<PAGE>
As filed with the Securities and Exchange Commission on September 17, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
VISTANA, INC.
(Exact name of Registrant as specified in its charter)
--------------------
Florida 59-3415620
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8801 Vistana Centre Drive
Orlando, Florida 32821
(407) 239-3000
(Address, including zip code, and telephone number, including area code, of
Registrant's executive offices)
--------------------
Vistana, Inc. Employee Stock Purchase Plan
------------------------------------------
(Full title of the plan)
Raymond L. Gellein, Jr.
Chairman of the Board
Vistana, Inc.
8801 Vistana Centre Drive
Orlando, Florida 32821
(407) 239-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
ROSS D. EMMERMAN, ESQ.
Neal, Gerber & Eisenberg
Two North LaSalle Street
Chicago, Illinois 60602
(312) 269-8000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Registered Offering Price Per Unit Aggregate Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 1,000,000 shares(1) 17.13(2) 17,130,000(2) $5,191
=====================================================================================================================
</TABLE>
(1) Plus an indeterminate number of shares which may be issued as a result of
the anti-dilution provisions contained in the above-referenced Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457 (h) under the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices of the
Company's Common Stock as reported on the National Market System of the
NASD on September 10, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Vistana, Inc. (the "Registrant" or the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference and made a part hereof:
(a) The Registrant's Prospectus dated February 27, 1997 (File No. 333-
19045) filed pursuant to Rule 424(b)(4) under the Securities Act of
1933, as amended;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1997; and
(d) The description of the Registrant's common stock, par value $0.01 per
share (the "Common Stock"), contained in a Registration Statement on
Form 8-A dated February 26,1997 filed under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including all amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
Item 4. Description of Securities
Not applicable.
II-1
<PAGE>
Item 5. Interests of Named Experts and Counsel
Certain partners of, attorneys associated with and/or of counsel to Neal,
Gerber & Eisenberg, a firm that performs legal services for the Registrant,
beneficially own shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Under Florida law, a corporation may indemnify any person who was or is a
party or is threatened to be made a party to an action (other than an action by
or in the right of the corporation) by reason of such person's service as a
director of officer of the corporation, or such person's service, at the
corporation's request, as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees)
that are actually and reasonably incurred by such person ("Expenses"), and
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred by such person, in connection with the defense or settlement of such
action; provided that such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the corporation's best
interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. Although
Florida law permits a corporation to indemnify any person referred to above
against Expenses in connection with the defense or settlement of an action by or
in the right of the corporation, provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
corporation's best interests, if such person has been judged liable to the
corporation, indemnification is only permitted to the extent that the
adjudicating court (or the court in which the action was brought) determines
that, despite the adjudication of liability, such person is entitled to
indemnity for such Expenses as the court deems proper. The determination as to
whether a person seeking indemnification has met the required standard of
conduct is to be made (i) by a majority vote of a quorum of disinterested
members of the board of directors, or (ii) by independent legal counsel in a
written opinion, if such a quorum does not exist or if the disinterested
directors so direct, or (iii) by the shareholders. The Florida Business
Corporation Act also provides for mandatory indemnification of any director,
officer, employee or agent against Expenses to the extent such person has been
successful in any proceeding covered by the statute. In addition, the Florida
Business Corporation Act provides for the general authorization of advancement
of a director's or officer's litigation expenses in lieu of requiring the
authorization of such advancement by the board of directors in specific cases,
and that indemnification and advancement of expenses provided by the statute
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement or otherwise.
The Company's Articles of Incorporation and By-Laws provide that the
Company shall indemnify its directors, officers, employees and other agents to
the fullest extent permitted by Florida law.
II-2
<PAGE>
The Company has also entered into agreements to indemnify its directors and
certain of its officers, in addition to the indemnification provided for in the
Company's Articles of Incorporation and By-Laws. These agreements provide, among
other things, that the Company will indemnify its directors and officers for all
direct and indirect expenses and costs (including, without limitation, all
reasonable attorneys' fees and related disbursements, other out-of-pocket costs
and reasonable compensation for time spent by such persons for which they are
not otherwise compensated by the Company or any third person) and liabilities of
any type whatsoever (including, but not limited to, judgments, fines and
settlement fees) actually and reasonably incurred by such person in connection
with either the investigation, defense, settlement or appeal of any threatened,
pending, or completed action, suit or other proceeding, including the
corporation, arising out of such person's services as a director, employee or
other agent of the Company, any subsidiary of the Company or any other company
or enterprise to which the person provides services at the request of the
Company. The Company believes that these provisions and agreements are necessary
to attract and retain talented and experienced directors and officers.
The Company maintains liability insurance for the benefit of its directors
and officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<C> <S>
4.1 Vistana, Inc. Employee Stock Purchase Plan
5.1 Opinion of Neal, Gerber & Eisenberg
23.1 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Powers of Attorney (included in the signature pages hereto)
</TABLE>
Item 9. Undertakings
The 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:
II-3
<PAGE>
(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 the 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 the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act each post-effective amendment to 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.
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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Sections 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling 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 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Orlando, State of Florida, on September 17, 1997.
VISTANA, INC.
By: /s/ Raymond L. Gellein, Jr.
--------------------------------------------
Raymond L. Gellein, Jr.
Chairman of the Board and Co-Chief Executive
Officer
We, the undersigned officers and directors of Vistana, Inc., hereby
severally constitute Raymond L. Gellein, Jr., Matthew E. Avril and Jeffrey A.
Adler, and each of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our names in the capacities
indicated below, any and all amendments, including post-effective amendments, to
this Registration Statement, and generally to do all such things in our name and
behalf in such capacities to enable Vistana, Inc. to comply with the applicable
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, and we hereby ratify and confirm our
signatures as they may be signed by our said attorneys, or any of them, to any
and all such documents.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on September 17, 1997 by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Raymond L. Gellein, Jr. Chairman of the Board, Co-Chief
- --------------------------- Executive Officer and Director
Raymond L. Gellein, Jr. (Principal Executive Officer)
/s/ John M. Sabin Senior Vice President and
- --------------------------- Chief Financial Officer
John M. Sabin (Principal Financial Officer and Principal
Accounting Officer)
/s/ Jeffrey A. Adler President and Co-Chief Executive Officer
- --------------------------- and Director
Jeffrey A. Adler
</TABLE>
II-5
<PAGE>
/s/ Laurence S. Geller Director
- ---------------------------
Laurence S. Geller
/s/ Charles E. Harris Director
- ---------------------------
Charles E. Harris
/s/ Steven J. Heyer Director
- ---------------------------
Steven J. Heyer
II-6
<PAGE>
EXHIBIT 4.1
VISTANA, INC.
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
Vistana, Inc., a corporation organized under the laws of the State of
Florida (the "Company"), hereby adopts The Vistana, Inc. Employee Stock Purchase
Plan (the "Plan"). The purposes of the Plan are as follows:
(1) To assist employees of the Company and its Subsidiary Corporations (as
defined below) in acquiring a stock ownership interest in the Company pursuant
to a plan which is intended to qualify as an "employee stock purchase plan"
within the meeting of Section 423(b) of the Internal Revenue Code of 1986, as
amended (the "Code").
(2) To help employees provide for their future security and to encourage
them to remain in the employment of the Company and its Subsidiary Corporations.
1. Definitions.
-----------
Whenever any of the following terms is used in the Plan with the first
letter or letters capitalized, it shall have the following meaning unless
context clearly indicates to the contrary (such definitions to be equally
applicable to both the singular and the plural forms of the terms defined):
(a) "Authorization" has the meaning assigned to that term in Section
3(b) hereof.
(b) "Board of Directors" or "Board" means the Board of Directors of
the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the committee appointed to administer the Plan
pursuant to Section 12 hereof.
(e) "Company" means Vistana, Inc., a Florida corporation.
(f) "Date of Exercise" means, with respect to any Option, the last
day of the Offering Period for which the Option was granted.
(g) "Date of Grant" means, with respect to any Option, the date upon
which the Option is granted, as set forth in Section 3(a) hereof.
(h) "Eligible Compensation" means the employee's base pay.
<PAGE>
(i) "Eligible Employee" means an employee of the Company or any
Subsidiary Corporation (1) who does not, immediately after the option is
granted, own stock possessing five percent or more of the total combined voting
power or value of all classes of stock of the Company, a Parent Corporation or a
Subsidiary Corporation; (2) who has been employed by the Company or any
Subsidiary Corporation for not less than six months; (3) whose customary
employment is for more than 20 hours per week; and (4) whose customary
employment is for more than five months in any calendar year. For purposes of
paragraph (i), the rules of Section 424(d) of the Code with regard to the
attribution of stock ownership shall apply in determining the stock ownership of
an individual, and stock which an employee may purchase under outstanding
options shall be treated as stock owned by the employee. During a leave of
absence meeting the requirements of Treasury Regulation (S)1.421-7(h)(2), an
individual shall be treated as an employee of the Company or Subsidiary
Corporation employing such individual immediately prior to such leave. "Eligible
Employee" shall not include any director of the Company or any Subsidiary
Corporation who does not render services to the Company in the status of an
employee within the meaning of Section 3401(c) of the Code.
(j) "Offering Period" shall mean the six-month periods commencing
April 1 and October 1 of each Plan Year as specified in section 3(a) hereof or
such other dates which may be determined by the Committee. The first Offering
Period shall commence April 1, 1997 or such other date which may be determined
by the Committee. Options shall be granted on the Date of Grant and exercised on
the Date of Exercise as provided in Sections 3(a) and 4(a) hereof.
(k) "Option" means an option granted under the Plan to an Eligible
Employee to purchase shares of the Company's Stock.
(l) "Option Period" means, with respect to any Option, the period
beginning upon the Date of Grant and ending upon the Date of Exercise.
(m) "Option Price" has the meaning set forth in Section 4(b) hereof.
(n) "Parent Corporation" means any corporation, other than the
Company, in an unbroken chain of corporations ending with the Company if, at the
time of the granting of the Option, each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
(o) "Participant" means an Eligible Employee who has complied with
the provisions of Section 3(b) hereof.
(p) "Payday" means the regular and recurring established day for
payment of cash compensation to employees of the Company or any Subsidiary
Corporation.
(q) "Plan" means The Vistana, Inc. Employee Stock Purchase Plan.
-2-
<PAGE>
(r) "Plan Year" means the calendar year.
(s) "Stock" means the shares of the Company's Common Stock, $0.01 par
value.
(t) "Subsidiary Corporation" means any corporation, other than the
Company, in an unbroken chain of corporations beginning with the Company if, at
the time of the granting of the Option, each of the corporations other than the
last corporation in an unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
2. Stock Subject to the Plan.
-------------------------
Subject to the provisions of Section 9 hereof (relating to adjustments upon
changes in the Stock) and Section 11 hereof (relating to amendments of the
Plan), the Stock which may be sold pursuant to Options granted under the Plan
shall not exceed in the aggregate 1,000,000 shares in total and may be unissued
shares or treasury shares or shares bought on the market for purposes of the
Plan.
3. Grant of Options.
----------------
(a) General Statement. The Company shall offer Options under the
Plan to all Eligible Employees in successive six-month Offering Periods until
the earlier of (i) the date when the number of shares of Stock available under
the Plan have been sold or (ii) the date when the Plan is terminated. Dates of
Grant shall include April 1 and October 1 of each Plan Year and/or such other
date or dates as the Committee may from time to time determine. Each Option
shall expire on the Date of Exercise immediately after the automatic exercise of
the Option pursuant to Section 4(a) hereof. The number of shares of Stock
subject to each Option shall equal the payroll deductions authorized by each
Participant in accordance with subsection (b) hereof for the Option Period,
divided by the Option Price, except as provided in Section 4(a).
(b) Election to Participate; Payroll Deduction Authorization. Except
as provided in subsection (d) hereof, an Eligible Employee shall participate in
the Plan only by means of payroll deduction. Each Eligible Employee who elects
to participate in the Plan shall deliver to the Company during the calendar
month preceding a Date of Grant no later than five (5) working days before such
Date of Grant, a completed and executed written payroll deduction authorization
in a form prepared by the Company (the "Authorization"). An Eligible Employee's
Authorization shall give notice of such Eligible Employee's election to
participate in the Plan for the next following Offering Period and subsequent
Offering Periods and shall designate a stated whole dollar amount of Eligible
Compensation to be withheld on each Payday. The amount withheld shall not be
less than $10.00 each Payday and the stated amount shall not exceed 10% of
Eligible Compensation. The cash compensation payable to a Participant for an
Offering Period shall be reduced each Payday through a payroll deduction in an
amount equal
-3-
<PAGE>
to the stated withdrawal amount specified in the Authorization payable on such
Payday, and such amount shall be credited to the Participant's account under the
Plan. Any Authorization shall remain in effect until the Eligible Employee
amends the same pursuant to this subsection, withdraws pursuant to Section 5 or
ceases to be an Eligible Employee pursuant to Section 6.
(c) $25,000 Limitation. No Eligible Employee shall be granted an
Option under the Plan which permits his rights to purchase stock under the Plan
and under all other employee stock purchase plans of the Company, any Parent
Corporation or any Subsidiary Corporation subject to Section 423 of the Code to
accrue at a rate which exceeds $25,000 of fair market value of such stock
(determined at the time the Option is granted) for each calendar year in which
the Option is outstanding at any time. For purpose of the limitation imposed by
this subsection, the right to purchase stock under an Option accrues when the
Option (or any portion thereof) first becomes exercisable during the calendar
year, the right to purchase stock under an Option accrues at the rate provided
in the Option, but in no case may such rate exceed $25,000 of the fair market
value of such stock (determined at the time such Option is granted) for any one
calendar year, and a right to purchase stock which has accrued under an Option
may not be carried over to any other Option.
(d) Leaves of Absence. During a leave of absence meeting the
requirements of Treasury Regulation Section 1.421-7(h)(2), a Participant may
continue to participate in the Plan by making cash payments to the Company on
each Payday equal to the amount of the Participant's payroll deductions under
the Plan for the Payday immediately preceding the first day of such
Participant's leave of absence.
4. Exercise of Options; Option Price.
---------------------------------
(a) General Statement. Each Participant automatically and without
any act on such Participant's part shall be deemed to have exercised such
Participant's Option on the Date of Exercise to the extent that the balance then
in the Participant's account under the Plan is sufficient to purchase at the
Option Price whole shares of the Stock subject to the Option. Certificates
representing fractional shares will not be issued.
(b) Option Price Defined. The option price per share of Stock (the
"Option Price") to be paid by a Participant upon the exercise of the
Participant's Option shall be equal to 85% of the lesser of (i) the fair market
value of a share of Stock on the Date of Exercise or (ii) the fair market value
of a share of Stock on the Date of Grant. The fair market value of a share of
Stock as of a given date shall be: (i) the closing price of a share of Stock on
the principal exchange on which the Stock is then trading, if any, on such date,
or, if shares were not traded on such date, then on the next preceding trading
day during which a sale occurred; (ii) if the Stock is not traded on an exchange
but is quoted on Nasdaq or a successor quotation system, (1) the closing sales
price (if the Stock is then listed as a National Market Issue under the NASD
National Market System) or (2) the mean between the closing representative bid
and asked prices (in all other cases) for a share of the Stock on such date, or,
if shares were not traded on such date, then on the next preceding trading day
during which a sale occurred, as
-4-
<PAGE>
reported by Nasdaq or such successor quotation system; (iii) if the Stock is not
publicly traded on an exchange and not quoted on Nasdaq or a successor quotation
system, the mean between the closing bid and asked prices for a share of Stock
on such date, or, if shares were not traded on such date, then on the next
preceding trading day during which a sale occurred, as determined in good faith
by the Committee; or (iv) if the Stock is not publicly traded, the fair market
value of a share of Stock established by the Committee acting in good faith.
(c) Delivery of Share Certificate. As soon as practicable after the
exercise of any Option, the Company will deliver to the Participant or his or
her nominee the whole shares of Stock purchased by the Participant from funds
credited to the Participant's account under the Plan. Any cash in lieu of
fractional shares of Stock remaining after the purchase of whole shares of Stock
upon exercise of an Option will be credited to such Participant's account and
carried forward and applied toward the purchase of whole shares of Stock
pursuant to the Option, if any, granted to such Participant for the next
following Offering Period. Certificates representing fractional shares will not
be issued. In the event the Company is required to obtain authority from any
commission or agency to issue any such certificate, the Company shall seek to
obtain such authority. The inability of the Company to obtain authority from any
such commission or agency which the Committee in its absolute discretion, deems
necessary for the lawful issuance of any such certificate shall relieve the
Company from liability to any Participant except to pay to the Participant the
amount of the balance in the Participant's account in cash in one lump sum
without any interest thereon.
(d) Pro Rata Allocations. If the total number of shares of Stock for
which options are to be exercised on any date exceeds the number of shares
remaining unsold under the Plan (after deduction of all shares for which Options
have theretofore been exercised), the Committee shall make a pro rata allocation
of the available remaining shares in as nearly a uniform manner as shall be
practicable and any balance of payroll deductions credited to the accounts of
Participants which have not been applied to the purchase of shares of Stock
shall be paid to such Participants in cash in one lump sum within sixty (60)
days after the Date of Exercise, without any interest thereon.
5. Withdrawal from the Plan.
------------------------
(a) General Statement. Any Participant may withdraw from
participation under the Plan at any time except that no Participant may withdraw
during the last ten (10) days of any Offering Period. A Participant who wishes
to withdraw from the Plan must deliver to the Company a notice of withdrawal in
a form prepared by the Company (the "Withdrawal Election") not later than ten
(10) days prior to the Date of Exercise during any Offering Period. Upon receipt
of a Participant's Withdrawal Election, the Company shall pay to the Participant
the amount of the balance in the Participant's account under the Plan in cash in
one lump sum within sixty (60) days, without any interest thereon. Upon receipt
of a Participant's Withdrawal Election by the Company, the Participant shall
cease to participate in the Plan and the Participant's Option shall terminate.
-5-
<PAGE>
(b) Eligibility Following Withdrawal. A Participant who withdraws
from the Plan and who is still an Eligible Employee shall be eligible to
participate again in the Plan as of any subsequent Date of Grant by delivering
to the Company an Authorization pursuant to Section 3(b) hereof.
6. Termination of Employment.
-------------------------
(a) Termination of Employment Other than by Death. If the employment
of a Participant terminates other than by death, the Participant's participation
in the Plan automatically and without any act on the Participant's part shall
terminate as of the date of the termination of the Participant's employment. As
soon as practicable after such a termination of employment, the Company will pay
to the Participant the amount of the balance in the Participant's account under
the Plan without any interest thereon. Upon a Participant's termination of
employment covered by this Section 6(a), the Participant's Authorization,
interest in the Plan and Option under the Plan shall terminate.
(b) Termination By Death. If the employment of a Participant is
terminated by the Participant's death, the executor of the Participant's will or
the administrator of the Participant's estate by written notice to the Company
may request payment of the balance in the Participant's account under the Plan,
in which event the Company shall make such payment without any interest thereon
as soon as practicable after receiving such notice; upon receipt of such notice
the Participant's Authorization, interest in the Plan and Option under the Plan
shall terminate. If the Company does not receive such notice prior to the next
Date of Exercise, the Participant's Option shall be deemed to have been
exercised on such Date of Exercise.
7. Restriction Upon Assignment.
---------------------------
An Option granted under the Plan shall not be transferable other than by
will or the laws of descent and distribution, and is exercisable during the
Participant's lifetime only by the Participant. Except as provided in Section
6(b) hereof, an Option may not be exercised to any extent except by the
Participant. The Company shall not recognize and shall be under no duty to
recognize any assignment or alienation of the Participant's interest in the
Plan, the Participant's Option or any rights under the Participant's Option.
8. No Rights of Shareholders Until Shares Issued.
---------------------------------------------
With respect to shares of Stock subject to an Option, a Participant shall
not be deemed to be a shareholder of the Company, and the Participant shall not
have any of the rights or privileges of a shareholder, until such shares have
been issued to the Participant or his or her nominee following exercise of the
Participant's Option. No adjustments shall be made for dividends (ordinary or
extraordinary, whether in cash, securities, or other property) or distribution
or other rights for which the record date occurs prior to the date of such
issuance, except as otherwise expressly provided herein.
-6-
<PAGE>
9. Changes in the Stock; Adjustments of an Option.
----------------------------------------------
Whenever any change is made in the Stock or to Options outstanding under
the Plan, by reason of a stock split, stock dividend, recapitalization or other
subdivision, combination, or reclassification of shares, appropriate action
shall be taken by the Committee to adjust accordingly the number of shares of
Stock subject to the Plan and the number and the Option Price of shares of Stock
subject to the Options outstanding under the Plan to preserve, but not increase,
the rights of Participants hereunder.
10. Use of Funds; No Interest Paid.
------------------------------
All funds received or held by the Company under the Plan shall be included
in the general funds of the Company free of any trust or other restriction and
may be used for any corporate purpose. No interest will be paid to any
Participant or credited to any Participant's account under the Plan with respect
to such funds.
11. Amendment of the Plan.
---------------------
The Board of Directors may amend, suspend, or terminate the Plan at any
time and from time to time, provided that shareholder approval shall be required
to amend the Plan (i) to increase the total number of shares of Stock reserved
for sale pursuant to Options under the Plan; (ii) change the classification of
employees eligible to participate under the Plan, (iii) in any manner that would
cause the Plan to no longer be an "employee stock purchase plan" within the
meaning of Section 423(b) of the Code or (iv) in any manner that would require
shareholder approval under applicable law, regulation or rule.
12. Administration by Committee; Rules and Regulations.
--------------------------------------------------
(a) Appointment of Committee. The Plan shall be administered by the
Committee. The Committee shall consist of two or more members of the Board of
Directors appointed by the Board of Directors to administer the Plan. Each
member of the Committee shall be (A) a "non-employee director" (as defined by
Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the "Act"));
and (B) once the reliance period expires under Section 1.162-27(f) of the
Treasury Department Regulations, an "outside director" under Section 1.162-
27(a)(3) of the Treasury Department Regulations. The Committee at its option may
utilize the services of an agent to assist in the administration of the Plan
including establishing and maintaining an individual securities account under
the Plan for each Participant.
(b) Duties and Powers of Committee. It shall be the duty of the
Committee to conduct the general administration of the Plan in accordance with
the provisions of the Plan. The Committee shall have the power to interpret the
Plan and the terms of the Options and to adopt such rules for the
administration, interpretation, and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. In its absolute
discretion,
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the Board may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan.
(c) Majority Rule. The Committee shall act by a majority of its
members in office. The Committee may act either by vote at a meeting or by a
memorandum or other written instrument signed by a majority of the Committee.
(d) Compensation; Professional Assistance; Good Faith Actions. All
expenses and liabilities incurred by members of the Committee in connection with
the administration of the Plan shall be borne by the Company. The Committee may,
with the approval of the Board, employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company and its
officers and directors shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon all Participants, the Company and all other interested persons. No member
of the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Options, and
all members of the Committee shall be fully protected by the Company in respect
to any such action, determination, or interpretation.
13. No Rights as an Employee.
------------------------
Nothing in the Plan shall be construed to give any person (including any
Eligible Employee or Participant) the right to remain in the employ of the
Company, a Parent Corporation or a Subsidiary Corporation or to affect the right
of the Company, any Parent Corporation or any Subsidiary Corporation to
terminate the employment of any person (including any Eligible Employee or
Participant) at any time, with or without cause.
14. Merger, Acquisition or Liquidation of the Company.
-------------------------------------------------
In the event of the merger or consolidation of the Company into another
corporation, the acquisition by another corporation of all or substantially all
of the Company's assets or 50% or more of the Company's then outstanding voting
stock, the liquidation or dissolution of the Company or any other reorganization
of the Company, the Date of Exercise with respect to outstanding Options shall
be the business day immediately preceding the effective date of such merger,
consolidation, acquisition, liquidation, dissolution, or reorganization unless
the Committee shall, in its sole discretion, provide for the assumption or
substitution of such Options in a manner complying with Section 424(a) of the
Code.
15. Term; Approval by Shareholders.
------------------------------
No Option may be granted during any period of suspension of the Plan or
after termination of the Plan. The Plan shall be submitted for the approval of
the Company's shareholders within 12 months after the date of the Board of
Directors' adoption of the Plan. Options may be granted prior to such
shareholder approval; provided, however, that such
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<PAGE>
Options shall not be exercisable prior to the time when the Plan is approved by
the shareholders; and provided, further, that if such approval has not been
obtained by the end of said 12-month period, all Options previously granted
under the Plan shall thereupon expire.
16. Effect Upon Other Plans.
-----------------------
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company, any Parent Corporation or any
Subsidiary Corporation. Nothing in this Plan shall be construed to limit the
right of the Company, any Parent Corporation or any Subsidiary Corporation (a)
to establish any other forms of incentives or compensation for employees of the
Company, any Parent Corporation or any Subsidiary Corporation or (b) to grant or
assume options otherwise than under this Plan in connection with any proper
corporate purpose, including, but not by way of limitation, the grant or
assumption of options in connection with the acquisition, by purchase, lease,
merger, consolidation or otherwise, of the business, stock or assets of any
corporation, firm or association.
17. Conditions to Issuance of Stock Certificates.
--------------------------------------------
The Company shall not be required to issue or deliver any certificate or
certificates for shares of Stock purchased upon the exercise of Options prior to
fulfillment of all the following conditions:
(a) The admission of such shares to listing on all stock exchanges,
if any, on which is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under the rulings or regulations of the
Securities and Exchange Commission or any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company of all amounts which it is required to
withhold under federal, state or local law upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
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<PAGE>
18. Notification of Disposition.
---------------------------
Each Participant shall give prompt notice to the Company of any disposition
or other transfer of any shares of Stock purchased upon exercise of an Option if
such disposition or transfer is made (a) within two (2) years from the Date of
Grant of the Option or (b) within one (1) year after the transfer of such shares
to such Participant upon exercise of such Option. Such notice shall specify the
date of such disposition or other transfer and the amount realized, in cash,
other property, assumption of indebtedness or other consideration, by the
Participant in such disposition or other transfer.
19. Notices.
-------
Any notice to be given under the terms of the Plan to the Company shall be
addressed to the Company in care of its Secretary and any notice to be given to
any Eligible Employee or Participant shall be addressed to such Eligible
Employee at such Eligible Employee's last address as reflected in the Company's
records. By a notice given pursuant to this Section, either party may designate
a different address for notices to be given to it, him or her. Any notice which
is required to be given to an Eligible Employee or a Participant shall, if the
Eligible Employee or Participant is then deceased, be given to the Eligible
Employee's or Participant's personal representative if such representative has
previously informed the Company of his status and address by written notice
under this Section. Any notice shall have been deemed duly given if enclosed in
a properly sealed envelope or wrapper addressed as aforesaid at the time it is
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
20. Commencement. The Plan shall become effective on such date as may be
specified by the Committee which absent a resolution of the Board to the
contrary shall be the date set forth in Section 1(j); provided, however, that in
no event shall the Plan become effective unless within 12 months of the date of
its adoption by the Board, it has been approved by the shareholders of the
Company.
21. Headings.
Headings are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Plan.
I hereby certify that the foregoing Plan was adopted by the Board of
Directors of Vistana, Inc. on December 27, 1996.
Executed as of December 27, 1996.
/s/ Jeffrey A. Adler
--------------------------------------------
Jeffrey A. Adler
Director, President and Co-Chief Executive
Officer
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<PAGE>
I hereby certify that the foregoing Plan was approved by the shareholders
of Vistana, Inc. on December 27, 1996.
Executed at Orlando, Florida on December 27, 1996.
/s/ Jeffrey A. Adler
--------------------------------------------
Jeffrey A. Adler
Director, President and Co-Chief Executive
Officer
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<PAGE>
EXHIBIT 5.1
September 17, 1997
Vistana, Inc.
8801 Vistana Centre Drive
Orlando, Florida 32821
Re: Vistana, Inc.
Registration Statement on Form S-8
Gentlemen:
We are counsel to Vistana, Inc., a Florida corporation (the "Company"), and
in such capacity we have assisted in the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1993, as amended,
of the Company's Registration Statement on Form S-8 (the "Registration
Statement") relating to the issuance from time to time by the Company of up to
1,000,000 shares of the Company's common stock, par value $0.01 per share (the
"Common Stock"), pursuant to the Vistana, Inc. Employee Stock Purchase Plan (the
"Plan").
As such counsel, we have examined the Plan, the Company's Articles of
Incorporation, the By-Laws of the Company, the minute books of the Company and
such other papers, documents and certificates of public officials and
certificates of officers of the Company as we have deemed relevant and necessary
as the basis for the opinions hereinafter expressed. In such examinations, we
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as conformed or photostatic copies.
Based on the foregoing, we are of the opinion that:
1. The issuance from time to time by the Company of up to 1,000,000
shares of Common Stock pursuant to the Plan as described in the prospectus
to be delivered to participants in the Plan (the "Prospectus") has been
duly and validly authorized by all necessary corporate action on the part
of the Company.
2. When issued and paid for as described in the Prospectus and in
accordance with the Plan, the 1,000,000 shares available for issuance under
the Plan will be duly and validly issued and outstanding, fully paid and
non-assessable shares of Common Stock.
<PAGE>
Vistana, Inc.
September 17, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Interests of Named Experts and Counsel" in Item 5 of Part II of the
Registration Statement.
Please be advised that certain partners of, attorneys associated with
and/or of counsel to our firm beneficially own shares of Common Stock.
The opinions expressed above are limited to the laws of the State of
Illinois and the federal laws of the United States, and are limited to the
specific legal matters expressly addressed herein. We have assumed, with your
permission, that the substantive laws of the State of Florida are identical, in
all material respects, to the laws of the State of Illinois. No opinion is
expressed with respect to the laws of any other jurisdiction or any legal matter
not addressed herein. This opinion speaks only as of the date hereof and we
undertake no obligation to update this opinion.
Very truly yours,
/s/ NEAL, GERBER & EISENBERG
<PAGE>
EXHIBIT 23.2
The Board of Directors
Vistana, Inc.:
We consent to the use of our reports, dated January 24, 1997 included in
Vistana, Inc.'s Prospectus dated February 27, 1997 (File No. 333-19045),
incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
Orlando, Florida
September 17, 1997
