As filed with the Securities and Exchange Commission on October 31, 1996
Registration No. 333-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
VIATEL, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3787366
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
800 Third Avenue
New York, New York 10022
(Address of Principal Executive Offices, Including Zip Code)
AMENDED STOCK INCENTIVE PLAN
(Full Title of the Plan)
Sheldon M. Goldman, Esq.
U.S. General Counsel
VIATEL, INC.
800 Third Avenue
New York, New York 10022
(212) 935-6800
(Name, Address and Telephone Number,
Including Area Code, of Agent For Service)
----------------------------------
Copy to:
JOHN T. CAPETTA, ESQ.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901
-----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum
Proposed Maximum Aggregate Amount of
Title of Securities Amount to be Offering Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
- ------------------- ------------ ---------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 1,833,333
per share shares $12.0625 $22,114,579.00 $6,701.00
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) and (h) under the Securities Act of
1933, as amended. The price per share is estimated based on the
average of the high and low trading prices for Viatel, Inc.'s Common
Stock on October 28, 1996, as reported by Nasdaq National Market.
===========================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Viatel, Inc. (the "Registrant") are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995 filed with the Commission on April 1, 1996, as amended by
a Form 10-K/A-1 filed with the Commission on October 15, 1996;
(b) The Registrant's Form 10-Q for the quarter ended March 31, 1996,
as filed with the Commission on May 15, 1996 and Form 10-Q for the quarter
ended June 30, 1996, as filed with the Commission on August 14, 1996, and
as amended by a Form 10-Q/A-1 filed with the Commission on September 24,
1996;
(c) The description of the Registrant's common stock, $0.01 par value
(the "Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A (Registration No. 000-21261) filed with the Commission on
August 27, 1996 under Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and as amended by a Form 8-A/A filed with the
Commission on October 15, 1996.
All documents and reports filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof and
prior to the filing of a post-effective amendment to the Registration
Statement which indicates that the securities offered hereby have been
sold, or which deregisters all such securities remaining unsold, shall also
be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof commencing on the respective dates on which such
documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a Delaware corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") (other than an action by
or in the right of the corporation) by reason of the fact that he is or was
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, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding 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. A
Delaware corporation may indemnify any person under such Section in
connection with a proceeding by or in the right of the corporation to
procure judgment in its favor, as provided in the preceding sentence,
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action, except that no indemnification shall be made in respect thereof
unless, and then only to the extent that, a court of competent jurisdiction
shall determine upon application that such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper. A
Delaware corporation must indemnify any person who was successful on the
merits or otherwise in defense of any action, suit or proceeding or in
defense of any claim, issue or matter in any proceeding, 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, against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith. A Delaware corporation may pay for the
expenses (including attorneys' fees) incurred by an officer or director in
defending a proceeding in advance of the final disposition upon receipt of
an undertaking by or on behalf of such officer or director to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
<PAGE>
Section 102(b)(7) of the DGCL, permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable
to the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for any acts or omissions not in good faith or which involve intentional
misconduct or a knowning violation of law, (iii) in respect of certain
unlawful dividend payments or stock redemptions or repurchases, or (iv) for
any transaction from which the director derived an improper personal
benefit. Article Ninth of the Registrant's Amended and Restated Certificate
of Incorporation eliminates the liability of directors to the fullest
extent permitted by Section 102(b)(7) of the DGCL. The DGCL permits the
purchase of insurance on behalf of directors and officers against any
liability asserted against directors and officers and incurred by such
persons in such capacity, or arising out of their status as such, whether
or not the corporation would have the power to indemnify directors and
officers against such liability. The Registrant has obtained officers' and
directors' liability insurance of $10 million for members of its Board of
Directors and executive officers. In addition, the Registrant has entered
into agreements to indemnify its directors and officers from and against
any Expenses (as defined in the indemnity agreement) incurred by such
person in connection with investigating, defending, serving as a witness
in, participating in (including on appeal), or preparing for any of the
foregoing in any threatened, pending or contemplated action, suit, or
proceeding (including an action by or in the right of the Registrant), or
any inquiry, hearing or investigation, to the fullest extent permitted by
law, as such law may be amended or interpreted (but only to the extent that
such amendment or interpretation provides for broader indemnification
rights). The indemnity agreement contains certain provisions to ensure
that the indemnitee receives the benefits contemplated by the agreement in
the event of a "change in control" (as defined in the indemnity agreement)
such as the establishment and funding of a trust in an amount sufficient to
satisfy any and all expenses reasonably anticipated to be incurred by the
indemnitee in connection with investigating, preparing for, participating
in and/or defending a proceeding.
At present, there is no pending litigation or other proceeding
involving a director or officer of the Registrant as to which
indemnification is being sought, nor is the Registrant aware of any
threatened litigation that may result in claims for indemnification by any
officer or director.
Article Tenth of the Registrant's Amended and Restated Certificate of
Incorporation and Article X of the Registrant's Amended and Restated Bylaws
provide for indemnification of directors and officers to the fullest extent
permitted by Section 145 of the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------------------------------------------------------
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit 3.1(i)(b)
of the Registrant's Registration Statement on Form S-1, File No.
333-09699, filed on August 7, 1996).
4.2 Amended Stock Incentive Plan (incorporated herein by reference to
Exhibit 10.33 of the Registrant's Registration Statement on Form
S-1, File No. 333-09699, filed on August 7, 1996).
*5 Opinion of Kelley Drye & Warren LLP regarding legality of the
Common Stock being registered.
*23.1 Consent of Kelley Drye & Warren LLP (included in their opinion
filed as Exhibit 5).
*23.2 Consent of KPMG Peat Marwick LLP.
*24 Powers of Attorney (See Signature Page).
- ------------------------------
*Filed herewith
<PAGE>
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 of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if 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
15(d) of the Exchange Act that are incorporated by reference in this
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 that is incorporated by reference in this 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 provisions of Item 6, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 New York, State of
New York, on October 30, 1996.
VIATEL, INC.
By: /s/ Martin Varsavsky
----------------------------
Martin Varsavsky
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Michael J. Mahoney, Allan L. Shaw and Sheldon M. Goldman and each of them
as attorneys-in-fact, with full power of substitution, to execute in the
name and on behalf of such person, individually and in each capacity stated
below, and to file, any and all amendments to this Registration Statement,
including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on October 30, 1996.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Martin Varsavsky Chairman of the Board, Chief Executive
- --------------------------- Officer and Director (Principal Executive
Martin Varsavsky Officer)
/s/ Michael J. Mahoney President, Chief Operating Officer
- --------------------------- and Director
Michael J. Mahoney
/s/ Allan L. Shaw Vice President, Finance; Chief Financial
- --------------------------- Officer (Principal Financial and
Allan L. Shaw Accounting Officer); Treasurer and
Director
/s/ Antonio Carro
- --------------------------- Director
Antonio Carro
Director
- ---------------------------
Paul G. Pizzani
Director
- ----------------------------
W. James Peet
</TABLE>
<PAGE>
<TABLE> EXHIBIT INDEX
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
3.1(i)(b) of the Registrant's Registration Statement on Form
S-1, File No. 33-09699, filed on August 7, 1996).
4.2 Amended Stock Incentive Plan (incorporated herein by
reference to Exhibit 10.33 of the Registrant's Registration
Statement on Form S-1, File No. 333-09699, filed on August
7, 1996).
*5 Opinion of Kelley Drye & Warren LLP regarding legality of
the Common Stock being registered.
*23.1 Consent of Kelley Drye & Warren LLP (included in their
opinion filed as Exhibit 5).
*23.2 Consent of KPMG Peat Marwick LLP.
*24 Powers of Attorney (See Signature Page).
- ----------------------
*Filed herewith
</TABLE>
EXHIBIT 5
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901-3229
October 30, 1996
Viatel, Inc.
800 Third Avenue
New York, New York 10022
Re: Amended Stock Incentive Plan
----------------------------
Dear Sirs:
We are acting as counsel to Viatel, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities
Act of 1933, as amended (the "Act"). The Registration Statement relates to
1,833,333 shares of the Company's Common Stock, $0.01 par value per share
(the "Shares"), which are to be issued pursuant to the Company's Amended
Stock Incentive Plan (the "Plan").
In connection with this opinion, we have examined and relied upon
copies certified or otherwise identified to our satisfaction of: (i) the
Plan; (ii) an executed copy of the Registration Statement; (iii) the
Company's Amended and Restated Certificate of Incorporation and Amended and
Restated By-laws; (iv) the minute books and other records of corporate
proceedings of the Company, as made available to us by officers of the
Company; and have reviewed such matters of law as we have deemed necessary
or appropriate for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies.
We have also assumed the legal capacity of all natural persons, the
genuineness of all signatures on all documents examined by us, the
authority of such persons signing on behalf of the parties thereto other
than the Company and the due authorization, execution and delivery of all
documents by the parties thereto other than the Company. As to certain
factual matters material to the opinion expressed herein, we have relied to
the extent we deemed proper upon representations, warranties and statements
as to factual matters of officers and other representatives of the Company.
Our opinion expressed below is subject to the qualification that we express
no opinion as to any law other than the laws of the States of Delaware and
New York and the federal laws of the United States of America. Without
limiting the foregoing, we express no opinion with respect to the
applicability thereto or effect of municipal laws or the rules, regulations
or orders of any municipal agencies within any such state.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, it is our
opinion that the Shares to be issued by the Company pursuant to the Plan
have been duly authorized and reserved for issuance and, when certificates
for the Shares have been duly executed by the Company, countersigned by a
transfer agent, duly registered by a registrar for the Shares and issued
and paid for in accordance with the terms of the Plan, the Shares will be
validly issued, fully paid and non-assessable.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein.
We assume no obligation to revise or supplement this opinion should the
present laws of the States of Delaware or New York or the federal laws of
the United States of America be changed by legislative action, judicial
decision or otherwise.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission promulgated
thereunder.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose.
Very truly yours,
/s/ KELLEY DRYE & WARREN LLP
EXHIBIT 23.2
Independent Auditors' Consent
-----------------------------
The Board of Directors and Stockholders
Viatel Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of Viatel, Inc. of our report dated March 8, 1996, relating to the
consolidated balance sheets of Viatel, Inc. and Subsidiaries as of December
31, 1995 and 1994 and the related consolidated statements of operations,
stockholders' (deficit) equity and cash flows for each of the years in the
three-year period ended December 31, 1995, and the related schedule, which
appears in the December 31, 1995 annual report on Form 10-K of Viatel, Inc.
KPMG Peat Marwick LLP
New York, New York
October 30, 1996
