As filed with the Securities and Exchange Commission on November 22, 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 Identification No.)
Incorporation or Organization)
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>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share(1) Price(1)
- -------------------------- -------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 66,666 shares $10.00 $666,660.00 $202.00
(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 November 19, 1996, as reported by Nasdaq National Market.
</TABLE>
================================================================================
The combined reoffer prospectus contained herein relates to this Registration
Statement and to Registration Statement No. 333-15155.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 to register shares of common stock, $.01 par value per
share (the "Common Stock"), of Viatel, Inc. (the "Company" or "Registrant")
issued pursuant to the Registrant's Amended Stock Incentive Plan (the "Plan").
Pursuant to General Instruction E of Form S-8, the contents of the Registrant's
Registration Statement on Form S-8, filed with the Securities and Exchange
Commission on October 31, 1996 (Registration No. 333-15155) are incorporated
herein by reference. Under cover of this Form S-8 is a Reoffer Prospectus
prepared in accordance with the requirements of Part I of Form S-8. The Form S-8
Reoffer Prospectus may be utilized for reofferings of Common Stock acquired by
certain employees of the Company through participation in the Plan.
<PAGE>
REOFFER PROSPECTUS
VIATEL, INC.
66,666 SHARES
COMMON STOCK
This Prospectus relates to the offer and sale of 66,666 shares (the
"Shares") of common stock, $.01 par value per share (the "Common Stock"), of
Viatel, Inc. (the "Company" or "Registrant"), issued to certain stockholders of
the Company (the "Selling Stockholders") pursuant to grants made under the
Company's Amended Stock Incentive Plan (the "Plan"). Such Shares may be offered
and sold, from time to time, on the over-the-counter market or such other
national securities exchange upon which the Common Stock is traded at the time
of such sales, at prices prevailing at the time of such sales, or in negotiated
transactions. The Company will not receive any proceeds from the sale of the
Shares. SEE "Plan of Distribution."
The Common Stock is listed on the Nasdaq National Market under the symbol
"VYTL." On November 21, 1996, the closing price of the Common Stock was $9 7/8
per share.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------
No person has been authorized to give any information or make any
representation other than is contained in this Prospectus, and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or any Selling Stockholder. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any security
offered hereby in any jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such jurisdiction. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Company
since the date hereof or that the information contained herein is correct as of
any time subsequent to such date.
---------------
The date of this Prospectus is November 22, 1996.
<PAGE>
TABLE OF CONTENTS
Available Information ...................................................... 3
The Company ................................................................ 3
Selling Stockholders ....................................................... 4
Plan of Distribution ....................................................... 4
Incorporation of Certain Documents by Reference ............................ 5
Other Matters .............................................................. 5
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Shares offered hereby. This Prospectus does not contain all of the information
set forth in the Registration Statement. For further information, reference is
made to the Registration Statement and to the exhibits filed therewith. Each
statement made in this Prospectus referring to a document filed as an exhibit to
the Registration Statement or incorporated herein by reference is qualified by
reference to such document.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Commission. Reports,
proxy and information statements and other information filed by the Company can
be inspected and copied at public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, in Washington,
D.C. 20549, and at the Commission's Regional Offices located at Seven World
Trade Center, Suite 1300, New York, New York 10048, and 500 West Madison Avenue,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Commission also maintains
a site on the World Wide Web, the address of which is http://www.sec.gov, that
contains reports, proxy and information statements and other information
regarding issuers, such as the Company, that file electronically with the
Commission.
The Common Stock of the Company is listed on the Nasdaq National Market
under the symbol "VYTL". Reports, proxy and information statements and other
information filed by the Company with the Commission can be inspected at the
offices of the National Association of Securities Dealers, Inc., 1735 K Street,
N.W., Washington, D.C. 20006.
The Company will promptly furnish, without charge, to each person to whom
this Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been incorporated by reference
in this Prospectus (other than exhibits to such information, unless such
exhibits are specifically incorporated by reference into such information).
Requests for such copies should be directed to Viatel, Inc., U.S. General
Counsel, 800 Third Avenue, New York, New York 10022 Attn: Sheldon M. Goldman,
telephone number (212) 935-6800.
THE COMPANY
The Company is a corporation formed under the laws of the State of Delaware
with its principal executive office located at 800 Third Avenue, New York, New
York 10022. The telephone number of such office is (212) 935-6800.
<PAGE>
SELLING STOCKHOLDERS
Employees, officers, directors, independent contractors and consultants of
the Company or any Affiliate (as defined in the Plan) selected by the Committee
(as defined in the Plan) are eligible to participate in the Plan. As such, the
Selling Stockholders consist of such participants listed below who may offer up
to an aggregate of 66,666 shares of Common Stock which have been acquired by
them pursuant to grants made under the Plan. There can be no assurance that any
of the Selling Stockholders will offer for sale or sell any or all of the Shares
covered by this Prospectus.
The following is a list, as of October 31, 1996, of the Selling
Stockholders and the number of shares held by each such Selling Stockholder:
<TABLE>
<CAPTION>
Number of Percentage
Shares Owned Number of of Class
Position with Prior to Shares Owned After
Name the Company the Offering Offered Hereby the Offering(1)
- ---- ------------- ------------ -------------- ------------
<S> <C> <C> <C> <C>
Michael J. Mahoney ...... President, Chief Operating 131,620(2) 33,333 *
Officer and Director
Alan L. Levy ............ Former Executive Vice 102,151(3) 33,333 *
President, Legal and
Finance
- -------------------
*Less than 1%
(1) Assuming all shares offered hereby are sold and based on 22,374,647 shares issued and outstanding at October
31, 1996.
(2) Includes vested and exercisable options to purchase 98,287 shares of Common Stock which options were granted
pursuant to the Plan.
(3) Includes vested and exercisable options to purchase 48,817 shares of Common Stock which options were granted
pursuant to the Plan.
</TABLE>
PLAN OF DISTRIBUTION
The Selling Stockholders may, from time to time, offer all or part of the
Shares on the over-the-counter market or such other national securities exchange
upon which the Common Stock is traded at the time of such sales, at prices
prevailing at the time of such sales, or in negotiated transactions. The Company
will pay all expenses in preparing and reproducing the Registration Statement of
which this Prospectus is a part, but will not receive any part of the proceeds
of any sales of such Shares. In addition, any securities covered by this
Prospectus which qualify for sale pursuant to Rule 144 promulgated under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus. The Selling Stockholders will pay the brokerage commissions charged
to sellers in connection with any such sales.
The Company and the Selling Stockholders may enter into customary
agreements concerning indemnification and the provision of information in
connection with the sale of the Shares.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant are
hereby incorporated by reference in this Prospectus:
(a) The Registrant's Annual Report on Form 10-K for the year ended December
31, 1995, as filed with the Commission on April 1, 1996, and as amended by 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; Form 10-Q for the quarter ended June
30, 1996, as filed with the Commission on August 14, 1996, and as amended by
Form 10-Q/A-1 filed with the Commission on September 24, 1996; and Form 10-Q for
the quarter ended September 30, 1996, as filed with the Commission on November
14, 1996; and
(c) The description of the Registrant's 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 Exchange
Act, and as amended by 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 termination of the offering shall also be deemed to be incorporated by
reference into the Registration Statement and to be a part hereof commencing on
the respective dates on which such documents are filed.
OTHER MATTERS
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 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, 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 with respect thereto 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. 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.
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
knowing violation of law, (iii) with respect to 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.
<PAGE>
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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions and agreements, the Company has been
informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by 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, as filed with the Commission on April 1, 1996, and as amended
by 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; Form 10-Q for the quarter ended June
30, 1996, as filed with the Commission on August 14, 1996, and as amended by
Form 10-Q/A-1 filed with the Commission on September 24, 1996; and Form 10-Q for
the quarter ended September 30, 1996, as filed with the Commission on November
14, 1996; and
(c) The description of the Registrant's 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 Exchange
Act, and as amended by 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 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 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, 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 with respect thereto
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. 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.
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
knowing violation of law, (iii) with respect to 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO. 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 the legality of the Common
Stock being registered (incorporated herein by reference to Exhibit 5 of
the Registrant's Registration Statement on Form S-8, File No. 333-15155,
filed on October 31, 1996).
*23.1 Consent of Kelley Drye & Warren LLP.
*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;
(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, 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 this 22nd day of
November, 1996.
VIATEL, INC.
By: /s/ Martin Varsavsky
------------------------------------
Name: Martin Varsavsky
Title: 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, this Registration
Statement has been signed below by the following persons in the capacities
indicated and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Martin Varsavsky
- -----------------------
Martin Varsavsky Chairman of the Board, Chief November 22, 1996
Executive Officer and Director
(Principal Executive Officer)
/s/ Michael J. Mahoney
- -----------------------
Michael J. Mahoney President, Chief Operating November 22, 1996
Officer and Director
/s/ Allan L. Shaw
- -----------------------
Allan L. Shaw Vice President, Finance; Chief November 22, 1996
Financial Officer (Principal
Financial and Accounting
Officer); Treasurer and Director
/s/ Antonio Carro
- -----------------------
Antonio Carro Director November 22, 1996
- -----------------------
Paul G. Pizzani Director November 22, 1996
- -----------------------
W. James Peet Director November 22, 1996
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. 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.
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 the legality of the
Common Stock being registered (incorporated herein by reference
to Exhibit 5 of the Registrant's Registration Statement on Form
S-8, File No. 333-15155, filed on October 31, 1996).
*23.1 Consent of Kelley Drye & Warren LLP.
*23.2 Consent of KPMG Peat Marwick LLP.
*24 Powers of Attorney (See Signature Page).
- --------------------------
*Filed herewith
EXHIBIT 23.1
CONSENT OF KELLEY DRYE & WARREN LLP
We hereby consent to the incorporation by reference in the
Registration Statement of Viatel, Inc. (the "Company") on Form S-8, filed
herewith, of our opinion regarding the legality of the Company's Common Stock,
$.01 par value per share, which appears as an exhibit to the Company's
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Commission") on October 31, 1996 (Registration No. 333-15155).
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 Securities Act of 1933, as
amended, or the rules and regulations of the Commission promulgated thereunder.
Kelley Drye & Warren LLP
Stamford, Connecticut
November 22, 1996
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
November 22, 1996
