SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 17)
Consolidated-Tomoka Land Co.
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(Name of Issuer)
Common Stock, par value $1.00 per share
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(Title of Class of Securities)
210226106
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(CUSIP Number)
David J. Winters
Wintergreen Advisers, LLC
333 Route 46 West, Suite 204
Mountain Lakes, New Jersey 07046
(973) 263-2600
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 20, 2008
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(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 210226106
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wintergreen Advisers, LLC
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
1,481,474
8. SHARED VOTING POWER
0
9. SOLE DISPOSITIVE POWER
1,481,474
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,481,474
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.9%
14. TYPE OF REPORTING PERSON*
IA
CUSIP No. 210226106
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wintergreen Fund, Inc.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland, USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
564,961
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
564,961
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
564,961
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
14. TYPE OF REPORTING PERSON*
IC
CUSIP No. 210226106
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wintergreen Partners Fund, LP
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
548,788
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
548,788
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
548,788
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.6%
14. TYPE OF REPORTING PERSON*
PN
CUSIP No. 210226106
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Item 1. Security and Issuer.
Consolidated-Tomoka Land Co. (the "Issuer"), Common Stock, par value $1.00
per share (the "Shares").
The address of the Issuer is 1530 Cornerstone Boulevard, Suite 100
Daytona Beach, Florida 32117.
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Item 2. Identity and Background.
(a-c, f) This statement is being filed by (i) Wintergreen Fund, Inc, an
investment company registered under the Investment Company Act of 1940, as
amended ("Wintergreen Fund"), (ii) Wintergreen Partners Fund, LP, a US Private
Investment Fund ("Wintergreen Partners") and (iii) Wintergreen Advisers, LLC, a
Delaware limited liability company ("Wintergreen") which acts as sole investment
manager of the Wintergreen Fund, Wintergreen Partners and other investment
vehicles. (Each of Wintergreen Fund, Wintergreen Partners and Wintergreen may
be referred to herein as a "Reporting Person" and collectively may be referred
to as "Reporting Persons"). The Managing Members of Wintergreen are David J.
Winters and Elizabeth N. Cohernour (the "Managing Members"), each of which is a
citizen of the United States. David J. Winters is the portfolio manager at
Wintergreen and Elizabeth N. Cohernour is the chief operating officer at
Wintergreen.
The principal business and principal office address of each of the Managing
Members, Wintergreen Fund, Wintergreen Partners and Wintergreen is 333 Route 46
West, Suite 204, Mountain Lakes, New Jersey.
(d) None of the Managing Members or Reporting Persons have, during the last
five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) None of the Reporting Persons or the Managing Members have, during the
last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
were or are subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or
state securities laws or finding any violation with respect to such laws.
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Item 3. Source and Amount of Funds or Other Consideration.
As of the date hereof Wintergreen may be deemed to beneficially own 1,481,474
Shares.
As of the date hereof Wintergreen Fund beneficially owns 564,961 Shares.
As of the date hereof Wintergreen Partners beneficially owns 548,788 Shares.
The source of funds used to purchase the securities reported herein was the
working capital of Wintergreen Fund, Wintergreen Partners and other investment
vehicles managed by Wintergreen. The aggregate funds used by the Reporting
Persons to make the purchases was approximately $90.9 million.
No borrowed funds were used to purchase the Shares, other than any borrowed
funds used for working capital purposes in the ordinary course of business.
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Item 4. Purpose of Transaction.
Advisory clients of Wintergreen are the beneficial owners of approximately 25.9%
of the Issuer's common stock. Wintergreen has initiated discussions with the
Issuer on maximizing the value of the Daytona properties, through direct
development or partnerships. Wintergreen intends to continue its dialogue with,
and to take an active interest in, the Issuer to encourage strategic focus on
the Volusia county properties. To this end, Wintergreen from time to time, will
communicate with the Issuer and other holders of Common Stock regarding such
matters.
On November 20, 2008, Wintergreen delivered three shareholder proposals (the
"November 20 Proposals") to the Issuer. In the November 20 Proposals,
Wintergreen seeks (1) to nominate four independent candidates for Issuer's Board
of Directors, (2) require annual election of all directors, and (3) require that
the Chairperson of the Board of Directors be an independent director. A copy
of the November 20 Proposals is attached hereto as Exhibit B and incorporated
herein by reference.
Wintergreen may in the future purchase additional Shares or dispose of some or
all of such Shares in open-market transactions or privately negotiated
transactions. Wintergreen does not currently have any plans or proposals that
would result in any of the actions described in paragraphs (b) through (j) of
Item 4 of the instructions to Schedule 13D.
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Item 5. Interest in Securities of the Issuer.
(a, b) As of the date hereof, Wintergreen may be deemed to be the beneficial
owner of 1,481,474 Shares, constituting 25.9% of the Shares of the Issuer, based
upon 5,727,515 Shares outstanding as of the date of this filing.
Wintergreen has the sole power to vote or direct the vote of 1,481,474
Shares; has the shared power to vote or direct the vote of 0 Shares; has sole
power to dispose or direct the disposition of 1,481,474 Shares; and has shared
power to dispose or direct the disposition of 0 Shares.
Wintergreen specifically disclaims beneficial ownership in the Shares reported
herein except to the extent of its pecuniary interest therein.
(a, b) As of the date hereof, Wintergreen Fund is the beneficial owner of
564,961 Shares (1), constituting 9.9% of the Shares of the Issuer, based upon
5,727,515 Shares outstanding as of the date of this filing.
Wintergreen Fund has the sole power to vote or direct the vote of 0 Shares;
has the shared power to vote or direct the vote of 564,961 Shares; has sole
power to dispose or direct the disposition of 0 Shares; and has shared power to
dispose or direct the disposition of 564,961 Shares.
(1) Wintergreen Fund has delegated all of its authority to vote or dispose of
the Shares to Wintergreen, its investment manager.
(a, b) As of the date hereof, Wintergreen Partners is the beneficial owner of
548,788 Shares (1), constituting 9.6% of the Shares of the Issuer, based upon
5,727,515 Shares outstanding as of the date of this filing.
Wintergreen Partners has the sole power to vote or direct the vote of 0
Shares; has the shared power to vote or direct the vote of 548,788 Shares; has
sole power to dispose or direct the disposition of 0 Shares; and has shared
power to dispose or direct the disposition of 548,788 Shares.
(1) Wintergreen Partners has delegated all of its authority to vote or dispose
of the Shares to Wintergreen, its investment manager.
(c) Wintergreen caused its advisory clients to effect transactions in the
Shares during the past 60 days as set forth below:
DATE TYPE NO OF SHARES PRICE/SHARE
---- ---- ----------- ----------
(d) Inapplicable.
(e) Inapplicable.
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Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
N/A.
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Item 7. Material to be Filed as Exhibits.
Exhibit A: Agreement between the Reporting Persons to file jointly
Exhibit B: Shareholder Proposals dated November 20, 2008
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Wintergreen Advisers, LLC
By: David J. Winters, Managing Member.
/s/ David J. Winters
______________________________________
Wintergreen Fund, Inc.
By: David J. Winters, Executive Vice President
/s/ David J. Winters
______________________________________
Wintergreen Partners Fund, LP
By: Wintergreen GP, LLC
By: David J. Winters, Managing Member
/s/ David J. Winters
______________________________________
November 28, 2008
Attention. Intentional misstatements or omissions of fact constitute federal
criminal violations (see 18 U.S.C. 1001).
Exhibit A
AGREEMENT
The undersigned agree that this Amendment No 17 to Schedule 13D dated November
28, 2008, relating to the Common Stock, par value $1.00 per share of
Consolidated-Tomoka Land Co. shall be filed on behalf of the undersigned.
Wintergreen Advisers, LLC.
By: David J. Winters, Managing Member
/s/ David J. Winters
______________________________________
Wintergreen Fund, Inc.
By: David J. Winters, Executive Vice President
/s/ David J. Winters
______________________________________
Wintergreen Partners Fund, LP
By: Wintergreen GP, LLC
By: David J. Winters, Managing Member
/s/ David J. Winters
______________________________________
November 28, 2008
Exhibit B
Wintergreen Advisers, LLC
333 Route 46 West
Suite 204
Mountain Lakes, New Jersey
07046
Consolidated-Tomoka Land Co
c/o Linda Crisp, Corporate Secretary
Post Office Box 10809
Daytona Beach, Florida
32120-0809
November 20, 2008
Dear Ms. Crisp:
Wintergreen Advisers, LLC, intends to present the following proposals at the
Consolidated-Tomoka Land Co. (the "Company") 2009 Annual Meeting of Shareholders
(the "Annual Meeting").
Recommending Shareholder Information
The name and address of the recommending shareholder is Wintergreen Advisers,
LLC (the "Adviser"), 333 Route 46 West, Suite 204, Mountain Lakes, New Jersey
07046. The telephone number of the Adviser is (973) 263-2600. The undersigned,
David J. Winters, is the Managing Member and CEO of the Adviser. As of the date
of this letter, Wintergreen Advisers, LLC may be deemed to beneficially own
1,481,474 shares of common stock, par value $1.00 per share ("Common Stock"), of
Consolidated-Tomoka Land Co. (the "Company"), which constitutes 25.9% of the
Common Stock. The Common Stock was purchased between February 21, 2006 and Dec
5, 2007. The Adviser is the investment adviser to Wintergreen Fund, Inc. (the
"Fund"), a registered investment company, which is the beneficial owner of
564,961 shares of Common Stock (approximately 9.9% of the outstanding shares).
The Adviser also serves as investment adviser to other pooled investment
vehicles, which also own additional shares of Common Stock of the Company (the
Fund, the other investment vehicles and the Adviser shall be referred to
collectively herein as "Wintergreen"). Wintergreen has beneficially owned more
than 10% of the Common Stock of the Company since May 2006. Wintergreen has a
good faith intention to continue to hold the Common Stock through the date of
the Annual Meeting and intends to appear in person or by proxy at the Annual
Meeting to present the following proposals.
Proposal 1
Wintergreen hereby nominates Dianne Neal to fill the current vacancy on the
Board to serve in the class of Directors with terms currently ending in 2010.
Wintergreen also nominates each of Francis G. O'Connor, John J. Allen and Jeffry
B. Fuqua as a candidate for election to the Company's Board of Directors (the
"Board") at the Annual Meeting to serve in the class of Directors, which after
the Annual Meeting, will serve for terms scheduled to end in 2012.
Supporting Statement
Wintergreen is nominating four highly qualified nominees who are independent
from Wintergreen and who we believe possess the expertise necessary to work to
restore and enhance shareholder value. The nominees are independent of the
Company in accordance with Listing Standards of NYSE Alternext US LLC and are
committed to exploring all alternatives to increase shareholder value.
In Wintergreen's view, each of the nominees, if elected, would represent all the
shareholders and will not serve the purpose of advancing or favoring any
particular shareholder or other constituency of the Company.
You are urged to vote "FOR" the election of all of our nominees.
In accordance with the instructions provided in the Company's Proxy Statement
filed on March 20, 2008, we hereby submit the following information (including
the information attached as Appendix A), with regards to each of the nominees:
Nominee Information
Name
Dianne M. Neal
Business Experience
Ms. Neal was the Executive Vice President and Chief Financial Officer of
Reynolds American Inc. until March 2008. Ms. Neal joined Reynolds Tobacco in
1988. She became Executive Vice President of R.J. Reynolds Tobacco Holdings,
Inc. and R.J. Reynolds Tobacco Company in July 2003. On the creation of
Reynolds American Inc., Ms. Neal was named the Executive Vice President and
Chief Financial Officer of Reynolds American Inc. in August 2004. Prior to July
2003, she served as Vice President of Investor Relations of R.J. Reynolds
Tobacco Holdings, a position she began in June 1999. Ms. Neal holds a Masters
of Business Administration and a Bachelor of Science in Accounting, both from
the Bryan School of Business at University of North Carolina at Greensboro.
Name
Frank O'Connor
Business Experience
Mr. O'Connor established Putnam Consultants, LLC in 2005. In this role, he
assists bank clients with a broad range of projects involving banking systems
and risk management. From May, 1995 to August, 2005, Mr. O'Connor held several
positions with JP Morgan Chase Bank, N.A. most recently as a Credit Executive in
Investor Services. Prior to May, 1995, he worked in the Bank Supervision Group
of the Federal Reserve Bank of New York. Mr. O'Connor holds an MBA in
Management/International Business and a BS in Finance, both from the NYU Stern
School of Business.
Name
John J. Allen
Business Experience
Mr. Allen is founder and president of Allen Land Group, Inc. and Mitigation
Solutions, Inc., as well as various other real estate related companies. Mr.
Allen has been president of Allen Land Group, Inc. since its inception in 1994.
In his role as President of Allen Land Group, Mr. Allen has been involved in raw
land permitting and development in northeast Florida for over twenty years.
Mr. Allen's Mitigation Solutions established the first totally privately funded
mitigation land bank in Florida. Prior to becoming involved in real estate, Mr.
Allen worked in commercial banking at Barnett Banks, Inc. Mr. Allen holds a BS
in Agricultural Economics from Cornell University.
Name
Jeffry B. Fuqua
Business Experience
Mr. Fuqua is owner and president of Amick Construction Co., Inc. Mr. Fuqua
joined Amick as a general manager in 1975 and became the president and owner of
Amick in 1977. Amick is involved in all aspects of highway and heavy
construction. Mr. Fuqua is also Chairman of the Greater Orlando Aviation
Authority (GOAA), Chairman of Liberty Bancorporation, and Chairman of Orlando
National Bank. As Chairman of the GOAA, Mr. Fuqua oversaw a $3.3 billion
capital improvement and growth program for Orlando International Airport. Mr.
Fuqua has extensive experience in real estate development in Central Florida,
including single family lots, multi-family rental projects, commercial and
industrial properties. Mr. Fuqua holds a BA in philosophy, as well as Masters
and Doctorate degrees in Mathematics from the University of Miami.
Proposal 2
Resolution
RESOLVED: That Article VI (b) of the articles of incorporation of Consolidated-
Tomoka Land Co. be amended and restated in its entirety as follows: Members of
the board shall be elected annually to serve until the next annual meeting of
shareholders and until their successors are elected. Any vacancy occurring in
the board of directors may be filled by a majority of the directors then in
office. A new directorship resulting from an increase in the number of
directors shall be construed to be a vacancy.
Supporting Statement
Wintergreen believes the election of directors is the strongest way that
shareholders influence the directors of any corporation. Currently, our Board
is divided into three classes with each class serving three-year terms. Because
of this structure, shareholders may only vote for one-third of the directors
each year. This is not in the best interest of shareholders because it reduces
accountability.
The performance of our management and our Board is now being more strongly
tested due to economic conditions and the accountability for performance must
be given to the shareholders whose capital has been entrusted in the form of
share investments.
A study by researchers at Harvard Business School and the University of
Pennsylvania's Wharton School titled "Corporate Governance and Equity Prices"
(Quarterly Journal of Economics, February, 2003), looked at the relationship
between corporate governance practices (including classified boards) and firm
performance. The study found a significant positive link between governance
practices favoring shareholders (such as annual directors election) and firm
value.
Investors generally favor requiring annual elections for all directors.
Shareholder proposals recommending annual elections received, on average, 63.9%
of the vote in the first half of 2007, according to Institutional Shareholder
Services (ISS) (2007 ISS Postseason Report). ISS also found that the prevalence
of classified boards among S&P 500 companies has fallen dramatically, putting
companies with classified boards in the minority. Similarly, one study found
that de-staggering the board creates value for shareholders and noted that
proposals to de-stagger boards are often the most common and popular
shareholder proposals (Undoing the Powerful Anti-Takeover Force of Staggered
Boards, October 2006)
While management may argue that directors need and deserve continuity,
management should become aware that continuity and tenure may be best assured
when their performance as directors is exemplary and is deemed beneficial to
the best interests of the corporation and its shareholders.
Wintergreen regards as unfounded the concern expressed by some that annual
election of all directors could leave companies without experienced directors in
the event that all incumbents are voted out by shareholders. In the unlikely
event that shareholders do vote to replace all directors, such a decision would
express dissatisfaction with the incumbent directors and reflect a need for
change.
If you agree that shareholders may benefit from greater accountability afforded
by annual election of all directors, please vote "FOR" this proposal.
Proposal 3
Resolution
RESOLVED: Shareholders of Consolidated-Tomoka Land Co. request that the Board
adopt a policy that the Chairman of the Board shall be a director who is
independent from the Company.
For the purposes of this policy, "independent" has the meaning set forth in the
Listing Standards of NYSE Alternext US LLC ("NYSE-A"), unless the Company's
common stock ceases to be listed on the NYSE-A and is listed on another
exchange, in which case such exchange's definition of independence shall apply.
If the Board determines that a Chairman who was independent at the time he or
she was selected is no longer independent, or in the event of the Chairman's
incapacity, the Board shall select a new Chairman who satisfies the requirements
of this policy within 60 days of such determination. Compliance with this policy
shall be excused if no director who qualifies as independent is elected by the
shareholders or if no director who is independent is willing to serve as
Chairman.
Supporting Statement
Currently, the Company's CEO William H. McMunn serves as the Chairman of the
Board. Yet our Board has several core responsibilities that involve overseeing
the CEO, including monitoring CEO performance, compensating the CEO, and CEO
succession planning.
According to ISS, more companies than ever before have separated Chairman and
CEO positions (2007 ISS Postseason Report). In addition, the National
Association of Corporate Directors includes independent board leadership as one
of its key principles to strengthen corporate governance (NACD, Key Agreed
Principles to Strengthen Corporate Governance for U.S. Publicly Traded
Companies, October 2008).
We believe the Board should establish a policy whereby the role of Chairman and
CEO are separated to ensure proper oversight of executives and to increase
accountability by executive management to the entire Board.
For the Board to better assess the challenges of the current financial
environment, the Company's strategic priorities, and to properly manage our
Company's executives, we urge shareholders to vote FOR this proposal.
Please be advised that neither the delivery of this letter nor the delivery of
additional information, if any, provided by or on behalf of Wintergreen or any
of its affiliates to the Company from and after the date hereof shall be deemed
to constitute an admission by Wintergreen or any of its affiliates that this
letter or any such information is required or is in any way defective or as to
the legality or enforceability of any matter or a waiver by Wintergreen or any
of its affiliates of its right to, in any way, contest or challenge any such
matter.
Please direct any questions regarding the information contained in this
correspondence to our legal counsel, Patricia Poglinco ((212) 574-1247), or Fola
Adamolekun ((212) 574-1320), of Seward & Kissel LLP, One Battery Park Plaza, New
York, New York 10004, or to our special Florida counsel, Ronald Albert, Jr.
((305) 373-9474) of Broad and Cassel, One Biscayne Tower, 2 South Biscayne
Boulevard, Miami, Florida 33131.
Sincerely yours,
/s/ David J. Winters
David J. Winters, Managing Member
Wintergreen Advisers, LLC
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