As filed with the Securities and Exchange Commission on June 20, 2001
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
-----------------------
CONSOLIDATED-TOMOKA LAND CO.
(Exact name of registrant as specified in its charter)
Florida 59-0483700
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
149 South Ridgewood Avenue, Daytona Beach, Florida 32114
(Address of Principal Executive Office) (Zip Code)
Consolidated-Tomoka Land Co. 2001 Stock Option Plan
(Full title of the plan)
Robert F. Apgar, Esq.
Vice President-General Counsel
Consolidated-Tomoka Land Co.
149 South Ridgewood Avenue
Daytona Beach, Florida 32114
(Name and address of agent for service)
(386) 255-7558
(Telephone number, including area code, of agent for service)
Copies of Communications To:
Tom McAleavey, Holland & Knight LLP, 200 South Orange Avenue, Suite 2600
Orlando, Florida 32801 (407) 425-8500
CALCULATION OF REGISTRATION FEE
Title of securities Amount Proposed Proposed Amount of
to be registered to be maximum maximum registration
Common Stock, registered(1) offering aggregate fee
par value price offering price(2)
$1.00 per share 500,000 $15.13 $7,565,000 $1,892
(1) Includes an indeterminate number of additional shares that may be
issued to adjust the number of shares issued pursuant to the employee
benefit plan described herein as the result of any future stock split,
stock dividend or similar adjustment of outstanding Common Stock. In
addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Estimated solely for the purpose of determining the registration fee
and calculated in accordance with Rule 457 (h)(1) under the Securities
Act based on the average high and low sales price of the Registrant's
Common Stock on June 15, 2001, as reported on the American Stock
Exchange.
1
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by
reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000 (File No. 0-5556);
(2) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2001 (File No. 0-5556);
(3) The Registrant's Proxy Statement for the Annual Meeting of
Shareholders held on April 25, 2001, as filed with the
Commission on March 16, 2001 (File No. 0-5556); and
(4) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-B filed
with the Commission on July 1, 1993 pursuant to the
Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to
be part thereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the securities offered hereby will be passed upon
for the Registrant by Holland & Knight LLP. William O. E. Henry,
a practicing attorney and partner in Holland & Knight LLP, is a
director of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act permits,
and in some cases requires, the Registrant as a Florida
corporation to indemnify a director, officer, employee, or agent
of the Registrant, or any person serving at the request of the
Registrant in any such capacity with respect to another entity,
2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS (Continued)
against certain expenses and liabilities incurred as a party to
any proceeding, including, among others, a proceeding under the
Securities Act of 1933 brought against such person by reason of
the fact that such person is or was a director, officer,
employee, or agent of the Registrant or is or was serving in such
capacity with respect to another entity at the request of the
Registrant. With respect to actions other than in the right of
the Registrant, such indemnification is permitted if such person
acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the
Registrant, and with respect to any criminal action or
proceeding, if such person had no reasonable cause to believe his
or her conduct was unlawful. Termination of any such action by
judgment, order, settlement or conviction or a plea of nolo
contendere, or its equivalent shall not, of itself, create a
presumption that such person did not act in good faith and in a
manner he or she reasonably believed to be in, or not opposed to,
the best interests of the Registrant, or with respect to any
criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
With respect to any action threatened, pending or completed in
the right of the Registrant to procure a judgment in its favor
against any such person, the Registrant may indemnify any such
person against expenses actually and reasonably incurred by him
or her in connection with the defense or settlement of such
action or suit, including the appeal thereof, if he or she acted
in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the Registrant,
except that no indemnification shall be made in respect of any
claim, issue or matter as to which any such person shall have
been adjudged to be liable for negligence or misconduct in the
performance of his or her duties to the Registrant unless the
court in which the action was brought determines that despite the
adjudication of liability, but in view of all the circumstances
in the case, such person is fairly and reasonably entitled to
indemnity for such expenses.
Section 607.0850 also provides that if any such person has been
successful on the merits or otherwise in defense of any action,
suit or proceeding, whether brought in the right of the
Registrant or otherwise, such person shall be indemnified against
expenses actually and reasonably incurred by him or her in
connection therewith. If any director or officer does not succeed
upon the merits or otherwise in defense of an action, suit or
proceeding, then unless pursuant to a determination made by a
court, indemnification by the Registrant shall be made only as
authorized in the specific case upon a determination that
indemnification of the director or officer is proper because he
or she has met the applicable standard of conduct. Any such
determination may be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who are not parties to such action,
suit, or proceeding;
3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS (Continued)
(b) If such a quorum is not obtainable or, even if obtainable, by
a majority vote of a committee duly designated by the Board
of Directors (in which directors who are parties may
participate) consisting solely of two or more directors not
at the time parties to the proceeding;
(c) By independent legal counsel selected by the Board of
Directors prescribed in paragraph (a) or the committee
prescribed in paragraph (b), or if a quorum of the directors
cannot be obtained for paragraph (a) or the committee cannot
be designated under paragraph (b), selected by a majority
vote of the full Board of Directors (in which directors who
are parties may participate); or
(d) By the shareholders by a majority vote of a quorum consisting
of shareholders who were not parties to the proceeding or, if
no such quorum is obtainable, by a majority vote of
shareholders who were not parties to such proceeding.
Section 607.0850 also contains a provision authorizing
corporations to purchase and maintain liability insurance on
behalf of its directors and officers.
The Registrant's by-laws provide for indemnification of directors
and officers. The general effect of the by-law provisions is to
indemnify any director or officer against any liability arising
from any action or suit to the full extent permitted by Florida
law, as discussed in the foregoing paragraphs; provided, however,
that the provision of the Registrant's by-laws relating to
indemnification is inapplicable to any action, suit or proceeding
brought by or on behalf of a director or officer without prior
approval of the Board of Directors of the Registrant. The
Registrant and its directors and officers are also insured for
liability arising from claims against the Registrant's directors
and officers (or its subsidiaries' directors or officers) in
their capacities as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation of CTLC, Inc. dated February 26,
1993 and Amended Articles of Incorporation dated March 30,
1993 (incorporated by reference to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 1993).
3.2 By-laws of CTLC, Inc. (incorporated by reference to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1993).
5.1 Opinion of Holland & Knight LLP.
4
ITEM 8. EXHIBITS (Continued)
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Holland & Knight LLP appears in its opinion
filed as Exhibit 5.1
24.1 Power of Attorney (included in the signature page in
Part II of the Registration Statement)
99.1 Consolidated-Tomoka Land Co. 2001 Stock Option Plan.
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 of 1933;
(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;
(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
5
ITEM 9. UNDERTAKINGS (Continued)
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions (see Item 6) 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 of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Daytona Beach,
State of Florida, on June 19, 2001.
CONSOLIDATED-TOMOKA LAND CO.
By:/s/ William H. McMunn
-----------------------
William H. McMunn
President and
Chief Executive Officer
7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bruce W. Teeters and Robert F.
Apgar, or any of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities to sign any or all
amendments to this Registration Statement, and to file the same, with
all exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each of said
attorneys-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 as to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents, or his 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 by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/William H. McMunn President, Chief Executive June 19, 2001
---------------------- Officer and Director
William H. McMunn (Principal Executive Officer)
/s/Bob D. Allen Chairman of the Board June 19, 2001
----------------------
Bob D. Allen
/s/Bruce W. Teeters Senior Vice President- June 19, 2001
---------------------- Finance, Treasurer and Director
Bruce W. Teeters (Principal Financial and
Accounting Officer)
/s/John C. Adams, Jr. Director June 19, 2001
----------------------
John C. Adams, Jr.
/s/William O. E. Henry Director June 19, 2001
----------------------
William O. E. Henry
/s/Robert F. Lloyd Director June 19, 2001
----------------------
Robert F. Lloyd
Director June , 2001
----------------------
David D. Peterson
Director June , 2001
----------------------
H. Jay Skelton
/s/William J. Voges Director June 19, 2001
----------------------
William J. Voges
8
INDEX OF EXHIBITS
5.1 Opinion of Holland & Knight LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Holland & Knight LLP appears in its opinion filed
as Exhibit 5.1
24.1 Power of Attorney (included in the signature page in Part II
of the Registration Statement)
99.1 Consolidated-Tomoka Land Co. 2001 Stock Option Plan.
Exhibit 5.1
[HOLLAND & KNIGHT LLP LETTERHEAD]
June 20, 2001
Consolidated-Tomoka Land Co.
149 South Ridgewood Drive
Daytona Beach, Florida 32114
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We refer to the Registration Statement (the "Registration Statement") on
Form S-8 filed today by Consolidated-Tomoka Land Co. (the "Company")
with the Securities and Exchange Commission, for the purpose of
registering under the Securities Act of 1933 an aggregate of 500,000
shares (the "Shares") of the authorized common stock, par value $1.00
per share, of the Company authorized for issuance pursuant to the
Consolidated-Tomoka Land Co. 2001 Stock Option Plan (the "Plan").
This opinion is governed by, and shall be interpreted in accordance
with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and
other limitations, all as more particularly described in the Accord, and
this opinion letter should be read in conjunction therewith.
In connection with the foregoing registration, we have examined the
Plan, copies of the Articles of Incorporation and By-Laws of the
Company, the Registration Statement, and such other corporate records
and documents as we deemed necessary or appropriate to form the basis
for the opinion hereinafter expressed. In our examination of such
material, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the
conformity to the original documents of all copies submitted to us. We
have also assumed the legal capacity for all purposes relevant hereto of
all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties
had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
9
EXHIBIT 5.1 (Continued)
agreements or instruments have been duly authorized by all necessary
action (corporate or otherwise), executed and delivered by such parties
and that such agreements or instruments are the valid, binding and
enforceable obligations of such parties. As to questions of fact
material to such opinion, we have relied upon statements of officers and
representatives of the Company and others.
Based upon the foregoing, and having regard for legal considerations
that we deem relevant, it is our opinion that the Shares being
registered have been duly authorized and, upon issuance, delivery and
payment therefor in accordance with the terms of the Plan, will be
validly issued, fully paid and nonassessable shares of common stock of
the Company.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/Holland & Knight LLP
HOLLAND & KNIGHT LLP
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
As independent certified public accountants, we hereby consent to the
incorporation by reference of our report dated January 25, 2001, on the
consolidated financial statements of Consolidated-Tomoka Land Co. and
subsidiaries as of December 31, 2000 and 1999, and for each of the
three years in the period ended December 31, 2000, into this
Registration Statement on Form S-8.
/s/Arthur Andersen LLP
Arthur Andersen LLP
Orlando, Florida
June 15, 2001
ORL1 #646395 v2
10
EXHIBIT 99.1
CONSOLIDATED-TOMOKA LAND CO.
2001 STOCK OPTION PLAN
(Effective April 25, 2001)
1. Purpose.
--------
The purpose of this Consolidated-Tomoka Land Co. 2001 Stock Option
Plan is to further the interests of the Company, its Subsidiaries
and its shareholders by providing incentives in the form of stock
Option and Stock Appreciation Right grants to key Employees who
contribute materially to the success and profitability of the
Company. The grants will recognize and reward Employees who put
forth outstanding individual performances and contributions, and
will give such Employees a proprietary interest in the Company,
thus enhancing their personal interest in the Company's continued
success and progress. This program also will assist the Company
and its Subsidiaries in attracting and retaining key Employees.
The Options granted under this Plan may be Incentive Stock Options,
as defined in Code Section 422, or non-statutory Options taxed under
Code Section 83.
2. Definitions.
------------
The following definitions shall apply to this Plan:
(a) "Beneficiary"
-------------
means the person designated in the last will and testament
of the Optionee as the beneficiary of the Optionee with
respect to the Option. In the absence of such designation,
the beneficiary of the Optionee shall be determined under
the laws of descent and distribution of the state of
domicile of the Optionee at the time of the Optionee's
death.
(b) "Board"
-------
means the Board of Directors of the Company.
(c) "Change of Control"
-------------------
means any of the following events:
i. any person (as such term is used in Section 13(d)
of the Securities Exchange Act of 1934, (the
"Exchange Act")) or group (as such term is defined
in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act), other than a subsidiary of the Company or any
employee benefit plan (or any related trust) of the
Company or a subsidiary, becomes the beneficial
owner of 50% or more of the Company's outstanding
voting shares and other outstanding voting
securities of the Company that are entitled to vote
generally in the election of directors of the
Company ("Voting Securities");
1
ii. individuals who, as of the effective date of the
Plan, constitute the Board ("Incumbent Board") cease
for any reason to constitute a majority of the
members of the Board; provided that any individual
who becomes a director after the effective date
whose election or nomination for election by the
Company's shareholders was approved by a majority of
the members of the Incumbent Board (other than an
election or nomination of an individual whose
initial assumption of office is in connection with
an actual or threatened "election contest" relating
to the election of the directors of the Company
(as such terms are used in Rule 14a-11 under the
Exchange Act), "tender offer" (as such term is
used in Section 14(d) of the Exchange Act) or a
proposed Merger (as defined below)) shall be deemed
to be members of the Incumbent Board; or
iii. approval by the stockholders of the Company of
either of the following:
A. a merger, reorganization, consolidation or
similar transaction (any of the foregoing, a
"Merger") as a result of which the persons who
were the respective beneficial owners of the
outstanding Common Stock and/or the Voting
Securities immediately before such Merger are
not expected to beneficially own, immediately
after such Merger, directly or indirectly, more
than 50% of, respectively, the outstanding voting
shares and the combined voting power of the
voting securities resulting from such merger in
substantially the same proportions as immediately
before such Merger; or
B. a plan of liquidation of the Company or a plan or
agreement for the sale or other disposition of
all or substantially all of the assets of the
Company.
(d) "Code"
------
means the Internal Revenue Code of 1986, as amended from
time to time.
(e) "Committee"
-----------
means the Stock Option Committee appointed by the Board in
accordance with Section 3 of the Plan. If the Board does
not appoint a Committee, the term "Committee" means the
Board, except in those instances where the text clearly
indicates otherwise.
2
(f) "Common Stock"
--------------
means the voting common stock, par value one dollar ($1.00)
per share, of the Company or such other class of shares or
securities as to which the Plan may be applicable pursuant
to Section 13 herein.
(g) "Company"
---------
means Consolidated-Tomoka Land Co., a Florida corporation.
(h) "Continuous Service"
--------------------
means the absence of any interruption or termination of
employment with, or service to, the Company or any parent
or Subsidiary of the Company that now exists or hereafter
is organized or acquired by or acquires the Company.
Continuous Service shall not be considered interrupted in
the case of sick leave, military leave or any other leave
of absence approved by the Company or, in the case of
transfers, movements between locations of the Company or
between the Company, its parent, its Subsidiaries or its
successor.
(i) "Date of Grant"
---------------
means the date as of which the Committee grants an Option.
(j) "Employee"
----------
means any person employed on an hourly or salaried basis by
the Company or any parent or subsidiary of the Company that
now exists or hereafter is organized or acquired by or
acquires the Company.
(k) "Fair Market Value"
-------------------
means the fair market value of the Common Stock on the Date
of Grant. If the Common Stock is not publicly traded, the
Board shall determine the fair market value of the Shares
as of the Date of Grant by using such factors as the Board
considers relevant, such as the price at which recent sales
have been made, the book value of the Common Stock, and the
Company's current and projected earnings. If the Common
Stock is publicly traded, the fair market value is the mean
between the closing bid and asked prices of the Common
Stock as reported by the National Association of Securities
Dealers Automated Quotations ("NASDAQ") system on the Date
of Grant, regardless of trades on that date, or if the
Common Stock is listed on a stock exchange, the mean
between the high and low sales prices of the stock on that
date, as reported in the Wall Street Journal. If trading
in the stock or a price quotation does not occur on the
Date of Grant, the next preceding date on which the Common
Stock was traded or a price was quoted will determine the
fair market value.
3
(l) "Grant Agreement"
-----------------
means the written agreement between the Company and the
Optionee evidencing the grant of the Option by the Company
to the Optionee.
(m) "Incentive Stock Option"
------------------------
means a stock option, granted pursuant to this Plan that
satisfies the requirements of Code Section 422 and that
entitles the Optionee to purchase Common Stock of the Company
or in a corporation that at the time of grant of the Option
was a parent or subsidiary of the Company or a predecessor
corporation of any such corporation.
(n) "Option"
--------
means a stock option granted pursuant to the Plan.
(o) "Option Period"
---------------
means the period beginning on the Date of Grant and ending
on the day prior to the tenth (10th) anniversary of the
Date of Grant or such shorter ending date as is set by the
Committee and set forth in the stock option agreement
between the Company and an Optionee.
(p) "Optionee"
----------
means an Employee who receives an option.
(q) "Plan"
------
means the Consolidated-Tomoka Land Co. 2001 Stock Option
Plan, as amended or restated from time to time.
(r) "Regulations"
-------------
means Treasury Regulations promulgated in accordance with
the Code.
(s) "Share"
-------
means one share of the Common Stock, as adjusted in
accordance with paragraph 13 or the Plan.
(t) "Stock Appreciation Right" or "SAR"
-----------------------------------
means the right to receive a portion of the amount by which
the fair market value of the SAR's related Share at the
time the related Option is exercised exceeds the price paid
for the Share, determined in accordance with the following
equation (for the purpose of the following equation,
"Appreciation" equals the amount by which the fair market
value of the SAR's related Share at the time the related
Option is exercised exceeds the price paid for the Share,
and "Tax Rate" equals the Optionee's tax rate as determined
by the Code at the time the SAR is exercised):
4
Appreciation - Appreciation = SAR Value
------------
1 - Tax Rate
Shares and SARs issued pursuant to the same Option grant
are referred to in this Plan as "related" to each other.
(u) "Subsidiary"
------------
means any corporation fifty percent (50%) or more of the
voting securities of which are owned directly or indirectly
by the Company at any time during the existence of this
Plan.
3. Administration.
---------------
This Plan shall be administered by the Committee. The Board is
authorized to add or remove any Committee member for any reason,
and to appoint a successor to any Committee member who ceases to
serve. The Committee shall consist solely of three (3) or more
directors who are (i) not employees of the Company, (ii) "non-
employee directors", as that term is defined in Rule 16b-3 under
the Securities Exchange Act of 1934, or any successor statute or
regulation regarding the same subject matter, and (iii) "outside
directors" as that term is defined in Regulation Section 1.162-27,
and as contemplated by Code Section 162(m), or any successor statute
or Regulation regarding the same subject matter. The Committee has
the exclusive power to select the participants in this Plan, to
establish the terms of the Options granted to each participant,
and to make all other determinations necessary or advisable under
the Plan. The Committee has the sole and absolute discretion to
determine whether the performance of an eligible Employee warrants
an award under this Plan and to determine the amount of the award.
The Committee has full and exclusive power to construe and
interpret this Plan, to describe, amend, and rescind rules and
regulations relating to this Plan, and to take all actions
necessary or advisable for the Plan's administration. Acts of the
Committee taken by a majority of the Committee at a meeting at
which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall
constitute acts of the Committee. The Company hereby indemnifies
and holds harmless the members of the Committee in their capacity
as Committee members against all liability and expenses (including
reasonable attorney, paralegal, and professional fees, and court
costs) arising from any threatened, pending or completed action,
suit, proceeding (including administrative proceedings or
investigations) or appeal, incurred by reason of the fact that
such individual is or was a member of the Committee, provided that
such individual (i) acted, or failed to act, in good faith and in
a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the Company as well as the Optionees, or
(ii) with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
5
4. Shares Subject to Option.
-------------------------
Subject to the provisions of paragraph 13 of the Plan, the maximum
aggregate number of Shares that may be optioned and sold under the
Plan shall be Five Hundred Thousand (500,000). Such Shares may
be authorized, but unissued, or may be treasury shares. If an
option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares that
were subject to the Option shall, unless the Plan has then
terminated, be available for other Options under the Plan.
5. Participants.
-------------
(a) Eligible Employees.
-------------------
Every Employee who the Committee, in its sole discretion,
designates, is eligible to participate in this Plan. The
Committee's award of an Option to an Employee in any year does
not require the Committee to award an Option to that Employee
in any other year. Furthermore, the Committee may award
different Options to different participants. The Committee may
consider such factors as it deems pertinent in selecting
participants and in determining the amount of their Options,
including, without limitation, (i) the financial condition of
the Company or its Subsidiaries; (ii) expected profits for the
current or future years; (iii) the contributions of a
prospective participant to the profitability and success of the
Company or its Subsidiaries; and (iv) the adequacy of the
prospective participant's other compensation. Eligible
Employees may include persons to whom stock, stock options,
stock appreciation rights, or other benefits previously were
granted under this or another plan of the Company or any
Subsidiary, whether or not the previously granted benefits have
been fully exercised.
(b) No Right of Employment.
-----------------------
An Optionee's right, if any, to continue to serve the Company
and/or its Subsidiaries as an officer, Employee or otherwise
will not be enlarged or otherwise affected by his designation
as an Optionee under this Plan, and such designation shall not
in any way restrict the right of the Company or any
Subsidiary, as the case may be, to terminate at any time the
employment or affiliation of any Employee or Optionee,
regardless of the effect of such termination of employment on
the rights of the Employee or Optionee.
6. Option Requirements.
--------------------
Each Option granted under this Plan shall satisfy the following
requirements:
(a) Written Option.
---------------
An Option shall be evidenced by a Grant Agreement specifying
(i) the number of Shares that may be purchased by its exercise,
6
(ii) the price, (iii) the vesting period and Option Period,
(iv) the intent of the Committee as to whether the Option is to
be an Incentive Stock Option or a non-statutory Option, and (v)
such terms and conditions consistent with the Plan as the
Committee shall determine, in its discretion.
(b) Duration of Option.
-------------------
Each Option may be exercised only during the Option Period
designated for the Option by the Committee. At the end of the
Option Period, the Option shall expire. In no event may the
duration of an Incentive Stock Option or non-statutory Option
exceed ten (10) years from the Date of Grant.
(c) Option Exercisability.
----------------------
Unless otherwise provided by the Committee on the grant of an
Option, and in the Grant Agreement, each Option shall be
exercisable only as to no more than one-fifth (1/5) of the
total number of shares covered by the Option during each twelve
(12) month period commencing twelve (12) months after the Date
of Grant. Notwithstanding the foregoing, an Option is
exercisable only if the issuance of Shares pursuant to the
exercise would be in compliance with applicable securities
laws, as contemplated by Section 11 of this Plan. To the
extent an Option is either unexercisable or unexercised, the
unexercised portion shall accumulate until the Option both
becomes exercisable and is exercised, but in no case beyond the
date that is ten (10) years from the Date of the Option.
(d) Acceleration of Vesting.
------------------------
The Board may, in its discretion, provide for the exercise of
Options either as to an increased percentage of shares per year
or as to all remaining Shares. Such acceleration of vesting
may be declared by the Board at anytime before the end of the
Option Period, including, if applicable, after termination of
the Optionee's Continuous Service by reason of death,
disability (as defined in Code Section 22(e)(3)), retirement or
termination of employment.
(e) Exercise Price.
---------------
Except as provided in Sections 1(k), 7(a) and 8(a), the
exercise price of each Share subject to the Option shall equal
the Fair Market Value of the Share on the Option's Date of
Grant.
(f) Termination of Services.
------------------------
If the Optionee ceases Continuous Service for any reason other
than death, disability (as defined in Code Section 22(e)(3) and
the Regulations thereunder) or, in the case of non-statutory
stock options, retirement on or after age 65 of the Optionee,
all Options held by the Optionee shall lapse immediately
following the effective date of the termination of his services
7
to the Company. On the grant of an Option, the Committee may, in
its discretion, extend the time during which the Option may be
exercised after termination of services. The maximum period
that may be allowed, however, shall be ninety (90) days. Any
such Option shall lapse at the earlier of the end of the Option
Period or the end of the period established by the Committee
for exercise after termination of services. The Option may be
exercised only for the number of Shares for which it could have
been exercised on such termination date, subject to any
adjustment under Sections 6(d) and 13.
(g) Death.
------
In the case of death of the Optionee, the Beneficiaries
designated by the Optionee shall have one (1) year from the
Optionee's demise or to the end of the Option Period, whichever
is earlier, to exercise the Option, provided, however, the
Option may be exercised only for the number of Shares for which
it could have been exercised at the time the Optionee died,
subject to any adjustment under Section 6(d) and 13.
(h) Retirement.
-----------
If the Optionee retires on or after attaining age 65, the
Option shall lapse at the earlier of the end of the Option
Period or ninety (90) days after the date of retirement;
provided however, the Option can be exercised only for the
number of Shares for which it could have been exercised on the
retirement date, subject to any adjustment under Sections 6(d)
and 13.
(i) Disability.
-----------
In the event of termination of Continuous Service due to "total
and permanent disability" (within the meaning of Code Section
22(e)(3), the Option shall lapse at the earlier of the end of
the Option Period or twelve (12) months after the date of such
termination, provided, however, the Option can be exercised
only for the number of Shares for which it could have been
exercised at the time the Optionee became disabled, subject to
any adjustment under Sections 6(d) and 13.
(j) Maximum Grants.
---------------
No individual shall receive in any fiscal year of the Company,
Options to purchase more than Fifty Thousand (50,000) Shares.
Any adjustment upon a change of Shares pursuant to Section 13
of the Plan shall apply to the limitation specified in this
subsection (j).
7. Incentive Stock Options.
------------------------
Any Option intended to qualify as an Incentive Stock Option shall
satisfy the following requirements in addition to those
requirements stated in Section 6 above:
8
(a) Ten Percent Shareholders.
-------------------------
An Option intended to qualify as an Incentive Stock Option
granted to an individual who, on the Date of Grant, owns stock
possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of either the Company or
any parent or Subsidiary shall be granted at an exercise price
of one hundred ten percent (110%) of Fair Market Value on the
Date of Grant and shall be exercisable only during the five (5)
year period immediately following the Date of Grant. In
calculating stock ownership of any person, the attribution
rules of Code Section 424(d) will apply. Furthermore, in
calculating stock ownership, any stock that the individual may
purchase under outstanding Options will not be considered.
(b) Prior Outstanding Options.
--------------------------
Each Option intended to qualify as an Incentive Stock Option
(for purposes of this subsection, a "New Option") is
exercisable only after the exercise or lapse of all outstanding
Incentive Stock Options that were granted to the Optionee under
this or any other plan of the Company or its parent or
subsidiaries before the Date of Grant of the New Option ("Prior
Option"). An Incentive Stock Option must be treated as
outstanding until the Option is exercised in full or expires
because of the lapse of time.
(c) Maximum Option Grants.
----------------------
The aggregate Fair Market Value, determined on the Date of
Grant, of stock in the Company with respect to which any
Optionee may exercise for the first time one or more Incentive
Stock Options under the Plan and all other plans of the Company
or its parent or Subsidiaries in any calendar year shall not
exceed one hundred thousand dollars ($100,000). For purposes
of this rule, Incentive Stock Options shall be taken into
account in the order in which they were granted.
8. Non-statutory Options.
----------------------
Any Option not intended to qualify as an Incentive Stock Option
shall be a non-statutory Option. The grant of the non-statutory
Option, in the discretion of the Committee, may be accompanied by
the grant of one Stock Appreciation Right for each Share subject to
the Option. Options and SARs issued pursuant to the same grant are
referred to as "related" to each other. Non-statutory options
shall satisfy each of the requirements of Section 6 of the Plan,
except as follows:
(a) Exercise Price.
---------------
Notwithstanding the provisions of Section 6(e), non-statutory
Options may be granted at the exercise price designated by the
Committee in accordance with Section 6(e) or at such other
price as may be determined by the Committee in its discretion.
However, in no event shall the exercise price be less than
fifty percent (50%) of the Fair Market Value of the underlying
Shares on the date the Option is granted.
9
(b) Option Exercisability.
----------------------
Any non-statutory Option which has a related SAR granted at the
same time as the Option may not be exercised (i) during the six
(6) month period immediately following the Date of Grant or
(ii) before the Plan is approved by a majority of the Company's
shareholders.
9. Stock Appreciation Rights.
--------------------------
(a) Exercise.
---------
SARs are exercisable to the extent, but only to the extent,
that the related Option is exercisable. In addition, SARs must
be exercised, if at all, by the later of the end of (i) the
ninety (90) day period beginning on the date of exercise of the
related Option or (ii) the ten (10) day period beginning on the
third (3rd) business day following the release of the Company's
official financial data for the quarter in which the related
Option was exercised. Only one SAR may be exercised for each
Share purchased under the related Option. SARs shall be
exercised by following the same procedures as are required for
the related Option.
(b) Forfeiture of SAR.
------------------
Any SARs that could be, but are not, exercised by the later of
the end of the (i) the ninety (90) day period beginning on the
date of exercise of the related Option, or (ii) the ten (10)
day period beginning on the third (3rd) day following the
release of the Company's official financial data for the
quarter in which the related Option was exercised shall be
forfeited.
(c) Termination of SARs.
--------------------
SARs shall terminate at the same time and under the same
conditions as the related option.
(d) Payment on Exercise.
--------------------
On the exercise of a SAR, the Committee shall determine the
form in which the Company shall pay the value of the SAR to the
person exercising the SAR.
(e) Maximum SARs.
-------------
No individual shall receive in any fiscal year of the Company
SARs covering more than 100,000 shares. Any adjustment upon
change of Shares pursuant to Section 13 of the Plan shall apply
to the limitation specified in this subsection (e).
10. Method of Exercise.
-------------------
An Option granted under this Plan shall be deemed exercised when
the person entitled to exercise the Option (i) delivers written
notice to the Secretary of the Company of the decision to
10
exercise, (ii) concurrently tenders to the Company full payment
for the Shares to be purchased pursuant to the exercise, and (iii)
complies with such other reasonable requirements as the Committee
establishes pursuant to Section 11 of the Plan. Payment for
Shares with respect to which an Option is exercised may be made in
cash, by certified check or, with the consent of the Committee,
wholly or partially in the form of Common Stock having a Fair
Market Value equal to the exercise price. No person will have the
rights of a shareholder with respect to Shares subject to an
Option granted under this Plan until a certificate or certificates
for the Shares have been delivered to him.
An Option granted under this Plan may be exercised in increments
of not less than one hundred (100) Shares, or, if greater, ten
percent (10%) of the full number of Shares as to which it can be
exercised. A partial exercise of an Option will not affect the
holder's right to exercise the Option from time to time in
accordance with this Plan as to the remaining Shares subject to
the Option.
11. Taxes; Compliance with Law; Approval of Regulatory Bodies.
----------------------------------------------------------
The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any Shares deliverable or
amounts payable under this Plan, and the Company may defer making
delivery or payment until it is indemnified to its satisfaction
for that tax. Options and SARs are exercisable, and Shares can be
delivered and payments made under this Plan, only in compliance
with all applicable federal and state laws and regulations,
including, without limitation, state and federal securities laws,
and the rules of all stock exchanges on which the Company's stock
is listed at any time. An Option is exercisable only if either
(i) a registration statement pertaining to the Shares to be issued
upon exercise of the Option has been filed with and declared
effective by the Securities and Exchange Commission and remains
effective on the date of exercise, or (ii) an exemption from
registration requirements of applicable securities laws is
available. This Plan does not require the Company, however, to
file such a registration statement or to assure the availability
of such exemptions. Any certificate issued to evidence Shares
issued under the Plan may bear such legends and statements, and
shall be subject to such transfer restrictions, as the Committee
deems advisable to assure compliance with federal and state laws
and regulations and with the requirements of this Section. Each
Option and SAR may not be exercised, and Shares may not be issued
under this Plan, until the Company has obtained the consent or
approval of every regulatory body, federal or state, having
jurisdiction over such matters as the Committee deems advisable.
Each person who acquires the right to exercise an Option or SAR by
bequest or inheritance may be required by the Committee to furnish
reasonable evidence of ownership of the Option or SAR as a
condition to his exercise of the Option or SAR. In addition, the
Committee may require such consents and releases of taxing
authorities as the Committee deems advisable.
11
12. Assignability.
--------------
An Option and SAR granted under this Plan is not transferable
except by will or the laws of descent and distribution. During
the lifetime of an Optionee, his Incentive Stock Options are
exercisable only by him. Notwithstanding the preceding
paragraph, during an Optionee's lifetime, the Committee may, in
its sole discretion (which discretion may be exercised in a
discriminatory fashion), permit the transfer or assignment of an
outstanding non-statutory Option to the Optionee's spouse,
parents, children or grandchildren, or their spouses, or to trusts
or partnerships for their benefit, provided any such transfer or
assignment is made without consideration to the Optionee. Such
transfers or assignments shall be permitted only on such terms and
conditions as the Committee, in its sole discretion, shall
specify, and except as provided by the Committee, the transferee
or assignee shall be subject to the terms of the Plan and the
Optionee's Grant Agreement.
13. Adjustment Upon Change of Shares.
---------------------------------
If a reorganization, merger, consolidation, reclassification,
recapitalization, combination or exchange of shares, stock split,
stock dividend, rights offering, or other expansion or contraction
of the Common Stock of the Company occurs, the number and class of
Shares for which Options and SARs are authorized to be granted
under this Plan, the number and class of Shares then subject to
Options previously granted under this Plan, and the price per
Share payable upon exercise of each Option or SAR outstanding
under this Plan shall be equitably adjusted by the Committee to
reflect such changes. To the extent deemed equitable and
appropriate by the Board, subject to any required action by
stockholders, in any merger, any Option or SAR granted under the
Plan shall pertain to the securities and other property to which a
holder of the number of Shares of stock covered by the Option or
SAR would have been entitled to receive in connection with such
event.
14. Change in Control.
------------------
The Committee may, in its sole discretion and notwithstanding the
provisions of Section 6(c), provide for immediate and full
exercise of an Option upon the occurrence of a Change in Control
of the Company. Should the Committee determine to make such a
provision with respect to the grant of an Option, a representation
to that effect shall be set forth in the Grant Agreement between
the Company and the Optionee governing the exercise of such
Option.
15. Liability of the Company.
-------------------------
The Company, its parent and any Subsidiary that is in existence or
hereafter comes into existence shall not be liable to any person
for any tax consequences expected but not realized by an Optionee
or other person due to the exercise of an Option or SAR.
12
16. Amendment and Termination of Plan.
----------------------------------
Except as provided below, the Board may alter, amend, or terminate
this Plan from time to time without approval of the shareholders.
However, no amendment by the Board that requires shareholder
approval as a condition (i) for the continued satisfaction of
applicable requirements of Code Section 422 or any successor
provision thereto or (ii) of continued reliance by the Board or the
Company's officers on the exemptive relief provided by Rule 16b-3
under the Securities Exchange Act of 1934, as amended, or any
successor provision thereto shall be effective without shareholder
approval.
Any amendment, whether with or without the approval of
shareholders, that alters the terms or provisions of an Option,
prior Option, or SAR granted before the amendment (unless the
alteration is expressly permitted under this Plan) will be
effective only with the consent of the Optionee to whom the Option
or SAR was granted or the holder currently entitled to exercise
it.
17. Expenses of Plan.
-----------------
The Company shall bear the expenses of administering the Plan.
18. Duration of Plan.
-----------------
Options and SARs may be granted under this Plan until April 25,
2011.
19. Applicable Law.
---------------
The validity, interpretation, and enforcement of this Plan are
governed in all respects by the Laws of the State of Florida and
the United States of America.
20. Effective Date.
---------------
The effective date of this Plan shall be the date specified by the
Board of Directors of the Company upon its adoption of this Plan.
Adopted by the Board of Directors Ratified by the Shareholders
on April 25, 2001, effective On April 25, 2001.
April 25, 2001.
ORL1 #615605 v4
13
CONSOLIDATED-TOMOKA LAND CO.
2001 STOCK OPTION PLAN
Prepared by:
Holland & Knight, LLP
200 South Orange Avenue
Suite 2600
Orlando, Florida 32801
(407) 425-8500
14
Table of Contents
1. Purpose...........................................................1
2. Definitions.......................................................1
(a) "Beneficiary".................................................1
(b) "Board".......................................................1
(c) "Change of Control"...........................................1
(d) "Code"........................................................2
(e) "Committee"...................................................2
(f) "Common Stock"................................................3
(g) "Company".....................................................3
(h) "Continuous Service"..........................................3
(i) "Date of Grant"...............................................3
(j) "Employee"....................................................3
(k) "Fair Market Value"...........................................3
(l) "Grant Agreement".............................................4
(m) "Incentive Stock Option"......................................4
(n) "Option"......................................................4
(o) "Option Period"...............................................4
(p) "Optionee"....................................................4
(q) "Plan"........................................................4
(r) "Regulations".................................................4
(s) "Share".......................................................4
(t) "Stock Appreciation Right"....................................4
(u) "Subsidiary"..................................................5
3. Administration....................................................5
4. Shares Subject to Option..........................................6
5. Participants......................................................6
(a) Eligible Employees............................................6
(b) No Right of Employment........................................6
6. Option Requirements...............................................6
(a) Written Option................................................6
(b) Duration of Option............................................7
(c) Option Exercisability.........................................7
(d) Acceleration of Vesting.......................................7
(e) Exercise Price................................................7
(f) Termination of Services.......................................7
(g) Death.........................................................8
(h) Retirement....................................................8
(i) Disability....................................................8
(j) Maximum Grants................................................8
7. Incentive Stock Options...........................................8
(a) Ten Percent Shareholders......................................9
(b) Prior Outstanding Options.....................................9
(c) Maximum Option Grants.........................................9
8. Non-statutory Options.............................................9
(a) Exercise Price................................................9
(b) Option Exercisability........................................10
(15)
9. Stock Appreciation Rights........................................10
(a)Exercise......................................................10
(b)Forfeiture of SAR.............................................10
(c)Termination of SARs...........................................10
(d)Payment on Exercise...........................................10
(e)Maximum SARs..................................................10
10. Method of Exercise..............................................10
11. Taxes; Compliance with Law; Approval of Regulatory Bodies.......11
12. Assignability...................................................12
13. Adjustment Upon Change of Shares................................12
14. Change in Control...............................................12
15. Liability of the Company........................................12
16. Amendment and Termination of Plan...............................13
17. Expenses of Plan................................................13
18. Duration of Plan................................................13
19. Applicable Law..................................................13
20. Effective Date..................................................13
(16)