SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
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. 22)
Consolidated-Tomoka Land Co.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $1.00 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
210226106
- --------------------------------------------------------------------------------
(CUSIP Number)
David J. Winters
Wintergreen Advisers, LLC
333 Route 46 West, Suite 204
Mountain Lakes, New Jersey 07046
(973) 263-2600
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 10, 2009
- --------------------------------------------------------------------------------
(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.
- ----------
(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
---------------------
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) [x]
(b) [_]
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
0
8. SHARED VOTING POWER
1,481,474
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
1,481,474
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,481,474 - See Item 5
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
---------------------
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) [x]
(b) [_]
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 - See Item 5
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[x]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
14. TYPE OF REPORTING PERSON*
IV
CUSIP No. 210226106
---------------------
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) [x]
(b) [_]
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 - See Item 5
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[x]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.6%
14. TYPE OF REPORTING PERSON*
PN
CUSIP No. 210226106
---------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wintergreen Partners Offshore Master Fund, Ltd.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [_]
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
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
206,550
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
206,550
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
206,550 - See Item 5
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[x]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%
14. TYPE OF REPORTING PERSON*
CO
CUSIP No. 210226106
---------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Renaissance Global Markets Fund
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [_]
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
Canada
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
161,175
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
161,175
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
161,175 - See Item 5
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[x]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8%
14. TYPE OF REPORTING PERSON*
CO
CUSIP No. 210226106
---------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
David J. Winters
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [_]
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
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
1,481,474
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
1,481,474
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,481,474 - See Item 5
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*
IN
CUSIP No. 210226106
---------------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
Item 2. Identity and Background.
(a-c, f) This statement is being filed by (i) Wintergreen Fund, Inc, a
Maryland USA corporation registered as an investment company under the
Investment Company Act of 1940, as amended ("Wintergreen Fund"), (ii)
Wintergreen Partners Fund, LP, an unregistered pooled investment vehicle
organized as a Delaware USA limited partnership ("Wintergreen Partners"), (iii)
Wintergreen Partners Offshore Master Fund, Ltd., an unregistered pooled
investment vehicle organized as a Cayman Islands exempted company ("Wintergreen
Offshore"), (iv) Renaissance Global Markets Fund, a mutual fund trust organized
under the laws of Ontario Canada ("Renaissance"), (v) Wintergreen Advisers, LLC,
("Wintergreen Advisers"), a Delaware USA limited liability company which acts as
investment manager of Wintergreen Fund, Wintergreen Partners, Wintergreen
Offshore, Renaissance and other investment vehicles, and (vi) David J. Winters,
a citizen of the United States ("David Winters"), the managing member and
portfolio manager of Wintergreen Advisers. (Each of Wintergreen Fund,
Wintergreen Partners, Wintergreen Offshore, Renaissance, Wintergreen Advisers,
and David Winters may be referred to herein as a "Reporting Person" and
collectively may be referred to as "Reporting Persons").
The principal business and principal office address of each of David Winters,
Wintergreen Fund, Wintergreen Partners and Wintergreen Advisers is 333 Route 46
West, Suite 204, Mountain Lakes, New Jersey.
(d) None of the 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 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.
- --------------------------------------------------------------------------------
Item 3. Source and Amount of Funds or Other Consideration.
As of the date hereof Wintergreen Advisers 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.
As of the date hereof Wintergreen Offshore beneficially owns 206,550 Shares.
As of the date hereof Renaissance beneficially owns 161,175 Shares.
The source of funds used to purchase the securities reported herein was the
working capital of Wintergreen Fund, Wintergreen Partners, Wintergreen Offshore,
and Renaissance. The aggregate funds used by the forgoing 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.
- --------------------------------------------------------------------------------
Item 4. Purpose of Transaction.
Advisory clients of Wintergreen Advisers are the beneficial owners of
approximately 25.9% of the Issuer's common stock. Wintergreen Advisers has
initiated discussions with the Issuer on maximizing the value of the Daytona
properties, through direct development or partnerships. Wintergreen Advisers
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 Advisers, from time to time, will communicate with the Issuer
and other holders of Common Stock regarding such matters.
On December 10, 2009, Wintergreen delivered three shareholder proposals (the
"December 10 Proposals") to the Issuer. In the December 10 Proposals,
Wintergreen seeks (1) to nominate one independent candidate for Issuer's Board
of Directors, (2) implement an annual shareholder referendum on executive
compensation, and (3) require majority vote for election of all directors in
uncontested elections. A copy of the December 10 Proposals is attached hereto
as Exhibit B and incorporated herein by reference.
The Reporting Persons may in the future purchase additional Shares or dispose of
some or all of such Shares in open-market transactions or privately negotiated
transactions. Other than as described herein, the Reporting Persons do not 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.
- --------------------------------------------------------------------------------
Item 5. Interest in Securities of the Issuer.
(a, b) The Reporting Persons are a group and are each deemed to be the
beneficial owner of 1,481,474 Shares, constituting 25.9% of the Shares of the
Issuer, based upon 5,723,268 Shares outstanding as of the date of this filing.
Each Reporting Person 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 Advisers as investment manager of
Wintergreen Fund, Wintergreen Partners, Wintergreen Offshore and Renaissance,
and David Winters, a managing member and portfolio manager of Wintergreen
Advisers may be deemed to be the beneficial owner of 1,481,474 Shares,
constituting 25.9% of the Shares of the Issuer, based upon 5,723,268 Shares
outstanding as of the date of this filing.
Wintergreen Advisers has the sole power to vote or direct the vote of 0
Shares; has the shared power to vote or direct the vote of 1,481,474 Shares; has
sole power to dispose or direct the disposition of 0 Shares; and has shared
power to dispose or direct the disposition of 1,481,474 Shares.
David Winters has the sole power to vote or direct the vote of 0 Shares;
has the shared power to vote or direct the vote of 1,481,474 Shares; has sole
power to dispose or direct the disposition of 0 Shares; and has shared power to
dispose or direct the disposition of 1,481,474 Shares.
(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
5,723,268 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.
(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
5,723,268 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.
(a, b) As of the date hereof, Wintergreen Offshore is the beneficial owner of
206,550 Shares (1), constituting 3.6% of the Shares of the Issuer, based upon
5,723,268 Shares outstanding as of the date of this filing.
Wintergreen Offshore has the sole power to vote or direct the vote of 0
Shares; has the shared power to vote or direct the vote of 206,550 Shares; has
sole power to dispose or direct the disposition of 0 Shares; and has shared
power to dispose or direct the disposition of 206,550 Shares.
(a, b) As of the date hereof, Renaissance is the beneficial owner of 161,175
Shares (1), constituting 2.8% of the Shares of the Issuer, based upon 5,723,268
Shares outstanding as of the date of this filing.
Renaissance has the sole power to vote or direct the vote of 0 Shares; has
the shared power to vote or direct the vote of 161,175 Shares; has sole power to
dispose or direct the disposition of 0 Shares; and has shared power to dispose
or direct the disposition of 161,175 Shares.
(c) None of the Reporting Persons has effected any transactions in the
Shares during the past sixty days or since the most recent filing of Schedule
13D.
(d) N/A
(e) N/A
- --------------------------------------------------------------------------------
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
N/A.
- --------------------------------------------------------------------------------
Item 7. Material to be Filed as Exhibits.
Exhibit A: Agreement between the Reporting Persons to file jointly
Exhibit B: Letter to Secretary of Issuer dated December 10, 2009
Exhibit C: Power of Attorney
- --------------------------------------------------------------------------------
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
______________________________________
Wintergreen Partners Offshore Master Fund, Ltd.
By: Wintergreen Advisers, LLC
By: David J. Winters, Managing Member
/s/ David J. Winters
______________________________________
Renaissance Global Markets Fund
By: David J. Winters, Attorney-in-Fact
/s/ David J. Winters
______________________________________
David J. Winters
/s/ David J. Winters
______________________________________
December 18, 2009
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 22 to Schedule 13D dated December
18, 2009, 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
______________________________________
Wintergreen Partners Offshore Master Fund, Ltd.
By: Wintergreen Advisers, LLC
By: David J. Winters, Managing Member
/s/ David J. Winters
______________________________________
Renaissance Global Markets Fund
By: David J. Winters, Attorney-in-Fact
/s/ David J. Winters
______________________________________
David J. Winters
/s/ David J. Winters
______________________________________
December 18, 2009
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
December 10, 2009
Dear Ms. Crisp:
Wintergreen Advisers, LLC, intends to present the following proposals at the
Consolidated-Tomoka Land Co. (the "Company" or "CTO") 2010 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
the Company, which constitutes 25.9% of the Common Stock. The Common Stock was
purchased between February 21, 2006 and December 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 Thomas P. Warlow, III 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 a term
scheduled to end in 2013.
Supporting Statement
Wintergreen is nominating one highly qualified nominee who is independent from
Wintergreen and who we believe possesses the expertise necessary to work to
restore and enhance shareholder value. The nominee is independent of the Company
in accordance with Listing Standards of NYSE Alternext US LLC and is committed
to exploring all alternatives to increase shareholder value.
In Wintergreen's view, the nominee, 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 our nominee.
In accordance with the instructions provided in the Company's Proxy Statement
filed on April 8, 2009, we hereby submit the following information (including
the information attached as Appendix A), with regards to the nominee:
Nominee Information
Name
Thomas P. Warlow, III
Business Experience
Mr. Warlow has been the President and Chairman of The Martin Andersen-Gracia
Andersen Foundation, Inc. since 1998 He has also been the President and
Chairman of Georgetown Enterprises, Inc., a Florida registered general
contractor involved with development and construction in the Florida market
since 1976. Mr. Warlow is the former Chairman of the Orange County Road Advisory
Board and the Orange County Underground Utility and Licensing Board. Mr. Warlow
holds a B.E. in Civil Engineering from Vanderbilt University, received in 1966.
He sits on the Boards of various charitable organizations.
Proposal 2
Wintergreen would like to propose that the Board adopt a compensation policy
providing that the Company's shareholders will be given the opportunity to vote
on an advisory resolution at each annual meeting to approve the Company's
Compensation Discussion and Analysis as outlined in the annual proxy statement.
We believe the best way to implement this principle is to provide the
shareholders with the opportunity to vote on the three issues outlined in the
resolution below.
RESOLVED, that shareholders of CTO urge the board of directors to adopt a policy
that CTO shareholders be given the opportunity at each annual meeting of
shareholders to vote on an advisory resolution, to be proposed by Company's
management, to ratify (i) the Company's executive compensation philosophy and
objectives as described in the Compensation Discussion and Analysis section of
the Company's Proxy Statement, (ii) the compensation of the named executive
officers set forth in the proxy statement's summary compensation table (the
"SCT") and any accompanying narrative disclosure of material factors provided to
understand the SCT, and (iii) the application of the compensation philosophy and
objectives as described in the Executive Compensation Elements section (or a
comparable section).
Supporting Statement
It is Wintergreen's view that executive compensation at CTO has not been
structured to maximize long-term shareholder value.
For example, the Company's February 3, 2009 Form 8-K filing details its revised
annual executive bonus criteria (the "Criteria"). For purposes of determining
bonus eligibility and potential bonus pool amounts, the revised Criteria
includes a one-time per project equivalency calculation that will represent the
hypothetical after tax net income, which would have been recognized on the land
portion of any land lease, build-to-suit lease, or self-development project in
that year had the property been sold to a third party. Under the Criteria,
executives may receive pro forma compensation for entering into certain
transactions that may ultimately be unprofitable for the Company, and there does
not appear to be any claw-back mechanism with respect to bonuses previously
awarded to executive officers and management. The stated purpose of the Criteria
is to reward short term performance. However, we believe that an executive
compensation plan or any criteria underlying such a plan should be devised to
reward executives and managers' contributions to the long term growth and
financial stability of the Company. Additionally, the Criteria do not provide
for a reduction in the Company's future earnings used to determine potential
bonus pool amounts and bonus awards to take into account any earnings previously
recognized pursuant to the Criteria on a pro forma basis as described above,
which creates the potential for double counting earnings in the future.
Accordingly, we urge CTO's board to allow shareholders to express their opinion
about executive compensation by establishing an annual referendum process. The
results of such a vote would, we believe, provide CTO with useful information
about whether shareholders view the Company's executive compensation, as
reported each year, to be in shareholders' best interests.
We urge shareholders to vote for this proposal.
Proposal 3
Wintergreen would like to propose shareholder action requesting amendments to
CTO's Articles of Incorporation, Bylaws and Governance Committee Charter to
implement a majority vote for Directors. We believe the best way to implement
this principle is to provide the shareholders with the opportunity to vote on
the resolution below.
Resolved, that the shareholders of the Company request that the Board take the
steps necessary to amend the By-Laws, Articles of Incorporation, and Governance
Committee Charter of the Company to provide that (i) any candidate in an
uncontested election for directors be required to receive a majority of the
votes cast in order to be elected as a director and (ii) any incumbent director
in an uncontested election of directors who does not receive a majority of the
votes cast shall promptly tender his or her resignation from the Board. The
amended Governance Committee Charter would also require that the Board, through
a process managed by the Governance Committee and excluding the nominee in
question, accept or reject the resignation within 90 days after the Board
receives the resignation. The amended Governance Committee Charter would also
provide that if the Board rejected the resignation, it would publicly disclose
the reason for such rejection.
Supporting Statement
Shareholders of many public companies have urged that director nominees be
required to receive a majority of the votes cast in favor of their election,
rather than the generally applicable plurality standard. In response, a number
of public companies have adopted charter or bylaw provisions requiring a
majority vote standard and/or bylaws or corporate governance principles
requiring that a director not receiving such a majority submit his or her
resignation to the board or one of its committees. The resignation policy or
bylaw is designed to address the typical state law provision that provides that
an incumbent director remains in office until his or her successor is elected,
even if the director has not received a vote sufficient for re-election. We
believe plurality voting in the election of directors does not promote true
corporate democracy, and allows unpopular incumbents who receive even one vote
to be re-elected. CTO's plurality voting standard ensures that CTO's nominees
are automatically elected to the board in any uncontested election, regardless
of performance. By contrast, a majority voting standard in uncontested
elections means a candidate cannot be elected or remain in office unless the
holders of a majority of the votes cast believe the nominee has done (or in the
case of a new nominee, will do) a good job representing the shareholders'
interests. Majority voting, coupled with a requirement that incumbents who do
not get a majority vote must resign effective immediately, is an important
corporate governance feature that promotes director accountability, and provides
shareholders with a more meaningful role in director elections.
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.
Sincerely yours,
/s/ David J. Winters
David J. Winters, Managing Member
Wintergreen Advisers, LLC
Exhibit c
POWER OF ATTORNEY
Know all by these presents, that the undersigned hereby constitutes and appoints
David J. Winters, the undersigned's true and lawful attorney-in-fact to take any
and all action in connection with (i) the undersigned's beneficial ownership of,
or participation in a group with respect to, securities of Consolidated-Tomoka
Land Company, Inc. (the "Company") directly or indirectly beneficially owned by
the undersigned or Wintergreen Advisers, LLC, or any of its affiliates
(collectively, the "Wintergreen Group"), and (ii) any proxy solicitation of the
Wintergreen Group to effect Wintergreen Group's proposals at the 2010 annual
meeting of stockholders of the Company (the "Solicitation"). Such action shall
include, but not be limited to:
1. executing for and on behalf of the undersigned any amendments to Schedule
13D, filed by the Wintergreen Group under Section 13(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") and the rules thereunder in
connection with the undersigned's beneficial ownership of, or participation
in a group with respect to, securities of the Company or the Solicitation;
2. executing for and on behalf of the undersigned all Forms 3, 4 and 5 required
to be filed under Section 16(a) of the Securities Exchange Act of 1934 and
the rules thereunder in connection with the undersigned's beneficial
ownership of, or participation in a group with respect to, securities of the
Company or the Solicitation; and
3. performing any and all acts for and on behalf of the undersigned that may be
necessary or desirable to complete and execute any such document, complete
and execute any amendment or amendments thereto, and timely file any such
document or amendment with the United States Securities and Exchange
Commission and any stock exchange or similar authority.
The undersigned hereby grants to each such attorney-in-fact full power and
authority to do and perform any and every act and thing whatsoever requisite,
necessary, or proper to be done in the exercise of any of the rights and powers
herein granted, as fully to all intents and purposes as the undersigned might or
could do if personally present, with full power of substitution or revocation,
hereby ratifying and confirming all that such attorney-in-fact, or such
attorney-in-fact's substitutes, shall lawfully do or cause to be done by virtue
of this Power of Attorney and the rights and powers herein granted. The
undersigned acknowledges that the foregoing attorneys-in-fact, in serving in
such capacity at the request of the undersigned, are not assuming any of the
undersigned's responsibilities to comply with Section 13(d), Section 16 or
Section 14 of the Exchange Act.
This Power of Attorney shall remain in full force and effect until the
undersigned is no longer a member of the Wintergreen Group unless earlier
revoked by the undersigned in a signed writing delivered to the foregoing
attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed as of this 18th day of December 2009.
Renaissance Global Markets Fund
By: Kathleen Pabla, Director, Investment Management Services
/s/ Kathleen Pabla
- -----END PRIVACY-ENHANCED MESSAGE-----