UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 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 of incorporation or organization)		(I.R.S. Employer Identification No.)
1530 Cornerstone Boulevard, Suite 100 Daytona Beach, Florida		32117
(Address of Principal Executive Offices)		(Zip Code)

 

 

CONSOLIDATED-TOMOKA LAND CO. 2010 EQUITY INCENTIVE PLAN

(Full title of the plan)

 

 

 

Bruce W. Teeters Senior Vice President – Finance, Treasurer Consolidated-Tomoka Land Co. 1530 Cornerstone Boulevard, Suite 100 Daytona Beach, Florida 32117 (386) 274-2202		Copies of all communications to: Tom McAleavey, Esq. Holland & Knight LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (407) 244-5108

(Name, address and telephone number of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		¨		Accelerated filer		x
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be Registered (1)		Proposed maximum offering price per share (2)		Proposed maximum aggregate offering price (2)		Amount of registration fee (2)
Common Stock, par value $1.00 per share		210,000		$30.12		$6,325,200		$450.99

 

(1)	Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers additional shares of the registrant’s common stock issuable under the plan resulting from any stock dividend, stock split, recapitalization or similar transaction.

(2)	Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act. The fee is based on the average of the high ($30.63) and low ($29.60) sales prices of the Registrant’s Common Stock on July 26, 2010, as reported on the NYSE Amex.

 

 

 

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PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

The documents containing the information specified in Part I of Form S-8 (plan information and registrant information) will be sent or given to eligible participants as specified by Rule 428(b)(1) of the Securities Act. Consistent with the instructions of Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus within the meaning of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents previously filed by the registrant (Commission File No. 1-11350) with the Commission are incorporated into this Registration Statement by reference and made a part hereof:

 

1.

Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed March 12, 2010, including portions of the registrant’s Proxy Statement for the 2010 Annual Meeting of Shareholders to the extent specifically incorporated by reference therein;

 

2.

Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2010, filed May 10, 2010;

 

3.

Current Reports on Form 8-K filed January 7, 2010; February 8, 2010 (as amended on February 8, 2010); February 22, 2010; March 30, 2010; and May 4, 2010; and

 

4.

The description of the registrant’s Common Stock contained in the Registration Statement on Form 8-B filed July 1, 1993.

All reports and other documents filed by the registrant (other than any portion of such filings that are furnished under applicable rules of the Commission rather than filed) pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been issued or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of filing of such reports and documents.

Any statement contained in a document incorporated or deemed to be incorporated by reference into this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which is also or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 6. Indemnification of Directors and Officers.

The registrant is a Florida corporation. Section 607.0850 of the Florida Business Corporation Act, as amended (the “FBCA”) grants a corporation the power to indemnify its directors, officers, employees, and agents for various expenses incurred resulting from various actions taken by its directors, officers, employees, or agents on behalf of the corporation. In general, if an individual acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the action was unlawful, then the corporation has the power to indemnify said individual who was or is a party to any proceeding (including, in the absence of an adjudication of liability (unless the court otherwise determines), any proceeding by or in the right of the corporation) against liability expenses, including

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counsel fees, incurred in connection with such proceeding, including any appeal thereof (and, as to actions by or in the right of the corporation, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof). To the extent that a director, officer, employee, or agent has been successful on the merits or otherwise in defense of any proceeding, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith. The term “proceeding” includes any threatened, pending, or completed action, suit, or other type of proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.

Any indemnification in connection with the foregoing, unless pursuant to a determination by a court, shall be made by the corporation upon a determination that indemnification is proper in the circumstances because the individual has met the applicable standard of conduct. The determination shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors who are not parties to such proceeding; (ii) by majority vote of a committee duly designated by the board of directors consisting solely of two or more directors not at the time parties to the proceeding; (iii) by independent legal counsel selected by the board of directors or such committee; or (iv) by the shareholders by a majority vote of a quorum consisting of shareholders who are not parties to such proceeding. Evaluation of the reasonableness of expenses and authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, then the directors or the committee shall evaluate the reasonableness of expenses and may authorize indemnification. Expenses incurred by an officer or director in defending a civil or criminal proceeding may be paid by the corporation in advance of the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the corporation. Expenses incurred by other employees and agents may be paid in advance upon such terms or conditions that the board of directors deems appropriate.

Section 607.0850 also provides that the indemnification and advancement of expenses provided pursuant to that Section are not exclusive, and a corporation may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses may not be made if a judgment or other final adjudication established that the individual’s actions, or omissions to act, were material to the cause of action so adjudicated and constitute (1) a violation of the criminal law (unless the individual had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful); (2) a transaction from which the individual derived an improper personal benefit; (3) in the case of a director, a circumstance under which the liability provisions of Section 607.0834 of the FBCA are applicable; or (4) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor in a proceeding by or in the right of a shareholder. Indemnification and advancement of expenses shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person, unless otherwise provided when authorized or ratified.

Section 607.0850 further provides that unless the corporation’s articles of incorporation provide otherwise, then notwithstanding the failure of a corporation to provide indemnification, and despite any contrary determination of the board or of the shareholders in the specific case, a director, officer, employee, or agent of the corporation who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that (1) the individual is entitled to mandatory indemnification under Section 607.0850 (in which case the court shall also order the corporation to pay the director reasonable expenses incurred in obtaining court-ordered indemnification or advancement of expenses); (2) the individual is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the corporation of its power under Section 607.0850; or (3) the individual is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether the person met the standard of conduct set forth in Section 607.0850. Further, a corporation is granted the power to purchase and maintain indemnification insurance.

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The registrant’s Amended and Restated Articles of Incorporation (the “Articles”) and Amended and Restated Bylaws (the “Bylaws”) provide that the registrant will indemnify any director, officer, employee or agent of the registrant and each person who serves or served as a director, officer, employee or agent at the request of the registrant to the fullest extent authorized by law, provided that the Articles and Bylaws shall not apply to any proceeding brought by or on behalf of a director, officer, employee or agent without prior approval of the registrant’s board of directors. The foregoing summaries are subject to the complete text of the FBCA and the Articles and Bylaws and are qualified in their entirety by reference thereto.

Item 8. Exhibits.

The following exhibits are filed herewith or incorporated by reference as part of this Registration Statement:

 

4.1		Amended and Restated Articles of Incorporation of Consolidated-Tomoka Land Co., effective April 30, 2010, filed as Exhibit 3.1 to registrant’s Current Report on Form 8-K filed May 4, 2010, and incorporated herein by this reference.
4.2		Amended and Restated Bylaws of Consolidated-Tomoka Land Co., effective April 30, 2010, filed as Exhibit 3.2 to registrant’s Current Report on Form 8-K filed May 4, 2010, and incorporated herein by this reference.
4.3		Consolidated-Tomoka Land Co. 2010 Equity Incentive Plan, effective April 28, 2010, filed as Exhibit 10.1 to registrant’s Current Report on Form 8-K filed May 4, 2010, and incorporated herein by this reference.
5		Opinion of Holland & Knight LLP
23.1		Consent of Holland & Knight LLP (included in Opinion in Exhibit 5)
23.2		Consent of KPMG LLP
24.1		Power of Attorney of the members of the Board of Directors

Item 9. Undertakings.

The undersigned registrant hereby undertakes:

 

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)

To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)

To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this Registration Statement; and

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

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provided, however, that paragraphs (1)(i) and (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 Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(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.

 

(4)

That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

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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 July 29, 2010.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

 

Signature		Title		Date
/s/ William H. McMunn		President and Chief Executive Officer		July 29, 2010
William H. McMunn		(Principal Executive Officer)
/s/ Bruce W. Teeters		Senior Vice President – Finance, Treasurer		July 29, 2010
Bruce W. Teeters		(Principal Financial and Accounting Officer)
/s/ William J. Voges*		Chairman of the Board, Director		July 29, 2010
William J. Voges
/s/ John J. Allen*		Director		July 29, 2010
John J. Allen
/s/ William H. Davison*		Director		July 29, 2010
William H. Davison
/s/ Gerald L. DeGood*		Director		July 29, 2010
Gerald L. DeGood
/s/ Jeffry B. Fuqua*		Director		July 29, 2010
Jeffry B. Fuqua
/s/ Allen C. Harper*		Director		July 29, 2010
Allen C. Harper
/s/ William L. Olivari*		Director		July 29, 2010
William L. Olivari
/s/ Linda Loomis Shelley*		Director		July 29, 2010
Linda Loomis Shelley
/s/ A. Chester Skinner, III*		Director		July 29, 2010
A. Chester Skinner, III
/s/ Thomas P. Warlow, III*		Director		July 29, 2010
Thomas P. Warlow, III

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*By:		/s/ Bruce W. Teeters
		Bruce W. Teeters
		Attorney-in-Fact pursuant to a power of attorney

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EXHIBIT INDEX

 

Exhibit No. Under Reg. S-K, Item 601		Description
4.1		Amended and Restated Articles of Incorporation of Consolidated-Tomoka Land Co., effective April 30, 2010, filed as Exhibit 3.1 to registrant’s Current Report on Form 8-K filed May 4, 2010, and incorporated herein by this reference.
4.2		Amended and Restated Bylaws of Consolidated-Tomoka Land Co., effective April 30, 2010, filed as Exhibit 3.2 to registrant’s Current Report on Form 8-K filed May 4, 2010, and incorporated herein by this reference.
4.3		Consolidated-Tomoka Land Co. 2010 Equity Incentive Plan, effective April 28, 2010, filed as Exhibit 10.1 to registrant’s Current Report on Form 8-K filed May 4, 2010, and incorporated herein by this reference.
5		Opinion of Holland & Knight LLP*
23.1		Consent of Holland & Knight LLP (included in Opinion in Exhibit 5)*
23.2		Consent of KPMG LLP*
24.1		Power of Attorney of the members of the Board of Directors*

 

*	Filed herewith

Exhibit 5

 

		Tel 407 425 8500 Fax 407 244 5288		Holland & Knight LLP 200 South Orange Avenue Suite 2600 Orlando, FL 32801 www.hklaw.com

July 29, 2010

Consolidated-Tomoka Land Co.

1530 Cornerstone Boulevard, Suite 100

Daytona Beach, Florida 32117

 

Re:

Registration Statement on Form S-8

Ladies and Gentlemen:

We refer to the Registration Statement on Form S-8 (the “Registration Statement”) filed by Consolidated-Tomoka Land Co., a Florida corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”), for the purpose of registering under the Securities Act of 1933, as amended (the “Act”), an aggregate of 210,000 shares (the “Plan Shares”) of the authorized common stock, par value $1.00 per share, of the Company being offered pursuant to the Consolidated-Tomoka Land Co. 2010 Equity Incentive Plan (the “Plan”).

In rendering the opinion set forth herein, we have acted as counsel for the Company and have examined originals, or copies certified to our satisfaction, of (i) the Registration Statement, (ii) the Amended and Restated Articles of Incorporation of the Company, as amended to date and currently in effect, (iii) the Amended and Restated Bylaws of the Company, as amended to date and currently in effect, (iv) the Plan, and (v) certain resolutions of the Board of Directors of the Company in connection with the Registration Statement. We also examined originals, or copies certified to our satisfaction, of such corporate records of the Company, certificates of public officials and representatives of the Company, and other documents as we deemed necessary to deliver the opinion expressed below.

In such examination, we have assumed (a) the authenticity of original documents and the genuineness of all signatures, (b) the legal capacity of natural persons, (c) the conformity to the originals of all documents submitted to us as copies, (d) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed, (e) that there has been no undisclosed waiver of any right, remedy or provision contained in any such documents and (f) that each transaction complies with all tests of good faith, fairness and conscionability required by law.

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Based upon and subject to the foregoing, and having regard for legal considerations that we deem relevant, we are of the opinion that the Plan Shares have been duly authorized and, when issued and paid for in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.

This opinion speaks only as of its date. We undertake no obligation to advise the addressees (or any other third party) of changes in law or fact that occur after the date hereof, even though the change may affect the legal analysis, a legal conclusion or an informational confirmation in the opinion.

We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving such consent, we do not thereby admit that we are included within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission issued thereunder.

 

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors

Consolidated-Tomoka Land Co.:

We consent to the use of our reports on consolidated financial statements and financial statement schedule of real estate and accumulated depreciation, and the effectiveness of internal control over financial reporting incorporated by reference herein.

 

/s/ KPMG LLP

July 29, 2010

Jacksonville, Florida

Certified Public Accountants

Exhibit 24.1

POWER OF ATTORNEY

KNOW TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William H. McMunn and Bruce W. Teeters, and each of them severally, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for and in the name, place and stead of the undersigned, for him or her in any and all capacities, to sign the Registration Statement of Consolidated-Tomoka Land Co. on Form S-8 under the Securities Act of 1933, as amended, with respect to shares of Consolidated-Tomoka Land Co.’s common stock issuable under the Consolidated-Tomoka Land Co. 2010 Equity Incentive Plan, and any and all amendments including post-effective amendments, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each of such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming that each such attorney-in-fact or agent or his substitute, may do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.

IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney in the capacities and on the dates indicated:

 

Signature		Title		Date
/s/ John J. Allen John J. Allen		Director		July 28, 2010
/s/ William H. Davison William H. Davison		Director		July 28, 2010
/s/ Gerald L. DeGood Gerald L. DeGood		Director		July 28, 2010
/s/ Jeffry B. Fuqua Jeffry B. Fuqua		Director		July 28, 2010
/s/ Allen C. Harper Allen C. Harper		Director		July 28, 2010
/s/ William L. Olivari William L. Olivari		Director		July 28, 2010
/s/ Linda Loomis Shelley Linda Loomis Shelley		Director		July 28, 2010
/s/ A. Chester Skinner, III A. Chester Skinner, III		Director		July 28, 2010
/s/ William J. Voges William J. Voges		Chairman of the Board, Director		July 28, 2010
/s/ Thomas P. Warlow, III Thomas P. Warlow, III		Director		July 28, 2010