<PAGE>
As filed with the Securities and Exchange Commission on June 11, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-3
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 Center Drive
Orlando, Florida 32821
(407) 239-3000
(Address, including zip code and telephone number, including area code, of
registrant's 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
___________
Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective.
___________
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>
- -----------------------------------------------------------------------------------------------------------------
Amount to Proposed Maximum Proposed Maximum Amount of
Title of Each Class of be Registered(1) Offering Price Aggregate Registration Fee
Securities to be Registered per Share(2) Offering Price(2)
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value..... 622,500 $14.75 $9,181,875 $2,553
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416, this registration statement also covers such
indeterminate number of shares of Vistana, Inc. common stock as may be
issued as a result of stock dividends, stock splits or similar transactions
prior to the termination of this registration statement.
(2) 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 June 8, 1999.
___________
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>
The information in this prospectus is not complete and may be changed. The
selling shareholders identified in this prospectus may not sell these securities
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
______________________
SUBJECT TO COMPLETION, DATED JUNE 11, 1999
PROSPECTUS
- ----------
622,500 Shares
VISTANA, INC.
Common Stock
The selling shareholders identified in this prospectus may offer for sale
up to 622,500 shares of Vistana, Inc. common stock which may be acquired by them
upon the exercise of options granted to them by certain of Vistana's principal
shareholders. The shares issued to the selling shareholders upon exercise of
such options will be "restricted securities" within the meaning of the
Securities Act of 1933. Consequently, this prospectus has been prepared
pursuant to the terms of an existing agreement for the purpose of registering
the shares under the Securities Act to enable the selling shareholders to make
future sales without restriction. The proceeds from any sale will be received
by the selling shareholders; no proceeds will be received by Vistana. Each of
the selling shareholders may determine at a later date the actual terms of an
offering of the stock, and, if required, a supplement to this prospectus will
state whether any of the selling shareholders will offer shares directly in
negotiated transactions or otherwise. If a prospectus supplement is required,
it also will state whether the shares will be offered at market prices
prevailing at the time of the sale, at prices related to such prevailing market
prices or at prices otherwise negotiated.
Vistana's common stock is traded on the Nasdaq National Market System under
the symbol "VSTN." On June 8, 1999, the closing sale price of Vistana common
stock on the Nasdaq was $14.75 per share.
Vistana's principal executive offices are located at 8801 Vistana Centre
Drive, Orlando, Florida 32821 and its telephone number at that address is (407)
239-3000.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_______________________
The date of this prospectus is June __, 1999.
<PAGE>
-------------------------------------------------
-------------------------------------------------
YOU SHOULD RELY ONLY ON INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. NEITHER VISTANA NOR ANY OF THE SELLING
SHAREHOLDERS HAVE AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION.
NEITHER VISTANA NOR ANY OF THE SELLING SHAREHOLDERS IS MAKING AN OFFER OF THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME
THAT THE INFORMATION PROVIDED BY THE PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE ON THE FRONT OF THIS PROSPECTUS.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
WHERE TO FIND MORE INFORMATION............................................ 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................... 3
THE COMPANY............................................................... 5
USE OF PROCEEDS........................................................... 6
SELLING SHAREHOLDERS...................................................... 6
PLAN OF DISTRIBUTION...................................................... 8
LEGAL MATTERS............................................................. 9
EXPERTS................................................................... 9
</TABLE>
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<PAGE>
WHERE TO FIND MORE INFORMATION
Vistana, Inc. ("Vistana" or the "Company") has filed with the Securities
and Exchange Commission (the "Commission") a Registration Statement on Form S-3
(the "Registration Statement") under the Securities Act of 1933, relating to the
shares of common stock to be sold or otherwise transferred by the selling
shareholders identified herein. This prospectus is a part of the Registration
Statement, but the Registration Statement also contains additional information
and exhibits not included herein.
Vistana is subject to the informational requirements of the Securities
Exchange Act of 1934. Accordingly, Vistana files annual, quarterly and current
reports with the Commission. You can read and copy the Registration Statement
and the other statements and reports that Vistana files with the Commission at
the Commission's public reference rooms at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, 7 World Trade Center, Suite 1300, New York, New York
10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such material can also be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Vistana's filings with the Commission are also available from the Commission's
web site at http://www.sec.gov. Please call the Commission's toll-free
telephone number at 1-800-SEC-0330 if you need further information about the
operation of the Commission's public reference rooms. Vistana's common stock is
listed on the Nasdaq National Market and Vistana's reports can also be inspected
at the offices of the Nasdaq National Market, 1735 K Street, N.W., Washington,
D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows Vistana to "incorporate by reference" information
filed with it, which means that Vistana can disclose important information to
you by referring you directly to those documents. The information incorporated
by reference is considered to be a part of this prospectus. In addition,
information Vistana files with the Commission in the future will automatically
update and supersede information contained in this prospectus and any
accompanying prospectus supplement. Vistana incorporates by reference the
documents listed below and any future filings made with the Commission under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
all of the shares of common stock described in this prospectus are sold:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
2. Quarterly Report on Form 10-Q/A for the fiscal quarter ended
March 31, 1999;
3. The portions of Vistana's Proxy Statement for its 1999 Annual
Meeting of Shareholders that have been incorporated by reference into
Vistana's Form 10-K;
4. The portions of Vistana's Annual Report to Shareholders for the
year ended December 31, 1998 that have been incorporated by reference into
Vistana's Form 10-K; and
5. The description of Vistana's common stock which is contained in
the Registration Statement on Form 8-A filed by Vistana with the Commission
on February 24, 1997, pursuant to Section 12 of the Securities Exchange Act
of 1934.
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<PAGE>
You may request a copy of these filings at no cost, by writing Vistana at
8801 Vistana Center Drive, Orlando, Florida 32821, Attention: Director of
Investor Relations, or telephoning Vistana at (407) 239-3000.
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<PAGE>
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 acquiring, developing and operating vacation ownership
resorts, marketing and selling vacation ownership interests ("VOI's") 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), and
providing financing to customers who purchase VOI's at its resorts. The Company
also furnishes management, operations, maintenance, and telecommunications
services at its resorts and provides limited telecommunications contracting
services to other customers.
At March 31, 1999, the Company operated ten vacation ownership resorts,
with six in active sales. Four of these resorts are in Florida (Vistana Resort
in Orlando, Hampton Vacation Resort-Oak Plantation in Kissimmee, Vistana's Beach
Club on Hutchinson Island, and Vistana Resort at World Golf Village in St.
Augustine), three in Colorado (Eagle Point in Vail and Falcon Point and Lakeside
Terrace in Avon), one in South Carolina (Embassy Vacation Resort at Myrtle
Beach) and two in Arizona (Villas of Cave Creek located north of Scottsdale and
Embassy Vacation Resort at Scottsdale). Available inventory at four of these
ten resorts (Vistana's Beach Club, Eagle Point, Falcon Point and Villas of Cave
Creek) is primarily limited to VOI's that the Company has reacquired in
connection with owner upgrades and defaults under customer mortgages. 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 is also planning three new resorts: PGA Vacation Resort by Vistana at
PGA Village in Port St. Lucie, Florida; Harborside at Atlantis on Paradise
Island in The Bahamas (which will be developed in a joint venture with a
subsidiary of Sun International Hotels Limited); and a large successor property
to the Company's flagship Vistana Resort in Orlando.
During its 18-year history, the Company has sold in excess of $870 million
of VOI's and has developed an ownership base of over 80,000 VOI 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 VOI's sold.
Since completing its initial public offering in March 1997, the Company has
been using four business strategies to achieve growth: (i) continuing sales of
VOI's at the Company's existing resorts; (ii) developing and selling additional
vacation ownership resorts; (iii) pursuing selected acquisitions; and (iv)
improving margins, principally by reducing the cost of the Company's financing.
There is no assurance that these strategies will be successful during future
periods.
The Company's ability to develop and sell additional vacation
ownership resorts will depend on a number of factors, including (i) the
availability of attractive resort development opportunities; (ii) the Company's
ability to acquire unimproved or improved real estate for such opportunities on
economically feasible terms; (iii) the Company's ability to obtain the capital
necessary to finance the acquisition, construction, development, conversion and
expansion of vacation ownership resorts, as well as to cover any necessary
sales, marketing and resort operation expenditures; (iv) the Company's ability
to market and sell VOI's at newly-developed vacation ownership resorts in
accordance with budgeted parameters; and (v) the Company's ability to manage
newly-developed vacation ownership resorts cost-effectively and in a manner
which results in significant customer satisfaction. There can be no assurance
that the Company will be successful with respect to any or all of these factors.
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<PAGE>
USE OF PROCEEDS
Vistana will not receive any proceeds from the offering described in this
prospectus.
SELLING SHAREHOLDERS
The following table sets forth (i) the name of the selling shareholders,
(ii) the number of shares of Vistana common stock currently beneficially owned
by the selling shareholders and (iii) the number of shares of Vistana common
stock which will be beneficially owned by the selling shareholders after the
offering described in this prospectus, assuming the sale of all Vistana common
stock included in this prospectus:
<TABLE>
<CAPTION>
Beneficial Shares Beneficial
Ownership to Be Ownership
Selling Shareholders Prior to Offering Offered(1) After Offering(1)
-------------------- ----------------- ---------- -----------------
<S> <C> <C> <C>
Matthew E. Avril(2) 490,000 200,000 290,000
Carol A. Lytle(3) 520,000 200,000 320,000
Susan Werth(4) 135,500 62,500 73,000
Barbara Hollkamp(5) 100,000 50,000 50,000
William L. McLaughlin(6) 160,500 60,000 100,500
Alain J.A. Grange(7) 166,667 50,000 116,667
</TABLE>
______________
(1) The exact number of shares to be sold by a selling shareholder at any time
or from time to time cannot currently be determined.
(2) Mr. Avril was the Executive Vice President and Chief Operating Officer of
Vistana until December 31, 1998, at which date he resigned and became a
consultant to Vistana. Represents 400,000 shares of Vistana common stock
which may be acquired by Mr. Avril upon the exercise of options granted by
certain of Vistana's principal shareholders and 90,000 shares of Vistana
common stock which may be acquired by Mr. Avril within 60 days after the
date of this prospectus upon the exercise of options granted by Vistana
under the Vistana Stock Plan.
(3) Ms. Lytle is a Senior Vice President of Vistana and President and Co-Chief
Executive Officer of a Vistana subsidiary. Represents 400,000 shares of
Vistana common stock which may be acquired by Ms. Lytle upon the exercise
of options granted by certain of Vistana's principal shareholders and
120,000 shares of Vistana common stock which may be acquired by Ms. Lytle
within 60 days after the date of this prospectus upon the exercise of
options granted by Vistana under the Vistana Stock Plan. Excludes options
to acquire 60,000 shares of Vistana common stock granted by Vistana under
the Vistana Stock Plan which are not exercisable within 60 days after the
date of this prospectus.
(4) Ms. Werth is the Senior Vice President, General Counsel and Secretary of
Vistana. Represents 500 shares of Vistana common stock owned by Ms. Werth,
85,000 shares of Vistana common stock which may be acquired by Ms. Werth
upon the exercise of options granted by certain of Vistana's principal
shareholders and 50,000 shares of Vistana common stock which may be
acquired by Ms. Werth within 60 days after the date of this prospectus upon
the exercise of options granted by
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<PAGE>
Vistana under the Vistana Stock Plan. Excludes (i) an aggregate of 40,000
shares of Vistana common stock which may be aquired upon the exercise of
options granted by certain of Vistana's principal shareholders held by
various trusts, of which Ms. Werth is not trustee, for the benefit of Ms.
Werth's children, (ii) options to acquire 25,000 shares of Vistana common
stock granted by Vistana under the Vistana Stock Plan which are not
exercisable within 60 days after the date of this prospectus and (iii)
1,000 shares of Vistana common stock owned by Ms. Werth's husband for which
she disclaims beneficial ownership.
(5) Represents 100,000 shares of Vistana common stock which may be acquired by
Ms. Hollkamp upon the exercise of options granted by certain of Vistana's
principal shareholders.
(6) Mr. McLaughlin is President and Co-Chief Executive Officer of a Vistana
subsidiary. Represents 3,000 shares of Vistana common stock owned by Mr.
McLaughlin, 120,000 shares of Vistana common stock which may be acquired by
Mr. McLaughlin upon the exercise of options granted by certain of Vistana's
principal shareholders and 37,500 shares of Vistana common stock which may
be acquired by Mr. McLaughlin within 60 days after the date of this
prospectus upon the exercise of options granted by Vistana under the
Vistana Stock Plan. Excludes options to acquire 37,500 shares of Vistana
common stock granted by Vistana under the Vistana Stock Plan and 20,000
shares of Vistana common stock which may be acquired by Mr. McLaughlin upon
exercise of options granted by certain of Vistana's principal shareholders
which are not exercisable within 60 days after the date of this prospectus.
(7) Mr. Grange is President and Chief Executive Officer of a Vistana
subsidiary. Represents 100,000 shares of Vistana common stock which may be
acquired by Mr. Grange upon the exercise of options granted by certain of
Vistana's principal shareholders and 66,667 shares of Vistana common stock
which may be acquired by Mr. Grange within 60 days after the date of this
prospectus upon the exercise of options granted by Vistana under the
Vistana Stock Plan. Excludes options to acquire 33,333 shares of Vistana
common stock granted by Vistana under the Vistana Stock Plan and 40,000
shares of Vistana common stock which may be acquired by Mr. Grange upon
exercise of options granted by certain of Vistana's principal shareholders
which are not exercisable within 60 days after the date of this prospectus.
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<PAGE>
PLAN OF DISTRIBUTION
Vistana is registering these shares of Vistana common stock on behalf of
the selling shareholders. The Vistana common stock covered by this prospectus
may be offered and sold by the selling shareholders, or by purchasers,
transferees, donees, pledgees or other successors in interest, directly or
through brokers, dealers, agents or underwriters who may receive compensation in
the form of discounts, commissions or similar selling expenses paid by a selling
shareholder or by a purchaser of these shares on whose behalf such broker-dealer
may act as agent. Sales and transfers of these shares may be effected from time
to time in one or more transactions, in private or public transactions, on the
Nasdaq, in the over-the-counter market, in negotiated transactions or otherwise,
at a fixed price or prices that may be changed, at market prices prevailing at
the time of sale, at negotiated prices, without consideration or by any other
legally available means. Any or all of these shares may be sold from time to
time by means of:
(a) a block trade, in which a broker or dealer attempts to sell these
shares as agent but may position and resell a portion of these shares as
principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal and the subsequent
sale by such broker or dealer for its account pursuant to this prospectus;
(c) ordinary brokerage transactions (which may include long or short
sales) and transactions in which the broker solicits purchasers;
(d) the writing (sale) of put or call options on these shares;
(e) the pledging of shares as collateral to secure loans, credit or
other financing arrangements and, upon any subsequent foreclosure, the
disposition of shares by the lender thereunder; and
(f) any other legally available means.
To the extent required with respect to a particular offer or sale of these
shares, a prospectus supplement will be filed and will accompany this
prospectus, to disclose (a) the number of shares to be sold, (b) the purchase
price, (c) the name of any broker, dealer or agent effecting the sale or
transfer and the amount of any applicable discounts, commissions or similar
selling expenses, and (d) any other relevant information.
The selling shareholders may transfer these shares by means of gifts,
donations and contributions. This prospectus may be used by the recipients of
such gifts, donations and contributions to offer and sell the shares received by
them, directly or through brokers, dealers or agents and in private or public
transactions; however, if sales pursuant to this prospectus by any such
recipient could exceed 500 shares, a prospectus supplement would be required to
be filed to identify the recipient as a selling shareholder and disclose any
other relevant information. Such prospectus supplement would be required to be
delivered, together with this prospectus, to any purchaser of such shares.
In connection with distributions of these shares or otherwise, the selling
shareholders may enter into hedging transactions with brokers, dealers or other
financial institutions. In connection with such transactions, brokers, dealers
or other financial institutions may engage in short sales of Vistana common
stock in the course of hedging the positions they assume with selling
shareholders. To the extent permitted by applicable law, the selling
shareholders also may sell these shares short and redeliver the shares to close
out such short positions.
The selling shareholders and any broker-dealers who participate in the
distribution of the shares may be deemed to be "underwriters" under the
Securities Act of 1933 and any discounts, commissions or similar selling
expenses they receive and any profit on the resale of the shares purchased by
them may be deemed to be
-8-
<PAGE>
underwriting commissions or discounts. As a result, Vistana has informed the
selling shareholders that Regulation M of the Securities Exchange Act of 1934
may apply to sales by the selling shareholders in the market. The selling
shareholders may agree to indemnify any broker, dealer or agent that
participates in transactions involving the sale of these shares against certain
liabilities, including liabilities arising under the Securities Act of 1933. The
aggregate net proceeds to the selling shareholders from the sale of these shares
will be the purchase price of the shares less any discounts, concessions or
commissions.
Each of the selling shareholders is acting independently of Vistana in
making decisions with respect to the timing, price, manner and size of each
sale. No broker, dealer or agent has been engaged by Vistana in connection with
the distribution of these shares. There is no assurance, therefore, that the
selling shareholders will sell any or all of the shares. In connection with the
offer and sale of the shares, Vistana has agreed to make available to the
selling shareholders copies of this prospectus and any applicable prospectus
supplement and has informed the selling shareholders of the need to deliver
copies of this prospectus and any applicable prospectus supplement to purchasers
at or prior to the time of any sale of the shares covered by this prospectus.
The shares covered by this prospectus may qualify for sale pursuant to
Section 4(1) of the Securities Act of 1933 or Rule 144 promulgated thereunder,
and may be sold pursuant to such provisions rather than pursuant to this
prospectus.
Vistana has agreed to pay all of the expenses incident to the registration
of the shares, other than discounts and selling concessions or commissions, if
any. Pursuant to the agreement executed in February 1997 in connection with
Vistana's initial public offering, (a) Vistana and the selling shareholders have
agreed to indemnify each other against certain liabilities, including
liabilities arising under the Securities Act of 1933, and (b) Vistana has agreed
to keep the registration statement effective for one year or, if earlier, until
such time as the shares are sold. Vistana intends to de-register any of the
shares not sold by the selling shareholders at the end of such period.
LEGAL MATTERS
Neal, Gerber & Eisenberg, who is one of Vistana's law firms, will issue an
opinion about the legality of the securities offered hereby for Vistana.
EXPERTS
The consolidated financial statements of Vistana, Inc. and subsidiaries as
of December 31, 1998 and 1997, and for each of the years in the three-year
period ended December 31, 1998, have been incorporated by reference herein and
in the Registration Statement in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
-9-
<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.............................. $ 2,553
Blue sky fees and expenses........................ 250*
Legal fees and expenses........................... 5,000*
Accounting fees and expenses...................... 4,000*
Miscellaneous..................................... 197*
--------
Total........................................ $12,000*
</TABLE>
________________
* 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.
II-1
<PAGE>
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.
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 a Registration Rights Agreement, each of the selling
shareholders has 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 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 of
securities made by the prospectus forming a part of the Registration Statement,
including liability under the Securities Act of 1933.
Item 16. Exhibits.
5.1 Opinion of Neal, Gerber & Eisenberg.
23.1 Consent of KPMG LLP.
23.2 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of the
Company (included on signature page).
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.
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<PAGE>
(d) The undersigned registrant hereby undertakes that:
(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.
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<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 June 9, 1999.
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 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 June 9, 1999, by the following
persons in the capacities indicated:
Signature Title
--------- -----
/s/ Raymond L. Gellein, Jr. Director, Chairman, and Co-Chief Executive
---------------------------
Raymond L. Gellein, Jr. Officer (Principal Executive Officer)
/s/ Jeffrey A. Adler Director, President and Co-Chief Executive
--------------------
Jeffrey A. Adler Officer
/s/ Charles E. Harris Director, Vice Chairman of the Board, Chief
---------------------
Charles E. Harris Financial Officer and Treasurer (Principal
Financial Officer)
/s/ Mark E. Patten Vice President and Chief Accounting Officer
------------------
Mark E. Patten (Principal Accounting Officer)
------------------------
James G. Brocksmith, Jr. Director
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<PAGE>
/s/ Laurence S. Geller Director
----------------------
Laurence S. Geller
/s/ Steven J. Heyer Director
-------------------
Steven J. Heyer
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<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
5.1 Opinion of Neal, Gerber & Eisenberg
23.1 Consent of KPMG LLP
23.2 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of the Company
(included on signature page).
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<PAGE>
EXHIBIT 5.1
Neal, Gerber & Eisenberg
Two North LaSalle Street, Suite 2200
Chicago, Illinois 60602
June 10, 1999
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 of the
Company's Registration Statement on Form S-3 (the "Registration Statement"),
relating to the proposed offering by the selling shareholders identified therein
of an aggregate of 622,500 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 the
shares of Common Stock covered by the Registration Statement, which may be
acquired by the selling shareholders upon the exercise of options granted to
them by certain principal shareholders of the Company, have been duly and
validly issued and are 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.
<PAGE>
Vistana, Inc.
June 10, 1999
Page 2
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
<PAGE>
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Vistana, Inc. and Subsidiaries:
We consent to the use of our report dated February 10, 1999 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 LLP
Orlando, Florida
June 9, 1999
