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OMB
APPROVAL
OMB
Number: 3235-0145
Expires:
February 28, 2009
Estimated
average burden
hours
per response………11
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Consolidated-Tomoka
Land Co.
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(Name
of Issuer)
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Common
Stock, par value $1.00 per share
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(Title
of Class of Securities)
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210226106
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(CUSIP
Number)
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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)
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December
22, 2008
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(Date
of Event Which Requires Filing of this
Statement)
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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 ss.240.13D-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box [_].
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Note: Schedules
filed in paper format shall include a signed original and five copies of
the schedule, including all exhibits. See § 240.13d-7
for other parties to whom copies are to be sent.
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* 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.
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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 ("Act") 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).
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CUSIP
No.
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210226106
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1.
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NAME
OF REPORTING PERSONS
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Wintergreen
Advisers, LLC
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
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[_]
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(b)
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[X]
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3.
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SEC
USE ONLY
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4.
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SOURCE
OF FUNDS*
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AF
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e)
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[_]
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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Delaware,
USA
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
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7.
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SOLE
VOTING POWER
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1,481,474
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8.
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SHARED
VOTING POWER
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0
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9.
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SOLE
DISPOSITIVE POWER
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1,481,474
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10.
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SHARED
DISPOSITIVE POWER
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[_]
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0
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
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PERSON
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1,481,474
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
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CERTAIN
SHARES*
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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25.9%
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14.
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TYPE
OF REPORTING PERSON*
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IA
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CUSIP
No.
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210226106
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1.
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NAME
OF REPORTING PERSONS
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Wintergreen
Fund, Inc.
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
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[_]
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(b)
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[X]
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3.
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SEC
USE ONLY
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4.
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SOURCE
OF FUNDS*
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WC
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e)
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[_]
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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Maryland,
USA
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
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7.
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SOLE
VOTING POWER
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0
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8.
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SHARED
VOTING POWER
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564,961
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9.
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SOLE
DISPOSITIVE POWER
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0
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10.
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SHARED
DISPOSITIVE POWER
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[_]
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564,961
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
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PERSON
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564,961
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
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CERTAIN
SHARES*
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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9.9%
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14.
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TYPE
OF REPORTING PERSON*
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IC
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CUSIP
No.
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210226106
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1.
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NAME
OF REPORTING PERSONS
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Wintergreen
Partners Fund, LP
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
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[_]
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(b)
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[X]
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3.
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SEC
USE ONLY
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4.
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SOURCE
OF FUNDS*
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WC
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e)
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[_]
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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Delaware,
USA
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
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7.
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SOLE
VOTING POWER
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0
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8.
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SHARED
VOTING POWER
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548,788
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9.
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SOLE
DISPOSITIVE POWER
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0
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10.
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SHARED
DISPOSITIVE POWER
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[_]
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548,788
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
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PERSON
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548,788
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
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CERTAIN
SHARES*
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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9.6%
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14.
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TYPE
OF REPORTING PERSON*
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PN
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CUSIP
No.
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210226106
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Item
1.
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Security
and Issuer.
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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.
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Identity
and Background.
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(a-c,
f)
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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.
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(d)
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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).
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(e)
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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.
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Source
and Amount of Funds or Other Consideration.
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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.
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Purpose
of Transaction.
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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
December 22, 2008, Wintergreen delivered a letter (the “December 22
Letter”) to the Secretary of the Issuer in response to comments made by
the Issuer in a Form 8-K filing dated November 21, 2008. A copy of the
December 22 Letter is attached hereto as Exhibit B and incorporated herein
by reference. Reference is made in the December 22 Letter to the March 12,
2008 resignation of James Jordan as director of the Board of the Issuer
(the “March 12 Letter”). A copy of the March 12 Letter is attached hereto
as Exhibit C 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.
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Interest
in Securities of the Issuer.
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(a,
b)
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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.
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(c)
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Wintergreen caused
its advisory clients to effect transactions in the Shares
during the past 60 days as set forth below:
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DATE
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TYPE
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NO
OF SHARES
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PRICE/SHARE
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(d)
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Inapplicable.
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(e)
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Inapplicable.
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Item
6.
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Contracts,
Arrangements, Understandings or Relationships with Respect
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to
Securities of the Issuer.
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N/A
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Item
7.
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Material
to be Filed as Exhibits.
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Exhibit
A: Agreement between the Reporting Persons to file jointly
Exhibit
B: Letter to Secretary of Issuer dated December 22, 2008
Exhibit
C: Resignation letter from James Jordan dated March 12,
2008
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Wintergreen
Advisers, LLC
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By:
David J. Winters, Managing Member
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/s/
David J. Winters
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Wintergreen
Fund, Inc.
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By:
David J. Winters, Executive Vice President
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/s/
David J. Winters
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Wintergreen
Partners Fund, LP
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By:
Wintergreen GP, LLC
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By:
David J. Winters, Managing Member
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/s/
David J. Winters
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December
23, 2008
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Wintergreen
Advisers, LLC
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By:
David J. Winters, Managing Member
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/s/
David J. Winters
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Wintergreen
Fund, Inc.
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By:
David J. Winters, Executive Vice President
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/s/
David J. Winters
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Wintergreen
Partners Fund, LP
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By:
Wintergreen GP, LLC
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By:
David J. Winters, Managing Member
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/s/
David J. Winters
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December
23, 2008
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-
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CTO
did recently offer Wintergreen two Board seats, but the offer was included
in a CTO proposed standstill agreement that contained preconditions that
were unacceptable to Wintergreen, and which were to last for a period of
three years. The CTO proposal demanded:oWintergreen would have
to agree to vote in favor of any director recommended by CTO without
regard to director candidate qualifications or
conflicts
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·
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Wintergreen
would have to agree to vote against any proposal made by any third party
in advance of knowing what fellow shareholders
propose
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·
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Wintergreen
would have to give up its right under Florida statute to inspect company
books and records
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·
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Wintergreen
would have to agree not to propose matters for a vote by all
shareholders
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·
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Wintergreen
would have to agree to not attempt to influence CTO’s Board, management,
or policies
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·
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Wintergreen
would have to forgo the right to buy more CTO
shares
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·
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Wintergreen
would have to forgo the right to seek legal remedy for any potential
malfeasance on the part of CTO, its officers, and directors discovered by
Wintergreen in our inspection
process
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-
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In
your November 19, 2008 letter, you also claim that Wintergreen seeks to
gain control of CTO. This is simply not
true. Wintergreen seeks to have a board of directors whose
loyalties lie with the company and its shareholders and not with either
CTO’s management or Wintergreen. We reiterate that the
directors we proposed are in no way affiliated with Wintergreen, nor would
they represent or report to Wintergreen once on the CTO
Board. They would merely act as overseers of management and of
the corporate assets which belong to CTO’s shareholders. This
objective representation of long term shareholder interests by individuals
with meaningful, diverse backgrounds and expertise without any conflicting
business or social obligations is in the best interests of all CTO
shareholders. This is not control of the board by
Wintergreen. This is board representation for the benefit of
all shareholders.
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-
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You
imply that having the full board of directors being elected annually for
one year terms rather than
having a third of the board elected each year for three year terms –the
de-staggering the Board – would somehow “confer considerable power”
upon Wintergreen. All
shareholders are empowered when they have the annual opportunity to
vote for each director. Shareholders deserve the
opportunity to annually express support or dissatisfaction with the
board.
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-
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CTO
contends that by granting Board seats to Wintergreen’s independent
candidates and de-staggering the Board, Wintergreen would be “in a
position to assert majority
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control
of the Board by 2010.” This overlooks the fact that any
proposal to de-stagger the Board, made by Wintergreen or other
shareholders, would require the affirmative vote of a super-majority of
CTO shareholders and any proposed nominees for election as director would
require the affirmative vote of a majority of
shareholders.
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-
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CTO
categorizes the resignation of Wintergreen–nominated Board member Jim
Jordan as voluntary, while failing to mention that Mr. Jordan voluntarily
resigned at least in part because of his negative view of the conduct of
the Board and of the Nominating and Corporate Governance
Committee. At the time of his resignation, Mr. Jordan stated
“it is a mistake to combine the titles of Chairman and Chief Executive
Officer, which goes against now generally accepted best practice in
corporate governance” and “it was a mistake not to consider the candidates
proposed by our largest shareholder, or other candidates, as part of our
due diligence.” Mr. Jordan also stated that, on the
issue of director candidates, those issues “should first have been vetted
through the Nominating and Corporate Governance Committee, which did not
happen.”
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-
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In
your November 19th
letter, CTO states that Wintergreen has advocated abandoning your 1031
income property strategy. This is a complete
mischaracterization. What we have conveyed to CTO management
and directors is that we are concerned with several aspects of your
current strategy, including:
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·
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CTO
has entered into many flat, long-term leases which do not allow CTO to
increase rents over time. Generally, in the leases which do
call for rent increases over time, the rent adjustments are so
insignificant that they would not keep pace with historical rates of
inflation. While these properties do produce steady cash flows,
they do not provide meaningful pricing power to CTO, or significant upside
with regard to future values.
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·
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CTO
management and Board members represented to Wintergreen that CTO often
reviews the income property portfolio and considers selective sales of
properties. Yet as the market for these properties peaked along
with the rest of the real estate market in the past three years, CTO
continued to buy more properties at capitalization rates in the 6% to 7%
range, versus the 8% to 9% range captured when the strategy was first
implemented in 2001. Had some properties been sold out of
inventory over the past few years when real estate prices were high, tens
of millions of dollars could be available for more productive
uses. Sale of a handful of these properties could have funded
all the necessary road and infrastructure projects on company owned land
for years to come. At this point in time, we
believe the income property portfolio is in need of a rational and
intelligent review.
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·
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The
crown jewels of CTO’s assets are the approximately 11,000 acres of
unencumbered land straddling several major roads on the east coast of
Florida. Approximately 8,000 of these acres are
contiguous. This asset could never be
duplicated. Yet management is pursuing a strategy which
requires selling off this precious and limited land in order to buy
commoditized retail properties. If the CTO board and management
continue to let this approach run its course, shareholders will have
traded valuable plots of land with long term development potential for a
portfolio of income properties scattered across the southeastern
U.S.
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-
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You
contend that we have advocated for you to discontinue land
sales. In point of fact, we have consistently encouraged you to
abandon your stated corporate goal of “accelerating the rate of annual
sales.” Rather than the mass liquidation of property which
appears to be CTO’s current plan, we have encouraged CTO to sell parcels
of land more selectively. We fully understand that certain
sales must be made to fund the development of the western Daytona Beach
lands and to encourage the westward growth of the city. For
instance, the sale of land to a local hospital will create a need for new
doctor’s parks, retail malls and other facilities to support the
hospital. However, instead of pursuing the development of these
support facilities for the long-term benefit of shareholders, CTO seems
intent on selling this land and allowing others to capture the upside
potential these developments create. CTO should be developing and holding
on to most of these properties, which would give the company a portfolio
of properties with the ability to raise rents and participate in the
long-term appreciation of their Volusia County
landholdings.
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-
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With
regard to your dividend and stock repurchase policy, we find it odd that
you belittle Wintergreen in your November 19th
letter for advocating a reduced dividend in order to focus on better uses
of that cash (e.g., developing roads across your land or buying back
stock). The very next day, CTO declared a reduced dividend so
that you may repurchase your stock. Since our very first
meeting with CTO, we have expressed our belief that the approximately $2
million the company spent on annual dividends could be better used to
develop much needed roads and infrastructure to increase the value of
company lands. Perhaps now CTO will finally begin work on
Stagecoach Road, the much needed three mile road connecting LPGA Boulevard
and State Road 40. Management has spoken of the desirability of
this road for years, with no visible progress made as of
yet.
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-
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At
no point has Wintergreen encouraged CTO to take on “significant debt”
which would put the company in “severe financial distress;” this is a
complete misrepresentation on your part. On the contrary, the company’s
lack of considerable debt is one of the attributes that makes CTO such an
interesting investment situation.
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-
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You
state that had CTO followed the strategies Wintergreen has recommended,
you would be facing “potential high vacancy rates in new self-developed
properties.” This is a gross distortion of the
facts. Wintergreen has never advocated speculatively
constructing building after building on company lands without any
forethought into
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who
would fill the space. Quite to the contrary, we have encouraged
CTO to build prudently on company land, only after the company has
contracted tenants lined up.
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-
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It
is peculiar that your letter mentions potential vacancies at speculative
self-developed properties without mentioning the current vacancies at the
Mason Commerce Center, the two 15,000 square foot buildings which the
company built before management had lined up tenants to fill the
space. The responsibility for any vacancies and the potential
accompanying negative cash flows from the construction of these buildings
belongs exclusively to CTO management and board members. This
is not a course of action which was at any time promoted by
Wintergreen.
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-
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In
your letter, you articulate a belief that Wintergreen has “expressed very
strong support for the Company’s management team and our strategy and
business plan.”
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-
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In
our January 22, 2008 SEC filing, we began to more clearly express our
desire for CTO to focus on its Volusia County properties
(“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”). Had the company
proven itself more open to the ideas of its shareholders and truly
independent outside directors, the current situation would have been
avoided.
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