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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CAREY DIVERSIFIED LLC
(Exact name of registrant as specified in its charter)
DELAWARE 13-3912578
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
50 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(Address of Principal Executive Offices) (Zip Code)
CAREY DIVERSIFIED LLC EMPLOYEE SHARE PURCHASE PLAN
(Full title of the plans)
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FRANCIS J. CAREY
CAREY DIVERSIFIED LLC
50 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(Name and address of agent for service)
(212) 492-1100
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
DAVID A. MUSTONE, ESQUIRE
REED SMITH SHAW & MCCLAY
1301 K STREET, N.W.
SUITE 1100-EAST TOWER
WASHINGTON, DC 20005-3317
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered(1) per share(2) offering price(2) fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Limited Liability Company
Listed Shares . . . 500,000 shs. $21.65 $10,825,000.00 $3,280.30
========================================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Carey Diversified LLC Employee Share Purchase Plan (the "Plan") in the event
of a stock dividend, split-up of shares, recapitalization or other similar
change in the Limited Liability Company Listed Shares.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(h) and (c), the proposed maximum aggregate offering price
for shares which may be issued under the Plan is based on the average of the
high and low sales prices of the Limited Liability Company Listed Shares as
reported by the New York Stock Exchange for June 3, 1998.
EXPLANATORY NOTE
This registration statement on Form S-8 covers 500,000 shares of Limited
Liability Company Listed Shares that may be issued under the registrant's
Employee Share Purchase Plan.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the registrant with the Securities
and Exchange Commission are incorporated in this Registration Statement by
reference and made a part of this Registration Statement:
(a) The registrant's latest annual report on Form 10-K filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) All other reports filed by the registrant pursuant to
Section 13(a) of the 1934 Act since the end of the fiscal year covered
by the annual report on Form 10-K referred to above; and
(c) Any description of the Limited Liability Company Listed
Shares which is contained in a registration statement filed by the
registrant pursuant to the 1934 Act, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act on or subsequent to the date of this
Registration Statement, and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained in this Registration Statement or in any
other contemporaneously or subsequently filed document which also is or is
deemed to be incorporated by reference in this Registration Statement 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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Section 18-108 of the Delaware Limited Liability Company
Act, a limited liability company may, subject to the provisions in its limited
liability company agreement, indemnify and hold harmless any member, manager or
other person from and against any and all claims and demands whatsoever.
According to the Certificate of Formation, the Operating Agreement and
the Bylaws of the registrant (the "Organizational Documents"), any Director or
officer of the registrant is entitled to indemnification from the
<PAGE> 4
registrant for any loss, damage or claim (including any reasonable attorney's
fees incurred by such person in connection therewith) due to any act or
omission made by him, except in the case of fraudulent or illegal conduct of
such person, provided that any indemnity shall be paid out of, and to the
extent of, the assets of the registrant only (or any insurance proceeds
available therefor) and no Shareholder shall have any personal liability on
account thereof. The termination of any action, suit or proceeding by judgment,
order, settlement or conviction or upon a plea of nolo contendere or its
equivalent, shall not of itself create a presumption that the Director or
officer acted fraudulently or illegally. The indemnification provided by the
Organizational Documents is not deemed to be exclusive of any other rights to
which those indemnified may be entitled under any agreement, vote of
Shareholders or Directors or otherwise and shall inure to the benefit of the
heirs, executors and administrators of such a person. Any repeal or
modification of the indemnification provisions contained in the Organizational
Documents will not adversely affect any right or protection of a Director or
officer of the Registrant existing at the time of such repeal or modification.
The registrant has entered into indemnification agreements with each
of its Directors. The indemnification agreements require, among other things,
that the registrant indemnify its officers and Directors to the fullest extent
permitted by Delaware law and advance to the Directors all related expenses,
subject to reimbursement if it is subsequently determined that indemnification
is not permitted. The registrant must also indemnify and advance all expenses
incurred by officers and Directors seeking to enforce their rights under the
indemnification agreements and cover officers and Directors under the
registrant's Directors and officers liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by provisions in the Organizational Documents, it provides greater
assurance to officers and Directors that indemnification will be available,
because, as a contract, it cannot be modified unilaterally in the future by the
Board of Directors or by the Shareholders to eliminate the rights that it
provides.
According to the Organizational Documents, the registrant may, if the
Directors of the registrant deem it appropriate in their sole discretion,
obtain insurance for the benefit of the registrant's Directors and officers,
relating to the liability of such persons. The Directors and officers liability
insurance would insure (i) the officers and Directors of the registrant from
any claim arising out of an alleged wrongful act by such persons while acting
as Directors and officers of the registrant and (ii) the registrant to the
extent that it has indemnified the Directors and officers for such loss.
See also the note following Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as part of this Registration
Statement or incorporated by reference herein.
<TABLE>
<CAPTION>
Exhibit
No.
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<S> <C>
4.1 Amended and Restated Limited Liability Company Agreement of Carey Diversified LLC, incorporated by
reference to Exhibit 3.1 to the registrant's Registration Statement on Form S-4 dated October 15,
1997 (No. 33-37901).
4.2 Bylaws of Carey Diversified LLC, incorporated by reference to Exhibit 3.2 to the registrant's Registration
Statement on Form S-4 dated October 15, 1997 (No. 33-37901).
</TABLE>
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<TABLE>
<S> <C>
4.3 Carey Diversified LLC Employee Share Purchase Plan dated April 14, 1998, filed herewith.
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality of the Limited Liability Company Listed Shares,
filed herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (included in Exhibit 5.1 filed herewith).
23.2 Consent of Coopers & Lybrand L.L.P., filed herewith.
24.1 Power of Attorney, contained on the signature page to this Registration Statement.
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) Rule 415 offering.
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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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; and
(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.
(b) Filings incorporating subsequent Exchange Act Documents by
Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be
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a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "1933 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 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 1933 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 New York, State of New York, on the 19th day
of May, 1998.
CAREY DIVERSIFIED LLC
By: /s/ Francis J. Carey
-----------------------------------
Francis J. Carey, Chairman and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of Francis J. Carey, Gordon
F. DuGan, John J. Park and Steven M. Berzin his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement, and to file the same,
with all exhibit thereto, and any other documents in connection therewith,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
/s/ Francis J. Carey Chairman of the Board and Chief May 19, 1998
---------------------------- Executive Officer (Principal Executive
Francis J. Carey Officer) of the Registrant
/s/ William P. Carey Director of the Registrant May 19, 1998
----------------------------
William P. Carey
/s/ Gordon F. DuGan President and Director of the Registrant May 19, 1998
----------------------------
Gordon F. DuGan
/s/ Steven M. Berzin Vice Chairman and Director of the May 19, 1998
---------------------------- Registrant
Steven M. Berzin
/s/ Claude Fernandez Executive Vice President of the May 19, 1998
---------------------------- Registrant
Claude Fernandez
/s/ John J. Park Executive Vice President and Chief May 19, 1998
---------------------------- Financial Officer of the Registrant
John J. Park (Principal Financial Officer)
/s/ Barclay G. Jones III Director May 19, 1998
----------------------------
Barclay G. Jones III
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Donald E. Nickelson Director May 19, 1998
----------------------------
Donald E. Nickelson
/s/ Charles C. Townsend, Jr. Director May 19, 1998
----------------------------
Charles C. Townsend, Jr.
/s/ Eberhard Faber, IV Director May 19, 1998
----------------------------
Eberhard Faber, IV
/s/ Lawrence R. Klein Director May 19, 1998
----------------------------
Lawrence R. Klein
/s/ Reginald Winssinger Director May 19, 1998
----------------------------
Reginald Winssinger
</TABLE>
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CAREY DIVERSIFIED LLC
CAREY DIVERSIFIED LLC EMPLOYEE SHARE PURCHASE PLAN
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REGISTRATION STATEMENT
ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Index
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Exhibit
No. Document
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<S> <C>
4.1 Amended and Restated Limited Liability Company Agreement of Carey Diversified
LLC, incorporated by reference to Exhibit 3.1 to the registrant's Registration
Statement on Form S-4 dated October 15, 1997 (No. 33-37901).
4.2 Bylaws of Carey Diversified LLC, incorporated by reference to Exhibit 3.2 to the
registrant's Registration Statement on Form S-4 dated October 15, 1997 (No.
33-37901).
4.3 Carey Diversified LLC Employee Share Purchase Plan dated April 14, 1998, filed
herewith.
5.1 Opinion of Reed Smith Shaw & McClay LLP as to
the legality of the Limited Liability Company Listed Shares,
filed herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (included
in Exhibit 5.1 filed herewith).
23.2 Consent of Coopers & Lybrand L.L.P., independent
accountants, filed herewith.
24.1 Power of Attorney, contained on the signature
page to this Registration Statement.
</TABLE>
<PAGE> 1
EXHIBIT 4.3
CAREY DIVERSIFIED LLC
EMPLOYEE SHARE PURCHASE PLAN
1. Purpose. The purpose of the Carey Diversified LLC
Employee Share Purchase Plan (the "Plan") is to encourage and assist Employees
of (a) Carey Diversified LLC (the "Company"), (b) the Manager of the Company,
(c) W.P. Carey & Co., Inc. and (d) any other affiliate of the Company that
elects to participate in the Plan (with the consent of the Company), in
acquiring an ownership interest in the Company. The Plan is not intended to be
an Employee Stock Purchase Plan under Section 423 of the Code.
2. Definitions. The following terms as used in this
Plan shall have the meaning specified below, unless the context clearly
indicates otherwise.
(a) "Account" means the bookkeeping account established
for an Employee to which the following shall be credited: (i) the funds
deducted or paid from the Employee's Compensation pursuant to the terms of the
Plan to purchase Shares; (ii) any purchased Shares; and (iii) any dividends on
Shares credited to the account which are to be used to purchase additional
Shares as permitted hereunder.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended, and any regulations thereunder.
(d) "Committee" means the committee appointed by the
Board to administer the Plan. The Committee shall serve at the pleasure of the
Board and the Board may appoint or remove Committee members at any time for any
reason. Unless otherwise determined by the Board, the Committee shall be the
Compensation Committee of the Board.
(e) "Company" means Carey Diversified LLC, a Delaware
limited liability company, or any successor thereto.
(f) "Compensation" means a Participant's total
compensation from the Company, Manager, W.P. Carey & Co., Inc. or other
participating affiliate payable during the applicable Semi-Annual Period.
(g) "Employee" means any officer or other common law
employee of the Company, the Manager, W.P. Carey & Co., Inc. or other affiliate
of the Company which participates in the Plan with the consent of the Company.
(h) "Exchange Act" means the Securities Exchange Act of
1934, as amended. References to any provision of the Exchange Act include the
rules and regulations thereunder and successor provisions and rules and
regulations thereto.
<PAGE> 2
(i) "Fair Market Value" of a Share means, as of any given
date, (i) the average of the high and low price of a Share as reported on the
New York Stock Exchange (or if Shares were not traded on such date, on the
closest preceding date on which a trade occurred), or (ii) if the Shares are
not publicly traded, the fair market value of a Share as determined by the
Committee in good faith, using such criteria as the Committee may, in its sole
discretion, deem appropriate.
(j) "Manager" means Carey Management LLC, the manager of
the Company, and any successor thereto.
(k) "Participant" means each (i) Employee who is
eligible to, and elects to, participate in the Plan in accordance with the
terms of the Plan and (ii) any Employee or former Employee who has an Account
under the Plan.
(l) "Plan" means the Carey Diversified LLC Employee Share
Purchase Plan, as amended from time to time.
(m) "Semi-Annual Period" means the six (6) month period
ending on the last day of June and December of each year, with the first
Semi-Annual Period to commence on or about February 2, 1998.
(n) "Shares" means the shares of the Company as described
in the Company's Limited Liability Operating Agreement.
3. Shares Subject to the Plan. Subject to adjustment
pursuant to Section 12 of the Plan, the aggregate number of Shares which may be
purchased under the Plan is 500,000. The Shares may be authorized by unissued
shares, reacquired shares, or any combination thereof.
4. Eligibility. Any Employee of the Company, the
Manager, W.P. Carey & Co., Inc. or other participating affiliate is eligible to
become a Participant on the first day of the Semi-Annual Period following the
Employee's date of hire.
5. Joining the Plan.
(a) An eligible Employee's participation in the Plan
shall be effective as of the first day of the Semi-Annual Period following the
date on which the Employee completes, sign and returns to the Committee such
forms as may be required to enroll in the Plan (or at such other time as may be
permitted by the Committee in its sole discretion); provided, that for the
first Semi-Annual Period of the Plan, participation shall be effective as of
the first day of that period so long as the Employee completes and returns the
required forms before the last day of such period.
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(b) Notwithstanding subsection (a) above, an Eligible
Employee may elect to make a lump sum contribution (as provided in Section
6(a)(2)) at any time during a Semi-Annual Period in accordance with such rules
and procedures as may be established by the Committee in its sole discretion.
(c) Participation by any Employee in the Plan is entirely
voluntary.
6. Employee Contributions.
(a) Each Employee may elect (on such forms as may be
required by the Committee in its sole discretion) to contribute by either (1)
payroll deduction of 1% to 10% (in whole percentages only) of his or her
Compensation payable during a Semi-Annual Period or (2) one lump sum payment
(or such additional lump sum payments as may be permitted by the Committee in
its sole discretion) of up to 10% of his or her Compensation payable during the
Semi-Annual Period. Notwithstanding the foregoing, no Employee may contribute
more than $25,000 (or such higher limit as may be established by the Committee
from time to time) in any year.
(b) Subject to the limits set forth in (a) above, an
Employee may elect at any time (on such forms as may be required by the
Committee in its sole discretion) to increase or decrease his or her rate of
contribution. Except as otherwise provided in the Plan, any such change shall
become effective as the first day of the Semi-Annual Period following receipt
of such election by the Committee (or at such other time as may be permitted by
the Committee in its sole discretion).
(c) Any contributions made by an Employee under the Plan
shall be credited to the Employee's Account. Except as otherwise provided by
the Committee, any dividends on Shares credited to a Participant's Account may,
at the election of the Participant, be used to purchase additional Shares
hereunder (at the market value at the time of purchase).
7. Issuance of Shares.
(a) On the last trading day of each Semi-Annual Period,
the contributions (and dividends to be reinvested, if any) credited to a
Participant's Account as of that date shall be applied to the purchase of
Shares; provided that if the Participant has previously elected in accordance
with Section 8(a) to cease participation, no such purchase shall be made on the
Participant's behalf. Except as otherwise provided by the Committee,
fractional shares may be purchased and credited to Participant Accounts under
the Plan.
(b) The per share cost for the Shares purchased pursuant
to the Plan shall be 85% of the lower of (i) the Fair Market Value of a Share
on the first trading day of the Semi-
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Annual Period (the "date of the grant") and (ii) the Fair Market Value of a
Share on the last trading day of the Semi-Annual Period (the "date of
exercise").
(c) Any funds remaining in a Participant's Account after
the purchase of Shares at the conclusion of a Semi-Annual Period shall, unless
otherwise requested by the Participant, be carried over and applied in the next
Semi-Annual Period. Except as otherwise provided by the Committee, Shares
purchased for any Semi-Annual Period shall be credited to Participant Accounts
as soon as administratively feasible after the date of purchase; provided, that
a Participant may request, upon such terms and conditions as may be established
by the Committee, a certificate for Shares credited to his or her Account.
(d) If the aggregate number of Shares that all
Participants in the Plan desire to purchase in any Semi-Annual Period exceeds
the number of Shares then available under the Plan, the Shares available shall
be allocated among such Participants in proportion to their contributions
during the Semi-Annual.
(e) Notwithstanding any other provision herein to the
contrary, the obligation to purchase, issue or deliver Shares under the Plan
shall be subject to (i) the effectiveness of a registration statement under the
Securities Act of 1933, as amended, with respect to such shares, if deemed
necessary or appropriate by the Company or Committee, (ii) the condition that
the Shares shall have been listed (or authorized for listing upon official
notice of issuance) on the New York Stock Exchange and (iii) any other
applicable law, regulation, rule or order.
8. Termination of Contributions.
(a) The contributions of an Employee under the Plan shall
terminate (and no further contributions shall be made on his or her behalf) as
of the date on which the Employee (i) elects to withdraw his or her
contributions for a Semi-Annual Period, (ii) ceases to be an Employee, (iii)
dies, (iv) ceases to receive Compensation for the remainder of a Semi-Annual
Period, or (v) to the extent required by law or regulation, receives a hardship
distribution under tax-qualified section 401(k) plan sponsored by Carey or any
affiliate. Upon ceasing contributions under the Plan, an Employee shall (if
applicable) be entitled to recommence contributions in accordance with the
terms of Section 5; provided that in the case of a termination under (a)(v),
the terminated Participant may not do so for a period of 12 months following
the date of the hardship withdrawal (or other period specified under the
section 401(k) plan).
(b) Other than for the cessation of contributions under
either Section 8(a)(i) or Section 8(a)(iii), if contributions are stopped prior
to the last trading day of a Semi-Annual Period, (i) Shares shall be credited
to the Participant's Account for that Semi-Annual Period based upon the balance
in the Participant's Account as of that date, and (ii) payment of any funds
remaining in the Account (after the purchase of Shares) shall be made as soon
as administratively feasible.
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<PAGE> 5
(c) In the case of a cessation of contributions under
Section 8(a)(i), any funds remaining in the Participant's Account at the close
of the Semi-Annual Period in which the termination occurred shall be paid to
the Participant as soon as administratively feasible after the close of that
Semi-Annual Period.
(d) In the case of a cessation of contributions under
Section 8(a)(iii), any funds remaining in the Participant's Account shall be
applied in accordance with Section 9(a).
9. Death of a Participant
(a) Upon the death of a Participant, the contributions
credited to a Participant's Account shall be retained and applied in accordance
with Section 7 and the Participant's beneficiary shall thereafter be entitled
to the Shares (and cash, if any) credited to the Participant's Account. Any
distribution to a beneficiary hereunder shall be in full satisfaction of the
obligations owing to the deceased participant under the Plan. If more than one
beneficiary is designated, each beneficiary shall be entitled to the portion of
the Participant's Account designated by the Participant, or if no such
designation is made, each beneficiary shall receive an equal portion of the
Shares and proceeds.
(b) Each Participant may designate (on such forms as may
be required by the Committee) a beneficiary under the Plan. A previous
designation may be changed by a Participant at any time by the submission of a
new designation form to the Committee prior to the Participant's death. If a
Participant has not designated a beneficiary or the designated beneficiary is
not living on the Participant's date of death, the Participant's beneficiary
shall be his or her estate.
10. Administration of the Plan.
(a) The Plan shall be administered by the Committee. The
Committee shall have the full discretion to interpret and administer the Plan
and to adopt such rules, regulations and procedures as it deems necessary or
advisable from time to time. The Committee may delegate any or all of its
powers and duties under the Plan to employees of the Company, the Manager, W.P.
Carey & Co., Inc. or other Company affiliate.
(b) A majority of the Committee shall constitute a
quorum, and the acts of a majority of the members of the Committee present at
any meeting at which a quorum is present, or acts approved in writing by a
majority of the members of the Committee, shall be deemed the acts of the
Committee.
(c) All costs and expenses of administering the Plan
shall be paid by the Company and the other participating employers (as
determined by the Company in its sole discretion).
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11. Amendment.
(a) The Board shall have the right to amend the Plan at
any time and from time to time; provided, that no such amendment of the Plan
shall, without stockholder approval, be effective if stockholder approval of
the amendment is required at such time in order for the purchase of Shares
under the Plan to qualify for any available exemption from Section 16 of the
Exchange Act or by any other applicable law, regulation, rule or order.
(b) No amendment may be made that would cause the
purchase of Shares under the Plan not to qualify for exemption under Section
16.
(c) Notwithstanding anything herein to the contrary, the
Board shall have the power to amend the Plan in any manner deemed necessary or
advisable for the purchase of Shares under the Plan to qualify for any
exemption provided under Section 16 and any such amendment shall, to the extent
deemed necessary or advisable by the Board, be applicable to any existing
Accounts.
12. Termination. The Board shall have the right to
terminate the Plan at any time. Upon termination, each Participant shall be
entitled to payment of his or her Account balance as soon as administratively
feasible after the date the Plan is terminated and Participants shall have no
further rights hereunder. Unless terminated earlier by action of the Board, the
Plan shall remain in effect until such time as no Shares remain available for
issuance under the Plan and the Participants and their employers have no
further rights or obligations (as applicable) under the Plan.
13. Adjustments Upon Changes in Capitalization.
Appropriate and proportionate adjustments shall be made in the number and class
of shares of shares subject to this Plan in the event of a shares dividend,
shares split, reverse shares split, recapitalization, reorganization, merger,
consolidation, acquisition, separation or like change in the capital structure
of the Company.
14. Transferability of Rights. No rights of a
Participant (or his or her beneficiary) under this Plan shall be transferable,
by operation of law or otherwise, except upon the death of a Participant as
provided in Section 9.
15. Participation in Other Benefit Plans. Nothing herein
contained shall affect an Employee's rights to participate in and receive
benefits under and in accordance with the then current provisions of any
pension, insurance or other employee benefit plan or program offered by his or
her employer.
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<PAGE> 7
16. No Right to Continued Employment. Nothing in this
Plan shall confer upon any Employee any right to continued employment with the
Company, Manager, W.P. Carey & Co., Inc. or other participating affiliate, or
interfere with or restrict in any way the rights of the Company, Manager, W.P.
Carey & Co., Inc. or other participating affiliate to discharge the Employee
at any time for any reason whatsoever, with or without cause.
17. No Shareholder Rights Conferred. Nothing contained
in the Plan shall confer upon a Participant (or his or her beneficiary) any
rights of a holder of Shares unless and until Shares are issued to the
Participant (or his or her beneficiary).
18. Governing Law. To the extent not preempted by
Federal law, the Plan shall be construed in accordance with and governed by the
internal laws of the State of New York.
19. Severability. In the event any provision of the Plan
or any action taken pursuant to the Plan shall be held illegal or invalid for
any reason, the illegality or invalidity shall not affect the remaining parts
of the Plan, and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included, and the illegal or invalid action
shall be deemed null and void.
20. Withholding Taxes. To the extent required by
applicable law or regulation, each Participant shall arrange with his or her
employer for the payment of any required federal, state or local income or
other tax withholding applicable to the receipt of Shares under the Plan prior
to the delivery of the Shares to the Employee.
21. Notices. Any notice or other communication required
or permitted to be given pursuant to the Plan must be in writing and may be
given by registered or certified mail, and if given by registered or certified
mail, shall be determined to have been given and received on the date three
days after a registered or certified letter containing such notice, properly
addressed with postage prepaid, is deposited in the United States mails; and if
given other than by registered or certified mail, it shall be deemed to have
been given when delivered to and received by the party to whom addressed.
Notice shall be given to Participants at their most recent addresses shown in
the Company's records. Notice to the Committee shall be sent to the Committee
at the Company's principal executive offices to the attention of the Chief
Financial Officer of the Company. Notice to an employer shall be sent to the
employer's principal executive offices to the attention of its Chief Financial
Officer.
22. Construction. Titles and headings of sections and
articles of this Plan are for convenience of reference only and shall not
affect the construction of any provision of this Plan. Unless the context
clearly requires otherwise, the singular shall include the plural.
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<PAGE> 8
23. Effective Date of Plan. The Plan shall become
effective as of February 2, 1998.
IN WITNESS WHEREOF, CAREY DIVERSIFIED LLC has caused this
document to be executed by its duly authorized officer this 14th day of April,
1998.
CAREY DIVERSIFIED LLC
By: /s/ Steven M. Berzin
--------------------
Title: Vice Chairman
-------------
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<PAGE> 1
EXHIBIT 5.1
[REED SMITH SHAW & MCCLAY LLP LETTERHEAD]
June 4, 1998
Carey Diversified LLC
50 Rockefeller Plaza
New York, New York 10020
Re: Registration Statement on Form S-8 for the
Carey Diversified LLC Employee Share Purchase Plan
(the "Plan")
Gentlemen:
We have acted as counsel to Carey Diversified LLC (the
"Company") in connection with the above-captioned Registration Statement
relating to 500,000 Limited Liability Company Listed Shares of the Company (the
"Shares") which may be purchased by employees, officers, managers and certain
affiliates of the Company under the Plan. The Plan provides that either
unissued or reacquired Shares, or any combination thereof, may be purchased
under the Plan. In rendering our opinion below, we have assumed that any
previously issued Shares reacquired by the Company and used under the Plan were
duly authorized, validly issued and fully paid at the time of their original
issuance.
In connection with this opinion, we have examined, among other
things:
(1) Amended and Restated Limited Liability Company
Agreement of the Company, as amended to date;
(2) the By Laws of the Company, as amended to date;
(3) resolutions adopted by the Board of Directors of the
Company on April 7, 1998, adopting the Carey Diversified LLC Employee Share
Purchase Plan; and
(4) the Carey Diversified LLC Employee Share Purchase
Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as
we considered necessary in order to enable us to furnish this opinion, and
subject to the assumption set forth above, we are pleased to advise you that in
our opinion:
(a) The Company has been duly formed and is a validly
existing limited liability company under the laws of the State of Delaware; and
(b) The Limited Liability Company Listed Shares being
registered and which may be sold by the Company pursuant to the provisions of
the Plan have been duly authorized,
<PAGE> 2
REED SMITH SHAW & MCCLAY LLP
Carey Diversified LLC
June 4, 1998
Page 2
and upon such sale in accordance with the provisions of the Plan such Shares
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name in the Prospectus
under the caption "Legal Opinion".
Very truly yours,
/s/ Reed Smith Shaw & McClay LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Carey Diversified LLC on Form S-8 (File No. 333- ) of our report dated March
27, 1998, on our audits of the combined financial statements and financial
statement schedule of Corporate Property Associates Partnerships as of
December 31, 1996 and 1997 and for the years ended December 31, 1995, 1996,
and 1997, which report is included in the Annual Report of Carey Diversified
LLC on Form 10-K for the year ended December 31, 1997.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
New York, New York
June 4, 1998
