<PAGE>
As filed with the Securities and Exchange Commission on August 2, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________
FOCAL COMMUNICATIONS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 36-4167094
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
200 North LaSalle Street, Suite 1100
Chicago, Illinois 60601
(Address of Principal Executive Offices)
Amended and Restated 1997 Nonqualified Stock Option Plan
(Full Title of the Plan)
_______________
Joseph A. Beatty
Executive Vice President and Chief Financial Officer
Focal Communications Corporation
200 North LaSalle Street, Suite 1100
Chicago, Illinois 60601
(Name and Address of Agent For Service)
(312) 895-8400
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
Elizabeth C. Kitslaar
Jones, Day, Reavis & Pogue
77 West Wacker
Chicago, Illinois 60601-1692
(312) 269-4114
_______________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed Proposed
Maximum Maximum
Amount To Be Offering Price Aggregate Amount Of
Title Of Securities To Be Registered Registered Per Share/(1)/ Offering Price/(1)/ Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 6,324,625 shares $ 17.98 $ 113,716,757.50 $ 31,614.00
=======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act, on the basis of the average of high and low sale prices of
the shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock"), on the Nasdaq National Market on July 28, 1998.
================================================================================
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed by Focal Communications Corporation (the
"Company" or the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, filed with the Commission on March 31, 1999, as amended
on Form 10-K/A, filed with the Commission on April 7, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed with the Commission on May 7, 1999, as amended on
Form 10-Q/A, filed with the Commission on July 6, 1999; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the Commission on
July 26, 1999 (Reg. No. 000-26821) (the "Form 8-A").
All other documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment indicating that
all securities offered under this Registration Statement have been sold, or
deregistering all securities then remaining unsold, are also incorporated by
reference and shall be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superceded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this Registration
Statement.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel
Not applicable.
ITEM 6. Indemnification of Directors and Officers
We have statutory authority to indemnify our officers and directors. The
applicable provisions of the Delaware General Corporation Law state that, to the
extent an officer or director is successful on the merits or otherwise, a
corporation may indemnify any person who
<PAGE>
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 Delaware General Corporation Law,
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 of 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
(4) By the stockholders.
The Company'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 the Company or of any
subsidiary of the Company or of any other corporation, partnership, joint
venture, trust or other entity which he has served in such capacity at the
request of the Company 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
the Company.
In addition, the Company maintains liability insurance for its directors
and officers.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit Number Description
- -------------- -----------
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit No. 3.3 to the Company's
Registration Statement on Form S-1 originally filed with the
Commission on May 7, 1999 (Registration No. 333-77995) (the
"S-1"))
4.2 Amended and Restated By-Laws (incorporated by reference to
Exhibit No. 3.5 of the S-1)
4.3 Indenture with Harris Trust and Savings Bank, dated February
18, 1998 (incorporated by reference to Exhibit No. 4.1 to the
Company's Registration Statement on Form S-4 originally filed
with the Commission on August 13, 1998 (Registration No. 333-
49397) (the "S-4"))
4.4 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)
4.5 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)
4.6 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)
4.7 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 Company'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"))
4.8 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)
3
<PAGE>
4.9 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)
4.10 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)
4.11 Amendment No. 1 to Vesting Agreement and Consent as of August
21, 1998, between the Company and 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)
4.12 Amendment No. 1 to Vesting Agreement and Consent as of August
21, 1998, between the Company and 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)
4.13 Amendment No. 1 to Vesting Agreement and Consent as of August
21, 1998, between the Company and 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)
4.14 Form of Restricted Stock Agreement, dated September 30, 1998
between the Company 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)
4.15 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)
4.16 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
<PAGE>
4.17 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)
4.18 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 as of February 16,
1999 (incorporated by reference to Exhibit No. 4.16 to the
Company's Annual Report on Form 10-K for year ended December
31, 1998 originally filed with the Commission on March 31,
1998 (the "1998 10-K"))
4.19 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)
4.20 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)
4.21 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)
4.22 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)
4.23 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)
4.24 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)
4.25 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)
4.26 Amendment No. 1 to Executive Employment Agreement and Consent
with Robert C. Taylor, dated as of August 21, 1998
(incorporated by reference to Exhibit No. 4.14 of the 3rd
Quarter 1998 10-Q)
4.27 Registration Agreement with Madison Dearborn Capital Partners,
L.P., Frontenac VI, L.P., Battery Ventures III, L.P., Brian F.
Addy, John R.
5
<PAGE>
Barnicle, Joseph Beatty, and Robert C. Taylor Jr., dated
November 27, 1996 (incorporated by reference to Exhibit No.
4.16 of the S-4)
4.28 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)
4.29 Amendment No. 4 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 May 21, 1999
(incorporated by reference to Exhibit No. 4.27 of the S-1)
4.30 Form of Amended and Restated 1997 Nonqualified Stock Option
Plan (incorporated by reference to Exhibit No. 10.33 of the
1998 10-K)
4.31 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)
4.32 Amendment to 1997 Nonqualified Stock Option Plan ( amended and
restated as of August 21, 1998), dated as of May 21, 1999
(incorporated by reference to Exhibit 10.58 of the S-1)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
6
<PAGE>
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which is registered) and any deviation from the
low or high of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement 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.
(c) 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 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 of the Registrant 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.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and 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 August 2, 1999.
FOCAL COMMUNICATIONS CORPORATION
By: /s/ Robert C. Taylor
-------------------------------------------
Robert C. Taylor
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities on the date
indicated
Signature Title Date
--------- ----- ----
/s/ Robert C. Taylor, Jr. Director, President and Chief August 2, 1999
- --------------------------
Robert C. Taylor, Jr. Executive Officer
/s/ John R. Barnicle Director, Executive Vice August 2, 1999
- --------------------------
John R. Barnicle President and Chief
Operating Officer
/s/ Joseph A. Beatty Executive Vice President and August 2, 1999
- --------------------------
Joseph A. Beatty Chief Financial Officer
/s/ Gregory J. Swanson Controller August 2, 1999
- --------------------------
Gregory J. Swanson
8
<PAGE>
/s/ James E. Crawford, III Director August 2, 1999
- --------------------------
James E. Crawford, III
/s/ John A. Edwardson Director August 2, 1999
- --------------------------
John A. Edwardson
/s/ Paul J. Finnegan Director August 2, 1999
- --------------------------
Paul J. Finnegan
/s/ Richard D. Frisbie Director August 2, 1999
- --------------------------
Richard D. Frisbie
/s/ James N. Perry, Jr. Director August 2, 1999
- --------------------------
James N. Perry, Jr.
/s/ Paul G. Yovovich Director August 2, 1999
- --------------------------
Paul G. Yovovich
* Joseph A. Beatty, the undersigned attorney-in-fact, by signing his name
hereto, does hereby sign and execute this Registration Statement on behalf of
the above indicated Registrant and officers and directors thereof (constituting
a majority of the directors) pursuant to a Power of Attorney filed with the
Securities and Exchange Commission.
August 2, 1999 By: /s/ Joseph A. Beatty
----------------------------------------
Joseph A. Beatty
Executive Vice President and Chief
Financial Officer
9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation Incorporated by
(incorporated by reference to Exhibit No. 3.3 to the reference
Company's Registration Statement on Form S-1
originally filed with the Commission on May 7,
1999 (Registration No. 333-77995) (the "S-1"))
4.2 Amended and Restated By-Laws (incorporated by Incorporated by
reference to Exhibit No. 3.5 to the S-1) reference
4.3 Indenture with Harris Trust and Savings Bank, Incorporated by
dated February 18, 1998 (incorporated by reference reference
to Exhibit No. 4.1 to the Company'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"))
4.4 Initial Global 12.125% Senior Discount Note Due Incorporated by
February 15, 2008, dated February 18, 1998 reference
(incorporated by reference to Exhibit No. 4.2 of the
S-4)
4.5 Stock Purchase Agreement with Madison Dearborn Incorporated by
Capital Partners, L.P., Frontenac VI, L.P., Battery reference
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)
4.6 Amendment No. 1 to Stock Purchase Agreement Incorporated by
with Madison Dearborn Capital Partners, L.P., reference
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>
10
<PAGE>
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
<S> <C> <C>
4.7 Amendment No. 2 to Stock Purchase Agreement Incorporated by
with Madison Dearborn Capital Partners, L.P., reference
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
Company's Quarterly Report on Form 10-Q for the
period ending September 30, 1998, originally filed
with the Commission on November 16, 1998 (the
"3rd Quarter 1998 10-Q"))
4.8 Vesting Agreement with Madison Dearborn Capital Incorporated by
Partners, L.P., Brian F. Addy, John R. Barnicle, reference
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)
4.9 Vesting Agreement with Frontenac VI, L.P., Incorporated by
Brian F. Addy, John R. Barnicle, Joseph Beatty and reference
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)
4.10 Vesting Agreement with Battery Ventures III, L.P., Incorporated by
Brian F. Addy, John R. Barnicle, Joseph Beatty and reference
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)
4.11 Amendment No. 1 to Vesting Agreement and Incorporated by
Consent as of August 21, 1998, between the reference
Company and 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)
4.12 Amendment No. 1 to Vesting Agreement and Incorporated by
Consent as of August 21, 1998, between the reference
Company and 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)
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
<S> <C> <C>
4.13 Amendment No. 1 to Vesting Agreement and Incorporated by
Consent as of August 21, 1998, between the reference
Company and 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)
4.14 Form of Restricted Stock Agreement, dated Incorporated by
September 30, 1998 between the Company and each reference
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)
4.15 Stockholders Agreement with Madison Dearborn Incorporated by
Capital Partners, L.P., Frontenac VI, L.P., Battery reference
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)
4.16 Amendment No. 1 to Stockholders Agreement with Incorporated by
Madison Dearborn Capital Partners, L.P., Frontenac reference
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)
4.17 Amendment No. 2 to Stockholders Agreement with Incorporated by
Madison Dearborn Capital Partners, L.P., Frontenac reference
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)
4.18 Amendment No. 3 to Stockholders Agreement with Incorporated by
Madison Dearborn Capital Partners, L.P., Frontenac reference
VI, L.P., Battery Ventures III, L.P., Brian F. Addy,
John R. Barnicle, Joseph Beatty, and Robert C.
Taylor Jr., dated as of February 16, 1999
(incorporated by reference to Exhibit No. 4.16 to the
Company's Annual Report on Form 10-K for year
ended December 31, 1998 originally filed with the
Commission on March 31, 1998 (the "1998 10-K"))
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
<S> <C> <C>
4.19 Executive Stock Agreement and Employment Incorporated by
Agreement with Brian F. Addy, dated November reference
27, 1996 (incorporated by reference to Exhibit No.
4.12 of the S-4)
4.20 Executive Stock Agreement and Employment Incorporated by
Agreement with John R. Barnicle, dated November reference
27, 1996 (incorporated by reference to Exhibit No.
4.13 of the S-4)
4.21 Executive Stock Agreement and Employment Incorporated by
Agreement with Joseph A. Beatty, dated November reference
27, 1996 (incorporated by reference to Exhibit No.
4.14 of the S-4)
4.22 Executive Stock Agreement and Employment Incorporated by
Agreement with Robert C. Taylor, Jr., dated reference
November 27, 1996 (incorporated by reference to
Exhibit No. 4.15 of the S-4)
4.23 Amendment No. 1 to Executive Employment Incorporated by
Agreement and Consent with Brian F. Addy, dated reference
as of August 21, 1998 (incorporated by reference to
Exhibit No. 4.11 of the 3rd Quarter 1998 10-Q)
4.24 Amendment No. 1 to Executive Employment Incorporated by
Agreement and Consent with John R. Barnicle, reference
dated as of August 21, 1998 (incorporated by
reference to Exhibit No. 4.12 of the 3rd Quarter
1998 10-Q)
4.25 Amendment No. 1 to Executive Employment Incorporated by
Agreement and Consent with Joseph Beatty, dated reference
as of August 21, 1998 (incorporated by reference to
Exhibit No. 4.13 of the 3rd Quarter 1998 10-Q)
4.26 Amendment No. 1 to Executive Employment Incorporated by
Agreement and Consent with Robert C. Taylor, reference
dated as of August 21, 1998 (incorporated by
reference to Exhibit No. 4.14 of the 3rd Quarter
1998 10-Q)
4.27 Registration Agreement with Madison Dearborn Incorporated by
Capital Partners, L.P., Frontenac VI, L.P., Battery reference
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)
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
<S> <C> <C>
4.28 Amendment No. 1 to Registration Agreement with Incorporated by
Madison Dearborn Capital Partners, L.P., Frontenac reference
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)
4.29 Amendment No. 4 to Stockholders Agreement with Incorporated by
Madison Dearborn Capital Partners, L.P., reference
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 May 21, 1999
(incorporated by reference to Exhibit No. 4.27 of
the S-1)
4.30 Form of Amended and Restated 1997 Nonqualified Incorporated by
Stock Option Plan (incorporated by reference to reference
Exhibit No. 10.33 of the 1998 10-K)
4.31 1997 Nonqualified Stock Option Plan, amended and Incorporated by
restated as of August 21, 1998 (incorporated by reference
reference to Exhibit No. 10.7 of the 3rd Quarter
1998 10-Q)
4.32 Amendment to 1997 Nonqualified Stock Option Incorporated by
Plan (amended and restated as of August 21, 1998), reference
dated as of May 21, 1999 (incorporated by reference
to Exhibit No. 10.58 of the S-1)
5.1 Opinion of Jones, Day, Reavis & Pogue 15
23.1 Consent of Jones, Day, Reavis & Pogue (included
in Exhibit 5.1) 15
23.2 Consent of Independent Public Accountants 16
24.1 Power of Attorney 17
</TABLE>
14
<PAGE>
Exhibit 5.1
-----------
[LETTERHEAD OF JONES, DAY, REAVIS & POGUE]
August 2, 1999
Focal Communications Corporation
200 North LaSalle Street, Suite 1100
Chicago, Illinois 60601
Re: Amended and Restated 1997 Nonqualified Stock Option Plan
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Focal Communications Corporation, a Delaware
corporation (the "Company"), in connection with the Company's Amended and
Restated 1997 Nonqualified Stock Option Plan (the "Plan"). We have examined
such documents, records and matters of law as we have deemed necessary for
purposes of this opinion, and based thereupon we are of the opinion that the
shares of the Company's Common Stock, par value $.01 per share ("Common Stock"),
that may be issued and sold pursuant to the Plan are duly authorized and, when
issued and sold in accordance with the Plan, will be validly issued, fully paid
and nonassessable so long as the consideration received by the Company is at
least equal to the stated par value of such shares of Common Stock.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 filed by the Company to effect registration
of the shares of Common Stock to be issued and sold pursuant to the Plan under
the Securities Act of 1933.
Very truly yours,
/s/ JONES, DAY, REAVIS & POGUE
<PAGE>
Exhibit 23.2
------------
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January 22,
1999 included in Focal Communications Corporation Annual Report on Form 10-K for
the year ended December 31, 1998 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
August 2, 1999
<PAGE>
Exhibit 24.1
------------
OFFICERS AND DIRECTORS OF
FOCAL COMMUNICATIONS CORPORATION
POWER OF ATTORNEY
Know all men by these presents, that 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 a Registration Statement or
Registration Statements on Form S-8 pursuant to the Securities Act of 1933, as
amended, concerning certain shares of the Common Stock, par value $.01 per
share, of the Company offered or to be offered in connection with the Focal
Communications Corporation Amended and Restated 1997 Nonqualified Stock Option
Plan and any and all amendments (including post-effective amendments) to such
Registration Statement(s) and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission or any state regulatory authority, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them or
their or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as
of the 24 day of July, 1999.
/s/ Robert C. Taylor, Jr. /s/ John R. Barnicle
- ------------------------------ ---------------------------
Robert C. Taylor, Jr., Director, John R. Barnicle, Director, Executive
President and Chief Executive Officer Vice 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 G. Yovovich
- ------------------------------ ---------------------------
James N. Perry, Jr., Director Paul G. Yovovich, Director
