0001360079-08-000004.txt : 20080422
<SEC-HEADER>0001360079-08-000004.hdr.sgml : 20080422
<ACCEPTANCE-DATETIME>20080422075655
ACCESSION NUMBER: 0001360079-08-000004
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20080422
DATE AS OF CHANGE: 20080422
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: CONSOLIDATED TOMOKA LAND CO
CENTRAL INDEX KEY: 0000023795
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500]
IRS NUMBER: 590483700
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1024
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-10819
FILM NUMBER: 08768185
BUSINESS ADDRESS:
STREET 1: 1530 CORNERSTONE BLVD., STE. 100
CITY: DAYTONA BEACH
STATE: FL
ZIP: 32117
BUSINESS PHONE: 386-274-2202
MAIL ADDRESS:
STREET 1: PO BOX 10809
CITY: DAYTONA BEACH
STATE: FL
ZIP: 32120-0809
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: Wintergreen Advisers, LLC
CENTRAL INDEX KEY: 0001360079
IRS NUMBER: 202940772
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 333 ROUTE 46 WEST
STREET 2: SUITE 204
CITY: MOUNTAIN LAKES
STATE: NJ
ZIP: 07046
BUSINESS PHONE: (973) 263-2600
MAIL ADDRESS:
STREET 1: 333 ROUTE 46 WEST
STREET 2: SUITE 204
CITY: MOUNTAIN LAKES
STATE: NJ
ZIP: 07046
</SEC-HEADER>
<DOCUMENT>
<TYPE>SC 13D/A
<SEQUENCE>1
<FILENAME>coto13d080422.txt
<TEXT>
</SEC-HEADER>
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. 14)
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)
April 21, 2008
- --------------------------------------------------------------------------------
(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).
<PAGE>
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) [_]
(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
<PAGE>
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) [_]
(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
<PAGE>
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) [_]
(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
438,240
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
438,240
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
438,240
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.7%
14. TYPE OF REPORTING PERSON*
PN
<PAGE>
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, 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.
- --------------------------------------------------------------------------------
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 438,240 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 $95.1 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 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 April 21, 2008, Wintergreen delivered a letter (the "April 21 Letter") to the
Issuer and members of its Board requesting the Issuer postpone the Annual
Meeting of Shareholders of the Issuer (the "Meeting") scheduled for April 23,
2008. In the April 21 Letter, Wintergreen requested that the Board of the
Issuer demonstrate to Wintergreen and other shareholders that the Corporate
Governance Committee has properly interviewed and nominated independent director
candidates that are truly independent. A copy of the April 21 Letter 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.
- --------------------------------------------------------------------------------
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
438,240 Shares (1), constituting 7.7% 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 438,240 Shares; has
sole power to dispose or direct the disposition of 0 Shares; and has shared
power to dispose or direct the disposition of 438,240 Shares.
(1) Wintergreen Partners has delegated all of its authority to vote or dispose
of the Shares to Wintergreen, its investment manager.
(c) Inapplicable.
(d) Inapplicable.
(e) Inapplicable.
- --------------------------------------------------------------------------------
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 Board of Directors dated April 21, 2008
<PAGE>
- --------------------------------------------------------------------------------
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
______________________________________
April 22, 2008
Attention. Intentional misstatements or omissions of fact constitute federal
criminal violations (see 18 U.S.C. 1001).
<PAGE>
Exhibit A
AGREEMENT
The undersigned agree that this Amendment No 14 to Schedule 13D dated April 22,
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
______________________________________
Apil 22, 2008
<PAGE>
Exhibit B
Wintergreen Advisers, LLC
333 Route 46 West
Suite 204
Mountain Lakes, New Jersey 07046
April 21, 2008
Board of Directors
Consolidated-Tomoka Land Co
c/o Linda Crisp, Corporate Secretary
1530 Cornerstone Blvd., Suite 100
Daytona Beach, FL 32117
Dear Board Members:
As of the date of this letter, Wintergreen Advisers, LLC (the "Adviser") 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 undersigned, David J. Winters, is the
Managing Member and CEO of the Adviser. 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 respectfully requests that the Company postpone its Annual Meeting
of Shareholders, currently scheduled to take place on April 23, 2008 (the
"Meeting"), until at least July 22, 2008 or such time as the Board can
demonstrate to Wintergreen and other shareholders that the Corporate Governance
Committee has properly interviewed and nominated independent director candidates
that are truly independent, to be elected at the 2008 Annual Meeting of
Shareholders.
In the event the Company does not postpone the Meeting, Wintergreen intends to
withhold authority for the shares of Common Stock it beneficially owns to vote
for the election of Directors.
Wintergreen takes significant issue with the two independent director nominees
to be presented at the Meeting. Wintergreen questions how the Board could reach
a determination that William L. Olivari and William H. Davison are independent
in accordance with the Listing Standards of The American Stock Exchange, which
require that in order for a director to qualify as independent, the board must
affirmatively determine that the director does not have a relationship that
would interfere with the exercise of independent judgment in carrying out the
responsibilities of a director.
It has come to Wintergreen's attention that in 2003, the Company sold a
significant parcel of land (the "Property") on the west side of Daytona Beach to
Halifax Health System ("Halifax") for $15.5 million, one of the largest
transactions in the Company's history. As part of the purchase arrangement, the
Company retained the right to reacquire the Property at the original sale price
in the event Halifax did not begin construction on one of two medical or
hospital buildings on the Property by December 2005. Halifax did not begin
construction on the first building by December 2005. According to public
statements by Halifax officials, the Hospital has no present intention of
breaking ground on a medical or hospital facility at the site in the foreseeable
future. To Wintergreen's knowledge, the Company did not demand that
construction begin until December 2007, which demand caused the Company's right
to repurchase to vest in December 2008. Accordingly, the Company has taken
limited action to enforce its rights. Mr. Olivari has significant ties to
Halifax and in fact currently serves as the chairperson of the board of
Halifax's foundation and has served on that board for the last two years.
Wintergreen believes that Mr.
<PAGE>
Olivari has a conflict of interest related to the Company's enforcement of its
rights. Mr. Olivari's connection to Halifax has not been disclosed in the
Company's Proxy Statement.
In addition, Mr. William H. Davison, a director of the Company who is up for
re-election at the Meeting, served as Chairman, President and Chief Executive
Officer of SunTrust Bank ("SunTrust"), East Central Florida, until his
retirement in September 2007. As disclosed in the Company's Proxy Statement,
the Company and SunTrust are parties to a Master Loan and Security Agreement
pursuant to which SunTrust has provided the Company with a term loan in the
amount of $8 million and an unsecured line of credit in the maximum amount of
$20 million. The Company and SunTrust are also parties to an International Swap
Dealers Association, Inc. Master Agreement with respect to an interest rate swap
in connection with the term loan described above.
The Company, however, did not contemporaneously disclose in any Proxy Statement
or any of its other public filings a 2004 agreement with SunTrust Bank pursuant
to which SunTrust purchased a site in Daytona Beach from one of the Company's
subsidiaries for the purpose of constructing a regional banking facility. It
also failed contemporaneously to disclose a covenant in that agreement that
obligated SunTrust to begin construction on the site by December 2006, or
otherwise to permit the Company to repurchase the property at the original
purchase price of $1.43 million, without penalty to SunTrust. Thereafter,
SunTrust did not begin construction by 2006 and the Company, likewise without
advance disclosure to shareholders, repurchased the property for $1.43 million.
While certain of the related party transactions between SunTrust and the Company
have been disclosed in the Proxy Statement, the Company's failure to disclose
the purchase transactions involving the Company and Halifax and SunTrust,
respectively, begs the question of whether there are other material transactions
the Company may have failed to disclose to its shareholders. The transactions
described above also bring into question the process by which the Board
determines the independence of the Company's directors.
Within the last twelve months, Wintergreen has brought four director candidates
to the attention of the Company. As the Proxy Statement indicates, one of the
candidates was rejected due to meeting schedule conflicts. Wintergreen finds
the rejection of an otherwise qualified candidate on these grounds to be
unacceptable. Even more problematic is the fact that the Corporate Governance
Committee never contacted the other three candidates, despite the fact that
there is currently a vacancy on the Board.
The Board's seemingly lax director independence determination standards and the
Corporate Governance Committee's refusal to seriously consider qualified
candidates for directorships that Wintergreen has brought to their attention
points to what Wintergreen believes are inadequate corporate governance
practices of the Company. Wintergreen has pointed these issues out in the past,
and intends to continue to monitor them.
As we have communicated in our prior correspondence to you and in our meetings
with management, Wintergreen's sole interest in the Company is its
participation through its shares of Common Stock in the creation of shareholder
value for Wintergreen and the Company's other shareholders. Wintergreen has
proposed a number of initiatives for consideration by the Company and/or its
shareholders in order to re-focus the Company's business operations and
demonstrate to shareholders that management is acting in the best interest of
all shareholders. To date, management of the Company has not shown Wintergreen
that it shares the goal of the creation of shareholder value.
<PAGE>
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, CEO
Wintergreen Advisers, LLC
Cc: John C. Adams Jr.
Bob D. Allen
William H. Davison
Gerald L. DeGood
James E. Gardner
William H. McMunn
John C. Myers III
William L. Olivari (Nominee)
William J. Voges
Ronald Albert, Jr. Esq.
Broad and Cassel
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