EXHIBIT 5
Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
November 21, 2000
Viatel, Inc.
685 Third Avenue
New York, New York 10017
Re: VIATEL, INC. 2000 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 5,200,000 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 2000 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 Third Amended
and Restated Certificate of Incorporation, as amended, and Third Amended and
Restated By-laws; and (iv) the minute books and other records of corporate
proceedings of the Company, as made available to us by officers of the Company.
In addition, we 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
14
<PAGE>
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 State of New York, the corporate law of the State of Delaware 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 State of New York, the corporate law of the State of Delaware 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
15
