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our Firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
May 7, 1999
<PAGE>
Exhibit 24.1
OFFICERS AND DIRECTORS OF
FOCAL COMMUNICATIONS CORPORATION
POWER OF ATTORNEY
The undersigned officers and/or directors of Focal Communications Corporation
(the "Company") hereby constitute and appoint Robert C. Taylor, Jr., John R.
Barnicle, Joseph A. Beatty and Renee M. Martin, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the undersigned,
to sign and file under the Securities Act of 1933, as amended, (i) a
registration statement on Form S-1 relating to the registration of shares of the
Company's common stock to be issued pursuant to an underwritten public offering,
(ii) any registration statement related to the offering which is effective
immediately upon filing pursuant to Rule 462(b) under said Act, and (iii) any
and all amendments and exhibits to such registration statement, including post-
effective amendments, and any and all applications or other documents to be
filed with the Securities and Exchange Commission pertaining to such
registration statements or amendments, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be done
in the premises, hereby ratifying and approving the acts of said attorney and
any of them and any such substitute.
EXECUTED this 6th day of May, 1999.
<TABLE>
<CAPTION>
<S> <C>
/s/ Robert C. Taylor, Jr. /s/ John R. Barnicle
- ------------------------------------- ------------------------------------------
Robert C. Taylor, Jr., Director, John R. Barnicle, Director, Executive Vice
President and Chief Executive Officer President and Chief Operating Officer
/s/ Joseph A. Beatty /s/ Gregory J. Swanson
- ------------------------------------- ------------------------------------------
Joseph A. Beatty, Executive Vice Gregory J. Swanson, Controller
President and Chief Financial Officer
/s/ James E. Crawford, III /s/ John A. Edwardson
- ------------------------------------- ------------------------------------------
James E. Crawford, III, Director John A. Edwardson, Director
/s/ Paul J. Finnegan /s/ Richard D. Frisbie
- ------------------------------------- ------------------------------------------
Paul J. Finnegan, Director Richard D. Frisbie, Director
/s/ James N. Perry, Jr. /s/ Paul A. Yovovich
- ------------------------------------- ------------------------------------------
James N. Perry, Jr., Director Paul A. Yovovich, Director
</TABLE>
