As filed with the Securities and Exchange Commission on December 23, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
VISTANA, INC.
(Exact name of Registrant as specified in its charter)
--------------------
Florida 59-3415620
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8801 Vistana Centre Drive
Orlando, Florida 32821
(407) 239-3000
(Address, including zip code, and telephone number, including area code, of
Registrant's executive offices)
--------------------
Vistana, Inc. Stock Plan
------------------------
(Full title of the plan)
Raymond L. Gellein, Jr.
Chairman of the Board
Vistana, Inc.
8801 Vistana Centre Drive
Orlando, Florida 32821
(407) 239-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
ROSS D. EMMERMAN, ESQ.
Neal, Gerber & Eisenberg
Two North LaSalle Street
Chicago, Illinois 60602
(312) 269-8000
--------------------
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Registered Offering Price Per Unit Aggregate Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
Common Stock,
$0.01 par value 1,900,000 shares(1) 19.75(2) 37,525,000(2) $11,070
=====================================================================================================================
(1) Plus an indeterminate number of shares which may be issued as a result of
the anti-dilution provisions contained in the above-referenced Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457 (h) under the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices of the
Company's Common Stock as reported on the National Market System of the NASD
on December 18, 1997.
================================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Vistana, Inc. (the "Registrant" or the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference and made a part hereof:
(a) The Registrant's Prospectus dated November 26, 1997 (File No.
333-38187) filed pursuant to Rule 424(b)(4) under the Securities Act
of 1933, as amended;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1997;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1997, and Form 10-Q/A amending the
Company's Form 10-Q for the quarterly period ended September 30, 1997;
(f) The Registrant's Current Report on Form 8-K dated September 30, 1997,
Current Report on Form 8-K/A dated October 16, 1997, and Current
Report on Form 8-K/A dated October 23, 1997; and
(g) The description of the Registrant's common stock, par value $0.01 per
share (the "Common Stock"), contained in a Registration Statement on
Form 8-A dated February 26,1997 filed under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including all amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
II-1
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain partners of, attorneys associated with and/or of counsel to Neal,
Gerber & Eisenberg, a firm that performs legal services for the Registrant,
beneficially own shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Under Florida law, a corporation may indemnify any person who was or is a
party or is threatened to be made a party to an action (other than an action by
or in the right of the corporation) by reason of such person's service as a
director 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 person's 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-2
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 Amended and Restated By-Laws. These
agreements provide, among other things, that the Company will indemnify its
directors and officers for all direct and indirect expenses and costs
(including, without limitation, all reasonable attorneys' fees and related
disbursements, other out-of-pocket costs and reasonable compensation for time
spent by such persons for which they are not otherwise compensated by the
Company or any third person) and liabilities of any type whatsoever (including,
but not limited to, judgments, fines and settlement fees) actually and
reasonably incurred by such person in connection with either the investigation,
defense, settlement or appeal of any threatened, pending, or completed action,
suit or other proceeding, including the corporation, arising out of such
person's services as a director, employee or other agent of the Company, any
subsidiary of the Company or any other company or enterprise to which the person
provides services at the request of the Company. The Company believes that these
provisions and agreements are necessary to attract and retain talented and
experienced directors and officers.
The Company maintains liability insurance for the benefit of its directors
and officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
No. Description
- ------- -----------
4.1 Vistana, Inc. Stock Plan
5.1 Opinion of Neal, Gerber & Eisenberg
23.1 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Kreisman Corporation
23.4 Consent of Kreisman Corporation
23.5 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included in the signature pages hereto)
II-3
Item 9. Undertakings
The Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the Securities
Act each post-effective amendment to this registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Sections 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or
II-4
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orlando, State of Florida, on December 23, 1997.
VISTANA, INC.
By: /s/ Raymond L. Gellein, Jr.
--------------------------------------------
Raymond L. Gellein, Jr.
Chairman of the Board and Co-Chief Executive
Officer
We, the undersigned officers and directors of Vistana, Inc., hereby
severally constitute Raymond L. Gellein, Jr., Jeffrey A. Adler and Charles E.
Harris, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, any and all amendments, including post-effective
amendments, to this Registration Statement, and generally to do all such things
in our name and behalf in such capacities to enable Vistana, Inc. to comply with
the applicable provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys, or any of
them, to any and all such documents.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on December 23, 1997 by the following
persons in the capacities indicated.
Signature Title
- --------- -----
/s/ Raymond L. Gellein, Jr. Chairman of the Board, Co-Chief
- --------------------------- Executive Officer and Director
Raymond L. Gellein, Jr. (Principal Executive Officer)
/s/ Charles E. Harris Vice Chairman of the Board, Chief
- --------------------------- Financial Officer and Director
Charles E. Harris (Principal Financial Officer)
/s/ John M. Sabin Senior Vice President and
- --------------------------- Treasurer
John M. Sabin (Principal Accounting Officer)
II-6
/s/ Jeffrey A. Adler President and Co-Chief Executive Officer
- -------------------- and Director
Jeffrey A. Adler
/s/ Laurence S. Geller Director
- ----------------------
Laurence S. Geller
/s/ Steven J. Heyer Director
- -------------------
Steven J. Heyer
II-7