sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 2)(1)
Golf Trust of America, Inc.
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(Name of Issuer)
Common Stock, $.01 Par Value
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(Title of Class of Securities)
38168B103
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(CUSIP Number)
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 5, 2006
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
NOTE. Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. SEE Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 11 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES).
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CUSIP No. 38168B103 13D Page 2 of 11 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JAN H. LOEB
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 806,100
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 38,000
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
806,100
------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
38,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
844,100
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.5%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 38168B103 13D Page 3 of 11 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
NAUMAN S. TOOR
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY -0-
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH -0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
-0-
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 38168B103 13D Page 4 of 11 Pages
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The following constitutes Amendment No. 2 ("Amendment No. 2") to the
Schedule 13D filed by the undersigned. This Amendment No. 2 amends the Schedule
13D as specifically set forth.
Item 2 is hereby amended to add the following:
In connection with the Letter Agreement described and defined
in Item 4, Mr. Loeb agreed to withdraw in its entirety his letter dated August
23, 2006, which provided notice to the Issuer of Mr. Loeb's intention to
nominate Messrs. Loeb and Toor for election as directors at the 2006 Annual
Meeting and to introduce a proposal to declassify the Issuer's board of
directors. Pursuant to the Letter Agreement, the Issuer agreed (i) to increase
the number of members of its board of directors to seven, consisting of three
Class I directors, the term of which expires at the 2006 Annual Meeting, two
Class II directors, the term of which expires at the 2008 Annual Meeting and two
Class III directors, the term of which expires at the 2007 Annual Meeting, (ii)
to include (and recommend the candidacy of) Mr. Loeb in the board of directors'
slate of three nominees for potential election as Class I directors at the 2006
Annual Meeting and provide Mr. Loeb with substantially the same assistance that
the Issuer provides the other board candidates and (iii) to nominate (and
recommend the candidacy of) Mr. Toor as the only candidate for potential
election as an additional Class III director of the Issuer at the 2006 Annual
Meeting to fill the vacancy created by the increase in the number of Class III
directors from one to two (and to serve for a term expiring at the 2007 Annual
Meeting) and, for purposes of the Issuer's proxy solicitation, provide Mr. Toor
with substantially the same assistance that the Issuer provides the other board
candidates. Accordingly, Mr. Toor is no longer a member of the Section 13(d)
group and shall cease to be a Reporting Person immediately after the filing of
this Statement. Mr. Loeb will be the sole remaining Reporting Person and will
continue filing statements on Schedule 13D with respect to his beneficial
ownership of securities of the Issuer to the extent required by applicable law.
Item 4 is hereby amended to add the following:
On October 5, 2006, the Reporting Persons and the Issuer
entered into a letter agreement (the "Letter Agreement"), a copy of which is
attached hereto as Exhibit 3 and is incorporated herein by reference. As such,
Mr. Loeb is no longer in discussions with management of the Issuer regarding
board representation. Pursuant to the terms of the Letter Agreement, as
described in Item 2 above, the Issuer agreed (i) to increase the number of
members of its board of directors to seven, consisting of three Class I
directors, the term of which expires at the 2006 Annual Meeting, two Class II
directors, the term of which expires at the 2008 Annual Meeting and two Class
III directors, the term of which expires at the 2007 Annual Meeting, (ii) to
include (and recommend the candidacy of) Mr. Loeb in the board of directors'
slate of three nominees for potential election as Class I directors at the 2006
Annual Meeting and provide Mr. Loeb with substantially the same assistance that
the Issuer provides the other board candidates and (iii) to nominate (and
recommend the candidacy of) Mr. Toor as the only candidate for potential
election as an additional Class III director of the Issuer at the 2006 Annual
Meeting to fill the vacancy created by the increase in the number of Class III
directors from one to two (and to serve for a term expiring at the 2007 Annual
Meeting) and, for purposes of the Issuer's proxy solicitation, provide Mr. Toor
with substantially the same assistance that the Issuer provides the other board
candidates. Pursuant to the terms of the Letter Agreement, the Reporting Persons
agreed that they shall not, and each
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CUSIP No. 38168B103 13D Page 5 of 11 Pages
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will not authorize or knowingly permit his affiliates and associates to, (i)
solicit proxies or engage in a proxy contest with respect to the election of
directors or any other proposal to be considered at the 2006 Annual Meeting or
present any proposal for consideration at such annual meeting of stockholders,
or (ii) encourage any other person or entity to solicit proxies or engage in a
proxy contest with respect to the election of directors or any other proposal to
be considered at the 2006 Annual Meeting or present any other proposal for
consideration at the 2006 Annual Meeting. In the Letter Agreement, Mr. Loeb also
withdrew in its entirety his letter dated August 23, 2006 which provided notice
to the Issuer of Mr. Loeb's intention to nominate Messrs. Loeb and Toor for
election as directors at the 2006 Annual Meeting and to introduce at the 2006
Annual Meeting certain other matters pertaining to declassifying the Issuer's
board of directors. The Reporting Persons further agreed in the Letter Agreement
that they and their affiliates would immediately cease all efforts, direct or
indirect, in furtherance of Mr. Loeb's proposals and any related solicitation,
and any other action to obtain or influence control of the Issuer, and shall not
vote, deliver or otherwise use any proxies heretofore obtained in connection
with Mr. Loeb's proposals. In the Letter Agreement, the Reporting Persons
acknowledged that the Issuer's stockholders have previously approved and adopted
the Plan of Liquidation, and that the Issuer's board of directors intends to
conduct the Issuer's operations in a manner consistent with the Plan of
Liquidation, unless or until the Issuer's board of directors and stockholders
approve otherwise. The Reporting Persons agreed to act in a manner consistent
with and in furtherance of the Plan of Liquidation as approved by the Issuer's
stockholders, unless or until the Issuer's board of directors and stockholders
approve otherwise. The Issuer also agreed, subject to the satisfaction of
certain conditions, to reimburse the Reporting Persons the reasonable and
actually incurred legal fees incurred by them solely in furtherance of
concluding the Letter Agreement, the proposed nomination of the Reporting
Persons as directors and the preparation of the related Schedules 13D, which
shall in no event exceed $25,000 in the aggregate.
Item 6 is hereby amended to add the following:
Reference is made to the Letter Agreement defined and
described in Item 4.
Item 7 is hereby amended to add the following exhibits:
3. Letter Agreement by and between the Reporting Persons
and the Issuer, dated October 5, 2006.
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CUSIP No. 38168B103 13D Page 6 of 11 Pages
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: October 13, 2006
/s/ Jan H. Loeb
------------------------------------
JAN H. LOEB
/s/ Nauman S. Toor
------------------------------------
NAUMAN S. TOOR
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CUSIP No. 38168B103 13D Page 7 of 11 Pages
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EXHIBIT INDEX
Exhibit Page
------- ----
3. Letter Agreement by and between the Reporting 8-11
Persons and the Issuer, dated October 5, 2006.
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CUSIP No. 38168B103 13D Page 8 of 11 Pages
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GTA LETTERHEAD
October 5, 2006
Mr. Jan H. Loeb Mr. Nauman S. Toor
c/o Olshan Grundman Frome Rosenzweig & Wolosky LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
Attn.: Steven Wolosky, Esq.
RE: GOLF TRUST OF AMERICA, INC. -- DIRECTOR CANDIDATES
Gentlemen:
Please confirm the following by executing this letter below and
returning an executed copy to the undersigned:
1. Golf Trust of America, Inc. (the "Company") shall: (i) increase the
number of the Company's directors from five, consisting of two Class I
directors, the term of which expires at the 2006 Annual Meeting (as hereinafter
defined), two Class II directors, the term of which expires at the 2008 annual
meeting of stockholders (the "2008 Annual Meeting") and one Class III director,
the term of which expires at the 2007 annual meeting of stockholders (the "2007
Annual Meeting") to seven, consisting of three Class I directors, two Class II
directors and two Class III directors; (ii) include (and recommend the candidacy
of) Mr. Jan H. Loeb ("Loeb") in the Company's Board of Directors' slate of three
nominees for potential election as Class I directors of the Company at the 2006
Annual Meeting of Stockholders (the "2006 Annual Meeting") and provide Loeb with
substantially the same assistance that the Company provides the other Board
candidates, and (iii) nominate (and recommend the candidacy of) Mr. Nauman S.
Toor ("Toor" and, together with Loeb, the "Director Candidates") as the only
candidate for potential election as an additional Class III director of the
Company at the 2006 Annual Meeting to fill the vacancy created by the increase
in the number of Class III directors from one to two (and to serve for a term
expiring at the 2007 Annual Meeting) and, for purposes of the proxy
solicitation, provide Toor with substantially the same assistance that the
Company provides the other Board candidates. Each Director Candidate hereby
acknowledges and agrees that the Company cannot assure the Director Candidates
of the outcome of any stockholder vote, and each Director Candidate hereby
agrees that the Company, its Board of Directors, its officers and its affiliates
(collectively the "GTA Parties") shall have no liability in the event that the
stockholders do not approve the Director Candidates after the Company
distributes to the stockholders the proxy materials including the Director
Candidates as nominees to the Board. The Director Candidates further agree that
(x) the GTA Parties shall have no further obligations under this SECTION 1 in
the event that the stockholders do not elect one or both of the Director
Candidates and (y) the GTA Parties shall have no obligation to hire a proxy
solicitor to solicit votes for the Director Candidates. The Company's
obligations under this letter agreement, including, without limitation, this
Section 1 are conditioned upon the Company's receipt of true, correct (in all
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CUSIP No. 38168B103 13D Page 9 of 11 Pages
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material respects) and complete copies of the D&O Questionnaires from the
Director Candidates.
2. Each Director Candidate shall not, and each Director Candidate will
not authorize or knowingly permit his affiliates and associates to, (i) solicit
proxies or engage in a proxy contest with respect to the election of directors
or any other proposal to be considered at the 2006 Annual Meeting or present any
proposal for consideration at such annual meeting of stockholders, or (ii)
encourage any other person or entity to solicit proxies or engage in a proxy
contest with respect to the election of directors or any other proposal to be
considered at the 2006 Annual Meeting or present any other proposal for
consideration at the 2006 Annual Meeting. In furtherance of the foregoing, Loeb
hereby withdraws in its entirety his letter dated August 23, 2006 (the "Loeb
Notice") providing notice to the Company of Loeb's intention to nominate Mr.
Loeb and Mr. Toor for election as directors of the Company at the 2006 Annual
Meeting and to introduce certain other matters at the 2006 Annual Meeting (the
"Board Composition Proposals"), and the Director Candidates and their affiliates
shall immediately cease all efforts, direct or indirect, in furtherance of the
Board Composition Proposals and any related solicitation, and any other action
to obtain or influence control of the Company, and shall not vote, deliver or
otherwise use any proxies heretofore obtained in connection with the Board
Composition Proposals.
3. Following the date hereof, neither Director Candidate shall issue,
and neither Director Candidate shall authorize or knowingly permit any of his
affiliates, associates or representatives to issue, any other press releases or
other public announcements or make any filings with the Securities and Exchange
Commission concerning the terms hereof or the relationship between the parties
(including, without limitation, any Schedule 13Gs) without the prior written
consent of the Company. Notwithstanding anything to the contrary in this SECTION
3, the Director Candidates may (i) file an amendment or amendments to the
Schedule 13D in accordance with Paragraph 1 of this letter agreement or as
otherwise required by law or (ii) make other filings as required by law;
PROVIDED, HOWEVER, the Company must be given a reasonable opportunity to review
any such draft filings in advance of any filing and provide comments to the
draft thereof, and the Director Candidates must reasonably consider for
incorporation into any such filings any reasonable comments from the Company.
4. Each Director Candidate agrees that the Director Candidates, if
elected to the Company's Board of Directors, shall be governed by the same
obligations regarding confidentiality, conflicts of interests, fiduciary duties,
trading and disclosure policies and other governance guidelines as the other
members of the Company's Board of Directors. Each Director Candidate hereby
represents to the Company that there is no voting agreement or similar
arrangement between the Director Candidates, and each Director Candidate
covenants that there will be no future voting agreement or similar arrangement
between the Director Candidates. In addition, each Director Candidate hereby
acknowledges that the Company's stockholders have previously approved and
adopted a Plan of Liquidation of the Company (the "Plan of Liquidation"), and
that the Company's Board of Directors intends to conduct the operations of the
Company in a manner consistent with the Plan of Liquidation, unless or until the
Company's Board and the Company's stockholders' approve otherwise. Each Director
Candidate hereby agrees to act in a manner consistent with and in furtherance of
the Plan of Liquidation as approved by the Company's stockholders, unless or
until the Company's Board and the Company's stockholders' approve otherwise.
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CUSIP No. 38168B103 13D Page 10 of 11 Pages
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Nothing herein shall prevent a Director from proposing to the Board for its
preliminary consideration (subject to approval by the Company's stockholders) of
a modification to the Plan of Liquidation.
5. This letter agreement shall remain in full force and effect and
shall be fully binding on the Company and the Director Candidates in accordance
with the provisions hereof until the close of the 2006 Annual Meeting, including
any adjournment thereof (the "Termination Date"), provided, however, that the
representations, warranties, covenants and agreements of the Director Candidates
set forth in SECTIONS 2, 3 and 4 and the final sentence of SECTION 1 shall
survive until such time as neither Toor nor Loeb serve as a member of the
Company's Board of Directors. Notwithstanding the foregoing, the Company shall
reimburse the Director Candidates the reasonable and actually incurred legal
fees incurred by the Director Candidates solely in furtherance of concluding
this letter, the proposed nomination of the Director Candidates and the
preparation of the related Schedules 13D, which shall in no event exceed $25,000
in the aggregate (the "Legal Expenses") as, when and if the following first
occur: (i) Mr. W. Bradley Blair II, the Company's Chief Executive Office and
President, and Mr. Scott D. Peters, the Company's Senior Vice President and
Chief Financial Officer, have first been paid milestone payments currently due
and payable to them by the Company (or such persons have individually
irrevocably waived the milestone payments owed to them); and (ii) the Director
Candidates have not withdrawn their candidacy as Director Candidates at any time
prior to the 2006 Annual Meeting; and (iii) the Director Candidates shall have
delivered to the Company a true, correct and complete original of the invoice of
the Legal Expenses within thirty (30) days after the date hereof.
6. This letter agreement shall be deemed to have been executed and
delivered within the State of Maryland, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with, and
governed by, the laws of the State of Maryland without regard to principles of
conflict of laws. Any action or proceeding arising from or relating to this
letter agreement must be brought in Maryland, and each party irrevocably submits
to the jurisdiction and venue of any such court in any such action or
proceeding.
7. Neither Director Candidate may transfer, assign, pledge or
hypothecate, by operation of law or otherwise, its rights and obligations under
this letter agreement without the prior written consent of the Company. Subject
to the foregoing sentence, this letter agreement shall inure to the benefit of
and be binding upon the parties hereto, and to their respective successors, and
no other person shall have any right or obligation hereunder.
8. The invalidity or unenforceability of any section, paragraph or
provision of this letter agreement shall not affect the validity or
enforceability of any other section, paragraph or provision hereof. If any
section, paragraph or provision of this letter agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
9. The Company, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, shall be entitled to specific
performance of its rights under this letter agreement. Each Director Candidate
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this letter agreement
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CUSIP No. 38168B103 13D Page 11 of 11 Pages
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and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
10. This letter agreement constitutes the entire agreement of the
parties hereto with respect to the matters discussed herein.
11. This letter agreement may be executed in several counterparts with
the same effect as if the parties executing the several counterparts had all
executed one counterpart.
Thank you.
Very truly yours,
/s/ W. Bradley Blair, II
------------------------------------
W. Bradley Blair, II
Chief Executive Officer, President and
Chairman of the Board of Directors of
Golf Trust of America, Inc.
AGREED TO AND APPROVED BY:
"DIRECTOR CANDIDATES"
"LOEB"
/s/ Jan H. Loeb
----------------------------------------
Jan H. Loeb
"TOOR"
/s/ Nauman S. Toor
----------------------------------------
Nauman S. Toor