UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15df-16
OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2004
Commission File Number 000-50556
VIATEL HOLDING (BERMUDA) LIMITED
(Translation of registrant's name into English)
INBUCON HOUSE
WICK ROAD
EGHAM, SURREY TW20 0HR
UNITED KINGDOM
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover Form 20-F or Form 40-F.
Form 20-F [X] Form 40-F [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(1): ____
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(7): ____
Indicate by check mark whether by furnishing the information contained in this
Form, the registrant is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes [ ] No [X]
If "Yes" is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): 82- ________
As documented by Consent Order dated and effective February 19, 2004, Viatel
Circe Assets Limited ("VCA") has agreed settlement with respect to certain
claims against Easynet Telecommunications Limited ("Easynet").
The claims alleged breach of contact under an Indefeasible Right of Use
Agreement dated May 30, 2000 and certain related agreements (together, "the
Agreements"). The claims were formally commenced as of February 11, 2003 and
proceeded to a full trial commencing on November 19, 2003. VCA has now accepted,
as full and final settlement of its claims under the Agreements, payment by
Easynet of (pounds sterling) 6,900,000 (U.S dollars 13,034,000 approximately)
to be payable in two installments as of March 1, 2004 and September 1, 2004. The
second installment amount will bear interest at 4%.
This settlement also served to dismiss certain related counterclaims brought by
Easynet against VCA.
____________________________________
Attached and incorporated by reference in this Form 6-K are the following
exhibits:
Exhibit No. Description
----------- -----------
99.1 Consent Order dated February 19, 2004
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
Undersigned, thereunto duly authorized.
By: /s/ Stephen Grist
------------------------------------
Name: Stephen Grist
Title: Chief Financial Officer
Date February 26, 2004
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
99.1 Consent Order dated February 19, 2004
HIS HONOUR JUDGE RICHARD HAVERY, Q.C.
TECHNOLOGY & CONSTRUCTION COURT
IN THE HIGH COURT OF JUSTICE CASE NO. HT-03-48
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
BETWEEN:
VIATEL CIRCE ASSETS LIMITED
Claimant
- and -
EASYNET TELECOMMUNICATIONS LIMITED
Defendant
_______________
CONSENT ORDER
_______________
UPON the Claimant's and Defendant's Solicitors consenting in writing to the
terms of this order
IT IS HEREBY ORDERED BY CONSENT:
1. The Claim and Counterclaim be dismissed.
2. The Claimant and the Defendant having agreed to the terms set out in the
Schedule hereto, all further proceedings in this action be stayed except
for the purpose of carrying such terms into effect.
3. Liberty to apply as to carrying such terms into effect.
4. The Orders made on 4 July 2003, 29 July 2003 and 10 October 2003 requiring
the Claimant to provide security for costs be discharged and all sums
provided by way of such security be returned to the Claimant together with
any accrued interest thereon.
5. There be no order as to costs and any existing Order or agreement for
costs is not to be enforced.
6. Either party may be permitted to apply to the Court to enforce the terms
upon which this case has been stayed without the need to bring a new claim.
AND IT IS RECORDED that the parties have agreed that any claim for breach of
contract arising from an alleged breach of the terms set out in the Schedule
hereto may, unless the Court orders otherwise, be dealt with by way of an
application to Court without the need to start a new claim.
Dated the 19th February 2004
We hereby consent to the above Order
/s/ Hammonds /s/ Herbert Smith
- ------------------------------------ ---------------------------------------
Hammonds Herbert Smith
Solicitors for the Claimant Solicitors for the Defendant
(Ref PAO/LJM/VTL.1-2) (Ref 2341)
SCHEDULE
See Term Sheet Annexed Hereto
TERM SHEET
Parties Viatel Circe Assets Limited ("Viatel")
Easynet Telecommunications Limited ("Easynet")
Settlement In consideration of (i) the full and final settlement of all
claims and counterclaims made in the current litigation
(High Court Action No Ht-03-48) between the Parties and (ii)
the termination of, and full and final settlement of all
liabilities under, the agreements listed below (together
"the Agreements") Easynet will pay Pound Sterling 6,900,000
to Viatel.
(a) Leasehold Agreement for Capacity on the Circe
Cable System dated 30th May, 2000;
(b) Indefeasible Right of Use Agreement for Dark Fiber
on the Circe Cable System dated 30th May, 2000;
(c) Collocation License Agreement dated 30th May 2000;
(d) Over-Arching Agreement dated 30th May 2000; and
(e) Side Letter Agreement dated 31st May, 2000
Other liabilities The above settlement shall apply in relation to all
liabilities concerning the Agreements and the subject matter
of the Agreements whether arising in contract, tort or
otherwise. This shall include any such liabilities
concerning the Agreements and the subject matter of the
Agreements as may exist whether between the Parties or
between either Party and any existing or previous parent,
subsidiary, associated or affiliate company of the other
Party, each a "group company", and for the avoidance of
doubt shall apply to and extinguish any claims, relating to
any of the Agreements, brought by Easynet and/or any group
company in connection with the U.S. Bankruptcy Code Chapter
11 cases of Viatel, Inc and/or of any relevant Viatel group
company.
Payment Terms Pound Sterling 3,450,000 by electronic transfer to Viatel's
bank account by or on 1st March 2004 ("First Payment")
Pound Sterling 3,519,000 (such sum being Pound Sterling
3,450,000 plus interest at 4%) by electronic transfer to
Viatel's bank account on 1st September 2004 ("Second
Payment")
Failure to effect the First Payment by the due date (as set
out above) shall render the Second Payment due and payable
immediately (notwithstanding the fact that the scheduled
date for the Second Payment shall not yet have occurred).
If either of the payments are not made by their respective
due dates, interest shall be payable at the rate of 8% per
annum from the due date until the date of payment,
compounded on a daily basis.
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Viatel's bank Bank: Lloyds TSB PLC
account details Address: 39 Threadneedle Street, London EC2R 8PT
Account Number: 02269222
Sort Code: 30-00-09
Swift Address: LOYDGB2L
The Agreements Each of the Agreements shall immediately cease to be of
continuing effect (including any clauses which would
otherwise expressly or impliedly survive termination) and
neither Party shall be under any obligation to the other in
relation to the Agreements or any provision therein. Viatel
shall not be required to return to Easynet payments already
made under any of the Agreements.
Costs Each party shall bear its own legal costs in relation to
this Term Sheet and the litigation between the Parties. The
Orders made for security for costs shall be discharged and
the funds paid into a solicitors joint account be returned
to Viatel with accrued interest thereon.
Binding Effect This Term Sheet once signed by both Parties is intended to
create legal relations and be of immediate binding effect.
The Parties agree to take such further steps as may be
required to give effect to the agreement recorded in this
Term Sheet including entering into a formal consent order.
Governing law This Term Sheet is governed by the law of England and Wales
and the parties submit to the exclusive jurisdiction of the
English courts.
Agreed for and on behalf of Viatel Circe Assets Limited
- ----------------------------------------
Director
- ----------------------------------------
Date
Agreed for and on behalf of Easynet Telecommunications Limited
- ----------------------------------------
Director
- ----------------------------------------
Date
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