As filed with the Securities and Exchange Commission on February 20,
1998.
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
GOLF TRUST OF AMERICA, INC.
(Exact name of registrant as specified in its charter)
Maryland 33-0724736
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14 North Adger's Wharf
Charleston, South Carolina 29401
(803) 723-4653
(Address of principal executive offices)
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
W. Bradley Blair, II
President and Chief Executive Officer
Golf Trust of America, Inc.
14 North Adger's Wharf
Charleston, South Carolina 29401
(803) 723-4653
(Name and address and telephone number, including area code, of agent
for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered Registered share price fee
Common Stock,
par value 250,000
$0.01 per share Shares<1> $28.50<2> $7,125,000<2> $2,102<2>
________________
<FN>
<1> This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, options
and other rights to purchase or acquire the shares of
Common Stock covered by the Prospectus and, pursuant to
Rule 416(c) under the Securities Act of 1933, an
indeterminate number of shares which by reason of
certain events specified in the Plan may become subject
to the Plan.
<2> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee
were calculated based upon the average of the high ($28.75)
and low ($28.25) prices of the Common Stock on February 19,
1998 as reported on the American Stock Exchange.
The Exhibit Index for this Registration Statement is at page 6.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to optionees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"). Such documents need not be filed with
the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of
the Securities Act. These documents, which include the
statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof),
taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Golf Trust of America, Inc.
(the "Company") filed with the Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the
Company's fiscal year ended 1996;
(b) The Company's Quarterly Reports on Forms 10-Q for
the Company's quarterly periods ended March 31,
1997, June 30, 1997 and September 30, 1997;
(c) The Company's Current Reports on Forms 8-K filed
March 4, 1997 as amended by Form 8-K/A filed
March 17, 1997, and filed August 12, 1997; and
(d) The description of the Common Stock contained in
the Company's Registration Statement on Form 8-A,
filed with the Commission on February 7, 1997.
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into the prospectus
and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock is registered pursuant to Section 12
of the Exchange Act. Therefore, the description of the
securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 2.418 of the Maryland General Corporation Law
makes provision for the indemnification of officers and
directors in terms sufficiently broad to indemnify officers
and directors under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under
the 1933 Act. The Company's Charter and By-Laws require the
Company to indemnify its directors, officers and certain other
parties to the fullest extent permitted by law, and permit the
Company to advance to the officers and directors all related
expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. The Company
must also indemnify and advance all expenses incurred by
officers and directors seeking to enforce their rights under
the indemnification agreements, and cover officers and
directors under the Company's directors' and officers'
liability insurance.
Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index on page 6.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date
of this Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in this
Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
with or furnished to the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized,
in the City of Charleston, State of South Carolina, on
February 16, 1998.
GOLF TRUST OF AMERICA, INC.
By: /s/ W. Bradley Blair, II
W. Bradley Blair, II
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints W. Bradley Blair, II his or her true and lawful
attorney-in-fact and agent, with full powers of substitution
and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agents, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or either
of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed below by the
following persons in the capacities and on the dates
indicated.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ W. Bradley Blair, II President, Chief Executive February 16, 1998
W. Bradley Blair, II Officer and Chairman of the Board
of Directors
/s/ David J. Dick Executive Vice President and February 16, 1998
David J. Dick Director
/s/ Scott D. Peters Senior Vice President and Chief February 16, 1998
Scott D. Peters Financial Officer
/s/ Larry D. Young Director February 16, 1998
Larry D. Young
/s/ Roy C. Chapman Director February 16, 1998
Roy C. Chapman
/s/ Raymond V. Jones Director February 16, 1998
Raymond V. Jones
/s/ Fred W. Reams Director February 16, 1998
Fred W. Reams
/s/ Edward L. Wax Director February 16, 1998
Edward L. Wax
</TABLE>
EXHIBIT INDEX
Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit
index immediately precedes the exhibits.
Exhibit No. Description
4.1 Golf Trust of America, Inc. Employee Stock
Purchase Plan
4.2 Form of Golf Trust of America, Inc. Employee Stock
Purchase Plan Subscription Agreement
5.1 Opinion of O'Melveny & Myers LLP (opinion re:
legality)
23.1 Consent of BDO Seidman L.L.P. (consent of
independent auditors)
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included in this Registration
Statement under "Signatures")
<PAGE>
EXHIBIT 4.1
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
TABLE OF CONTENTS
Page
1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
3. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . 4
4. STOCK SUBJECT TO THIS PLAN; SHARE LIMITATIONS . . . . . . 4
5. OFFERING PERIODS. . . . . . . . . . . . . . . . . . . . . 4
6. PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . 4
7. METHOD OF PAYMENT OF CONTRIBUTIONS. . . . . . . . . . . . 4
8. GRANT OF OPTION . . . . . . . . . . . . . . . . . . . . . 5
9. EXERCISE OF OPTION. . . . . . . . . . . . . . . . . . . . 6
10. DELIVERY. . . . . . . . . . . . . . . . . . . . . . . . . 6
11. TERMINATION OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS. . . 6
12. ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . 7
13. DESIGNATION OF BENEFICIARY. . . . . . . . . . . . . . . . 8
14. TRANSFERABILITY . . . . . . . . . . . . . . . . . . . . . 8
15. USE OF FUNDS; INTEREST. . . . . . . . . . . . . . . . . . 9
16. REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . 9
17. ADJUSTMENTS OF AND CHANGES IN THE STOCK . . . . . . . . . 9
18. POSSIBLE EARLY TERMINATION OF PLAN AND OPTIONS. . . . . . 9
19. TERM OF PLAN; AMENDMENT OR TERMINATION. . . . . . . . . . 10
20. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . 10
21. CONDITIONS UPON ISSUANCE OF SHARES. . . . . . . . . . . . 10
22. PLAN CONSTRUCTION . . . . . . . . . . . . . . . . . . . . 11
23. EMPLOYEES' RIGHTS . . . . . . . . . . . . . . . . . . . . 11
24. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 11
<PAGE>
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Golf Trust of
America, Inc. Employee Stock Purchase Plan (this "Plan").
1. PURPOSE
The purpose of this Plan is to provide Eligible Employees
with an incentive to advance the best interests of the
Corporation (and those Subsidiaries which may be designated
by the Committee as "Participating Corporations") by
providing a method whereby they may voluntarily purchase
Common Stock at a favorable price and upon favorable terms.
2. DEFINITIONS
Capitalized terms used herein which are not otherwise
defined shall have the following meanings.
"Account" shall mean the bookkeeping account maintained
by the Corporation, or by a recordkeeper on behalf of the
Corporation, for a Participant pursuant to Section 7(a).
"Board" shall mean the Board of Directors of the
Corporation.
"Beneficial Ownership" shall mean ownership of equity
shares by a person who would be treated as an owner of such
shares wither directly or indirectly through the application
of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have
correlative meanings.
"Change in Control" shall mean any of the following:
a. Approval by the shareholders of the
Corporation of the dissolution or liquidation of the
Corporation;
b. Approval by the shareholders of the
Corporation of an agreement to merge or consolidate, or
otherwise reorganize, with or into one or more entities
other than Subsidiaries, as a result of which less than
50% of the outstanding voting securities of the
surviving or resulting entity are, or are to be, owned
by former shareholders of the Corporation;
c. Approval by the shareholders of the
Corporation of the sale of substantially all of the
Corporation's business assets to a person or entity
that is not a Subsidiary.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Committee" shall mean the committee appointed by the
Board to administer this Plan pursuant to Section 12.
"Common Stock" shall mean the common stock of the
Corporation.
"Company" shall mean the Corporation and its
Subsidiaries.
"Compensation" shall mean an Eligible Employee's
regular earnings, overtime pay, sick pay, shift
differential, shift premium, vacation pay, incentive
compensation, commissions and bonuses. Compensation also
includes any amounts contributed as salary reduction
contributions to a plan qualifying under Section 401(k), 125
or 129 of the Code. Any other form of remuneration is
excluded from Compensation, including (but not limited to)
the following: prizes, awards, housing allowances, stock
option exercises, stock appreciation rights, restricted
stock exercises, performance awards, auto allowances,
tuition reimbursement and other forms of imputed income.
Notwithstanding the foregoing, Compensation shall not
include any amounts deferred under or paid from the
Corporation's Executive Deferred Compensation Plan.
"Constructive Ownership" shall mean ownership of equity
shares by a person who would be treated as an owner of such
shares either directly or indirectly through the application
of Section 318 of the Code, as modified by Section 856(d)(5)
of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have
correlative meanings.
"Contributions" shall mean all bookkeeping amounts
credited to the Account of a Participant pursuant to
Section 7(a).
"Corporation" shall mean Golf Trust of America, Inc., a
Maryland corporation.
"Effective Date" shall mean March 1, 1998.
"Eligible Employee" shall mean any employee of the
Corporation, or of any Subsidiary which has been designated
in writing by the Committee as a "Participating Corporation"
(including any Subsidiaries which have become such after the
date that this Plan is approved by shareholders).
Notwithstanding the foregoing, "Eligible Employee" shall not
include any employee who (i) has not as of the Grant Date
completed at least three months of continuous full-time
employment with the Company, (ii) whose customary employment
is for 20 hours per week or less; or (iii) whose customary
employment is for not more than five months in a calendar
year.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Exercise Date" shall mean, with respect to an Offering
Period, the last day of that Offering Period.
"Fair Market Value" shall mean the closing price of a
Share on The American Stock Exchange or other exchange where
the Company on such date (or, in the event that the Common
Stock is not traded on such date, on the immediately
preceding trading date), as reported in The Wall Street
Journal or, in the event the Common Stock is not listed on
The American Stock Exchange, or other exchange the "Fair
Market Value" shall be the closing price of the Common Stock
for such date (or, in the event that the Common Stock is not
traded on such date, on the immediately preceding trading
date), as reported by the National Association of Securities
Dealers Automated Quotation ("NASDAQ") or, if such price is
not reported, the mean of the bid and asked prices per Share
as reported by NASDAQ or, if such prices are not so listed
or reported, as determined by the Committee (or its
delegate), in its discretion.
"Grant Date" shall mean the first day of each Offering
Period.
"Offering Period" shall mean the six-consecutive month
periods commencing on each January 1 and July 1.
"Option" shall mean the stock option to acquire Shares
granted to a Participant pursuant to Section 8.
"Option Price" shall mean the per share exercise price
of an Option as determined in accordance with Section 8(b).
"Ownership Limit" shall mean 9.8% of the value of the
outstanding equity shares of the Corporation.
"Participant" shall mean an Eligible Employee who has
elected to participate in this Plan and who has filed a
valid and effective Subscription Agreement to make
Contributions pursuant to Section 6.
"Plan" shall mean this Golf Trust of America, Inc.
Employee Stock Purchase Plan, as amended from time to time.
"Rule 16b-3" shall mean Rule 16b-3 promulgated under
Section 16.
"Section 16" shall mean Section 16 of the Exchange Act.
"Share" shall mean a share of Common Stock.
"Subscription Agreement" shall mean the written
agreement filed by an Eligible Employee with the Corporation
pursuant to Section 6 to participate in this Plan.
"Subsidiary" shall mean any corporation in an unbroken
chain of corporations (beginning with the Corporation) in
which each corporation (other than the last corporation)
owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one or more of the
other corporations in the chain.
3. ELIGIBILITY
Any person employed as an Eligible Employee as of a Grant
Date shall be eligible to participate in this Plan during
the Offering Period in which such Grant Date occurs, subject
to the Eligible Employee satisfying the requirements of
Section 6.
4. STOCK SUBJECT TO THIS PLAN; SHARE LIMITATIONS
The total number of Shares to be made available under this
Plan is 250,000 authorized and unissued or treasury shares
of Common Stock, or Shares repurchased on the open market,
subject to adjustments pursuant to Section 17. In the event
that all of the Shares made available under this Plan are
subscribed prior to the expiration of this Plan, this Plan
may be terminated in accordance with Section 19.
5. OFFERING PERIODS
During the term of this Plan, the Corporation will offer
Options to purchase Shares to all Participants during each
Offering Period. Each Option shall become effective on the
Grant Date. The term of each Option shall be six months and
shall end on the Exercise Date. The first Offering Period
shall commence on or after the Effective Date. Offering
Periods shall continue until this Plan is terminated in
accordance with Section 18 or 19, or, if earlier, until no
Shares remain available for Options pursuant to Section 4.
6. PARTICIPATION
An Eligible Employee may become a participant in this Plan
by completing a Subscription Agreement on a form approved by
and in a manner prescribed by the Committee (or its
delegate). To become effective, a Subscription Agreement
must be filed with the Corporation prior to the start of the
Offering Period with respect to which it is to become
effective and must set forth the percentage of the Eligible
Employee's Compensation (which shall be a whole percentage
point not less than 1% and not more than 10%) to be credited
to the Participant's Account as Contributions each pay
period. Subscription Agreements shall contain the Eligible
Employee's authorization and consent to the Corporation's
withholding from his or her Compensation the amount of his
or her Contributions. Subscription Agreements shall remain
valid for all Offering Periods until (i) an Eligible
Employee's participation terminates pursuant to the terms
hereof, or (ii) until a new Subscription Agreement becomes
effective.
7. METHOD OF PAYMENT OF CONTRIBUTIONS
(a) The Corporation shall maintain on its books, or cause
to be maintained by a recordkeeper, an Account in the
name of each Participant. The percentage of
Compensation elected to be applied as Contributions by
a Participant shall be deducted from such Participant's
Compensation on each payday during the period for
payroll deductions set forth below and such payroll
deductions shall be credited to that Participant's
Account as soon as administratively practicable after
such date. A Participant may not make any additional
payments to his or her Account. A Participant's
Account shall be reduced by any amounts used to pay the
Option Price of Shares acquired, or by any other
amounts distributed pursuant to the terms hereof.
(b) Payroll deductions with respect to an Offering Period
shall commence as of the first day of the payroll
period which coincides with or immediately follows the
applicable Grant Date and shall end on the last day of
the payroll period which coincides with or immediately
precedes the applicable Exercise Date, unless sooner
terminated by the Participant as provided in this
Section or until his or her participation terminates
pursuant to Section 11.
(c) A Participant may terminate his or her Contributions
during an Offering Period by completing and filing with
the Corporation, in such form and on such terms as the
Committee (or its delegate) may prescribe, a written
withdrawal form which shall be signed by the
Participant. Such termination shall be effective as
soon as administratively practicable after its receipt
by the Corporation.
(d) A Participant may discontinue or otherwise change the
level of his or her Contributions (within Plan limits)
effective as of the next Grant Date by completing and
filing with the Corporation, on such terms as the
Committee (or its delegate) may prescribe, a new
Subscription Agreement.
8. GRANT OF OPTION
(a) On each Grant Date, each Eligible Employee who is a
participant during that Offering Period shall be
granted an Option to purchase a number of Shares. The
Option shall be exercised on the Exercise Date. The
number of Shares subject to the Option shall be
determined by dividing the Participant's Account
balance as of the applicable Exercise Date by the
Option Price.
(b) The Option Price per Share of the Shares subject to an
Option shall be the lesser of: (i) 85% of the Fair
Market Value of a Share on the applicable Grant Date;
or (ii) 85% of the Fair Market Value of a Share on the
applicable Exercise Date.
(c) Notwithstanding anything else contained herein, a
person who is otherwise an Eligible Employee shall not
be granted any Option or other right to purchase Shares
under this Plan to the extent (i) it would, if
exercised, cause the person to own "stock" (as such
term is defined for purposes of Section 423(b)(3) of
the Code) possessing 5% or more of the total combined
voting power or value of all classes of stock of the
Corporation, or any Subsidiary, or (ii) such Option
causes such individual to have rights to purchase stock
under this Plan and any other plan of the Company
qualified under Section 423 of the Code which accrue at
a rate which exceeds $25,000 of the fair market value
of the stock of the Corporation or of a Subsidiary
(determined at the time the right to purchase such
Stock is granted) for each calendar year in which such
right is outstanding. For this purpose a right to
purchase Shares accrues when it first become
exercisable during the calendar year. In determining
whether the stock ownership of an Eligible Employee
equals or exceeds the 5% limit set forth above, the
rules of Section 424(d) of the Code (relating to
attribution of stock ownership) shall apply.
9. EXERCISE OF OPTION
Unless a Participant's Plan participation is terminated as
provided in Section 11, his or her Option for the purchase
of Shares shall be exercised automatically on the Exercise
Date for that Offering Period, without any further action on
the Participant's part, and the maximum number of whole
Shares subject to such Option shall be purchased at the
Option Price with the balance of such Participant's Account.
If any amount (which is not sufficient to purchase a whole
Share) remains in a Participant's Account after the exercise
of his or her Option on the Exercise Date: (i) such amount
shall be credited to such Participant's Account for the next
Offering Period, if he or she is then a Participant; or
(ii) if such Participant is not a Participant in the next
Offering Period, or if the Committee so elects, such amount
shall be refunded to such Participant as soon as
administratively practicable after such date.
No Participant may receive Common Stock upon exercise of an
Option to the extent that it will cause such person to
Beneficially or Constructively Own equity shares in excess
of the Ownership Limit. In the event that the exercise of a
Participant's Option which would upon delivery of the Common
Stock cause the holder of the Option to Beneficially or
Constructively Own equity shares in excess of the Ownership
Limit, such Option shall not be exercised, and the
participant's Account shall be returned to the Participant
without interest.
10. DELIVERY
As soon as administratively practicable after the Exercise
Date, the Corporation shall deliver to each Participant a
certificate representing the Shares purchased upon exercise
of his or her Option. The Corporation may make available an
alternative arrangement for delivery of Shares to a
recordkeeping service. The Committee (or its delegate), in
its discretion, may either require or permit the Participant
to elect that such certificates be delivered to such
recordkeeping service. In the event the Corporation is
required to obtain from any commission or agency authority
to issue any such certificate, the Corporation will seek to
obtain such authority. Inability of the Corporation to
obtain from any such commission or agency authority which
counsel for the Corporation deems necessary for the lawful
issuance of any such certificate shall relieve the
Corporation from liability to any Participant except to
return to the Participant the amount of the balance in his
or her Account.
11. TERMINATION OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS
(a) Upon a Participant's termination from employment with
the Company for any reason or in the event that a
Participant is no longer an Eligible Employee or if the
Participant elects to terminate Contributions pursuant
to Section 7(c), at any time prior to the last day of
an Offering Period in which he or she participates,
such Participant's Account shall be paid to him or her
or in cash, or, in the event of such Participant's
death, paid to the person or persons entitled thereto
under Section 13, and such Participant's Option and
participation in the Plan shall be automatically
terminated.
(b) A Participant's termination from Plan participation
precludes the Participant from again participating in
this Plan during that Offering Period. However, such
termination shall not have any effect upon his or her
ability to participate in any succeeding Offering
Period, provided that the applicable eligibility and
participation requirements are again then met. A
Participant's termination from Plan participation shall
be deemed to be a revocation of that Participant's
Subscription Agreement and such Participant must file a
new Subscription Agreement to resume Plan participation
in any succeeding Offering Period.
12. ADMINISTRATION
(a) The Board shall appoint the Committee (which may be the
Compensation Committee of the Company's Board of
Directors), which shall be composed of not less than
two members of the Board. Each member of the
Committee, in respect of any transaction at a time when
an affected Participant may be subject to Section 16 of
the Exchange Act, shall be a "non-employee director"
within the meaning of Rule 16b-3 promulgated under
Section 16. The Board may, at any time, increase or
decrease the number of members of the Committee, may
remove from membership on the Committee all or any
portion of its members, and may appoint such person or
persons as it desires to fill any vacancy existing on
the Committee, whether caused by removal, resignation,
or otherwise. The Board may also, at any time, assume
or change the administration of this Plan.
(b) The Committee shall supervise and administer this Plan
and shall have full power and discretion to adopt,
amend and rescind any rules deemed desirable and
appropriate for the administration of this Plan and not
inconsistent with the terms of this Plan, and to make
all other determinations necessary or advisable for the
administration of this Plan. The Committee shall act
by majority vote or by unanimous written consent. No
member of the Committee shall be entitled to act on or
decide any matter relating solely to himself or herself
or any of his or her rights or benefits under this
Plan. The Committee shall have full power and
discretionary authority to construe and interpret the
terms and conditions of this Plan, which construction
or interpretation shall be final and binding on all
parties including the Corporation, Participants and
beneficiaries. The Committee may delegate ministerial
non-discretionary functions to third parties, including
officers of the Corporation.
(c) Any action taken by, or inaction of, the Corporation,
the Board or the Committee relating to this Plan shall
be within the absolute discretion of that entity or
body. No member of the Board or Committee, or officer
of the Corporation shall be liable for any such action
or inaction.
13. DESIGNATION OF BENEFICIARY
(a) A Participant may file, in a manner prescribed by the
Committee (or its delegate), a written designation of a
beneficiary who is to receive any Shares or cash from
such Participant's Account under this Plan in the event
of such Participant's death. If a Participant's death
occurs subsequent to the end of an Offering Period but
prior to the delivery to him or her of any Shares
deliverable under the terms of this Plan, such Shares
and any remaining balance of such Participant's Account
shall be paid to such beneficiary (or such other person
as set forth in Section 13(b)) as soon as
administratively practicable after the Corporation
receives notice of such Participant's death and any
outstanding unexercised Option shall terminate. If a
Participant's death occurs at any other time, the
balance of such Participant's Account shall be paid to
such beneficiary (or such other person as set forth in
Section 13(b)) in cash as soon as administratively
practicable after the Corporation receives notice of
such Participant's death and such Participant's Option
shall terminate. If a Participant is married and the
designated beneficiary is not his or her spouse,
spousal consent shall be required for such designation
to be effective.
(b) Beneficiary designations may be changed by the
Participant (and his or her spouse, if required) at any
time on forms provided and in the manner prescribed by
the Committee (or its delegate). If a Participant dies
with no validly designated beneficiary under this Plan
who is living at the time of such Participant's death,
the Corporation shall deliver all Shares and/or cash
payable pursuant to the terms hereof to the executor or
administrator of the estate of the Participant, or if
no such executor or administrator has been appointed,
the Corporation, in its discretion, may deliver such
Shares and/or cash to the spouse or to any one or more
dependents or relatives of the Participant, or if no
spouse, dependent or relative is known to the
Corporation, then to such other person as the
Corporation may designate.
14. TRANSFERABILITY
Neither Contributions credited to a Participant's Account
nor any Options or rights with respect to the exercise of
Options or right to receive Shares under this Plan may be
anticipated, alienated, encumbered, assigned, transferred,
pledged or otherwise disposed of in any way (other than by
will, the laws of descent and distribution, or as provided
in Section 13) by the Participant. Any such attempt at
anticipation, alienation, encumbrance, assignment, transfer,
pledge or other disposition shall be without effect and all
amounts shall be paid and all shares shall be delivered in
accordance with the provisions of this Plan. Amounts
payable or Shares deliverable pursuant to this Plan shall be
paid or delivered only to the Participant or, in the event
of the Participant's death, to the Participant's beneficiary
pursuant to Section 13.
15. USE OF FUNDS; INTEREST
All Contributions received or held by the Corporation under
this Plan will be included in the general assets of the
Corporation and may be used for any corporate purpose. No
interest will be paid to any Participant or credited to his
or her Account under this Plan.
16. REPORTS
Statements shall be provided to Participants as soon as
administratively practicable following each Exercise Date.
Each Participant's statement shall set forth, as of such
Exercise Date, that Participant's Account balance
immediately prior to the exercise of his or her Option, the
Fair Market Value of a Share, the Option Price, the number
of whole Shares purchased and his or her remaining Account
balance, if any.
17. ADJUSTMENTS OF AND CHANGES IN THE STOCK
In the event that the Shares shall be changed into or
exchanged for a different number or kind of shares of stock
or other securities of the Corporation or of another
corporation (whether by reason of merger, consolidation,
recapitalization, stock split, combination of shares, or
otherwise), or if the number of Shares shall be increased
through a stock split or the payment of a stock dividend,
then there shall be substituted for or added to each Share
theretofore reserved for sale under this Plan, the number
and kind of shares of stock or other securities into which
each outstanding Share shall be so changed, or for which
each such Share shall be exchanged, or to which each such
Share is entitled, as the case may be, or the number or kind
of securities which may be sold under this Plan and the
purchase price per Share shall be appropriately adjusted
consistent with such change in such manner as the Committee
(or its delegate) may deem equitable to prevent substantial
dilution or enlargement of rights granted to, or available
for, Eligible Employees under this Plan.
18. POSSIBLE EARLY TERMINATION OF PLAN AND OPTIONS
Upon a dissolution of the Corporation, an event described in
Section 17 that the Corporation does not survive, or the
occurrence of a Change in Control, the Plan and, if prior to
the last day of an Offering Period, any outstanding Option
granted with respect to that Offering Period shall
terminate, subject to any provision that has been expressly
made by the Committee through a plan or reorganization
approved by the Board or otherwise for the survival,
substitution, assumption, exchange or other settlement of
the Plan and Options. In the event a Participant's Option
is terminated pursuant to this Section 18, such
Participant's Account shall be paid to him or her in cash
without interest.
19. TERM OF PLAN; AMENDMENT OR TERMINATION
(a) This Plan shall become effective as of the Effective
Date. No new Offering Periods shall commence on or
after the tenth anniversary of the Effective Date and
this Plan shall terminate on such date unless sooner
terminated pursuant to Section 18 or this Section 19.
(b) The Board may amend, modify or terminate this Plan at
any time without notice. Shareholder approval for any
amendment or modification shall not be required, except
to the extent required by Section 423 of the Code or
other applicable law, or deemed necessary or advisable
by the Board. No amendment, modification, or
termination pursuant to this Section 18(b) shall,
without written consent of the Participant, affect in
any manner materially adverse to the Participant any
rights or benefits of such Participant or obligations
of the Corporation under any Option granted under this
Plan prior to the effective date of such change.
Changes contemplated by Section 17 shall not be deemed
to constitute changes or amendments requiring
Participant consent. Notwithstanding the foregoing,
the Committee shall have the right to designate from
time to time the Subsidiaries whose employees may be
eligible to participate in this Plan and such
designation shall not constitute any amendment to this
Plan requiring shareholder approval.
20. NOTICES
All notices or other communications by a Participant to the
Corporation contemplated by this Plan shall be deemed to
have been duly given when received in the form and manner
specified by the Committee (or its delegate) at the
location, or by the person, designated by the Committee (or
its delegate) for that purpose.
21. CONDITIONS UPON ISSUANCE OF SHARES
Shares shall not be issued with respect to an Option unless
the exercise of such Option and the issuance and delivery of
such Shares complies with all applicable provisions of law,
domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, any
applicable state securities laws, the rules and regulations
promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed.
As a condition precedent to the exercise of any Option, if,
in the opinion of counsel for the Corporation such a
representation is required under applicable law, the
Corporation may require any person exercising such Option to
represent and warrant that the Shares subject thereto are
being acquired only for investment and without any present
intention to sell or distribute such Shares.
22. PLAN CONSTRUCTION
(a) It is the intent of the Corporation that transactions
in and affecting Options in the case of Participants
who are or may be subject to the prohibitions of
Section 16 satisfy any then applicable requirements of
Rule 16b-3 so that such persons (unless they otherwise
agree) will be entitled to the exemptive relief of Rule
16b-3 in respect of those transactions and will not be
subject to avoidable liability thereunder.
Accordingly, this Plan shall be deemed to contain and
the Shares issued upon exercise thereof shall be
subject to, such additional conditions and restrictions
as may be required by Rule 16b-3 to qualify for the
maximum exemption from Section 16 with respect to Plan
transactions.
(b) This Plan and Options are intended to qualify under
Section 423 of the Code.
(c) If any provision of this Plan or of any Option would
otherwise frustrate or conflict with the intents
expressed above, that provision to the extent possible
shall be interpreted so as to avoid such conflict. If
the conflict remains irreconcilable, the Committee may
disregard the provision if it concludes that to do so
furthers the interest of the Corporation and is
consistent with the purposes of this Plan as to such
persons in the circumstances.
23. EMPLOYEES' RIGHTS
Nothing in this Plan (or in any agreement related to this
Plan) shall confer upon any Eligible Employee or Participant
any right to continue in the service or employ of the
Company or constitute any contract or agreement of service
or employment, or interfere in any way with the right of the
Company to reduce such person's compensation or other
benefits or to terminate the services or employment or such
Eligible Employee or Participant, with or without cause, but
nothing contained in this Plan or any document related
hereto shall affect any other contractual right of any
Eligible Employee or Participant. No Participant shall have
any rights as a shareholder until a certificate for Shares
has been issued in the Participant's name following exercise
of his or her Option. No adjustment will be made for
dividends or other rights as a shareholder for which a
record date is prior to the issuance of such Share
certificate. Nothing in this Plan shall be deemed to create
any fiduciary relationship between the Corporation and any
Participant.
24. MISCELLANEOUS
(a) This Plan and related documents shall be governed by,
and construed in accordance with, the laws of the State
of South Carolina. If any provision shall be held by a
court of competent jurisdiction to be invalid and
unenforceable, the remaining provisions of this Plan
shall continue to be fully effective.
(b) Captions and headings are given to the sections of this
Plan solely as a convenience to facilitate reference.
Such captions and headings shall not be deemed in any
way material or relevant to the construction of
interpretation of this Plan or any provision hereof.
(c) The adoption of this Plan shall not affect any other
compensation or incentive plans in effect for the
Company. Nothing in this Plan shall be construed to
limit the right of the Company (i) to establish any
other forms of incentives or compensation for employees
of the Company, or (ii) to grant or assume options
(outside the scope of and in addition to those
contemplated by this Plan) in connection with any
proper corporate purpose.
25. EFFECTIVE DATE
This Plan shall be effective on the Effective Date, subject,
however, to the approval of this Plan by the shareholders of the
Company within twelve months after the date on which the Board
approved this Plan. Notwithstanding anything else contained
herein to the contrary, no Shares shall be issued or delivered
under this Plan until such shareholder approval is obtained and,
if such shareholder approval is not obtained within such 12-month
period of time, all Contributions credited to a Participant's
Account hereunder shall be refunded to such Participant (without
interest) as soon as practicable after the end of such 12-month
period.
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
Attached to this Subscription Agreement as Exhibits A and B
are copies of the Golf Trust of America, Inc. Employee Stock
Purchase Plan (the "Plan") and related Prospectus. The Plan is
voluntary and provides Eligible Employees the opportunity to
purchase shares of the Corporation's Common Stock at a discount.
You should complete this form if you want to participate in the
Plan commencing with the ___________________ to _______________
Offering Period. IN ORDER TO BE VALID, THIS SUBSCRIPTION AGREEMENT
MUST BE PROPERLY EXECUTED AND RECEIVED BY THE CORPORATION ON OR
BEFORE ______________. THIS SUBSCRIPTION AGREEMENT WILL REMAIN IN
EFFECT FOR SUBSEQUENT OFFERING PERIODS UNLESS YOUR PLAN
PARTICIPATION TERMINATES OR UNTIL YOU FILE A WITHDRAWAL FORM OR A
NEW SUBSCRIPTION AGREEMENT WITH THE CORPORATION PURSUANT TO THE
TERMS OF THE PLAN.
DEFERRAL ELECTION. If you are an Eligible Employee (as defined in
the Plan) as of _________________, you may commence participation
in the Plan with the ________________ to _______________ Offering
Period. To commence participation in the Plan, initial the box
below and indicate the level of your Contributions.
I hereby authorize the Company to deduct from my paycheck each
pay period __________% (designate a whole number from 1% to
10%) of my Compensation (as such term is defined in the Plan),
for the purchase of Common Stock under the Plan. My
Contributions will be deducted from each one of my paychecks
beginning with the first full pay period commencing on
_____________ and will continue for this and subsequent
Offering Periods unless my Plan participation terminates or
until I file a Withdrawal Form or a new Subscription Agreement
with the Corporation pursuant to the terms of the Plan. My
Contributions are subject to certain limits under the Plan and
any of my Contributions in excess of such limits will be
refunded to me.
BENEFICIARY DESIGNATION. (Please initial the following box if you
have attached a Designation of Beneficiary form. If you have
already filed a Designation of Beneficiary form under the Plan, you
do not need to file a new form unless you wish to change your
beneficiary.)
I hereby acknowledge that I have read and completed the
Designation of Beneficiary attached hereto as Exhibit C.
SIGNATURE. I hereby agree to be bound by the terms of the Plan,
acknowledge receipt of a copy of the Plan and Prospectus, and
authorize the election, payroll deductions, and beneficiary
designation (if applicable) specified above.
Signature Date
Print Name Social Security Number
Street Address City, State, Zip Code
<PAGE>
EXHIBIT A
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
PLAN DOCUMENT
<PAGE>
EXHIBIT B
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
PROSPECTUS
<PAGE>
EXHIBIT C
GOLF TRUST OF AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
DESIGNATION OF BENEFICIARY
<PAGE>
EXHIBIT 5.1
OPINION AS TO LEGALITY
[O'Melveny & Myers LLP Letterhead]
February
17th
1 9 9 8
319,440-023
299383
Golf Trust of America, Inc.
14 North Adger's Wharf
Charleston, South Carolina 29401
Re: Golf Trust of America, Inc., a Maryland corporation,
(the "Company") - Registration Statement on Form S-8
pertaining to 250,000 shares of the Company's common
stock, par value one cent ($.01) per share, plus an
indeterminate number of shares which by reason of
certain events specified in the Plan (as defined
herein) may become subject to the Plan (the "Shares"),
and to options and other rights to purchase or acquire
the Shares
Ladies and Gentlemen:
In connection with the registration of the Shares under
the Securities Act of 1933, as amended (the "Act"), by the
Company on Form S-8 to be filed with the Securities and
Exchange Commission (the "Commission") on or about February
20, 1998 (the "Registration Statement"), you have requested
our opinion with respect to the matters set forth below.
We have acted as corporate counsel for the Company in
connection with the matters described herein. In our capacity
as corporate counsel to the Company, we have reviewed and are
familiar with proceedings taken and proposed to be taken by
the Company in connection with the authorization, issuance and
sale of the Shares, and for purposes of this opinion have
assumed such proceedings will be timely completed in the
manner presently proposed. In addition, we have relied upon
certificates and advice from the officers of the Company upon
which we believe we are justified in relying and on various
certificates from and documents recorded with, the State
Department of Assessments and Taxation of Maryland (the
"SDAT"), including the charter of the Company (the
"Charter"), consisting of Articles of Incorporation filed with
the SDAT on November 8, 1996 and Articles of Amendment and
Restatement filed with the SDAT on January 31, 1997. We have
also examined the bylaws of the Company adopted as of November
10, 1996 (the "Bylaws") and in full force and effect on the
date hereof and resolutions of the Board of Directors of the
Company adopted on or before February 16, 1998 and in full
force and effect on the date hereof; the Golf Trust of
America, Inc. Employee Stock Purchase Plan (the "Plan") and
such laws, records, documents, certificates, opinions and
instruments as we deem necessary to render this opinion.
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and
the conformity with originals of all documents submitted to us
as copies. In addition, we have assumed that each person
executing any instrument, document or certificate referred to
herein on behalf of any party is duly authorized to do so. We
have also assumed that none of the Shares will be issued or
transferred in violation of Section 2 of Article V of the
Charter entitled, "REIT-Related Restrictions and Limitations
on the Equity Shares of the Corporation."
On the basis of such examination, our reliance upon the
assumptions in this opinion and our consideration of those
questions of law we considered relevant, and subject to the
limitations and qualifications in this opinion, we are of the
opinion that, as of the date of this letter, the Shares have
been duly authorized by all necessary corporate action on the
part of the Company and, upon payment for and delivery of the
Shares in accordance with the Plan and the countersigning of
the certificate or certificates representing the Shares by a
duly authorized signatory of the registrar for the Company's
common stock, the Shares will be validly issued, fully paid
and non-assessable.
We consent to your filing this opinion as an exhibit to
the Registration Statement, and further consent to the filing
of this opinion as an exhibit to the applications to
securities commissioners for the various states of the United
States for registration of the Shares. We also consent to the
filing of this opinion, as may be necessary, pursuant to Rule
462(b) of the Act. We also consent to the identification of
our firm as counsel to the Company in the Registration
Statement.
The opinions expressed herein are limited to the laws
of the State of Maryland and we express no opinion concerning
any laws other than the laws of the State of Maryland.
Furthermore, the opinions presented in this letter are limited
to the matters specifically set forth herein and no other
opinion shall be inferred beyond the matters expressly stated.
We undertake no obligation to update the opinions expressed
herein after the date of this letter. This opinion letter is
solely for the information and use of the Company, and it may
not be distributed, relied upon for any purpose by any other
person, quoted in whole or in part or otherwise reproduced
in any document, or filed with any other governmental agency
without our express prior written consent.
Very truly yours,
/s/ O'Melveny & Myers LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Golf Trust of America, Inc.
Charleston, South Carolina
We hereby consent to the incorporation by reference in this
Registration Statement on form S-8 of our reports dated March
26, 1997, relating to the consolidated financial statements of
Golf Trust of America, Inc. and dated March 21, 1997, relating
to the combined financial statements of Legends Golf appearing
in the Company's Annual Report on 10-K for the year ended
December 31, 1996.
BDO Seidman, LLP
Charlotte, North Carolina
February 18, 1998
