EXHIBIT 10.11
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of February 10,
1997 among VISTANA, INC., a Florida corporation (together with its permitted
successors and assigns, the "Company"), and the persons whose signatures appear
on the execution pages of this Agreement (the "Holders") (capitalized and other
terms used herein and not otherwise defined shall have the meanings set forth in
Section 1 hereof).
W I T N E S S E T H:
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WHEREAS, immediately prior to the completion of the Initial Public
Offering, the Holders will own the number of shares of Common Stock, or options
to acquire the number of shares of Common Stock, set forth opposite such
Holder's name on Schedule A attached hereto and incorporated herein by this
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reference; and
WHEREAS, the Company desires to grant to each of the Holders, and each of
the Holders desires to accept, certain rights relating to the registration of
such Holder's Registrable Shares under the Securities Act.
The parties hereto, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, intending to be bound hereby, agree
as follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings:
Advice: See Section 6 hereof.
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Adler means Jeffrey A. Adler and his executors and personal
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representatives.
Affiliate means, as to any person (i) any corporation, partnership, limited
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liability company, joint venture, trust or individual directly or indirectly
through one or more intermediaries controlled by or under common control with
such person, or which controls directly or indirectly through one or more
intermediaries, such person; (ii) a trust which has as its principal income
beneficiaries or remaindermen such person or any direct or indirect holder of
such person, or members of the immediate family of such person or direct or
indirect holder of such person; and (iii) any members of the immediate family of
such person or a member of the immediate family of any direct or indirect holder
of such person. For purposes of this definition, (i) no person, by virtue of
his, her or its direct or indirect
ownership of Shares, shall be deemed to be an Affiliate of another person; (ii)
the terms "control", "controlled" and "common control with" mean the ability,
whether by the direct or indirect ownership of voting securities or other equity
interest, by contract or otherwise, to elect a majority of the directors of a
corporation, to select the managing partner of a partnership, or otherwise to
select, or have the power to remove and then select, a majority of those persons
exercising governing authority over an entity; and (iii) the term "immediate
family" means spouses, siblings and lineal descendants of a person.
Business Day means any day that is not a Saturday, a Sunday or a legal
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holiday on which banking institutions in the State of Florida are not required
to be open.
Cause, with respect to each Executive, has the meaning ascribed thereto in
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the then effective employment agreement, if any, between the Company and such
Executive, as the same may be amended, restated, modified or supplemented.
Change in Control means the occurrence of any one of the following events:
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(i) any (A) consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or which
contemplates that all or substantially all of the business and/ or assets
of the Company shall be controlled by another corporation or (B) a
recapitalization (including an exchange of Company equity securities by the
holders thereof), in either case, in which any "Person" (as such term is
used in Sections 13(d) and 14(d)(2) of the Exchange Act), other than the
Controlling Shareholders, becomes the beneficial owner (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of securities of the
Company representing more than 50% of the combined voting power of the
Company's then outstanding securities ordinarily having the right to vote
in the election of directors;
(ii) any sale, lease, exchange or transfer (in one transaction
or series of related transactions) of all or substantially all of the
assets of the Company and its Affiliates;
(iii) approval by the shareholders of the Company of any plan or
proposal for the liquidation or dissolution of the Company, unless such
plan or proposal is abandoned within 60 days following such approval; or
(iv) any "Person" (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act), other than the Controlling Shareholders,
shall become the beneficial
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owner of securities of the Company representing more than 50% of the
combined voting power of the Company's then outstanding securities
ordinarily having the right to vote in the election of directors.
Claims: See Section 8(a) hereof.
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Closing Date means the date upon which the Initial Public Offering is
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completed.
Common Stock means the Common Stock, $0.01 par value, of the Company, or
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any other shares of capital stock of the Company into which such stock shall be
reclassified or changed (by operation of law or otherwise). If the Common Stock
has been so reclassified or changed, or if the Company pays a dividend or makes
a distribution on its Common Stock in shares of capital stock, or subdivides (or
combines) its outstanding shares of Common Stock into a greater (or smaller)
number of shares of Common Stock, a share of Common Stock shall be deemed to be
such number of shares of capital stock and amount of other securities to which a
holder of a share of Common Stock outstanding immediately prior to such
reclassification, exchange, dividend, distribution, subdivision or combination
would be entitled.
Controlling Shareholders means Gellein, Adler and JGG Holdings Trust, in
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each case together with their respective Affiliates, family members, former
spouses (if applicable) and trusts for the benefit of any of the foregoing.
Cutback Registration means any registration in which the managing
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underwriter advises the Company that marketing factors require a limitation of
the number of Registrable Shares to be underwritten in such registration.
Delay Period: See Section 2(d) hereof.
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Delay Notice: See Section 2(d) hereof.
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Delaying Notice: See Section 3(d) hereof.
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Demand Effectiveness Period: See Section 3(b) hereof.
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Demand Request: See Section 3(a) hereof.
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Effectiveness Period: See Section 2(b) hereof.
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Exchange Act means the Securities Exchange Act of 1934, as amended.
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Executives means (i) each Holder (other than Affiliates of Gellein or
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Adler) and such Holder's respective executors and personal representatives and
(ii) any Person to whom an Affiliate
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of Gellein or Adler grants options to acquire Registrable Shares after the date
hereof (it being understood that any such Person must assume this Agreement in
writing in order to obtain the benefits hereof).
Gellein means Raymond L. Gellein, Jr. and his executors and personal
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representatives.
Good Reason, with respect to each Executive, has the meaning ascribed
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thereto in the then effective employment agreement, if any, between the Company
and such Executive, as the same may be amended, restated, modified or
supplemented.
Holders: See the introductory clauses hereof.
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Initial Public Offering means the sale by the Company of approximately
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4,625,000 shares of Common Stock to the public pursuant to an underwritten
offering.
Notice of Demand Request: See Section 3(a) hereof.
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Permanent Disability, with respect to each Executive, has the meaning
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ascribed thereto in the then effective Employment Agreement, if any, between the
Company and such Executive, as the same may be amended, restated, modified or
supplemented. If an Executive does not have an effective Employment Agreement,
then the term "Permanent Disability" means the inability of the Executive to
perform substantially all Executive's duties and responsibilities to the Company
by reason of a physical or mental disability or infirmity for either (i) a
continuous period of six months or (ii) 180 days during any consecutive twelve-
month period. The date of such Permanent Disability shall be (y), in the case
of clause (i) above, the last day of such six-month period or, if later, the day
on which satisfactory medical evidence of such Permanent Disability is obtained
by the Company, or (z) in the case of clause (ii) above, such date as is
determined in good faith by the Company. In the event that any disagreement or
dispute arises between the Company and Executive as to whether the Executive has
incurred a Permanent Disability, then, in any such event, Executive shall submit
to a physical and/or mental examination by a competent and qualified physician
licensed under the laws of the State of Florida who shall be mutually selected
by the Company and Executive, and such physician shall make the determination of
whether Executive suffers from any disability. In the absence of fraud or bad
faith, the determination of such physician as to Executive's condition at such
time shall be final and binding upon both the Company and the Executive. The
entire cost of any such examination shall be borne solely by the Company.
Person means any individual, corporation, partnership, joint venture,
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association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision
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thereof.
Prospectus means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Shares covered by such Registration Statement and all other
amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Shares means the shares of Common Stock owned, or acquirable,
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by the Holders and their respective Affiliates as more particularly set forth on
Schedule A hereto, until in the case of any such share (i) it has been
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effectively registered under Section 5 of the Securities Act and disposed of
pursuant to an effective Registration Statement under the Securities Act; (ii)
it has been transferred other than pursuant to Rule "4(1-1/2)" (or any similar
private transfer exemption) under the Securities Act; (iii) it may be
transferred by a holder without registration pursuant to Rule 144 under the
Securities Act or any successor rule without regard to the volume limitations
contained in such rule; or (iv) it has ceased to be outstanding.
Registration Documents: See Section 8(a) hereof.
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Registration Statement means any registration statement of the Company that
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covers any of the Registrable Shares pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Requested Registration means a registration demanded pursuant to Section 3
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for which the Registration Statement relating thereto has been declared
effective by the SEC and for which no stop-order suspending the effectiveness of
such registration statement has been issued by the SEC within the Demand
Effectiveness Period which prevents the Holders from completing the distribution
of their Registrable Shares included in such Registration Statement.
SEC means the Securities and Exchange Commission.
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Securities Act means the Securities Act of 1933, as amended.
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Shelf Registration means a registration pursuant to a Registration
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Statement which provides for the sale by the Registrable Shares included therein
from time to time on a delayed
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or continuous basis pursuant to Rule 415 under the Securities Act, but shall not
provide for an underwritten registration (unless the Company, in its sole and
absolute discretion otherwise determines).
Underwritten Registration or Underwritten Offering means a registration in
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which securities of the Company are sold to or through one or more underwriters,
on a firm commitment basis, for reoffering or sale to the public.
Voluntary Termination, with respect to each Executive, has the meaning
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ascribed thereto in then effective employment agreement, if any, between the
Company and such Executive, as the same may be amended, restated, modified or
supplemented.
SECTION 2. Required Shelf Registration.
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(a) (i) Within 45 days prior to each of the second and third
anniversaries of the Closing Date, the Company shall give notice to each of
the Executives and their Affiliates who or which are holders of Registrable
Shares informing such parties that, on or shortly after such anniversary of
the Closing Date, the Company intends to file a registration statement for
the purpose of effecting a Shelf Registration for Registrable Shares of the
Executives and their respective Affiliates pursuant to this Section 2(a).
(ii) Each Executive and his or her Affiliates which hold
Registrable Shares may elect to include in such Shelf Registration up to
50% of such Person's Registrable Shares (determined as of the date hereof)
by giving notice to the Company to such effect within 20 days after the
date of the Company's notice referred to in Section 2(a)(i).
(iii) No Shelf Registration statement effected pursuant to this
Section 2(a) shall include an aggregate number of Registrable Shares in
excess of 5% of the outstanding Common Stock, in each case as of December
31, 1998 or December 31, 1999, respectively. In the event that the
Executives and their Affiliates which hold Registrable Shares seek to
include in any such Shelf Registration a number of Registrable Shares in
excess of such limitation, the Company shall register in such Shelf
Registration the Registrable Shares proposed to be sold by the Executives
and their respective Affiliates on a pro rata basis, based upon the number
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of Registrable Shares that each such party and their Affiliates originally
sought to include in such Shelf Registration.
(iv) The Company shall not be required to effect any Shelf
Registration pursuant to this Section 2(a) unless at least an aggregate of
25,000 Registrable Shares are sought to be included therein.
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(b) (i) Notwithstanding Section 2(a), each Executive shall have
the right to require the Company to effect a Shelf Registration for all of
the Registrable Shares of such Executive and his or her respective
Affiliates in the event of (A) such Executive's death or Permanent
Disability; (B) the termination of such Executive's employment by the
Company without Cause following the Closing Date; (C) a Change in Control;
or (D) Executive's Voluntary Termination of employment by the Company for
Good Reason.
(ii) In order to exercise his or her rights under Section 2(b),
an Executive shall deliver notice to the Company to such effect within 12-
months after the occurrence of any of the events described in Section
2(b)(i).
(c) The Company agrees to use its reasonable best efforts to keep
each Registration Statement filed pursuant to this Section 2 continuously
effective and usable for the resale of Registrable Shares for a period ending on
the earlier of (i) one year, two years in the case of a Registration Statement
filed pursuant to Section 2(b), from the date upon which such Registration
Statement was declared effective and (ii) the first date on which all the
Registrable Shares covered by such Shelf Registration have been sold pursuant to
such Registration Statement.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not be required to file a Registration Statement or
cause it to be declared effective at a time (x) after completion of a fiscal
year end, but prior to the availability of the year end audited financial
statements, (y) when the Company, in the good faith judgement of its board of
directors shall determine that any offering of Registrable Shares would impede,
delay or otherwise interfere with any pending or contemplated acquisition or
other material transaction involving the Company or (z) when the Company is in
possession of material information which, in the good faith judgment of the
Company's board of directors, if disclosed in a Registration Statement, would be
materially harmful to the interests of the Company and its holders (any such
period in clauses (y) or (z) is referred to as a "Delay Period"). A Delay
Period shall commence on and include the date that the Company gives written
notice (such notice referred to herein as the "Delay Notice") to the Holders
that it is not required to file a Registration Statement or cause it to be
declared effective pursuant to the provisions of this Section 2(d) and shall end
on the date when the Holders are advised in writing by the Company that the
current Delay Period is over (it being understood that the Company shall give
such notice to all Holders promptly upon making the determination that the Delay
Period is over); provided; however, that the Company shall not be entitled to
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Delay Periods having durations that exceed 120 days in the
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aggregate during any calendar year. Each Holder shall cease all disposition
efforts with respect to Registrable Shares held by them immediately upon receipt
of a Delay Notice.
(e) The time period for which the Company is required to maintain the
effectiveness of any Registration Statement shall be extended by the aggregate
number of days of all Delay Periods and such time period or the extension
thereof required by the preceding sentence is hereafter referred to as the
"Effectiveness Period."
(f) All registrations under this Section 2 shall be effected by the
Company's filing of a Registration Statement on Form S-2 or S-3 or any similar
short-form Registration Statement. If the Company is not eligible to use Form
S-2 or S-3 or any similar short-form Registration Statement at the time a
Registration Statement is required to be filed pursuant to this Section 2, the
rights of the each Executive hereunder shall be extended until the Company
becomes so eligible.
(g) The Company may, in its sole discretion, include other securities
in such Shelf Registration (whether for the account of the Company or other
Persons or otherwise combine the offering of the Registrable Shares with any
offering of other securities of the Company (whether for the account of the
Company or otherwise).
SECTION 3. Requested Registration.
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(a) At any time after the third anniversary of the Closing Date, each
of Gellein and Adler shall have the right to require the Company, by written
request (the "Demand Request"), to effect an Underwritten Registration with
respect to Registrable Shares owned by such individuals, if any, and their
respective Affiliates. The Company will give prompt written notice (the "Notice
of Demand Request") of such demand for an Underwritten Registration to all
Holders and thereupon the Company shall, as expeditiously as reasonably
practicable, file a Registration Statement relating to the registration under
the Securities Act of the Registrable Shares which the Company has been so
requested to register by the demanding Holder and all other Registrable Shares
as to which Holders (other than the demanding Holder) shall have made a written
request to the Company for registration thereof within 30 days after the Notice
of Demand Request, all to the extent necessary to permit the sale or other
disposition in an Underwritten Offering by such Holders of the Registrable
Shares to be so registered; provided; however, that (i) if such registration is
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a Cutback Registration, the Company shall register in such registration (A)
first, the Registrable Shares proposed to be sold by Gellein and Adler and their
respective Affiliates on a pro rata basis, based upon the number of Registrable
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Shares that each such party and their Affiliates originally sought to include in
such
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registration and (B) second, the Registrable Shares proposed to be sold by each
of the Holders and their respective Affiliates, other than Gellein and Adler and
their respective Affiliates, on a pro rata basis, based upon the number of
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Registrable Shares that each such party and their respective Affiliates
originally sought to include in such registration; and (ii) that the Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 4(a) (A) within 90 days (or
such other date as may be agreed between the Company, the Holders, and the
managing underwriter of an Underwritten Offering of Registrable Shares)
immediately following the effective date of any Registration Statement
pertaining to such an Underwritten Offering; (B) if a Requested Registration has
become effective under the Securities Act within the past 360 days; or (C) if
the demanding Holder has requested the registration of a number of Registrable
Shares which is less than 5% of the outstanding Common Stock or greater than 15%
of the outstanding Common Stock, in each case set forth in the Company's
Quarterly Report on Form 10-Q (or any successor form) for the Company's most
recently completed fiscal quarter prior to the Company's receipt of the Demand
Request.
(b) The Company agrees to keep each Registration Statement filed
pursuant to this Section 3 continuously effective and usable for the resale of
Registrable Shares for a period of up to 90 days or until all Registrable Shares
included in such Registration Statement have completed the distribution
described in the Registration Statement relating thereto, whichever first occurs
(the "Demand Effectiveness Period"), provided, however, that during such 90-day
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period the Company may give notice to all such Holders that the Registration
Statement or the prospectus included therein is no longer usable for offers and
sales of Registrable Shares, in which case the 90-day period will be tolled
until such time as each such Holder and the managing underwriter of such
Underwritten Offering either receives copies of a supplemented or amended
prospectus or is advised in writing by the Company that use of the prospectus
may be resumed (it being understood that in such case the Company shall promptly
comply with its obligations under Section 6(a)).
(c) The Company, if eligible to do so, shall file a Registration
Statement covering the Registrable Shares so requested to be registered on Form
S-2 or S-3 or any similar short-form registration under the Securities Act as
soon as reasonably practicable after the receipt of the Demand Request;
provided, however, that if the managing underwriter of such Underwritten
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Offering shall advise the Company in writing that, in its opinion, the use of
another form of Registration Statement is of material importance to the success
of such proposed Underwritten Offering, then such Underwritten Registration
shall be effected on such other form.
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(d) Each of Gellein and Adler shall be entitled to two Requested
Registrations. Notwithstanding anything contained in this Section 3, if (x) the
SEC has issued a stop-order as a result of actions taken by a demanding Holder
or (y) a demanding Holder gives notice (the "Delaying Notice"), at any time
prior to the time the Registration Statement is declared effective or prior to
the last day of Demand Effectiveness Period, that such demanding Holder desires
the Company to either withdraw the Registration Statement with the SEC, if the
Registration Statement has been filed with the SEC, or postpone filing the
Registration Statement, if the Registration Statement has not been filed with
the SEC and the Company is immediately able to file the Registration Statement,
then, in the case of clause (x) herein, the issuance of the stop-order, or, in
the case of clause (y) herein, the Delaying Notice, shall reduce by one the
number of Requested Registrations to which such demanding Holder is entitled.
(e) An Underwritten Registration requested pursuant to this Section 3
shall not be deemed to have been effected unless the Registration Statement
relating thereto and any post-effective amendment required to commence the
Underwritten Offering contemplated thereby has been declared effective by the
SEC and maintained continuously effective for the Demand Effectiveness Period.
(f) The right of any Holder to registration pursuant to this Section
3 shall be conditioned upon inclusion of the Registrable Shares held by the
Holder in the underwriting and the Holder entering into an underwriting
agreement, in a form reasonably acceptable to the Company, with the underwriter
or underwriters selected for such underwriting by the demanding Holder which are
reasonably satisfactory to the Company. The Company shall enter an underwriting
agreement with a managing underwriter or underwriters of an Underwritten
Offering containing representations, warranties, indemnities and agreements
customarily included (but not inconsistent with the agreements contained herein)
by an issuer of common stock in underwriting agreements with respect to
offerings of common stock for the account of, or on behalf of, selling holders.
The Company may include securities for its own account or the account of any
other Person in such registration if the managing underwriter so agrees and if
so doing would not make such registration a Cutback Registration.
SECTION 4. Piggyback Registration.
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(a) If, in connection with an Underwritten Offering (other than the
Initial Public Offering), the Company proposes to register under the Securities
Act any of the Company's securities for its account or for the account of any
other Person (other than a registration relating solely to employee stock option
or employee stock purchase plans or pursuant to Form S-4 (or successor form)
under the Securities Act), the Company shall:
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(i) promptly give to each Holder written notice thereof (which
written notice shall include a list of jurisdictions in which the Company
intends to attempt to qualify such securities under or otherwise comply
with the applicable blue sky or other state securities laws); and
(ii) include in such registration (and any related qualification
under or other compliance with blue sky or other state securities laws),
and in the underwriting involved therein, all the Registrable Shares
specified in a written request, made within 15 days from such written
notice from the Company, by any Holder; provided that if such registration
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is a Cutback Registration, then (x) if such registration is a primary
registration on behalf of the Company, the Company shall register in such
registration (A) first, the Company securities which the Company proposes
to sell in such registration, and (B) second, Registrable Shares held by
each Holder and such Holder's Affiliates, on a pro rata basis, based upon
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the number of Registrable Shares the Holders and their respective
Affiliates originally sought to include in such registration ; provided,
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however, that no Executive, together with such Executive's Affiliates,
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shall, by virtue of this Section 4(a)(ii)(x)(B), be permitted to include in
any registration statement contemplated by this Section 4, a number of
Registrable Shares which, when aggregated with all other registrations of
Registrable Shares held by such Executive and such Executive's Affiliates,
exceeds the limitations described in Section 2(a) (unless an event
described in Section 2(b)(i) has occurred); (y) if such registration is a
secondary registration on behalf of a holder of Company securities pursuant
to Section 3 hereof, the Company shall register in such registration the
Registrable Shares determined in accordance with clause (i) of the proviso
to Section 3(a) hereof; and (z) if such registration is a secondary
registration on behalf of a holder of Company securities, the Company shall
register in such registration (A) first, the Registrable Shares proposed to
be sold by the holder thereof; and (B) second, Registrable Shares held by
each Holder and such Holder's Affiliates, on a pro rata basis, based upon
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the number of Registrable Shares the Holders and their Affiliates
originally sought to include in such registration; provided, however, that
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no Executive, together with such Executive's Affiliates, shall, by virtue
of this Section 4(a)(ii)(z)(B), be permitted to include in any registration
statement contemplated by this Section 4, a number of Registrable Shares
which, when aggregated with all other registrations of Registrable Shares
held by such Executive and such Executive's Affiliates, exceeds the
limitations described in Section 2(a) (unless an event described in Section
2(b)(i) has occurred).
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(b) Notwithstanding anything in this Section 4, the Company shall not
be required under Section 4(a)(ii) to include any Registrable Shares in any
registration unless an aggregate of 25,000 or more Registrable Shares are sought
to be included in such registration pursuant to Section 4(a)(ii).
(c) The right of any Holder to registration pursuant to this Section
shall be conditioned upon the inclusion of the Registrable Shares held by the
Holder in the underwriting and the Holder entering into an underwriting
agreement, in a form reasonably acceptable to the Company, with the underwriter
or underwriters selected for such underwriting by the Company, or the Holder
requesting registration, as the case may be.
SECTION 5. Hold-Back Agreements.
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(a) Each holder of Registrable Shares agrees, if such holder is
reasonably requested by an underwriter in an Underwritten Offering for the
Company (whether for the account of the Company or otherwise), not to effect any
public sale or distribution of any of the Company's equity securities, including
a sale pursuant to Rule 144 (except as part of such Underwritten Registration),
during the 10-day period prior to, and during the 90-day period beginning on,
the closing date of such Underwritten Offering.
(b) The Company agrees, to the extent not inconsistent with
applicable law, and if and to the extent requested by the managing underwriter
of an Underwritten Registration of Registrable Shares pursuant to Section 3
hereof, not to effect any public sale or distribution of any of its equity
securities or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (other than any such sale or distribution
of such securities on Form S-4 or in connection with an employee stock option or
other benefit plan) during the 15 days prior to, and for a period of 90 days (or
such longer period as the underwriters of such Underwritten Offering may
reasonably request) beginning on, the effective date of such Registration
Statement (except as part of such registration).
SECTION 6. Registration Procedures.
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In connection with the registration obligations of the Company pursuant to
and in accordance with Sections 2, 3 and 4 hereof (and subject to the Company's
rights under Sections 2, 3 and 4), the Company will use its reasonable best
efforts to effect such registration to permit the sale of such Registrable
Shares in accordance with the intended method or methods of disposition thereof,
and pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on any
form which the Company shall deem appropriate
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(unless the managing underwriter of an Underwritten Offering shall specify the
form to be used for such Registration Statement), and which form shall be
available for the sale of the Registrable Shares as part of such registration,
and use its reasonable best efforts to cause such Registration Statement to
become effective;
(b) before filing with the SEC any such Registration Statement or
prospectus or any amendments or supplements thereto, the Company shall furnish
to one counsel selected by the holders of a majority of the Registrable Shares
covered by such Registration Statement and counsel for the underwriter, if any,
in connection therewith, drafts of all such documents proposed to be filed and
provide such counsel with a reasonable opportunity for review thereof and
comment thereon, such review to be conducted and such comments to be delivered
with reasonable promptness;
(c) use its reasonable best efforts to keep such Registration
Statement effective for the period required by the applicable provision of this
Agreement;
(d) notify the selling holders of Registrable Shares promptly and (if
requested by any such Person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
for amendments or supplements to a Registration Statement or related Prospectus
or for additional information regarding such holder, (iii) of the issuance by
the SEC of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and (v) of the happening of any event that requires the making
of any changes in such Registration Statement, Prospectus or documents so that
they will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(e) except during any Delay Period, upon the occurrence of any event
contemplated by paragraph 6(d)(ii) or 6(d)(v) above, prepare a supplement or
post-effective amendment to each Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Shares being sold thereunder, such Prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
-13-
(f) use its best reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification or exemption from qualification of any of
the Registrable Shares for sale in any jurisdiction in the United States;
(g) if requested by the selling holders, furnish to counsel for the
selling holders of Registrable Shares, without charge, one conformed copy of
each Registration Statement as declared effective by the SEC and of each post
effective amendment thereto, in each case including financial statements and
schedules and all exhibits and reports incorporated or deemed to be incorporated
therein by reference; and such number of copies of the preliminary prospectus,
each amended preliminary prospectus, each final Prospectus and each post
effective amendment or supplement thereto, as the selling holders may reasonably
request in order to facilitate the disposition of the Registrable Shares covered
by each Registration Statement in conformity with the requirements of the
Securities Act;
(h) prior to any public offering of Registrable Shares, register or
qualify such Registrable Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions in the United States as any selling holder shall
reasonably request in writing; and do any and all other reasonable acts or
things necessary or advisable to enable such holders to consummate the
disposition in such jurisdictions of such Registrable Shares covered by the
Registration Statement; provided, however, that the Company shall in no event be
required to qualify generally to do business as a foreign corporation or as a
dealer in any jurisdiction where it is not at the time so qualified or to
execute or file a general consent to service of process in any such jurisdiction
where it has not theretofore done so or to take any action that would subject it
to general service of process or taxation in any such jurisdiction where it is
not then subject;
(i) cause all Registrable Shares covered by the Registration
Statement to be listed on each securities exchange and included in the over-the-
counter market, if any, on which similar securities issued by the Company are
then listed or traded;
(j) if requested by the managing underwriter or underwriters of any
registration or by the holders of a majority of the Registrable Shares included
in any Registration Statement, subject to approval of counsel to the Company in
its reasonable judgement, promptly incorporate in a prospectus, supplement or
post-effective amendment to the Registration Statement such information
concerning underwriters and the plan of distribution of the Registrable Shares
as such managing underwriter or underwriters or such holders reasonably shall
furnish to the Company in writing
-14-
and request be included therein, including, without limitation, with respect to
the number of Registrable Shares being sold by such holders to such underwriter
or underwriters, the purchase price being paid therefor by such underwriter or
underwriters and with respect to any other terms of the Underwritten Offering of
the Registrable Shares to be sold in such offering; and make all required
filings of such prospectus, supplement or post-effective amendment as soon as
reasonably possible after being notified of the matters to be incorporated in
such prospectus, supplement or post-effective amendment;
(k) make available for inspection by any seller of Registrable
Shares, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter (in each case in a manner which minimizes
disruption of the Company's business), all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees, attorneys and independent accountants
to supply all information in each case reasonably requested by any such sellers,
underwriters, attorneys, accountants or agents in connection with such
Registration Statement, subject to the right of the Company to limit access to
any such information (i) to the extent that the Company is restricted from
providing such information pursuant to any bona fide confidentiality agreement
to which the Company or any of its subsidiaries or Affiliates is a party and
(ii) the Company shall have delivered to each seller of the Registrable Shares a
certificate duly executed by the chief executive officer of the Company stating
that such information does not contain any material information that has not
been publicly disclosed and which would be required to be disclosed in, or which
would materially affect any information required to be disclosed in, such
Registration Statement;
(l) comply with all applicable laws related to such Registration
Statement and offering and sale of securities and all applicable rules and
regulations of governmental authorities in connection therewith (including,
without limitation, the Securities Act and the Exchange Act, and the rules and
regulations promulgated by the SEC) and make generally available to its security
holders as soon as practicable (but in any event not later than fifteen (15)
months after the effectiveness of such Registration Statement) an earnings
statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act;
(m) deliver promptly to each Holder participating in a registration
copies of all correspondence between the SEC and the Company, its counsel or
auditors and all memoranda relating to discussions with the SEC or its staff
with respect to the Registration Statement;
(n) provide a transfer agent and registrar for all such
-15-
Registrable Shares covered by such Registration Statement not later than the
effective date of such Registration Statement;
(o) with respect to an Underwritten Registration only, obtain an
opinion from the Company's counsel and "cold comfort" letters from the Company's
independent public accountants (including one letter when such Registration
Statement goes effective and one at the closing) in customary form and covering
such matters of the type customarily covered by such opinions and "cold comfort"
letters;
(p) make any necessary arrangements with The Depository Trust
Company;
(q) cause unlegended stock certificates for the Registrable Shares to
be prepared and printed;
(r) make any necessary filings with the National Association of
Securities Dealers, Inc., or with respect to an Underwritten Registration only,
assist the underwriters to make any necessary filings.
The Company may require each seller of Registrable Shares as to which
any registration is being effected to furnish such information regarding the
distribution of such Registrable Shares and as to such seller as it may from
time to time reasonably request. If any such information with respect to any
seller is not furnished prior to the filing of the Registration Statement, the
Company may exclude such seller's Registrable Shares from such Registration
Statement.
Each holder of Registrable Shares agrees by acquisition of such
Registrable Shares that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(d)(ii), 6(d)(iii),
6(d)(iv) or 6(d)(v) hereof or upon notice of the commencement of any Delay
Period, such holder shall forthwith discontinue disposition of such Registrable
Shares covered by such Registration Statement or Prospectus until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(e) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amended or supplemented Prospectus or any additional or
supplemental filings which are incorporated, or deemed to be incorporated, by
reference in such Prospectus and, if requested by the Company, such holder shall
deliver to the Company (at the expense of the Company) all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Shares at the time of receipt of such request. Each
holder of Registrable Shares further agrees not to utilize any material other
than the applicable current Prospectus in connection with the offering of
Registrable Shares pursuant to this Agreement.
-16-
SECTION 7. Registration Expenses.
---------------------
Whether or not any Registration Statement becomes effective, the Company
shall pay all costs, fees and expenses incident to the Company's performance of
or compliance with this Agreement including, without limitation, (i) all
registration and filing fees, (ii) fees and expenses of compliance with
securities or Blue Sky laws, (iii) printing expenses (including, without
limitation, expenses of printing of prospectuses if the printing of prospectuses
is requested by the holders of a majority of the Registrable Shares included in
any Registration Statement), (iv) fees and disbursements of counsel for the
Company, (v) fees and disbursements of all independent certified public
accountants of the Company and all other Persons retained by the Company in
connection with the Registration Statement, (vi) to the extent an Underwritten
Registration is involved in accordance with the terms of this Agreement, to the
extent provided in the underwriting agreement, all fees and expenses of
underwriters in connection therewith (excluding discounts and commissions) and
(vii) the reasonable fees and expenses of no more than one counsel for the
holders (as a group) of the Registrable Shares included in such registration.
Notwithstanding the foregoing, any discounts, commissions, underwriting or
advisory fees, brokers' fees or fees of similar securities industry professional
(including any "qualified independent underwriter" retained for the purpose of
Section 3 of Schedule E of the By-laws of the National Association of Securities
Dealers, Inc.) relating to the distribution of the Registrable Shares will be
payable by such holder and the Company will have no obligation to pay any such
amounts.
SECTION 8. Indemnification.
---------------
(a) In connection with any Registration Statement effected or to be
effected pursuant to this Agreement, the Company shall indemnify each holder of
Registrable Shares included in such Registration Statement and each Person who
controls (within the meaning of Section 15 of the Securities Act) such holder of
Registrable Shares from and against all losses, claims, damages, liabilities or
expenses, joint or several, or actions in respect thereof ("Claims") to which
each such indemnified party may become subject, under the Securities Act or
otherwise, insofar as such Claims (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or prospectus or any
preliminary prospectus or summary or final prospectus or any amendment or
supplement thereto or any document filed under a state securities or blue sky
law (collectively, "Registration Documents") or insofar as such Claims arise out
of or are based upon the omission or alleged omission to state in any
Registration Document a material fact required to be stated therein or necessary
to make the statements made therein not misleading; provided that the
--------
-17-
Company shall not be liable in any such case to the extent such Claim arises out
of or is based upon an untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact made in any
Registration Document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such indemnified party
specifically for use in the preparation of such Registration Document.
(b) In connection with any Registration Statement effected or to be
effected pursuant to this Agreement, each holder of Registrable Shares included
in such Registration Statement shall indemnify the Company, its directors,
officers, employees or agents, and each Person who controls (within the meaning
of Section 15 of the Securities Act) the Company from and against all Claims to
which each such indemnified party may become subject under the Securities Act or
otherwise, insofar as such Claims (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Document, or insofar as such Claims
arise out of or are based upon the omission or alleged omission to state in any
Registration Document a material fact required to be stated therein or necessary
to make the statements made therein not misleading; provided, however, that such
-------- -------
indemnification or reimbursement shall be payable only if, and to the extent
that, any such Claim arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact made in any Registration Document in reliance upon and in
conformity with written information furnished to the Company by such holder of
Registrable Shares specifically for use in the preparation of such Registration
Document; provided further, however, that no holder of Registrable Shares shall
-------- ------- -------
be liable under this Section 7(b) for any amounts in excess of the dollar amount
of the gross proceeds to be received by such Holder from the sale of its
Registrable Shares pursuant to such registration.
(c) Any Person entitled to indemnification under Section 8(a) or 8(b)
above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party pursuant to this Section 8, but the
omission of such notice shall not relieve the indemnifying party from any
liability which it may have to any indemnified party, except to the extent that
the indemnifying party has been materially prejudiced by such failure to provide
such notice. In case any action is brought against the indemnified party and it
shall notify the indemnifying party in writing of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof with counsel satisfactory to the indemnified party;
and, after notice from the indemnifying party to the indemnified party that it
so
-18-
chooses, the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
-------- -------
that (i) if the indemnifying party fails to take reasonable steps necessary to
defend diligently the Claim within twenty (20) days after receiving notice from
the indemnified party that the indemnified party believes it has failed to do
so; or (ii) if the indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party reasonably shall
have concluded that there may be legal defenses available to the indemnified
party which are not available to the indemnifying party; or (iii) if
representation of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct, the indemnified party shall
have the right to assume or continue its own defense as set forth above (but
with no more than one firm of counsel for all indemnified parties in each
jurisdiction, except to the extent any party or parties reasonably shall have
concluded that there may be legal defenses available to such party or parties
which are not available to the other indemnified parties or to the extent
representation of all indemnified parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct) and the
indemnifying party shall be liable for any reasonable expenses therefor;
provided, that no indemnifying party shall be subject to any liability for any
- --------
settlement of a Claim made without its consent (which may not be unreasonably
withheld). If the indemnifying party assumes the defense of any Claim hereunder,
such indemnifying party shall not enter into any settlement without the consent
of the indemnified party if such settlement attributes liability to the
indemnified party (which consent may not be unreasonably withheld).
(d) If for any reason the foregoing indemnity is unavailable, or is
insufficient to hold harmless, an indemnified party, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of any Claim in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among-other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 8(d) were determined by pro rata allocation or by any other
--- ----
method of allocation which does not take account of the equitable considerations
referred to above in this Section.
SECTION 9. Miscellaneous.
-------------
-19-
9.1 Termination. This Agreement and the obligations of the Company
-----------
hereunder shall terminate on the earliest of (i) the first date on which no
Registrable Shares remain outstanding, and (ii) the close of business on the
last day of the last Effectiveness Period or Demand Effectiveness Period,
whichever is later.
9.2 Rule 144. The Company hereby covenants that, from and after the
--------
Closing date, the Company will file in a timely manner all reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder (or, if the Company is not required to
file such reports, it will, upon the request of any holder of Registrable
Shares, make publicly available other information so long as necessary to permit
sales under Rule 144 under the Securities Act), and it will take such further
action as any holder of Registrable Shares may reasonably request, all to the
extent required from time to time to enable such holder to sell Registrable
Shares without registration under the Securities Act within the limitation of
the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC.
9.3 Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this Section 9.3 may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of holders
representing a majority of the Registrable Shares. Notwithstanding the
foregoing, (i) the provisions of Section 2 hereof may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions
thereof may not be given, unless the Company has obtained the written consent
representing a majority of the Registrable Shares then held by the Executives
and their respective Affiliates; and (ii) a waiver or consent to depart from the
provisions hereof with respect to a matter which relates exclusively to the
rights of holders of Registrable Shares whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of a holder whose securities are not being sold pursuant to such
Registration Statement may be given by holders of a majority of the Registrable
Shares being sold by such holders.
9.4 Notices. All notices, requests, demands and other communications
-------
required or permitted hereunder shall be in writing and shall be deemed given:
when delivered personally; one Business Day after being deposited with a next-
day air courier; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back if telexed and when receipt is
acknowledged, if telecopied, in each case to the Company at 8801 Vistana Centre
Drive, Orlando, Florida 32821 and to each Holder at the address specified for
such Holder on Schedule A (or
----------
-20-
at such other address for a party as shall be specified by like notice: provided
--------
that notices of a change of address shall be effective only upon receipt
thereof).
9.5 Successors and Assigns. This Agreement, other than the provisions of
----------------------
Section 3, shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties; provided, however, that no party may assign its
-------- -------
rights under this Agreement to any third party (other than an assignment by a
Holder of rights to an Affiliate of such Holder in connection with a transfer of
Registrable Shares to such Affiliate) without the prior written consent of the
Company (which may be given or withheld in the Company's sole and absolute
discretion). The provisions of Section 3 shall not be assignable by Gellein or
Adler.
9.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9.7 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
9.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT
TO THE PROVISIONS THEREOF GOVERNING CONFLICT OF LAWS PRINCIPLES.
9.9 Severability. If any term, provision, covenant or restriction of this
------------
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
9.10 Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the
-21-
Registrable Shares described on Schedule A. This Agreement supersedes all prior
----------
agreements and understandings between the parties with respect to such subject
matter.
9.11 Calculation of Time Periods. Except as otherwise indicated, all
---------------------------
periods of time referred to herein shall include all Saturdays, Sundays and
holidays; provided, that if the date to perform the act or give any notice with
respect to this Agreement shall fall on a day other than a Business Day, such
act or notice may be timely performed or given if performed or given on the next
succeeding Business Day.
9.12 Existing Registration Rights; No Inconsistent Agreements. The Company
--------------------------------------------------------
represents and warrants that there are no existing agreements with respect to
its securities which are inconsistent with the rights granted to the holders of
Registrable Shares in this Agreement or otherwise conflict with the provisions
hereof and agrees that it will not enter into any agreements which are
inconsistent with or limit or impair the rights granted to the holders of
Registrable Shares prior to the termination of this Agreement. Each Holder
represents and warrants that there are no existing agreements with respect to
such Holder's Registrable Shares which are inconsistent with the rights of such
Holder in this Agreement or otherwise conflict with the provisions hereof and
agrees that such Holder will not enter into any agreements which are
inconsistent with or limit or impair the rights of such Holder prior to the
termination of this Agreement.
9.13 Equitable Relief. Each party hereto specifically acknowledges and
----------------
agrees that the remedy at law for any breach of its obligations hereunder will
be inadequate and that, in addition to any other relief available to the non-
breaching parties, the non-breaching parties shall be entitled to temporary and
permanent injunctive relief without the necessity of proving actual damages.
9.14 Attorneys' Fees and Costs. In the event a dispute arises between the
-------------------------
parties hereto and suit is instituted, the prevailing party or parties in such
litigation shall be entitled to recover reasonable attorneys' fees and other
costs and expenses from the non-prevailing party or parties, whether incurred at
the trial level or in any appellate proceeding.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-22-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COMPANY:
-----------
VISTANA, INC., a Florida corporation
By: /s/ Raymond L. Gellein, Jr.
---------------------------------
Name: Raymond L. Gellein, Jr.
Title: Chairman of the Board
By: /s/ Jeffrey A. Adler
---------------------------------
Name: Jeffrey A. Adler
Title: President
THE HOLDERS:
-----------
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Raymond L.
Gellein, Jr. Revocable Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Raymond L.
Gellein, Jr. Grantor Retained Annuity Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Matthew
James Gellein Irrevocable Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Brett
Tyler Gellein Irrevocable Trust
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-23-
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of JGG Holdings
Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Janice G.
Gellein Grantor Annuity Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Catherine
Male Gift Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of the Cherie
Doherty Gift Trust
/s/ Raymond L. Gellein, Jr.
---------------------------------------------
Raymond L. Gellein, Jr., Trustee of Susan Faetz
Gift Trust
/s/ Jeffrey A. Adler
---------------------------------------------
Jeffrey A. Adler, Trustee of the Jeffrey A. Adler
Revocable Trust
/s/ Jeffrey A. Adler
---------------------------------------------
Jeffrey A. Adler, Trustee of the Jeffrey A. Adler
Grantor Annuity Trust #1
/s/ Jeffrey A. Adler
---------------------------------------------
Jeffrey A. Adler, Trustee of the Jeffrey A. Adler
Grantor Annuity Trust #2
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-24-
/s/ Lee I. Miller
--------------------------------------
Lee I. Miller, Trustee of the ARA Trust
/s/ Lee I. Miller
-------------------------------------
Lee I. Miller, Trustee of the DLA Trust
/s/ Matthew E. Avril
-------------------------------------
Matthew E. Avril
/s/ Susan B. Werth
-------------------------------------
Susan B. Werth
/s/ Carol A. Lytle
-------------------------------------
Carol A. Lytle
/s/ Barbara Hollkamp
-------------------------------------
Barbara Hollkamp
/s/ James A. McKnight
-------------------------------------
James A. McKnight
/s/ William J. McLaughlin
-------------------------------------
William J. McLaughlin
/s/ Alain J.A. Grange
-------------------------------------
Alain J.A. Grange
/s/ John M. Sabin
-------------------------------------
John M. Sabin
-25-
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
THE UNDERSIGNED EXECUTE THIS
AGREEMENT SOLELY FOR PURPOSES
OF SECTION 3 HEREOF:
/s/ Raymond L. Gellein, Jr.
- ----------------------------------
Raymond L. Gellein, Jr.
/s/ Jeffrey A. Adler
- ----------------------------------
Jeffrey A. Adler
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
-26-
SCHEDULE A
----------
Holders
-------
No. of No. of Shares
Name and Address/(1)/ Shares s/t Options
- ------------------------------ --------- -------------
Raymond L. Gellein, Jr. 3,203,550 -
Revocable Trust
c/o Raymond L. Gellein, Jr.,
Trustee
Raymond L. Gellein, Jr. 254,440 -
Grantor Retained Annuity
Trust
c/o Raymond L. Gellein, Jr.,
Trustee
Matthew James Gellein 42,880 -
Irrevocable Trust
c/o Raymond L. Gellein, Jr.,
Trustee
Brett Tyler Gellein 42,880 -
Irrevocable Trust
c/o Raymond L. Gellein, Jr.,
Trustee
JGG Holdings Trust 3,203,550 -
c/o Raymond L. Gellein, Jr.,
Trustee
Janice G. Gellein Grantor 278,700 -
Annuity Trust
c/o Raymond L. Gellein, Jr.,
Trustee
Catherine Male Gift Trust 20,500 -
c/o Raymond L. Gellein, Jr.,
Trustee
Cherie Doherty Gift Trust 20,500 -
c/o Raymond L. Gellein, Jr.,
Trustee
Susan Faetz Gift Trust 20,500 -
c/o Raymond L. Gellein, Jr.,
Trustee
S-1
No. of
Name and Address (continued) Shares
---------------------------- ------
Jeffrey A. Adler Revocable Trust 6,854,500 -
c/o Jeffrey A. Adler,
Trustee
Jeffrey A. Adler Grantor Annuity 50,000 -
Trust #1
c/o Jeffrey A. Adler,
Trustee
Jeffrey A. Adler Grantor Annuity 60,000 -
Trust #2
c/o Jeffrey A. Adler,
Trustee
ARA Trust 61,500 -
c/o Lee I. Miller,
Trustee
Suite 1800
203 North LaSalle Street
Chicago, Illinois 60601-1293
DLA Trust 61,500 -
c/o Lee I. Miller,
Trustee
Suite 1800
203 North LaSalle Street
Chicago, Illinois 60601-1293
Matthew E. Avril - 400,000
3856 Hunters Isle Drive
Orlando, Florida 32837
Susan B. Werth - 125,000
1725 South Bayshore Drive
Miami, Florida 33133
Carol A. Lytle - 400,000
9017 Crichton Wood Drive
Orlando, Florida 32819
Barbara Hollkamp - 100,000
2916 Sunbittern Court
Windermere, Florida 34786
James A. McKnight - 100,000
1011 Greentree Drive
Winter Park, Florida 32789
S-2
No. of
Name and Address (continued) Shares
---------------------------- ------
William J. McLaughlin - 100,000
9649 Wild Oak Drive
Windermere, Florida 34786
Alain J.A. Grange - 100,000
9020 Classic Court
Orlando, Florida 32819
John M. Sabin - 25,000
14709 Lancraft Court
Darnestown, Maryland 20874
---------- ---------
14,175,000 1,350,000
========== =========
______________________
/(1)/ Unless otherwise specified, all addresses are 8001 Vistana Centre Drive,
Orlando, Florida 32821.
S-3