<PAGE>
As filed with the Securities and Exchange Commission on April 1, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 principal executive offices)
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 copy to:
ROSS D. EMMERMAN, ESQ.
Neal, Gerber & Eisenberg
2 North LaSalle Street
Chicago, Illinois 60602
(312) 269-8000
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Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
___________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to Offering Price Aggregate Amount of
Securities to be Registered be Registered per Share (1) Offering Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value....... 663,444 $26.38 $17,501,653 $5,163
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and
based upon the average of the high and low prices of the Common Stock as
reported on the Nasdaq National Market on March 26, 1998.
___________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED April 1, 1998
PROSPECTUS
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663,444 Shares
VISTANA, INC.
Common Stock
This Prospectus relates to 663,444 shares (the "Shares") of Common Stock,
par value $.01 per share (the "Common Stock"), of Vistana, Inc. (the "Company").
The Shares will be offered for sale or otherwise transferred from time to time
by the shareholders named herein (the "Selling Shareholders") in transactions
(which may include block transactions) on the Nasdaq National Market or in the
over-the-counter market, in negotiated transactions or otherwise, at fixed
prices, which may be changed, at market prices prevailing at the time of sale,
at negotiated prices, or without consideration, or by any other legally
available means. The Selling Shareholders may offer the Shares to third parties
(including purchasers) directly or by or through brokers, dealers, agents or
underwriters who may receive compensation in the form of discounts, concessions
or commissions or otherwise. The Selling Shareholders and any brokers, dealers,
agents or underwriters that participate in the distribution of the Shares may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), in which event any discounts, concessions and
commissions received by any such brokers, dealers, agents or underwriters and
any profit on resale of the Shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. The aggregate
net proceeds to the Selling Shareholders from the sale of the Shares will be the
purchase price of such Shares less any commissions. The Company will not
receive any proceeds from the sale of Shares by the Selling Shareholders. The
Company will pay all expenses incurred in connection with this offering, other
than underwriting discounts and selling commissions. See "Plan of
Distribution."
A total of 638,444 of the Shares were issued by the Company to certain of
the Selling Shareholders in connection with the September 1997 acquisition by
the Company from such Selling Shareholders of certain entities. Delivery of a
total of 430,814 of such Shares is contingent upon the achievement by the
acquired entities of certain operating results on a quarterly basis during the
calendar years 1998 through 2000. A total of 25,000 of the Shares may be
acquired by one of the Selling Shareholders pursuant to the exercise of options
granted by certain of the Company's principal shareholders. All of the Shares
are "restricted securities" under the Securities Act of 1933, as amended (the
"Securities Act"), prior to their sale hereunder. This Prospectus has been
prepared for the purpose of registering the Shares under the Act to allow for
future sales by the Selling Shareholders to the public without restriction. See
"Selling Shareholders."
The Common Stock is quoted on the Nasdaq National Market under the symbol
"VSTN." The last reported sale price of the Common Stock on March 30, 1998 on
the Nasdaq was $26-1/8 per share.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is April __, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at the Commission's regional offices at Seven World Trade Center,
Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Room of the Commission, 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. Such materials
also may be accessed electronically by means of the Commission's home page on
the Internet at http://www.sec.gov. The Company's Common Stock is listed on the
Nasdaq National Market and such reports, proxy statements and other information
also can be inspected at the offices of the Nasdaq National Market, 1735 K
Street, N.W., Washington, D.C. 20549.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act, with respect to the
shares of Common Stock offered hereby. This Prospectus, which constitutes a part
of the Registration Statement, does not contain all of the information set forth
in the Registration Statement, certain items of which are contained in schedules
and exhibits to the Registration Statement as permitted by the rules and
regulations of the Commission. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
Items and information omitted from this Prospectus but contained in the
Registration Statement may be inspected and copied at the Public Reference Room
of the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated in this Prospectus by reference and are
made a part hereof:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
1997 (the "Company 10-K");
2. The portions of the Company's Proxy Statement for its 1998 Annual
Meeting of Shareholders that have been incorporated by reference into the
Company 10-K;
3. The portions of the Company's Annual Report to Shareholders for
the year ended December 31, 1997 that have been incorporated by reference
into the Company 10-K; and
4. The description of the Company's Common Stock which is contained
in the Registration Statement on Form 8-A filed by the Company with the
Commission on February 24, 1997, pursuant to Section 12 of the Exchange
Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act from the date of this Prospectus and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to
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<PAGE>
constitute a part of this Prospectus, except as so modified or superseded. The
Company will provide without charge to each person, including any beneficial
owner, to whom a copy of this Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the information that has been
incorporated by reference in this Prospectus (excluding exhibits to such
information which are not specifically incorporated by reference into such
information). Requests for such information should be directed to Vistana, Inc.,
8801 Vistana Centre Drive, Orlando, Florida 32821, Attention: Director of
Investor Relations, Telephone (407) 239-3568.
THE COMPANY
Founded in 1980, the Company is a leading developer and operator of high
quality timeshare resorts in the United States. The Company's principal
operations consist of (i) acquiring, developing and operating timeshare resorts,
also known as vacation ownership resorts; and (ii) marketing, selling and
financing vacation ownership interests in its resorts, which typically entitle
the buyer to ownership of a fully-furnished unit for a one-week period on either
an annual or an alternate-year basis ("Vacation Ownership Interests").
The Company currently operates and sells Vacation Ownership Interests at
six vacation ownership resorts. Three of these resorts are in Florida (Vistana
Resort in Orlando, Hampton Vacation Resort--Oak Plantation in Kissimmee, and
Vistana's Beach Club on Hutchinson Island), two in Colorado (Eagle Point in Vail
and Falcon Point in Avon) and one in Arizona (Villas of Cave Creek located north
of Scottsdale). Available inventory at two of these resorts (Vistana's Beach
Club and Eagle Point) is limited to Vacation Ownership Interests that the
Company has reacquired in connection with defaults under customer mortgages. The
Company has four new resorts under development. These resorts are Embassy
Vacation Resort at Myrtle Beach in South Carolina, Vistana Resort at World Golf
Village near St. Augustine, Florida, PGA Vacation Resort by Vistana in Port St.
Lucie, Florida, and Embassy Vacation Resort in Scottsdale, Arizona. In addition,
the Company acts as exclusive sales and marketing agent for The Christie Lodge,
a large vacation ownership resort in Avon, Colorado. The Company has also
entered into an agreement with a subsidiary of Sun International Hotels Limited
("Sun") to form a joint venture to develop a proposed new vacation ownership
resort to be known as the Villas at Atlantis adjacent to the Atlantis Resort and
Casino on Paradise Island in The Bahamas.
During its 17-year history, the Company has sold in excess of $650 million
of Vacation Ownership Interests and has developed an ownership base of over
65,000 Vacation Ownership Interest owners residing in more than 100 countries.
The Company was the first to open a vacation ownership resort in the Orlando,
Florida market, which has become one of the largest vacation ownership resort
markets in the world in terms of Vacation Ownership Interests sold. Each of the
Company's existing Florida-based resorts is rated as a Gold Crown resort by
Resort Condominiums International ("RCI"), and the Villas of Cave Creek and
Falcon Point Resort are rated as Five Star Resorts by Interval International.
Two of the Company's resorts under development, Vistana Resort at World Golf
Village and the Embassy Vacation Resort at Myrtle Beach, have received the Gold
Crown designation from RCI prior to their official openings.
As part of its operating strategy, the Company seeks to develop strategic
relationships with selected parties in order to broaden and enhance its
marketing and sales efforts and to provide additional vacation ownership resort
development opportunities. In furtherance of this strategy, the Company has
entered into (i) an exclusive joint venture agreement with Promus Hotels, Inc.,
a leading hotel company in the United States; (ii) a long-term affiliation
agreement with a subsidiary of The Professional Golfers' Association of America;
(iii) a limited partnership (in which the Company is the general partner) which
has the exclusive right to develop and market Vacation Ownership Interests at
World Golf Village; and (iv) an agreement to form an exclusive joint venture
agreement with a subsidiary of Sun to develop a vacation ownership resort in The
Bahamas.
The Company's principal executive offices are at 8801 Vistana Centre Drive,
Orlando, Florida 32821 and its telephone number at that address is
(407) 239-3000.
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<PAGE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Shares by the
Selling Shareholders.
SELLING SHAREHOLDERS
The following table sets forth (i) the names of the Selling Shareholders,
(ii) the number of shares of Common Stock currently beneficially owned by the
Selling Shareholders and (iii) the number of such shares of Common Stock which
will be beneficially owned by the Selling Shareholders after the offering,
assuming the sale of all the Shares currently beneficially owned:
<TABLE>
<CAPTION>
Beneficial Shares Beneficial
Ownership to Be Ownership
Selling Shareholders Prior to Offering Offered (3) After Offering (3)
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<S> <C> <C> <C>
Larry D. Doll (1) 165,631 165,631 --
Donald J. Dubin (1) 208,803 208,803 --
Ronald R. Sharp (1) 104,400 104,400 --
David E. Bruce (1) 104,400 104,400 --
David H. Friedman (1) 55,210 55,210 --
John M. Sabin (2) 25,000 25,000 --
</TABLE>
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(1) A total of 638,444 of the Shares were issued by the Company to Messrs.
Doll, Dubin, Sharp, Bruce and Friedman (or, in the case of Shares subject
to contingencies, to an escrow agent) in connection with the September 1997
acquisition by the Company (the "Acquisition") from such Selling
Shareholders of the entities comprising The Success Companies, Success
Developments, L.L.C. and Points of Colorado, Inc. Delivery of a total of
430,814 of such Shares is contingent upon the achievement by the acquired
entities of certain operating results on a quarterly basis during the
calendar years 1998 through 2000. These Shares have been registered for
resale under the 1933 Act in accordance with the provisions of the
agreements among the Company and such Selling Shareholders. The Company has
agreed with the Selling Shareholders to use its reasonable best efforts to
keep the Registration Statement of which this Prospectus forms a part
effective until the earlier of (i) the date the Shares held by these
Selling Shareholders are tradeable without restriction under the Securities
Act and (ii) the date on which all of such Shares have been sold pursuant
to such Registration Statement. Prior to the Acquisition, Messrs. Doll,
Dubin, Sharp, Bruce and Friedman were the only equity owners of the
acquired entities. In addition, for at least three years prior to the
Acquisition, Messrs. Doll, Dubin, Sharp, Bruce and Friedman were the only
executive officers of the acquired entities and have continued to hold
substantially the same positions since the Acquisition.
(2) A total of 25,000 of the Shares may be acquired by Mr. Sabin pursuant to
the exercise of options granted to him by certain of the Company's
principal shareholders. These Shares have been registered for resale under
the 1933 Act in accordance with the provisions of the agreements between
the Company and Mr. Sabin. The Company has agreed with this Selling
Shareholder to use its reasonable best efforts to keep the Registration
Statement of which this Prospectus forms a part effective until the earlier
of (i) one year and (ii) the first date on which all of the Shares held by
this Selling Shareholder have been sold pursuant to such Registration
Statement. Prior to December 1997, Mr. Sabin was employed as the Company's
Senior Vice President and Treasurer and held the position of chief
financial officer of the Company. From and after December 1, 1997, Mr.
Sabin continues to be employed by the Company, on an at-will basis, as the
Company's Senior Vice President and Treasurer but no longer holds the
position of chief financial officer of the Company.
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<PAGE>
(3) The exact number of Shares to be sold by a Selling Shareholder at any time
or from time to time cannot currently be determined.
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Shareholders that they may sell
or transfer all or a portion of the Shares offered hereby from time to time to
third parties (including purchasers) directly or by or through brokers, dealers,
agents or underwriters, who may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Shareholders and/or from
purchasers of the Shares for whom they may act as agent. Such sales and
transfers of the Shares may be effected from time to time in one or more
transactions on the Nasdaq National Market, in the over-the-counter market, in
negotiated transactions or otherwise, at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at negotiated prices,
or without consideration, or by any other legally available means. Any or all of
the Shares may be sold or transferred from time to time by means of (a) a block
trade in which the broker or dealer so engaged will attempt to sell the Shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (c)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers; (d) through the writing of options on the Shares; (e) pledges as
collateral to secure loans, credit or other financing arrangements and
subsequent foreclosure, if any, thereunder; (f) gifts, donations and
contributions; and (g) any other legally available means. To the extent
required, the number of Shares to be sold or transferred, the purchase price,
the name of any such agent, broker, dealer or underwriter and any applicable
discounts or commissions and any other required information with respect to a
particular offer will be set forth in an accompanying Prospectus Supplement. The
aggregate net proceeds to the Selling Shareholders from the sale of the Shares
will be the purchase price of such Shares less any commissions. This Prospectus
also may be used by affiliates of the Selling Shareholders and, with the
Company's prior written consent (which may not be unreasonably withheld), by
unaffiliated donees and pledgees of the Selling Shareholders.
The Selling Shareholders and any brokers, dealers, agents or underwriters
that participate in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of the Securities Act, in which event any
discounts, concessions and commissions received by such brokers, dealers, agents
or underwriters and any profit on the resale of the Shares purchased by them may
be deemed to be underwriting commissions or discounts under the Securities Act.
No underwriter, broker, dealer or agent has been engaged by the Company in
connection with the distribution of the Shares.
Any Shares covered by this Prospectus which qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this Prospectus. There is no assurance that the Selling Shareholders
will sell any or all of the Shares. The Selling Shareholders may transfer,
devise or gift Shares by other means not described herein.
The Company will pay all of the expenses incident to the registration of
the Shares, other than underwriting discounts and selling commissions, if any,
and fees and expenses of counsel for the Selling Shareholders.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under the terms of certain registration rights agreements, (i) the Company
has agreed to indemnify each of the Selling Shareholders against certain
liabilities, including liabilities under the Securities Act; (ii) each of the
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<PAGE>
Selling Shareholders has also agreed, under certain circumstances, to indemnify
the Company, its directors, officers and certain affiliates of the Company
against certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Neal, Gerber & Eisenberg.
EXPERTS
The consolidated financial statements of Vistana, Inc. and subsidiaries as
of December 31, 1997 and 1996 and for each of the years in the three-year period
ended December 31, 1997 have been incorporated by reference herein in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of such
firm as experts in accounting and auditing.
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<PAGE>
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No dealer, salesperson or any other person has been authorized to give any
information to make any representations other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company, the Selling Shareholders or any broker, dealer or agent. This
Prospectus does not constitute an offer or solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the Company since the date hereof.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents
by Reference............................................................ 2
The Company............................................................... 3
Use of Proceeds........................................................... 4
Selling Shareholders...................................................... 4
Plan of Distribution...................................................... 5
Legal Matters............................................................. 6
Experts................................................................... 6
</TABLE>
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663,444 Shares
VISTANA, INC.
Common Stock
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PROSPECTUS
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April __, 1998
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with the
sale and distribution of securities being registered, other than discounts,
concessions and brokerage commissions.
<TABLE>
<S> <C>
SEC registration fee...................................... $ 5,163
Blue sky fees and expenses................................ 250*
Legal fees and expenses................................... 5,000*
Accounting fees and expenses.............................. 4,000*
Miscellaneous............................................. 587*
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Total................................................ $15,000*
</TABLE>
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* Estimated
The Company will bear all of the foregoing expenses.
Item 15. 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 or 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 liability incurred in connection with
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 persons' conduct was unlawful. Although
Florida law permits a corporation to indemnify any person referred to above
against expenses (including attorney fees) that are actually and reasonably
incurred by such person ("Expenses"), and amounts paid in settlement that are
actually and reasonably incurred by such person, 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, subject to an
undertaking by such person to repay any such advancements if such person is
ultimately found not to have been entitled to reimbursement for such expenses
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 Amended and Restated By-Laws
provide that the Company shall indemnify its directors, officers, employees and
other agents to the fullest extent permitted by Florida law.
II-1
<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, subject to certain limitations imposed by the Florida
Business Corporation Act pertaining to unlawful or improper conduct by any such
indemnified person, 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, arising out of such
persons' 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 has purchased liability insurance for the benefit of its
directors and officers.
Under the terms of certain registration rights agreements, each of the
Selling Shareholders have agreed to indemnify, under certain conditions, the
Company, its directors, certain of its officers and persons who control the
Company within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), against certain liabilities. The Company has also agreed to
indemnify each of the Selling Shareholders against certain liabilities which may
be incurred in connection with the Offering made by the Prospectus forming a
part of the Registration Statement, including liability under the Securities
Act.
Item 16. Exhibits.
2.1 Agreement and Plan of Reorganization dated as of August 15, 1997
among Vistana, Inc., V Sub-1, Inc., Donald J. Dubin, Ronald R.
Sharp, David E. Bruce, Larry D. Doll and David H. Friedman
(incorporated by reference to the correspondingly numbered exhibit
to the Current Report on Form 8-K dated September 29, 1997 of
Vistana, Inc.)
4.1 Form of Common Stock certificate of Vistana, Inc. (incorporated by
reference to the correspondingly numbered exhibit to the
Registration Statement (File No. 333-19045) on Form S-1, as amended,
filed by Vistana, Inc. under the Securities Act, as amended).
5 Opinion of Neal, Gerber & Eisenberg.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5).
24.1 Powers of Attorney of certain officers and directors of the Company
(included on signature page).
(b) Supplemental Financial Statement Schedules:
None.
II-2
<PAGE>
Item 17. 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 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 (i) and (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 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the 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
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than insurance payments and 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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
II-3
<PAGE>
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
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-3 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 April 1, 1998.
VISTANA, INC.
(Registrant)
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., Jeffrey A. Adler, Charles E.
Harris, 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 amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on April 1, 1998, by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Raymond L. Gellein, Jr. Director, Chairman, and Co-Chief Executive Officer
-------------------------------- (Principal Executive Officer)
Raymond L. Gellein, Jr.
/s/ Jeffrey A. Adler Director, President and Co-Chief Executive Officer
--------------------------------
Jeffrey A. Adler
/s/ Charles E. Harris Director, Vice Chairman of the Board and Chief Financial
----------------------------------- Officer (Principal Financial Officer)
Charles E. Harris
/s/ Mark E. Patten Vice President and Chief Accounting Officer (Principal
----------------------------------- Accounting Officer)
Mark E. Patten
/s/ James G. Brocksmith, Jr. Director
---------------------------------
James G. Brocksmith, Jr.
/s/ Laurence S. Geller Director
-----------------------------------
Laurence S. Geller
/s/ Steven J. Heyer Director
------------------------------------
Steven J. Heyer
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Page
No. Description Number
- ------- ----------- ------
2.1 Agreement and Plan of Reorganization dated as of August 15,
1997 among Vistana, Inc., V Sub-1, Inc., Donald J. Dubin,
Ronald R. Sharp, David E. Bruce, Larry D. Doll and David
H. Friedman (incorporated by reference to the correspondingly
numbered exhibit to the Current Report on Form 8-K dated
September 29, 1997 of Vistana, Inc.)
4.1 Form of Common Stock certificate of Vistana, Inc.
(incorporated by reference to the correspondingly numbered
exhibit to the Registration Statement (File No. 333-19045)
on Form S-1, as amended, filed by Vistana, Inc. under the
Securities Act, as amended).
5 Opinion of Neal Gerber & Eisenberg
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5).
24 Powers of Attorney of certain officers and directors of the
Company (include on signature page).
<PAGE>
EXHIBIT 5
Neal, Gerber & Eisenberg
Two North LaSalle Street, Suite 2200
Chicago, Illinois 60602
April 1, 1998
VIA ELECTRONIC TRANSMISSION
Vistana, Inc.
8801 Vistana Centre Drive
Orlando, FL 32821
Re: Registration Statement on Form S-3
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 1933, as amended,
of the Company's Registration Statement on Form S-3 (the "Registration
Statement"), relating to the proposed offering by the Selling Shareholders (as
defined in the Registration Statement) of an aggregate of 663,444 shares of the
common stock, $.01 par value per share (the "Common Stock"), of the Company.
As such counsel, we have examined the Registration Statement and such other
papers, documents and certificates of public officials and certificates of
officers of the Company as we have deemed necessary and appropriate as the basis
for the opinions hereinafter expressed. In such examinations, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, 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. As to any facts material to this opinion, we have relied
upon statements and representations (a) of the Company and its officers and
other representatives and (b) of public officials.
Based upon the foregoing, and subject to the limitations, qualifications,
exceptions, and assumptions set forth herein, we are of the opinion that (i) in
the case of 232,630 shares of
<PAGE>
Vistana, Inc.
April 1, 1998
Page 2
Common Stock which have been delivered to the Selling Shareholders, or will be
delivered to one of the Selling Shareholders upon the exercise of outstanding
stock options, the shares of Common Stock covered by the Registration Statement
have been duly and validly issued and are fully paid and nonassessable, and (ii)
in the case of 430,814 shares of Common Stock, the delivery of which to certain
of the Selling Shareholders is contingent upon certain factors (as described in
the prospectus contained in the Registration Statement), upon delivery of such
shares of Common Stock to certain of the Selling Shareholders, such shares of
Common Stock will be duly and validly issued, fully paid and nonassessable.
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 "Legal
Matters" in the prospectus contained therein.
Certain partners of Neal, Gerber & Eisenberg and attorneys associated with
the firm beneficially own shares of Common Stock.
Very truly yours,
/s/ Neal, Gerber & Eisenberg
Neal, Gerber & Eisenberg
/rr
<PAGE>
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Vistana, Inc. and Subsidiaries:
We consent to the use of our report dated February 6, 1998 incorporated herein
by reference and to the reference to our firm under the heading "Experts" in the
Registration Statement on Form S-3.
/s/ KPMG Peat Marwick LLP
Orlando, Florida
March 26, 1998
