As filed with the Securities and Exchange Commission on November 22, 2000
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.)
685 Third Avenue
New York, New York 10017
(Address of Principal Executive Offices)
VIATEL, INC. 2000 STOCK INCENTIVE PLAN
(Full Title of the Plan)
James P. Prenetta, Esq.
Senior Vice President and General Counsel
Viatel, Inc.
685 Third Avenue
New York, New York 10017
(Name and Address of Agent for Service)
(212) 350-9200
(Telephone Number, Including Area Code, of Agent for Service)
__________
COPY TO:
Patricia M. Lee, Esq.
Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
(212) 808-7800
__________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ==================== ====================== ====================== ======================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Per Aggregate Offering Amount of
To Be Registered Registered Share(1) Price(1) Registration Fee
-------------------------- -------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common stock, 5,200,000 shares $4.734375 $24,618,750 $6,499.35
par value $.01 per share
========================== ==================== ====================== ====================== ======================
(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 20, 2000, as reported by the Nasdaq National
Market.
</TABLE>
================================================================================
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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) Annual Report on Form 10-K for the fiscal year ended December 31, 1999,
as filed with the Commission on April 14, 2000;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, as
filed with the Commission on May 14, 2000, Quarterly Report on Form 10-Q for the
quarter ended June 30, 2000, as filed with the Commission on August 14, 2000 and
Quarterly Report on Form 10-Q for the quarter ended September 30, 2000, as filed
with the Commission on November 14, 2000;
(c) Current Reports on Form 8-K, as filed with the Commission on February
16, March 14, March 30, April 3, April 7, October 5, October 25 and November 8,
2000;
(d) Amendment to the Current Report on Form 8-K/A, as filed with the
Commission on May 12, 2000;
(e) The description of the Registrant's common stock, $0.01 par value,
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
(f) 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 General Corporations Law of the State of Delaware (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
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corporation) by reason of the fact that he or she 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 or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner he or she
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 or her 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 or her 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 present or former
directors and officers who are 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 or she 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 or her 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 or
she is not entitled to be indemnified by the corporation. Article Tenth of the
Registrant's Third Amended and Restated Certificate of Incorporation, as
amended, and Article X of the Registrant's Third 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 Third Amended and Restated Certificate of Incorporation, as
amended, eliminates the liability of directors to the fullest extent permitted
by Section 102(b)(7) of the DGCL.
Section 145 of the DGCL permits a corporation to purchase and maintain
insurance on behalf of any person who 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 employee against any liability asserted against
such person and incurred by such person 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 $50 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
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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.
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) to the Registrant's Registration Statement on Form
S-1, Registration No. 333-09699, filed on August 7, 1996
("VIATEL'S FORM S-1")); Certificate of Designations,
Preferences and Rights of 10% Series A Redeemable Convertible
Preferred Stock, $.01 par value (incorporated herein by
reference to Exhibit 3(i)(b) to the Registrant's Registration
Statement on Form S-4, filed on July 10, 1998, Registration No.
333-58921 ("VIATEL'S 1998 FORM S-4")); Certificate of Amendment
to the Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit 4.9
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1998, File No. 000-21261);
Second Certificate of Amendment to the Registrant's Amended and
Restated Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1(i) to the Registrant's Registration
Statement on Form S-4, filed on October 15, 1999, Registration
No. 333-89143 ("VIATEL'S OCTOBER 1999 FORM S-4"); Certificate
of Designations of Series A Junior Participating Preferred
Stock of the Registrant (incorporated herein by reference to
Exhibit 3(i)(2) to the Registrant's Current Report on Form 8-K,
dated December 29, 1999, File No. 000-21261); Certificate of
Designations, Preferences and Rights of 7.50% Cumulative
Convertible Preferred Stock Series B-1 Due 2015 (incorporated
herein by reference to Exhibit 3.1(i) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December
31, 1999 ("VIATEL'S 1999 FORM 10-K")); Certificate of
Designations, Preferences and Rights of 7.50% Cumulative
Convertible Preferred Stock Series B-2 Due 2015 (incorporated
herein by reference to Exhibit 3.1(i) to Viatel's 1999 Form
10-K); and Certificate of Designations, Preferences and Rights
of Convertible Preferred Stock Series C (incorporated by
reference to Exhibit 3.1(i) to Viatel's 1999 Form 10-K).
4.2 Third Amended and Restated Bylaws of the Registrant
(incorporated herein by reference to Exhibit 3.1(ii) to
Viatel's October 1999 Form S-4).
4.3 Certificate of Trust of Viatel Financing Trust I, dated March
30, 2000 (incorporated herein by reference to Exhibit 3.1(iii)
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000, File No. 000-21261,
filed on May 15, 2000 ("VIATEL'S FIRST QUARTER 2000 FORM
10-Q")).
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4.4 Amended and Restated Declaration of Trust of Viatel Financing
Trust I, dated and effective as of April 12, 2000 (incorporated
herein by reference to Exhibit 3.1(iv) to Viatel's First
Quarter 2000 Form 10-Q).
4.5 Specimen of the Registrant's common stock certificate
(incorporated by reference to Exhibit 4.4 to Viatel's Form
S-1).
4.6 Indenture, dated as of April 8, 1998, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 12.50% Senior Discount Notes Due 2008 (including
form of 12.50% Senior Discount Note) (incorporated herein by
reference to Exhibit 4.1 to Viatel's 1998 Form S-4).
4.7 Indenture, dated as of April 8, 1998, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 11.25% Senior Notes Due 2008 (including form of
11.25% Senior Note) (incorporated herein by reference to
Exhibit 4.2 to Viatel's 1998 Form S-4).
4.8 Indenture, dated as of April 8, 1998, among the Registrant, The
Bank of New York, as Trustee, and Deutsche Bank,
Aktiengesellschaft, as German Paying Agent and Co-Registrar,
relating to the Registrant's 12.40% Senior Discount Notes Due
2008 (including form of 12.40% Senior Discount Note)
(incorporated herein by reference to Exhibit 4.3 to the
Registrant's 1998 Form S-4).
4.9 Indenture, dated as of April 8, 1998, among the Registrant, The
Bank of New York, as Trustee, and Deutsche Bank,
Aktiengesellschaft, as German Paying Agent and Co-Registrar,
relating to the Registrant's 11.15% Senior Notes Due 2008
(including form of 11.15% Senior Note) (incorporated herein by
reference to Exhibit 4.4 to Viatel's 1998 Form S-4).
4.10 Indenture, dated as of March 19, 1999, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's U.S. dollar denominated 11.50% Senior Notes due
2009 (including form of 11.50% Senior Dollar Note)
(incorporated herein by reference to Exhibit 4.9 to the
Registrant's Registration Statement on Form S-3, filed on
February 12, 1999, File No. 333-72309 ("VIATEL'S FEBRUARY 1999
FORM S-3")).
4.11 Indenture, dated as of March 19, 1999, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's euro denominated 11.50% Senior Notes due 2009
(including form of 11.50% Senior Euro Note) (incorporated
herein by reference to Exhibit 4.10 to Viatel's February 1999
Form S-3).
4.12 Indenture, dated as of July 1, 1997, between Destia
Communications, Inc. and The Bank of New York, as Trustee,
relating to Destia's 13.50% Senior Notes due 2007 (including
form of 13.50% Senior Note) (incorporated herein by reference
to Exhibit 4.5 of Destia Communications, Inc.'s Registration
Statement on Form S-4, File No. 333-47711, filed on August 7,
1997).
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4.13 Indenture, dated as of December 8, 1999, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's U.S. dollar denominated 11.50% Senior Notes due
2009 (including form of 11.50% Senior Dollar Note)
(incorporated herein by reference to Exhibit 4.13 to Viatel,
Inc.'s Current Report on Form 8-K, dated December 9, 1999, File
No. 000-21261).
4.14 Rights Agreement, dated as of December 6, 1999, between the
Registrant and The Bank of New York, as Rights Agent
(incorporated herein by reference to Exhibit 4.12 to the
Registrant's Registration Statement on Form 8-A12G, filed on
December 27, 1999, File No. 000-21261).
4.15 Indenture, dated as of April 20, 2000, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 12 3/4% Senior Euro Notes due 2008 (including form
of 12 3/4% Senior Note) (incorporated herein by reference to
Exhibit 4.11 to Viatel's First Quarter 2000 Form 10-Q).
4.16 Indenture, dated as of April 20, 2000, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 7 3/4% Convertible Junior Subordinated Debentures
(incorporated herein by reference to Exhibit 4.12 to Viatel's
First Quarter 2000 Form 10-Q).
4.17 Registration Rights Agreement, dated as of April 14, 2000,
between the Registrant and Morgan Stanley & Co. Incorporated
Limited, Chase Securities, Inc. and Credit Suisse First Boston
Corporation (incorporated herein by reference to Exhibit 4.13
to Viatel's First Quarter 2000 Form 10-Q).
4.18 Registration Rights Agreement, dated as of April 6, 2000, among
the Registrant, Viatel Financing Trust I, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney, Inc. and Banc of America
Securities LLC (incorporated herein by reference to Exhibit
4.14 to Viatel's First Quarter 2000 Form 10-Q).
4.19 First Supplemental Indenture, dated as of June 19, 2000,
between the Registrant and The Bank of New York, as Trustee
(incorporated herein by reference to Exhibit 4.18 to Viatel,
Inc.'s Registration Statement on Form S-3, Registration No.
333-40692, filed on June 30, 2000).
4.20 Amendment to Rights Agreement, dated as of February 1, 2000,
between the Registrant and The Bank of New York, as Rights
Agent (incorporated herein by reference to Exhibit 4.16 to
Viatel's Second Quarter 2000 Form 10-Q).
4.21 Amendment No. 2 to Rights Agreement between the Registrant and
The Bank of New York, as Rights Agent (incorporated herein by
reference to Exhibit 4.17 to Viatel, Inc.'s Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 2000,
File No. 000-21261, filed on November 14, 2000).
4.22 Viatel, Inc. 2000 Stock Incentive Plan (incorporated herein by
reference to Annex A of Viatel, Inc.'s Definitive Proxy
Statement on Schedule 14A, File No. 000-21261, filed on August
1, 2000).
4.23* Certificate of Amendment to the Registrant's Amended and
Restated Certificate of Incorporation, filed on September 18,
2000 with the Secretary of State of the State of Delaware.
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5* Opinion of Kelley Drye & Warren LLP as to the validity of the
securities being registered.
23.1* Consent of Kelley Drye & Warren LLP (included in their opinion
filed as Exhibit 5).
23.2* Consent of KPMG LLP.
23.3* Consent of Arthur Andersen LLP.
23.4* Consent of PricewaterhouseCoopers.
24* Powers of Attorney (See Signature Page).
______________________
*Filed herewith
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;
(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.
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 was registered) and any deviation from the low or high end 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 a 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 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 Securities
Exchange Act of 1934, that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 of 1933, each filing of the
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registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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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 this 21st day of
November, 2000.
VIATEL, INC.
By: /S/ MICHAEL J.Mahoney
-------------------------------------------
Name: Michael J. Mahoney
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 James P. Prenetta 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 and on the dates indicated:
SIGNATURE TITLE DATE
/S/ MICHAEL J. MAHONEY Chairman of the Board and Chief November 21, 2000
--------------------------- Executive Officer
Michael J. Mahoney
/S/ WILLIAM C. MURPHY President and Director November 21, 2000
---------------------------
William C. Murphy
/S/ ALLAN L. SHAW Chief Financial Officer November 21, 2000
---------------------------
Allan L. Shaw
/S/ ALFRED WEST Vice Chairman and Director November 21, 2000
---------------------------
Alfred West
/S/ FRANCIS J. MOUNT Director November 21, 2000
---------------------------
Francis J. Mount
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/S/ PAUL G. PIZZANI Director November 21, 2000
---------------------------
Paul G. Pizzani
/S/ JOHN G. GRAHAM Director November 21, 2000
---------------------------
John G. Graham
/S/ EDWARD C. SCHMULTS Director November 21, 2000
---------------------------
Edward C. Schmults
/S/JOHN R. MUSE Director November 21, 2000
---------------------------
John R. Muse
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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) to the Registrant's Registration Statement on Form
S-1, Registration No. 333-09699, filed on August 7, 1996
("VIATEL'S FORM S-1")); Certificate of Designations,
Preferences and Rights of 10% Series A Redeemable Convertible
Preferred Stock, $.01 par value (incorporated herein by
reference to Exhibit 3(i)(b) to the Registrant's Registration
Statement on Form S-4, filed on July 10, 1998, Registration No.
333-58921 ("VIATEL'S 1998 FORM S-4")); Certificate of Amendment
to the Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit 4.9
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1998, File No. 000-21261);
Second Certificate of Amendment to the Registrant's Amended and
Restated Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1(i) to the Registrant's Registration
Statement on Form S-4, filed on October 15, 1999, Registration
No. 333-89143 ("VIATEL'S OCTOBER 1999 FORM S-4"); Certificate
of Designations of Series A Junior Participating Preferred
Stock of the Registrant (incorporated herein by reference to
Exhibit 3(i)(2) to the Registrant's Current Report on Form 8-K,
dated December 29, 1999, File No. 000-21261); Certificate of
Designations, Preferences and Rights of 7.50% Cumulative
Convertible Preferred Stock Series B-1 Due 2015 (incorporated
herein by reference to Exhibit 3.1(i) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December
31, 1999 ("VIATEL'S 1999 FORM 10-K")); Certificate of
Designations, Preferences and Rights of 7.50% Cumulative
Convertible Preferred Stock Series B-2 Due 2015 (incorporated
herein by reference to Exhibit 3.1(i) to Viatel's 1999 Form
10-K); and Certificate of Designations, Preferences and Rights
of Convertible Preferred Stock Series C (incorporated by
reference to Exhibit 3.1(i) to Viatel's 1999 Form 10-K).
4.2 Third Amended and Restated Bylaws of the Registrant
(incorporated herein by reference to Exhibit 3.1(ii) to
Viatel's October 1999 Form S-4).
4.3 Certificate of Trust of Viatel Financing Trust I, dated March
30, 2000 (incorporated herein by reference to Exhibit 3.1(iii)
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000, File No. 000-21261,
filed on May 15, 2000 ("VIATEL'S FIRST QUARTER 2000 FORM
10-Q")).
4.4 Amended and Restated Declaration of Trust of Viatel Financing
Trust I, dated and effective as of April 12, 2000 (incorporated
herein by reference to Exhibit 3.1(iv) to Viatel's First
Quarter 2000 Form 10-Q).
4.5 Specimen of the Registrant's common stock certificate
(incorporated by reference to Exhibit 4.4 to Viatel's Form
S-1).
4.6 Indenture, dated as of April 8, 1998, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 12.50% Senior Discount Notes Due 2008 (including
form of 12.50% Senior Discount Note) (incorporated herein by
reference to Exhibit 4.1 to Viatel's 1998 Form S-4).
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4.7 Indenture, dated as of April 8, 1998, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 11.25% Senior Notes Due 2008 (including form of
11.25% Senior Note) (incorporated herein by reference to
Exhibit 4.2 to Viatel's 1998 Form S-4).
4.8 Indenture, dated as of April 8, 1998, among the Registrant, The
Bank of New York, as Trustee, and Deutsche Bank,
Aktiengesellschaft, as German Paying Agent and Co-Registrar,
relating to the Registrant's 12.40% Senior Discount Notes Due
2008 (including form of 12.40% Senior Discount Note)
(incorporated herein by reference to Exhibit 4.3 to the
Registrant's 1998 Form S-4).
4.9 Indenture, dated as of April 8, 1998, among the Registrant, The
Bank of New York, as Trustee, and Deutsche Bank,
Aktiengesellschaft, as German Paying Agent and Co-Registrar,
relating to the Registrant's 11.15% Senior Notes Due 2008
(including form of 11.15% Senior Note) (incorporated herein by
reference to Exhibit 4.4 to Viatel's 1998 Form S-4).
4.10 Indenture, dated as of March 19, 1999, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's U.S. dollar denominated 11.50% Senior Notes due
2009 (including form of 11.50% Senior Dollar Note)
(incorporated herein by reference to Exhibit 4.9 to the
Registrant's Registration Statement on Form S-3, filed on
February 12, 1999, File No. 333-72309 ("VIATEL'S FEBRUARY 1999
FORM S-3")).
4.11 Indenture, dated as of March 19, 1999, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's euro denominated 11.50% Senior Notes due 2009
(including form of 11.50% Senior Euro Note) (incorporated
herein by reference to Exhibit 4.10 to Viatel's February 1999
Form S-3).
4.12 Indenture, dated as of July 1, 1997, between Destia
Communications, Inc. and The Bank of New York, as Trustee,
relating to Destia's 13.50% Senior Notes due 2007 (including
form of 13.50% Senior Note) (incorporated herein by reference
to Exhibit 4.5 of Destia Communications, Inc.'s Registration
Statement on Form S-4, File No. 333-47711, filed on August 7,
1997).
4.13 Indenture, dated as of December 8, 1999, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's U.S. dollar denominated 11.50% Senior Notes due
2009 (including form of 11.50% Senior Dollar Note)
(incorporated herein by reference to Exhibit 4.13 to Viatel,
Inc.'s Current Report on Form 8-K, dated December 9, 1999, File
No. 000-21261).
4.14 Rights Agreement, dated as of December 6, 1999, between the
Registrant and The Bank of New York, as Rights Agent
(incorporated herein by reference to Exhibit 4.12 to the
Registrant's Registration Statement on Form 8-A12G, filed on
December 27, 1999, File No. 000-21261).
4.15 Indenture, dated as of April 20, 2000, between the Registrant
and The Bank of New York, as Trustee, relating to the
Registrant's 12 3/4% Senior Euro Notes due 2008 (including form
of 12 3/4% Senior Note) (incorporated herein by reference to
Exhibit 4.11 to Viatel's First Quarter 2000 Form 10-Q).
4.16 Indenture, dated as of April 20, 2000, between the Registrant
and The Bank of New York, as Trustee, relating to the
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<PAGE>
Registrant's 7 3/4% Convertible Junior Subordinated Debentures
(incorporated herein by reference to Exhibit 4.12 to Viatel's
First Quarter 2000 Form 10-Q).
4.17 Registration Rights Agreement, dated as of April 14, 2000,
between the Registrant and Morgan Stanley & Co. Incorporated
Limited, Chase Securities, Inc. and Credit Suisse First Boston
Corporation (incorporated herein by reference to Exhibit 4.13
to Viatel's First Quarter 2000 Form 10-Q).
4.18 Registration Rights Agreement, dated as of April 6, 2000, among
the Registrant, Viatel Financing Trust I, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney, Inc. and Banc of America
Securities LLC (incorporated herein by reference to Exhibit
4.14 to Viatel's First Quarter 2000 Form 10-Q).
4.19 First Supplemental Indenture, dated as of June 19, 2000,
between the Registrant and The Bank of New York, as Trustee
(incorporated herein by reference to Exhibit 4.18 to Viatel,
Inc.'s Registration Statement on Form S-3, Registration No.
333-40692, filed on June 30, 2000).
4.20 Amendment to Rights Agreement, dated as of February 1, 2000,
between the Registrant and The Bank of New York, as Rights
Agent (incorporated herein by reference to Exhibit 4.16 to
Viatel's Second Quarter 2000 Form 10-Q).
4.21 Amendment No. 2 to Rights Agreement between the Registrant and
The Bank of New York, as Rights Agent (incorporated herein by
reference to Exhibit 4.17 to Viatel, Inc.'s Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 2000,
File No. 000-21261, filed on November 14, 2000).
4.22 Viatel, Inc. 2000 Stock Incentive Plan (incorporated herein by
reference to Annex A of Viatel, Inc.'s Definitive Proxy
Statement on Schedule 14A, File No. 000-21261, filed on August
1, 2000).
4.23* Certificate of Amendment to the Registrant's Amended and
Restated Certificate of Incorporation, filed on September 18,
2000 with the Secretary of State of the State of Delaware.
5* Opinion of Kelley Drye & Warren LLP as to the validity of the
securities being registered.
23.1* Consent of Kelley Drye & Warren LLP (included in their opinion
filed as Exhibit 5).
23.2* Consent of KPMG LLP.
23.3* Consent of Arthur Andersen LLP.
23.4* Consent of PricewaterhouseCoopers.
24* Powers of Attorney (See Signature Page).
______________________
*Filed herewith
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