EXECUTION COPY
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AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
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AMENDMENT NO. 1 (this "Amendment") dated as of March 5, 1999 to
REGISTRATION RIGHTS AGREEMENT dated as of February 10, 1997 (the "Original
Agreement"), among VISTANA, INC., a Florida corporation (the "Company") and the
individuals and entities set forth on Schedule A attached hereto (capitalized
terms not otherwise defined in this Amendment are used herein as defined in the
Original Agreement);
W I T N E S S E T H:
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WHEREAS, subsequent to the date of the Original Agreement (i) Gellein,
Adler and certain of their respective Affiliates have transferred certain of
their Registrable Shares to certain other Affiliates of Gellein and Adler; (ii)
certain Affiliates of Gellein and Adler have granted to one new Executive an
option to acquire certain Registrable Shares and such new Executive has executed
a joinder to the Original Agreement; and (iii) certain Affiliates of Gellein and
Adler have granted two original Executives options to acquire additional
Registrable Shares;
WHEREAS, the Company and the other parties hereto, which include Holders
owning a majority of the Registrable Shares held by the Executives as of the
date of this Amendment, desire to amend the Original Agreement pursuant to
Section 9.3 thereof upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Amendments to Original Agreement. Subject to the conditions of Section
2 hereof, the Original Agreement is hereby amended as follows:
(a) Amendment to Section 2(a). Section 2(a) of the Original Agreement
is hereby amended in its entirety as follows:
"(a) (i) Within 45 days prior to each of the second, third and
fourth 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 of Registrable
Shares of the Executives and their respective Affiliates in accordance with
this Section 2(a).
(ii) Each Executive and his or her Affiliates which hold
Registrable Shares may elect to include in such Registration Statement up
to 50% of such Person's Registrable Shares which are not subject to any
vesting limitations (determined as of the date of the Company's notice
pursuant to Section 2(a)(i) hereof); provided, however, that
notwithstanding the foregoing, each Executive and his or her Affiliates
which hold Registrable Shares may elect to include in the Registration
Statement contemplated to be filed after the fourth anniversary of the
Closing Date all of such Person's Registrable Shares (whether or not any
such Registrable Shares are then subject to any vesting limitations). Each
Executive may exercise the election described in the preceding sentence 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 Registration Statement filed 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 the last
day of the immediately preceding fiscal year of the Company. The
limitation set forth in the preceding sentence shall not apply to the
Registration Statement contemplated to be filed after the fourth
anniversary of the Closing Date. In the event that the Executives and
their Affiliates which hold Registrable Shares seek to include in any such
Registration Statement a number of Registrable Shares in excess of such
limitation, if applicable the Company shall include in such Registration
Statement the Registrable Shares proposed to be sold by the Executives and
their respective Affiliates on a pro rata basis, based upon the number of
Registrable Shares that each such party and their Affiliates originally
sought to include such Registration Statement.
(iv) Notwithstanding anything to the contrary contained in this
Section 2(a), 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. The
limitation set forth in the preceding sentence shall not apply to the
Registration Statement contemplated to be filed after the fourth
anniversary of the Closing Date."
(b) Amendment to Section 2(c). Section 2(c) of the Original
Agreement is hereby amended in its entirety as follows:
"(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 each of the
Registration Statement contemplated to be filed after the fourth
anniversary of the Closing Date and any 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."
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(c) Amendment to Section 6. The last paragraph of Section 6 is
hereby amended by adding the following sentence to the end thereof:
"Each holder of Registrable Shares hereby agrees that any actions,
requests or notices which may be taken, made or delivered pursuant to this
paragraph shall not require, in order to be valid, a resolution or written
consent of the Company's Board of Directors but may instead be effected at
the direction of the Company's Chairman of the Board, President or Vice
Chairman of the Board without such a resolution or written consent. The
Effectiveness Period shall be extended by the aggregate number of days
during which a holder is restricted from disposing of Registrable Shares
pursuant to this paragraph."
(d) Amendment to Schedule A. Schedule A to the Original
Agreement is hereby amended in its entirety by replacing such Schedule with
Amended Schedule A attached hereto.
2. Conditions to Effectiveness. The effectiveness of this Amendment is
subject to the satisfaction in full of the following conditions precedent:
(a) The Board of Directors of the Company shall have approved of the
Company's execution, delivery and performance of this Amendment; and
(b) The Company shall have executed this Amendment and shall have
received fully executed counterparts of this Amendment from Holders owning
a majority of the Registrable Shares held by the Executives as of the date
of this Amendment.
3. Miscellaneous.
(a) Full Force and Effect. Except as expressly set forth herein,
this Amendment does not constitute a waiver or modification of any
provision of the Original Agreement. Except as expressly amended hereby,
the Original Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof. As used in the
Original Agreement, the terms "the Agreement," "herein," "hereof,"
"hereinafter," "hereto" and words of similar import, shall, unless the
context otherwise requires, mean the Original Agreement as amended by the
Amendment. References to the terms "Agreement" appearing in the Exhibits or
Schedules to the Original Agreement, shall, unless the context otherwise
requires, mean the Original Agreement as amended by this Amendment.
(b) Headings and terms. The headings in this Amendment are for
purposes of reference only and shall not be considered in construing this
Amendment. Terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
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(c) Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall constitute
an original and all together shall constitute one agreement.
(d) Law Governing. This Amendment shall be construed and enforced in
accordance with and shall be governed by the laws of the State of Florida,
without giving effect to its conflict of laws provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
THE COMPANY:
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VISTANA, INC., a Florida corporation
By: /s/ Raymond L. Gellein, Jr.
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Name: Raymond L. Gellein, Jr.
Title: Chairman
THE HOLDERS:
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NEVWEST LIMITED PARTNERSHIP
By: /s/ Ronald Smith
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Name: Ronald Smith
Title: President of NevGel, Inc., General
Partner
/s/ Raymond L. Gellein, Sr.
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Raymond L. Gellein, Sr., Trustee of the Raymond L.
Gellein, Jr. Grantor Retained Annuity Trust
/s/ Catherine G. Male
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Catherine G. Male, Trustee of the Matthew James
Gellein Irrevocable Trust
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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/s/ Catherine G. Male
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Catherine G. Male, Trustee of the Brett Tyler
Gellein Irrevocable Trust
NEVEAST LIMITED PARTNERSHIP
By: /s/ Ronald Smith
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Name: Ronald Smith
Title: President of NevJan I, Inc.,
General Partner
/s/ Raymond L. Gellein, Sr.
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Raymond L. Gellein, Sr., Trustee of the
Janice G. Gellein Grantor Annuity Trust
/s/ Raymond L. Gellein, Sr.
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Raymond L. Gellein, Sr., Trustee of the
Catherine Male Gift Trust
/s/ Raymond L. Gellein, Sr.
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Raymond L. Gellein, Sr., Trustee of the
Cherie Doherty Gift Trust
/s/ Raymond L. Gellein, Sr.
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Raymond L. Gellein, Sr., Trustee of Susan
Faetz Gift Trust
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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RIJA LIMITED PARTNERSHIP
By: /s/ Richard Adler
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Name: Richard Adler
Title: President of Alexdann corporation,
General Partner
/s/ Jeffrey A. Adler, Trustee
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Jeffrey A. Adler, Trustee of the Jeffrey A. Adler
Grantor Annuity Trust #1
/s/ Jeffrey A. Adler, Trustee
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Jeffrey A. Adler, Trustee of the Jeffrey A. Adler
Grantor Annuity Trust #2
/s/ Lee I. Miller, Trustee
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Lee I. Miller, Trustee of the ARA Trust
/s/ Lee I. Miller, Trustee
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Lee I. Miller, Trustee of the DLA Trust
/s/ Matthew E. Avril
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Matthew E. Avril
/s/ Susan B. Werth
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Susan B. Werth
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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/s/ Carol A. Lytle
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Carol A. Lytle
/s/ Barbara Hollkamp
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Barbara Hollkamp
/s/ James A. McKnight
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James A. McKnight
/s/ William J. McLaughlin
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William J. McLaughlin
/s/ Alain J.A. Grange
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Alain J.A. Grange
/s/ Charles E. Harris
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Charles E. Harris
/s/ John M. Sabin
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John M. Sabin
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
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AMENDED SCHEDULE A
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Holders
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No. of No. of Shares
Name and Address/(1)/ Shares s/t Options
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NevWest Limited Partnership 2,778,728 -
c/o NevGel, Inc., General Partner
5851 West Charleston Blvd.
Suite 1000
Las Vegas, Nevada 89102
Raymond L. Gellein, Jr. 239,137 -
Grantor Retained Annuity
Trust
c/o Raymond L. Gellein, Sr.,
Trustee
Matthew James Gellein 42,880 -
Irrevocable Trust
c/o Catherine G. Male,
Trustee
Brett Tyler Gellein 42,880 -
Irrevocable Trust
c/o Catherine G. Male,
Trustee
NevEast Limited Partnership 2,798,953 -
c/o NevJan I, Inc., General Partner
5851 West Charleston Blvd.
Suite 1000
Las Vegas, Nevada 89102
Janice G. Gellein Grantor 243,172 -
Annuity Trust
c/o Raymond L. Gellein, Sr.,
Trustee
Catherine Male Gift Trust 20,500 -
c/o Raymond L. Gellein, Sr.,
Trustee
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No. of No. of Shares
Name and Address (continued) Shares s/t Options
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Cherie Doherty Gift Trust 20,500 --
c/o Raymond L. Gellein, Sr.,
Trustee
Susan Faetz Gift Trust 20,500 --
c/o Raymond L. Gellein, Sr.,
Trustee
Rija Limited Partnership 5,989,710 --
c/o Alexdann Corporation,
General Partner
5851 West Charleston Blvd.
Suite 1000
Las Vegas, Nevada 89102
Jeffrey A. Adler Grantor Annuity 42,973 --
Trust #1
c/o Jeffrey A. Adler, Trustee
Jeffrey A. Adler Grantor Annuity 51,567 --
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
Susan B. Werth -- 125,000
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No. of No. of Shares
Name and Address (continued) Shares s/t Options
- ---------------------------- ---------- -------------
Carol A. Lytle -- 400,000
Barbara Hollkamp -- 100,000
James A. McKnight -- 100,000
William J. McLaughlin -- 140,000
Alain J.A. Grange -- 140,000
Charles E. Harris -- 400,000
John M. Sabin -- 22,000
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TOTAL 12,414,500 1,827,000
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/(1)/ Unless otherwise specified, all addresses are 8801 Vistana Centre Drive,
Orlando, Florida 32821.
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