(Mark
One)
|
|
þ
|
Annual
Report pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
|
for
the fiscal year ended December 31, 2009
|
|
o
|
Transition
report pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
|
for
the transition period from _______ to
_______
|
Golf Trust of America, Inc. | ||
(Exact name of registrant as specified in its charter) |
Maryland
|
33-0724736
|
|
(State or Other Jurisdiction of Incorporation) | (I.R.S. Employer Identification Number) |
10
North Adger’s Wharf
Charleston,
SC 29401
|
(843) 723-4653
|
|
(Address of principal executive offices) (Zip Code) | (Telephone number) |
Title
of each class
|
|
Name
of each exchange on which registered
|
Common
Stock, par value $0.01 per share
|
NYSE
Amex
|
|
Preferred
Stock Purchase Rights
|
NYSE
Amex
|
Large accelerated filer
|
o
|
Accelerated
filer
|
o
|
Non-accelerated
filer
(Do
not check if a smaller reporting
company)
|
o | Smaller reporting company | þ |
Page | ||
Part I | ||
Item 1. | Business | 1 |
Item 1A. | Risk Factors | 2 |
Item 1B. | Unresolved Staff Comments | 3 |
Item 2. | Properties | 4 |
Item 3. |
Legal
Proceedings
|
4 |
Item 4. | Submission of Matters To a Vote of Security Holders | 4 |
Part II | ||
Item 5. | Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities | 5 |
Item 6. | Selected Financial Data | 5 |
Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | 5 |
Item 7A. | Quantitative and Qualitative Disclosures About Market Risk | 11 |
Item 8. | Financial Statements and Supplementary Data | 11 |
Item
9.
|
Changes In
and Disagreements With Accountants on Accounting and Financial
Disclosure
|
11 |
Item 9A. | Controls and Procedures. | 11 |
Item 9B. | Other Information | 11 |
Part III | ||
Item 10. | Directors, Executive Officers and Corporate Governance | 12 |
Item 11. | Executive Compensation | 20 |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and RelatedStockholder Matters | 24 |
Item
13.
|
Certain
Relationships, Related Transactions and Director
Independence
|
26 |
Item 14. | Principal Accounting Fees and Services | 27 |
Part IV
|
||
Item 15. | Exhibits, Financial Statement Schedules | 28 |
Signatures And Powers Of Attorney | 29 | |
Exhibit Index | 31 |
Price
range of
common
shares
|
|||
High
|
Low
|
||
2008:
|
|||
First
Quarter
|
2.27
|
1.11
|
|
Second
Quarter
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1.99
|
1.45
|
|
Third
Quarter
|
1.87
|
1.35
|
|
Fourth
Quarter
|
1.50
|
.30
|
|
2009:
|
|||
First
Quarter
|
1.36
|
0.85
|
|
Second
Quarter
|
1.49
|
1.03
|
|
Third
Quarter
|
1.85
|
1.21
|
|
Fourth
Quarter
|
2.87
|
1.68
|
Period
January 1,
2009
to
January
22, 2009
|
Year
Ended
December
31, 2008
|
|||||||
Revenues
from discontinued operations
|
$
|
148,829
|
$
|
4,064,669
|
||||
|
||||||||
Income
(loss) from discontinued operations, net of tax
|
$
|
(130,336
|
)
|
$
|
(716,308
|
)
|
||
Gain
on sale of discontinued operations, net of tax
|
$
|
1,158,414
|
$
|
—
|
Name
|
Age
|
Year First
Appointed
or Elected
to
the Board
|
Position,
Principal Occupation,
Business
Experience and Directorships
|
|||
Jan
H. Loeb
|
51
|
2006
|
Mr.
Loeb has been an independent director under the rules of the NYSE Amex
since November 17, 2006 and Chairman of the Audit Committee since
October 10, 2007. He is the Audit Committee’s financial
expert and also serves on the Nominating Committee. Mr. Loeb is currently
a portfolio manager for Leap Tide Capital Management, Inc., a position he
has held since February 2005. From February 2004
through January 2005, Mr. Loeb was a portfolio manager for Chesapeake
Partners. From January 2002 through December 2004,
Mr. Loeb was a Managing Director of Jefferies & Company, Inc., an
investment banking firm based in New York City. From 1994
through 2001, Mr. Loeb was a Managing Director of Dresdner Kleinwort and
Wasserstein, Inc., an investment banking firm based in New York City,
which was formerly known as Wasserstein Perella & Co.,
Inc. Mr. Loeb also serves on the board of directors of American
Pacific Corporation, a chemical and aerospace corporation, and TAT
Technologies, LTD, which provides services and products to the military
and commercial aerospace and ground defense industries. He
serves on the boards of numerous charitable organizations. Mr.
Loeb holds a Bachelor of Business Administration from Bernard M. Baruch
College.
|
|||
Michael
C. Pearce
|
48
|
2007
|
Mr.
Pearce has been a director since September 17, 2007 and Chief
Executive Officer and President since November 8, 2007. He
has been Chairman of the board of directors since December 17,
2007. Mr. Pearce has been a private investor in various
companies since 2002, with emphasis in distressed securities of
publicly-traded entities. From late 1999 through 2001, he
served as Chief Executive Officer of iEntertainment
Network. From 1996 to 1998, he served as Senior Vice President
of Sales and Marketing of publicly-traded VocalTec Communications, later
returning in 1999 in a consulting capacity to its Chairman on matters
pertaining to strategic alternatives, business development and mergers and
acquisitions. From 1983 to 1996, he was employed in various
technology industry management positions, including Senior Vice President
of Sales and Marketing at Ventana Communications, a subsidiary of Thomson
Corporation, Vice President of Sales at Librex Computer Systems, a
subsidiary of Nippon Steel, and National Sales Manager at Hyundai
Electronics America. From 1979 to 1983, he attended Southern
Methodist University. Mr. Pearce also serves on the boards of
directors of AVP, Inc. and Spatializer Audio Laboratories,
Inc.
|
Name
|
Age
|
Year First
Appointed
or Elected
to
the Board
|
Position,
Principal Occupation,
Business
Experience and Directorships
|
|||
Jonathan M. Couchman
|
40
|
2007
|
Mr.
Couchman has been an independent director under the rules of the NYSE Amex
since December 14, 2007. Mr. Couchman serves on the Audit, Nominating
and Compensation Committees. He is the Managing Member of Couchman Capital
LLC, which is the investment manager of Couchman Investments LP and
Couchman International Ltd., private partnerships established in
2001. Couchman Capital LLC is also the general partner of
Couchman Partners LP, a private investment partnership established in
2001. In addition, Mr. Couchman is the President of Couchman
Advisors, Inc., a management advisory company. Mr. Couchman
currently serves as Chief Executive Officer and Chairman of the board of
directors of Footstar Inc., formerly a national footwear
retailer. He has held the position of Chairman of the board
since February 2006 and was appointed Chief Executive Officer in
January 2009. He is a member of the CFA Institute
and the New York Society of Security Analysts and holds a Bachelor of
Science in Finance from the California State University at
Chico.
|
|||
Jay A. Gottlieb
|
65
|
2007
|
Mr.
Gottlieb has been an independent director under the rules of the NYSE Amex
since December 14, 2007 and Chairman of the Compensation Committee
since December 17, 2007. He also serves on the Audit
Committee. He has been a private investor in various companies
since 1998. He is involved in analysis and investment in
undervalued special situations and shell corporations. He
presently owns between 5% and 22% of 10 public companies and is a member
of the board of directors of Spatializer Audio Laboratories, Inc. and
Reliability, Inc. From 1992 to 1998 he was the editor of an
investment service that analyzed and published extensive data on companies
planning initial public offerings. From 1977 to 1991
Mr. Gottlieb was the President and Chairman of the board of The
Computer Factory, Inc., a NYSE listed nationwide organization involved in
retail and direct sales, servicing and leasing of personal
computers. From 1969 to 1988 he was President of National
Corporate Sciences, Inc., a registered investment advisory
service. Mr. Gottlieb holds a Bachelor of Arts from New York
University.
|
|||
William Vlahos
|
44
|
2007
|
Mr.
Vlahos has been a member of the board of directors since December 14,
2007. He is an independent director under the rules of the NYSE
Amex, and serves as Chairman of the Nominating Committee and a member of
the Compensation Committee. He is the portfolio manager and
managing director of Odyssey Value Advisors, LLC. Odyssey Value
Advisors is a San Francisco based hedge fund investing in "deep value"
securities, special situations and other portfolio positions believed to
be trading at significant discount to intrinsic value. He is a
past president and past board member of The Guardsmen, a San Francisco
based non-profit serving at-risk children and a past board member of the
Koret Family House serving critically ill children. He holds a
Bachelor of Arts from the University of California, Los
Angeles.
|
Tracy S. Clifford
|
41
|
—
|
On
January 18, 2008, Ms. Clifford was appointed our Chief Financial
Officer. Previously, Ms. Clifford served as our Principal
Accounting Officer since February 5, 2007, and as our Corporate Secretary
since February 20, 2007. Ms. Clifford had been our Controller
since September 1999. Before joining GTA, Ms. Clifford
served as a Director of Finance (February 1999 to September 1999) and
Manager of Accounting and Financial Reporting (May 1995 to February 1999)
at United Healthcare of Georgia in Atlanta. From June 1993 to
May 1995, Ms. Clifford served as Manager of Accounting (January 1994 to
May 1995) and Senior Accountant (June 1993 to January 1994) at North
Broward Hospital District in Fort Lauderdale, Florida. Ms.
Clifford began her career at Deloitte & Touche in Miami, Florida,
where she was an auditor primarily for clients in the healthcare industry
from September 1991 to June 1993. Ms. Clifford holds a Bachelor of Science
degree in Accounting from the College of Charleston and a Master’s degree
in Business Administration with a concentration in finance from Georgia
State University. Ms. Clifford is a member of the South
Carolina Association of CPAs and the American Institute of CPAs and serves
as an adjunct faculty member in the School of Business and Economics at
the College of Charleston.
|
|
·
|
The
appointment, compensation, retention, evaluation and oversight of the work
of the Company’s independent registered public accounting
firm.
|
|
·
|
Reviewing
the experience and qualifications of the senior members and lead partner
of the independent registered public accounting
firm.
|
|
·
|
Reviewing,
evaluating and approving the annual engagement proposal of the independent
registered public accounting firm.
|
|
·
|
The
pre-approval of all auditing services and all non-audit services permitted
to be performed by the independent registered public accounting
firm.
|
|
·
|
Determining
the independence of the Company’s independent registered public accounting
firm.
|
|
·
|
Reviewing
any audit problems or difficulties the independent registered public
accountants may encounter in the course of their audit
work.
|
|
·
|
Reviewing
all proposed “related person” transactions for potential
conflict-of-interest situations (see “Related Person Transaction Approval
Policy” below).
|
|
·
|
Reviewing
and discussing with management and the Company’s independent registered
public accounting firm annual audited financial statements, quarterly
financial statements, material accounting principles applied in financial
reporting and any other release of financial
information.
|
|
·
|
Reviewing
and discussing with management the Company’s policies with respect to risk
assessment and risk management.
|
|
·
|
Reviewing
the integrity, adequacy and effectiveness of Golf Trust’s accounting and
financial controls, both internal and external, with the assistance of
management and the Company’s independent registered public accounting
firm.
|
|
·
|
Discuss
with the Chief Executive Officer and Chief Financial Officer of the
Company the processes involved in, and any material required as a result
of, their Annual Report on Form 10-K and Quarterly Report on
Form 10-Q certifications regarding the operation of the internal
controls of the Company.
|
|
·
|
Reviewing
reports from management and the independent registered public accountants
relating to the status of compliance with laws, regulations and internal
procedures.
|
|
·
|
Approving
and monitoring the Company’s compliance with the Company’s Code of
Business Conduct and Ethics, which covers the conduct and ethical behavior
of the directors, officers and employees of, and consultants and
contractors to, the Company and its
subsidiaries.
|
|
·
|
Establishing
procedures for the receipt, retention and treatment, on a confidential
basis, of complaints received by the
Company.
|
|
·
|
An
understanding of accounting principles generally accepted in the United
States and financial statements;
|
|
·
|
The
ability to assess the general application of those principles in
connection with the accounting for estimates, accruals and
reserves;
|
|
·
|
Experience
preparing, auditing, analyzing or evaluating financial statements that
present a breadth and level of complexity of accounting issues that are
generally comparable to the breadth and complexity of issues that can
reasonably be expected to be raised by the Company’s consolidated
financial statements, or experience actively supervising one or more
persons engaged in such activities;
|
|
·
|
An
understanding of internal control over financial reporting;
and
|
|
·
|
An
understanding of audit committee
functions.
|
|
·
|
Education
and experience as a principal financial officer, principal accounting
officer, controller, public accountant or auditor or experience in one or
more positions that involve the performance of similar
functions;
|
|
·
|
Experience
actively supervising a principal financial officer, principal accounting
officer, controller, public accountant, auditor or person performing
similar functions;
|
|
·
|
Experience
overseeing or assessing the performance of companies or public accountants
with respect to the preparation, auditing or evaluation of financial
statements; or
|
|
·
|
Other
relevant experience.
|
|
·
|
Reviewing
the compensation practices and policies of the Company to ensure they
provide appropriate motivation for corporate performance and increased
stockholder value.
|
|
·
|
The
approval (or recommendation, where stockholder approval is required) of
any adoption, amendment or termination of compensation programs and
plans.
|
|
·
|
Overseeing
the administration of the Company’s compensation programs and plans,
including the determination of the directors and employees who are to
receive awards and the terms of those
awards.
|
|
·
|
The
periodic survey of compensation practices of comparable
companies.
|
|
·
|
The
annual review and approval of compensation and benefits to directors and
senior executives.
|
|
·
|
The
review and approval of compensatory agreements and
benefits.
|
|
·
|
The
review and approval of the Company’s policies and procedures with respect
to expense accounts and
perquisites.
|
|
·
|
The
review and approval of annual corporate goals and objectives for the
Company’s Chief Executive Officer.
|
|
·
|
The
review of the performance of the Company’s Chief Executive Officer with
regard to such goals and objectives with the independent members of the
Board of Directors and communication of the evaluation of the Board of
Directors to the Company’s Chief Executive
Officer.
|
|
·
|
The
review and recommendation to the Board of Directors of the “Compensation
Discussion and Analysis” to be included, as applicable, in the Company’s
Annual Report on Form 10-K, annual proxy statement or any information
statement.
|
|
·
|
Composition
of the “Compensation Committee Report” to be included in the Company’s
annual proxy statement.
|
|
·
|
Analyzing
and making recommendations to the Board of Directors regarding the
directors’ and officers’ indemnification and insurance
matters.
|
|
·
|
Conducting an annual performance evaluation of the Compensation
Committee.
|
|
·
|
Establishing
criteria for selecting new
directors.
|
|
·
|
Considering
and recruiting candidates to fill new positions on the Board of Directors,
including any candidate recommended by the stockholders. Conducting
appropriate inquiries to establish a candidate’s compliance with the
qualification requirements established by the Nominating
Committee.
|
|
·
|
Conducting
appropriate inquiries to establish a candidate’s compliance with the
qualification requirements established by the Nominating
Committee.
|
|
·
|
The
assessment of the performance, contributions and qualifications of
individual directors, including those directors slated for
re-election.
|
|
·
|
The
recommendation of director nominees for approval by the Board of
Directors.
|
|
·
|
The
evaluation of the performance of the Board of Directors as a whole and of
the Nominating Committee at least
annually.
|
|
·
|
Reviewing
and making recommendations to the Board of Directors with respect to any
proposal properly presented by a stockholder for inclusion in the
Company’s annual proxy statement (which may be referred to any other
committee of the Board of Directors as appropriate in light of the subject
matter of the proposal).
|
|
·
|
Director
nominees should have a reputation for integrity, honesty and adherence to
high ethical standards.
|
|
·
|
Director
nominees should have experience and the ability to exercise sound judgment
in matters that relate to the current and long-term objectives of the
Company and should be willing and able to contribute positively to the
decision-making process of the
Company.
|
|
·
|
Director
nominees should have a commitment to understand the Company and its
industry and to regularly attend and participate in meetings of the Board
and its committees.
|
|
·
|
Director
nominees should have the interest and ability to understand and consider
the sometimes conflicting interests of the various constituencies of the
Company, which include stockholders, employees, customers, governmental
units, creditors and the general public, while acting in the interests of
the Company’s stockholders.
|
|
·
|
Director
nominees should not have, nor appear to have, a conflict of interest that
would impair the director nominee’s ability to represent the interests of
the Company’s stockholders and to fulfill the responsibilities of a
director.
|
|
·
|
A
majority of the Board of Directors will be independent under the rules of
the NYSE Amex.
|
|
·
|
Each
of the Audit, Compensation and Nominating Committees of the Board of
Directors will be comprised entirely of independent
directors.
|
|
·
|
At
least one member of the Audit Committee will have the experience,
education and other qualifications necessary to qualify as an “audit
committee financial expert” as defined by the rules of the Securities and
Exchange Commission.
|
Name
and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)(3)
|
Stock
Awards
($)
|
Option
Awards
($)
|
All
Other Compensation
($)
|
Total
($)
|
|||||||||||||||||||
Michael
C. Pearce(1)
|
2009
|
$ | 180,000 | $ | –– | $ | –– | $ | 104,526 | $ | 22,005 | $ | 306,531 | |||||||||||||
Chief
Executive Officer, President & Chairman
of the Board of Directors
|
2008
|
180,000 | –– | –– | 91,777 | 20,049 | 291,826 | |||||||||||||||||||
Tracy
S. Clifford(2)
|
2009
|
112,747 | 7,100 | –– | 15,532 | 16,418 | 151,797 | |||||||||||||||||||
Chief
Financial Officer & Secretary
|
2008
|
112,747 | 5,000 | –– | 13,400 | 14,471 | 145,618 |
(1)
|
Mr. Pearce
was appointed Chief Executive Officer and President effective
November 8, 2007. His annual salary is $180,000. Included in his All
Other Compensation for 2009 and 2008 are annual health and life insurance
premiums and reimbursements of $17,205 and $15,249,
respectively, and the car allowance of $4,800 for each of the
years 2009 and 2008. On February 27, 2009 and on December 14, 2007,
he received awards of 85,000 and 275,000 stock options, respectively, for
which $104,526 and $91,777 of expense was recognized for 2009 and 2008,
respectively. See further discussion of these options below under the
caption Outstanding Equity Awards at Fiscal
Year-End.
|
(2)
|
Tracy
S. Clifford, our former Controller, was appointed Principal Accounting
Officer on February 6, 2007, Secretary on February 20, 2007, and
Chief Financial Officer on December 17, 2007. Included in
Ms. Clifford’s All Other Compensation are annual health and life
insurance premiums of $16,418 and $14,471 for the years ended
December 31, 2009 and 2008, respectively. On February 27, 2009 and on
January 18, 2008, Ms. Clifford received awards of 10,000 and 50,000 stock
options, respectively, for which $15,532 and $13,400 of expense was
recognized for 2009 and 2008, respectively. See further discussion of
these options below under the caption Outstanding Equity Awards at Fiscal
Year-End.
|
(3)
|
Bonuses
are discretionary and are not calculated or paid according to a formula or
specific time frame or schedule.
|
|
·
|
an
annual base salary of $180,000, adjusted annually based on merit and to
account for changes in cost of
living;
|
|
·
|
the
right to participate in all of our employee benefit programs for which our
senior executive employees are generally
eligible;
|
|
·
|
automatic
vesting of all unvested stock options upon termination of his employment
without cause (as defined in the agreement), upon death or disability, or
in the event of a change in control of GTA (as defined in the
agreement);
|
|
·
|
reimbursement
for all reasonable business expenses incurred in the course of performing
his duties;
|
|
·
|
in
the event of his termination without cause, or his resignation as a result
of a material breach of GTA's obligations under the agreement, a
diminution in his duties or in connection with a change in control,
payment of 50% of his annual base salary, payable immediately in a lump
sum or over the course of six months at his election, and continued
employee benefits for six months;
and
|
|
·
|
the
nondisclosure of certain confidential information regarding our
business.
|
Name
|
Number
of Securities
Underlying
Unexercised
Options
(#) Exercisable
(1)
|
Number
of Securities
Underlying
Unexercised
Options
(#)Unexercisable
|
OptionExercise
Price
($)
|
OptionExpiration
Date
|
|||||||||
Michael
C. Pearce
|
91,667 | — | 2.10 | 12/24/11 | |||||||||
Chief
Executive Officer, President & Chairman of the Board of
Directors
|
91,667 | — | 2.10 | 12/24/12 | |||||||||
–– | 91,666 | 2.10 |
12/24/13
|
||||||||||
–– | 28,334 | 1.10 |
2/27/13
|
||||||||||
— | 28,333 | 1.10 |
2/27/14
|
||||||||||
–– | 28,333 | 1.10 |
2/27/15
|
||||||||||
Tracy
S. Clifford
|
16,667 | 1.90 |
1/18/12
|
||||||||||
Chief
Financial Officer & Secretary
|
–– | 16,667 | 1.90 |
1/18/13
|
|||||||||
–– | 16,666 | 1.90 |
1/18/14
|
||||||||||
–– | 3,333 | 1.10 |
2/27/13
|
||||||||||
–– | 3,333 | 1.10 |
2/27/14
|
||||||||||
— | 3,334 | 1.10 |
2/27/15
|
(1)
|
Each
of these awards of stock options vest ratably over three years and have a
contractual term of three years from the vesting date. All unvested
options will automatically vest upon a termination without cause, death or
disability, change of control of the Company or other similar fundamental
corporate transaction.
|
Name
and Principal Position
|
Fees
Earned
or
Paid
in
Cash
($)
|
Stock
Awards
($)
|
Option
Awards
($)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
Change
in
Pension
Value and
Nonqualified
Deferred
Compensation
Earnings
($)
|
All
Other
Compensation
($)
|
Total
($)
|
|||||||||||||||||||||
Jan
H. Loeb, Director
|
$ | 8,500 | $ | — | $ | 15,881 | $ | — | $ | — | $ | 24,381 | ||||||||||||||||
Michael
C. Pearce, Chairman,
Director, President
and CEO
|
— | — | — | — | — | $ | — | — | ||||||||||||||||||||
William
Vlahos, Director
|
7,750 | 10,690 | 18,440 | |||||||||||||||||||||||||
Jay
Gottlieb, Director
|
8,750 | 15,881 | 24,631 | |||||||||||||||||||||||||
Jonathan
M. Couchman, Director
|
8,750 | — | 15,881 | — | — | — | 24,631 |
|
·
|
5,000
vested shares at $17.94 issued on February 6, 2000 and which expired
subsequent to year-end on February 5, 2010;
and
|
|
·
|
5,000
vested shares at $7.85 issued on February 6, 2001 and expiring on
February 5, 2011
|
Name
of Beneficial Owner
|
Number
of shares
of
Common Stock
|
Percentage
of
Class(9)
|
||||||
Jonathan
M. Couchman(1)
|
366,400 | 4.98 | % | |||||
Tracy
S. Clifford(2)
|
36,667 | * | ||||||
Jay
A. Gottlieb(3)
|
645,750 | 8.78 | % | |||||
Jan
H. Loeb(4)
|
884,100 | 12.02 | % | |||||
Merrill
Lynch, Pierce, Fenner & Smith, Inc.(5)
|
370,000 | 5.06 | % | |||||
William
Vlahos/Odyssey Value Advisors, LLC(6)
|
1,233,182 | 16.79 | % | |||||
Michael
C. Pearce(7)
|
211,668 | 2.81 | % | |||||
Directors
and officers as a group (9 persons)(8)
|
3,377,767 | 43.80 | % |
*
|
Less
than 1%
|
(1)
|
Beneficial
ownership includes options to purchase 40,000 shares of our common stock
which have vested and are exercisable as of February 22, 2010 or will
become exercisable within 60 days from that date. All of these options
were in the money as of February 22, 2010. Beneficial ownership excludes
options to purchase (i) 13,334 shares of our common stock which vest on
January 23, 2011 and (ii) 26,666 shares of our common stock which
vest ratably over the next two years beginning on March 4, 2011. The
vesting of these options accelerates upon change of
control.
|
(2)
|
Beneficial
ownership includes options to purchase 36,667 shares of our common stock,
of which all have vested and are exercisable as of February 22, 2010 or
will become exercisable within 60 days from that date. All of
these options were in the money as of February 22, 2010. Beneficial
ownership excludes options to purchase (i) 16,666 shares of our common
stock which vest on January 18, 2011 and (ii) 6,667 shares of our
common stock which vest on ratably over the next two years beginning on
February 27, 2011. The vesting of these options
accelerates upon change of control.
|
(3)
|
Includes
100,000 shares held in trust for the benefit of Mr. Gottlieb's
children. Mr. Gottlieb's business address is 27 Misty Brook Lane, New
Fairfield, CT 06812. Mr. Gottlieb reports that he has sole power to
vote or to direct the vote of 605,750 shares and sole power to dispose or
to direct the disposition of 605,750. Information about Mr. Gottlieb
is included in reliance on the Schedule 13D filed with the SEC on
February 13, 2008. Beneficial ownership includes options to purchase
40,000 shares of our common stock which have vested and are exercisable as
of February 22, 2010 or will become exercisable within 60 days from that
date. All of these options were in the money as of February 22,
2010. Beneficial ownership excludes options to purchase (i) 13,333 shares
of our common stock which vest on January 23, 2011 and (ii) 26,667 shares
of our common stock which vest ratably over the next two years beginning
on March 4, 2011. The vesting of these options accelerates upon
change of control.
|
(4)
|
Mr. Loeb's
business address is 10451 Mill Run Circle, Owings Mills, Maryland 21117.
Mr. Loeb reports that he has sole power to vote or to direct the vote
of 806,100 shares, shared power to vote or to direct the vote of 38,000
shares, sole power to dispose or to direct the disposition of 806,100
shares and shared power to dispose or to direct the disposition of 38,000
shares. Information about Mr. Loeb is included in reliance on the
Schedule 13D/A filed with the SEC on October 13, 2006.
Beneficial ownership includes options to purchase 40,000 shares of our
common stock which have vested and are exercisable as of February 22, 2010
or will become exercisable within 60 days from that date. All
of
these options were in the money as of February 22, 2010.
Beneficial ownership excludes options to purchase 13,334 shares of our
common stock which vest on January 23, 2011 and (ii) 26,667 shares of
our common stock which vest ratably over the next two years beginning on
March 4, 2011. The vesting of these options accelerates upon change
of control.
|
(5)
|
Merrill
Lynch, Pierce, Fenner & Smith, Inc.'s address is 4 World
Financial Center, New York, NY 10080. Information about Merrill Lynch,
Pierce, Fenner & Smith, Inc. is included in reliance on the
Schedule 13G filed with the SEC on February 13,
2006.
|
(6)
|
Includes
474,800 shares of common stock which are directly owned by
Mr. Vlahos. In addition, Mr. Vlahos is the General Partner of
Odyssey Value Advisors, LLC, and therefore beneficially owns the
731,715 shares of common stock owned directly by Odyssey Value
Advisors, LLC. Odyssey Value Advisors, LLC's address is 601
Montgomery Street, San Francisco, California 94111. Information about
Odyssey Value Advisors, LLC is included in reliance on the
Schedule 13D/A filed with the SEC on January 27, 2009.
Beneficial ownership includes options to purchase 26,667 shares of our
common stock which have vested and are exercisable as of February 22, 2010
or will become exercisable within 60 days from that date. All of these options were in the money as of February 22,
2010. Beneficial ownership excludes options to
purchase 13,333 shares of our common stock which vest on January 23,
2011. The vesting of these options accelerates upon change of
control.
|
(7)
|
Beneficial
ownership includes options to purchase 211,668 shares of our common stock
which have vested and are exercisable as of February 22, 2010 or will
become exercisable within 60 days from that date. Of
these options, 28,334 were in the money as of February 22,
2010. Beneficial ownership excludes options to purchase
(i) 91,666 shares of our common stock which vest on December 14, 2010
and (ii) 56,666 shares of our common stock which vest ratably over the
next two years beginning February 27, 2011. The vesting of these
options accelerates upon change of
control.
|
(8)
|
Beneficial
ownership includes options to purchase 395,002 shares of our common stock
which have vested and are exercisable as of February 22, 2010 or will
become exercisable within 60 days from that date. Of
these options, 211,668 were in the money at February 22,
2010. Beneficial ownership excludes options to purchase
304,998 shares of our common stock which vest according to the following
schedule: (i) 91,666 on December 14, 2010, (ii) 16,666 on
January 18, 2011 (iii) 53,332 on January 23, 2011, (iv) 31,666
on February 27, 2011 and 2012 and (v) 40,001 on March 4, 2011
and 2012. The vesting of these options accelerates upon change of
control.
|
(9)
|
Based
on 7,317,163 common shares outstanding. In accordance with the rules of
the Securities and Exchange Commission, each person's percentage
interest is calculated by dividing such person's beneficially owned common
shares by the sum of the total number of common shares outstanding plus
the number of currently unissued common shares such person has the right
to acquire (including upon exercise of vested options and upon conversion
of preferred stock) within 60 days of February 22, 2010. Beneficial
ownership excludes options issued to former Board members to purchase
20,000 shares of our common stock which all have vested and are
exercisable. None
of these options was in the money as of February 17,
2010. These options will expire, if not exercised, on
February 5, 2011.
|
Securities
Authorized for Issuance under Equity Compensation
Plans
|
|
·
|
the
aggregate number of shares of our common stock subject to outstanding
stock options;
|
|
·
|
the
weighted average exercise price of those outstanding stock options;
and
|
|
·
|
the
number of shares that remain available for future option
grants.
|
Plan
Category
|
Number
of
securities
to
be
issued upon
exercise
of
outstanding
options,
warrants
and
rights
|
Weighted
average
exercise
price of
outstanding
options,
warrants
and
rights
|
Number
of
securities
remaining
available
for
future
issuance
under
equity
compensation
plans
(excluding
securities
reflected
in
column (a))
|
|||||||||
(a)
|
(b)
|
(c)
|
||||||||||
Equity
compensation plans approved by security holders
|
740,000 | $ | 2.30 | 19,968 | ||||||||
Equity
compensation plans not approved by security holders
|
— | — | — | |||||||||
Total
|
740,000 | $ | 2.30 | 19,968 |
2009
|
2008
|
|||||||
Audit
Fees(1)
|
$ | 45,993 | $ | 93,973 | ||||
Audit-Related
Fees(2)
|
34,949 | 10,000 | ||||||
Tax
Fees(3)
|
19,750 | 40,505 | ||||||
All
Other Fees
|
— | — | ||||||
Total
|
$ | 100,692 | $ | 144,478 |
(1)
|
“Audit
Fees” represent fees for professional services rendered by Cherry, Bekaert
& Holland, L.L.P for fiscal years 2009 and 2008 for the audit of our
annual consolidated financial statements included in our Annual Reports on
Form 10-K for those respective fiscal years, the review of financial
statements included in our Quarterly Reports on Form 10-Q for those
respective years and any services normally provided by these firms in
connection with statutory and regulatory filings or
engagements.
|
(2)
|
“Audit-Related
Fees” represent fees for assurance and related services by Cherry, Bekaert
& Holland, L.L.P. for fiscal years 2009 and 2008 that are reasonably
related to the performance of the audit or review of our consolidated
financial statements for those respective fiscal years and are not
reported under “Audit Fees.” These fees consisted primarily of accounting
consultations relating to the preparation and filing of our definitive
proxy statement for the merger with Pernix Therapeutics,
Inc.
|
(3)
|
“Tax
Fees” represent fees for professional services rendered by Cherry, Bekaert
& Holland, L.L.P. for fiscal years 2009 and 2008 for tax compliance,
tax advice and tax planning.
|
Page
|
|
Financial
Statements of Golf Trust of America, Inc.
|
|
Report
of Independent Registered Public Accounting Firm
|
F-2
|
Consolidated
Balance Sheets as of December 31, 2009 and 2008
|
F-3
|
Consolidated
Statements of Operations for the Years Ended December 31, 2009 and
2008
|
F-4
|
Consolidated
Statement of Stockholders’ Equity for the Years Ended December 31,
2009 and 2008
|
F-5
|
Consolidated
Statements of Cash Flows for the Years Ended December 31, 2009 and
2008
|
F-6
|
Notes
to Consolidated Financial Statements
|
F-7
|
December 31,
|
||||||||
2009
|
2008
|
|||||||
ASSETS
|
||||||||
Current
Assets:
|
||||||||
Cash
and cash equivalents
|
$ | 6,714,406 | $ | 8,001,878 | ||||
Receivables—net
|
— | 11,209 | ||||||
Other
current assets
|
27,636 | 33,566 | ||||||
Note
receivable – current portion
|
133,333 | — | ||||||
Current
assets of discontinued operations
|
— | 516,531 | ||||||
Total
current assets
|
6,875,375 | 8,563,184 | ||||||
Note
receivable—long-term portion
|
120,334 | 228,936 | ||||||
Property
and equipment, net
|
964,916 | 1,047,668 | ||||||
Non-current
assets of discontinued operations
|
— | 3,910,357 | ||||||
Total
assets
|
$ | 7,960,625 | $ | 13,750,145 | ||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
Liabilities:
|
||||||||
Accounts
payable
|
$ | 85,876 | $ | 32,940 | ||||
Accrued
expenses and other liabilities
|
62,479 | 60,276 | ||||||
Current
liabilities of discontinued operations
|
— | 4,696,312 | ||||||
Total
current liabilities
|
148,355 | 4,789,528 | ||||||
Non-current
liabilities of discontinued operations
|
— | 805,433 | ||||||
Total
liabilities
|
148,355 | 5,594,961 | ||||||
Commitments
and Contingencies
|
||||||||
9.25%
Cumulative Convertible Redeemable Preferred stock, $.01 par
value,
10,000,000
shares authorized, no shares outstanding
|
— | — | ||||||
STOCKHOLDERS’
EQUITY
|
||||||||
Common
stock, $.01 par value, 90,000,000 shares authorized, 7,317,163 issued and
outstanding
|
73,172 | 73,172 | ||||||
Additional
paid-in capital
|
8,981,810 | 8,803,418 | ||||||
Accumulated
deficit
|
(1,242,712 | ) | (721,406 | ) | ||||
Total
stockholders’ equity
|
7,812,270 | 8,155,184 | ||||||
Total
liabilities and stockholders’ equity
|
$ | 7,960,625 | $ | 13,750,145 |
For
the years ended December 31,
|
||||||||
2009
|
2008
|
|||||||
Revenues
|
||||||||
Total
revenues
|
$ | — | $ | — | ||||
Expenses
|
||||||||
Depreciation
and amortization
|
3,612 | 2,675 | ||||||
Impairment
loss
|
80,000 | — | ||||||
General
and administrative
|
1,562,052 | 1,641,290 | ||||||
Total
expenses
|
1,645,664 | 1,643,965 | ||||||
Operating
loss
|
(1,645,664 | ) | (1,643,965 | ) | ||||
Other income
(expense)
|
||||||||
Other
income
|
— | 1,641,176 | ||||||
Other
expenses
|
— | (6,300 | ) | |||||
Interest
income
|
98,656 | 192,416 | ||||||
Interest
expense
|
(2,376 | ) | (4,870 | ) | ||||
Other
income, net
|
96,280 | 1,822,422 | ||||||
Income
(loss) from continuing operations before income tax
provision
|
(1,549,384 | ) | 178,457 | |||||
Income
tax provision
|
— | — | ||||||
Income
(loss) from continuing operations, net of tax
|
(1,549,384 | ) | 178,457 | |||||
Loss
from discontinued operations, net of tax
|
(130,336 | ) | (716,308 | ) | ||||
Gain
on sale of discontinued operations, net of tax
|
1,158,414 | — | ||||||
Income
(loss) from discontinued operations, net of tax
|
1,028,078 | (716,308 | ) | |||||
Net
loss
|
$ | (521,306 | ) | $ | (537,851 | ) | ||
Basic
and diluted earnings (loss) per share
|
||||||||
From
continuing operations
|
$ | (.21 | ) | $ | .02 | |||
From
discontinued operations
|
$ | .14 | $ | (.09 | ) | |||
Net
loss
|
$ | (.07 | ) | $ | (.07 | ) | ||
Weighted
average number of shares—basic and diluted
|
7,317,163 | 7,317,163 |
Number
of Shares Issued |
Common
Stock |
Additional
Paid-in Capital |
Accumulated
Deficit |
Total
Stockholders’ Equity |
||||||||||||||||
Balance
at December 31, 2007
|
7,317,163
|
$
|
73,172
|
$
|
8,658,171
|
$
|
(183,555
|
)
|
$
|
8,547,788
|
||||||||||
Stock-based
compensation
|
—
|
—
|
145,247
|
—
|
145,247
|
|||||||||||||||
Net
loss for the year
|
—
|
—
|
—
|
(537,851
|
)
|
(537,851
|
)
|
|||||||||||||
Balance
at December 31, 2008
|
7,317,163
|
73,172
|
8,803,418
|
(721,406
|
)
|
8,155,184
|
)
|
|||||||||||||
Stock-based
compensation
|
—
|
—
|
178,392
|
—
|
178,392
|
|||||||||||||||
Net
loss for the year
|
—
|
—
|
—
|
(521,306
|
)
|
(521,306
|
)
|
|||||||||||||
Balance
at December 31, 2009
|
7,317,163
|
$
|
73,172
|
$
|
8,981,810
|
$
|
(1,242,712
|
)
|
$
|
7,812,270
|
For
the years ended December 31,
|
||||||||
2009
|
2008
|
|||||||
CASH
FLOWS USED IN OPERATING ACTIVITIES
|
|
|||||||
Net
loss
|
$
|
(521,306
|
)
|
$
|
(537,851
|
)
|
||
Income
(loss) from discontinued operations
|
1,028,078
|
(716,308
|
)
|
|||||
Income
(loss) from continuing operations
|
(1,549,384
|
)
|
178,457
|
|||||
Adjustments
to reconcile net income (loss) to net cash used in operating
activities:
|
||||||||
Depreciation
|
3,612
|
2,675
|
||||||
Stock
based compensation charges
|
178,392
|
145,247
|
||||||
Gain
on legal settlement
|
—
|
(1,463,922
|
)
|
|||||
Non-cash
interest income
|
(24,731
|
)
|
(30,689
|
)
|
||||
Impairment
charge to fair value of land
|
80,000
|
—
|
||||||
Change
in:
|
||||||||
Receivables
and other assets
|
11,209
|
37,025
|
||||||
Prepaid
expenses
|
5,930
|
(6,160
|
)
|
|||||
Accounts
payable and other liabilities
|
58,140
|
(416,088
|
)
|
|||||
Net
cash used in continuing operating activities
|
(1,236,832
|
)
|
(1,553,455
|
)
|
||||
Net
cash provided by discontinued operating activities including gain on sale
of approximately $1,158,000 and -0-, respectively
|
14,325
|
81,844
|
||||||
CASH
FLOWS PROVIDED BY (USED IN) INVESTING ACTIVITIES
|
||||||||
Purchases
of equipment
|
(860
|
)
|
(16,262
|
)
|
||||
Proceeds
from escrow/restricted cash
|
—
|
2,000,000
|
||||||
Decrease
in notes receivable
|
—
|
233,334
|
||||||
Net
cash provided by(used in) continuing investing activities
|
(860
|
)
|
2,217,072
|
|||||
Net
cash provided by discontinued investing activities including net proceeds
from disposal of property and equipment of $4,100,000 (less certain
deductions of $64,105) and -0-, respectively
|
4,035,895
|
(103,954
|
)
|
|||||
CASH
FLOWS PROVIDED BY (USED IN) FINANCING ACTIVITIES
|
||||||||
Net
cash provided by continuing financing activities
|
—
|
—
|
||||||
Net
cash used in discontinued financing activities including principal
payments under credit agreement of $4,100,000 and -0-,
respectively
|
(4,100,000
|
)
|
(38,184
|
)
|
||||
Net
(decrease) increase in cash and cash equivalents
|
(1,287,472
|
)
|
603,323
|
|||||
Cash
and cash equivalents, beginning of year
|
8,001,878
|
7,398,555
|
||||||
Cash
and cash equivalents, end of year
|
$
|
6,714,406
|
$
|
8,001,878
|
||||
Supplemental
Disclosure of Cash Flow Information
|
||||||||
Interest
paid during the period
|
$
|
13,625
|
$
|
301,848
|
||||
Non-cash
investing and financing activities:
|
||||||||
Gain
on legal settlement:
|
||||||||
Note
receivable
|
$
|
—
|
$
|
431,581
|
||||
Land
and value of timber
|
$
|
—
|
$
|
1,032,341
|
||||
Note
1. Organization, Termination of the Plan of
Liquidation and Alternative Business
Strategies
|
Note
2. Summary of Significant
Accounting Policies
|
Golf
course improvements
|
15 years
|
Buildings
and improvements
|
30 years
|
Furniture,
fixtures and equipment
|
3–8 years
|
Note
3. Fair Value Measurement
|
Level 1—
|
Quoted
prices in active markets for identical assets or
liabilities.
|
Level 2—
|
Observable
inputs other than Level 1 prices such as quoted prices for similar assets
or liabilities; quoted prices in markets that are not active; or other
inputs that are observable or can be corroborated by observable market
data for substantially the full term of the assets or
liabilities.
|
Level 3—
|
Unobservable
inputs that are supported by little or no market activity and that are
significant to the fair value of the assets or liabilities. Level 3 assets
and liabilities include financial instruments whose value is determined
using pricing models, discounted cash flow methodologies, or similar
techniques, as well as instruments for which the determination of fair
value requires significant management judgment or
estimation.
|
Note
4. Property and
Equipment
|
December
31,
|
|||||||
2009
|
2008
|
||||||
Land
|
$
|
952,342
|
$
|
1,032,342
|
|||
Office
furniture and equipment
|
18,921
|
18,061
|
|||||
971,263
|
1,050,403
|
||||||
Less
accumulated depreciation
|
(6,347
|
)
|
(2,735
|
)
|
|||
$
|
964,916
|
$
|
1,047,668
|
Note
5. Receivables
|
December 31,
2008
|
||||
Cash and cash equivalents
|
$ | 25,876 | ||
Accounts
receivable
|
333,972 | |||
Prepaid
expenses
|
30,978 | |||
Inventory
|
125,705 | |||
Current
assets of discontinued operations
|
516,531 | |||
Property
and equipment
|
4,581,308 | |||
Accumulated
depreciation
|
(670,951 | ) | ||
Non-current
assets of discontinued operations
|
3,910,357 | |||
Total
assets of discontinued operations
|
$ | 4,426,888 | ||
Accounts
payable
|
$ | 139,406 | ||
Accrued
expenses and other liabilities
|
96,506 | |||
Long-term
debt – current portion
|
4,141,534 | |||
Member
initiation fees and other deferred revenue – current
portion
|
318,866 | |||
Current
liabilities of discontinued operations
|
4,696,312 | |||
Long-term
debt, net of current portion
|
72,391 | |||
Member
initiation fees and other deferred revenue, net of current
portion
|
733,042 | |||
Non-current
liabilities of discontinued operations
|
805,433 | |||
Total
liabilities of discontinued operations
|
$ | 5,501,745 |
Period
January 1,
2009
to
January
22, 2009
|
Year
Ended
December
31, 2008
|
|||||||
Revenues
from discontinued operations
|
$ | 148,829 | $ | 4,064,669 | ||||
Income
(loss) from discontinued operations, net of tax
|
$ | (130,336 | ) | $ | (716,308 | ) | ||
Gain
on sale of discontinued operations, net of tax
|
$ | 1,158,414 | $ | — |
Note
7. Stock Options and Awards
|
Name
of Stock Option/Award Plans
|
Shares
Issued
|
Shares
Available
To
Issue
|
||||||
1997
Stock Incentive Plan
|
500,000
|
—
|
||||||
1997
Non-employee Director’s Plan
|
100,000
|
—
|
||||||
New
1997 Plan
|
582,032
|
17,968
|
||||||
1998
Plan
|
498,000
|
2,000
|
||||||
2007
Stock Option Plan
|
700,000
|
—
|
Number of
options
|
Weighted
average exercise
price
($)
|
Weighted
average
remaining
contractual
term
(years)
|
Aggregate
intrinsic Value
($)
|
|||||||||||||
Options
outstanding at December 31, 2007
|
625,000 | $ | 12.83 | |||||||||||||
Plus:
options granted
|
210,000 | 1.84 | ||||||||||||||
Less:
options exercised
|
— | — | ||||||||||||||
Less:
options canceled or expired
|
270,000 | 22.61 | ||||||||||||||
Options
outstanding at December 31, 2008
|
565,000 | 4.08 |
|
|||||||||||||
Plus:
options granted
|
215,000 | 1.03 | ||||||||||||||
Less:
options exercised
|
— | — | ||||||||||||||
Less:
options canceled or expired
|
(40,000 | ) | 20.63 | |||||||||||||
Options
outstanding at December 31, 2009
|
740,000 | 2.30 | 3.2 | $ | 204,800 | |||||||||||
Options
exercisable at December 31, 2009
|
293,337 | $ | 3.51 | 2.3 | $ | — | ||||||||||
Grant
Date
|
Number of
stock
options granted
|
Exercise
Price
|
Fair
Value of Common Stock on Date of Grant
|
Intrinsic
Value of Stock Options at Grant Date
|
||||||||||||
1/18/08
|
50,000 | $ | 1.90 | $ | 1.90 | $ | — | |||||||||
1/23/08
|
160,000 | 1.82 | 1.82 | — | ||||||||||||
2/27/09
|
95,000 | 1.10 | 1.10 | — | ||||||||||||
3/4/09
|
120,000 | 0.97 | 0.97 | — | ||||||||||||
425,000 | $ | — |
For
the years ended December 31,
|
||||||||
2009
|
2008
|
|||||||
Risk
free interest rate
|
1.62 | % | 2.69 | % | ||||
Expected
average life
|
3.5 years
|
4 years
|
||||||
Expected
volatility
|
67 | % | 54 | % | ||||
Expected
dividend yield
|
0 | % | 0 | % | ||||
Forfeiture
rate
|
0 | % | 0 | % |
Options
Outstanding
|
Options
Exercisable
|
|||||||||||||
Range of Exercise Price
|
Shares
|
Avg
Remaining Contractual
Life
(years)
|
Average Exercise
Price
|
Shares
|
Price
|
|||||||||
$0.97 | 120,000 | 4.2 | $0.97 | — | $ — | |||||||||
$1.10 | 95,000 | 4.2 | 1.10 | — | — | |||||||||
$1.82 | 160,000 | 3.1 | 1.82 | 53,334 | 1.82 | |||||||||
$1.90 | 50,000 | 3.1 | 1.90 | 16,667 | 1.90 | |||||||||
$2.10 | 275,000 | 3.0 | 2.10 | 183,333 | 2.10 | |||||||||
$7.85 | 20,000 | 1.1 | 7.85 | 20,000 | 7.85 | |||||||||
$16–$19 | 20,000 | 0.1 | 17.94 | 20,000 | 17.34 | |||||||||
740,000 | 293,334 |
December 31,
|
||||||||
|
2009
|
2008
|
||||||
Differences
in the carrying value of property and equipment
|
$
|
28,000
|
|
$
|
(262,000
|
)
|
||
Federal
and state net operating loss carryforwards
|
31,050,000
|
30,971,000
|
||||||
Capital
loss carryover
|
—
|
16,624,000
|
||||||
Other
liabilities
|
14,000
|
338,000
|
||||||
Other
|
—
|
8,000
|
||||||
Sub-total
|
31,092,000
|
47,679,000
|
||||||
Valuation
Allowance
|
(31,092,000
|
)
|
(47,679,000
|
)
|
||||
Total
net deferred tax assets
|
$
|
—
|
$
|
—
|
2009
|
2008
|
|||||||
Current
|
$ | — | $ | — | ||||
Deferred
|
— | — | ||||||
Total
|
$ | — | $ | — |
2009
|
2008
|
|||||||
Expected
taxes at statutory rates
|
(34.0 | )% | 34.0 | % | ||||
State
income tax benefit, net of federal income tax rate
|
92.3 | % | 6.1 | % | ||||
Expiration
of capital loss carryforwards
|
978.0 | % | — | |||||
Incentive
stock options expense
|
3.9 | % | 27.6 | % | ||||
Nondeductible
meals and entertainment expenses
|
0.1 | % | 1.5 | % | ||||
Nondeductible
expenses of pending merger……………………...
|
8.7 | % | — | |||||
Other………………………………………………………………
|
(3.6 | )% | — | |||||
Change
in Valuation allowance
|
(1,045.4 | )% | (69.2 | )% | ||||
Total
|
— | — |
Note
9. Other
Income
|
Note
10. Commitments and Contingencies
|
GOLF TRUST OF AMERICA, INC. | |||
February
24, 2010
|
By:
|
/s/ MICHAEL C. PEARCE | |
Michael C. Pearce | |||
President and Chief Executive Officer | |||
February
24, 2010
|
By:
|
/s/ TRACY S. CLIFFORD | |
Tracy S. Clifford
|
|||
Chief Financial Officer | |||
Signature
|
Title
|
Date
|
||
/s/
Michael C.
Pearce
|
President,
Chief Executive Officer and
|
February
24, 2010
|
||
Michael
C. Pearce
|
Chairman
of the Board of Directors (principal
executive officer)
|
|||
/s/
Tracy S.
Clifford
|
Chief
Financial Officer and Secretary
|
February
24, 2010
|
||
Tracy
S. Clifford
|
(principal
financial officer)
|
|||
/s/
Jonathan M.
Couchman
|
Director
|
February
24, 2010
|
||
Jonathan
M. Couchman
|
||||
/s/
Jay A.
Gottlieb
|
Director
|
February
24, 2010
|
||
Jay
A. Gottlieb
|
||||
/s/
Jan H.
Loeb
|
Director
|
February
24, 2010
|
||
Jan
H. Loeb
|
||||
/s/
William
Vlahos
|
Director
|
February
24, 2010
|
||
William
Vlahos
|
No.
|
Description
|
|
2.1
|
Plan
of Liquidation and Dissolution of Golf Trust of America, Inc., as
approved by stockholders on May 22, 2001 which was terminated by
stockholders on November 8, 2007 (previously filed as
Exhibit 2.1 to our company’s Current Report on Form 8-K, filed
May 30, 2001, and incorporated herein by
reference).
|
|
2.2
|
Agreement
and Plan of Merger By and Among Golf Trust of America, Inc., GTA
Acquisition, LLC and Pernix Therapeutics, Inc. dated as of October 6, 2009
(incorporated by reference from Exhibit No. 10.6 to this Annual Report on
Form 10-K).
|
|
3.1
|
Articles
of Incorporation of Golf Trust of America, Inc., as currently in effect
(previously filed as Exhibit 3.1 to our company’s Current Report on
Form 8-K dated as of November 6, 2007 and incorporated herein by
reference).
|
|
3.2
|
Sixth
Amended and Restated Bylaws of Golf Trust of America, Inc., as
adopted on November 8, 2007 and as currently in effect (previously
filed as Exhibit 3.1 to our company’s Current Report on
Form 8-K, filed November 9, 2007 and incorporated herein by
reference).
|
|
4.1
|
Form of
Share Certificate for Golf Trust of America, Inc. Common Stock
(previously filed as Exhibit 4.3 to our company’s Current Report on
Form 8-K, filed August 30, 1999, and incorporated herein by
reference).
|
|
4.2
|
Form of
Share Certificate for Golf Trust of America, Inc. Series A
Preferred Stock (previously filed as Exhibit 3.2 to our company’s
Current Report on Form 8-K, filed April 13, 1999, and
incorporated herein by reference).
|
|
4.3
|
Shareholder
Rights Agreement, by and between Golf Trust of America, Inc. and
ChaseMellon Shareholder Services, L.L.C., as rights agent, dated
August 24, 1999 (previously filed as Exhibit 4.1 to our
company’s Current Report on Form 8-K, filed August 30, 1999, and
incorporated herein by reference).
|
|
4.4
|
Resolutions
of the Board of Directors dated March 9, 2009 regarding the
inadvertent acquisition of common shares by Odyssey Value Advisors, LLC
and waiver of provisions of the Shareholder Rights
Agreement.
|
|
10.1+
|
First
Amended and Restated Employment Agreement between Golf Trust of
America, Inc. and Michael Pearce, dated as of April 26, 2009
(previously filed as Exhibit 10.1.2 to our company’s Quarterly Report
on Form 10-Q, filed on May 14, 2009, and incorporated herein by
reference).
|
|
10.2.1
|
Amended
and Restated Loan Agreement, dated as of August 4, 2005, by and among
GTA—Stonehenge, LLC, as Borrower, Golf Trust of America, L.P.,
as Guarantor, and Textron Financial Corporation as the Lender (previously
filed as Exhibit 10.22.3 to our company’s Current Report on
Form 8-K, filed August 9, 2005, and incorporated herein by
reference).
|
|
10.2.2
|
Notice
of Future Advances, Note Mortgage, Security Agreement, and Fixture Filing,
dated as of August 4, 2005, from Golf Trust of America, L.P. in
favor of Textron Financial Corporation (previously filed as
Exhibit 10.22.4 to our company’s Current Report on Form 8-K,
filed August 9, 2005, and incorporated herein by
reference).
|
|
10.3
|
Golf
Trust of America, Inc. 2007 Stock Option Plan (previously filed as
Appendix A to our company’s definitive proxy statement dated and
filed on November 16, 2007, and incorporated herein by
reference).
|
|
10.4.1
|
Settlement
Agreement by and among Larry D. Young, Danny L. Young, Kyle N. Young, The
Young Family Irrevocable Trust and The Legends Group, Ltd.
(collectively, the “Legends Plaintiffs”), and Golf Trust of
America, Inc., W. Bradley Blair, II, and Scott D. Peters
(collectively, the “GTA Defendants”) (previously filed as
Exhibit 10.1 to our company’s Current Report on Form 8-K filed
February 4, 2008 and incorporated herein by
reference).
|
|
10.4.2
|
Confession
of Judgment by and among Larry D. Young, Danny L. Young, Kyle N. Young,
The Young Family Irrevocable Trust and The Legends Group, Ltd.
(collectively, the “Legends Plaintiffs”), and Golf Trust of
America, Inc., W. Bradley Blair, II, and Scott D. Peters
(collectively, the “GTA Defendants”) (previously filed as
Exhibit 10.2 to our company’s Current Report on Form 8-K filed
February 4, 2008 and incorporated herein by
reference).
|
10.4.3
|
Promissory
Note pursuant to the Settlement Agreement in the case captioned Larry D. Young, et al.,
Plaintiffs, v. BDO Seidman, LLP, et al., Defendants
(previously filed as Exhibit 10.3 to our company’s Current Report on
Form 8-K filed February 4, 2008 and incorporated herein by
reference).
|
|
10.5.1
|
Purchase
and Sale Agreement by and among Golf Trust of America, L.P. and WCWW
Committee, LLC dated as of September 26, 2008 (previously filed as
Exhibit 10.1 to our company’s Current Report on Form 8-K filed
October 1, 2008 and incorporated herein by
reference).
|
|
10.5.2
|
Consent
of J. Richard Marlow, MAI, SGA (previously filed as Exhibit 25.1 to
our company’s 2007 Annual Report on Form 10-K filed March 31,
2008 and incorporated herein by reference).
|
|
10.6
|
Agreement
and Plan of Merger By and Among Golf Trust of America, Inc., GTA
Acquisition, LLC and Pernix Therapeutics, Inc. dated as of October 6,
2009 (previously filed as Exhibit 10.1 to our Current Report on Form 8-K
filed on October 7, 2009, and incorporated herein by
reference).
|
|
14.1
|
Code
of Business Conduct and Ethics, adopted by the Board of Directors of Golf
Trust of America, Inc. on November 6, 2007 (previously filed as
Exhibit 14.1 to our company’s Current Report on Form 8-K, filed
November 9, 2007, and incorporated herein by
reference).
|
|
23.1*
|
Consent
of Cherry, Bekaert & Holland, L.L.P.
|
|
24.1*
|
Powers
of Attorney (included under the caption “Signatures and Powers of
Attorney”)
|
|
31.1*
|
Certification
of Michael C. Pearce pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
|
|
31.2*
|
Certification
of Tracy S. Clifford pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
|
|
32.1*
|
Certifications
under Section 906 of the Sarbanes-Oxley Act of
2002.
|
*
|
Filed
herewith
|
†
|
Portions
of this exhibit have been omitted pursuant to a request for confidential
treatment.
|
+
|
Denotes
a management contract or compensatory
plan.
|