<PAGE> 1
Registration No. 333-_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----
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 1997 SHARE INCENTIVE PLAN
CAREY DIVERSIFIED LLC 1997 NON-EMPLOYEE DIRECTORS' INCENTIVE PLAN
(Full title of the plans)
-----
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 LLP
1301 K STREET, N.W.
SUITE 1100-EAST TOWER
WASHINGTON, DC 20005-3317
-----
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================
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 1,000,000 shs. $19.84 $19,843,750 $5,853.91
=======================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Carey Diversified LLC 1997 Share Incentive Plan and the Carey Diversified LLC
1997 Non-Employee Directors' Incentive Plan (the "Plans") 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 Plans 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 September 25, 1998.
EXPLANATORY NOTE
This registration statement on Form S-8 covers 1,000,000 Limited Liability
Company Listed Shares that may be issued under the registrant's 1997 Share
Incentive Plan and 1997 Non-Employee Directors' Incentive 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.
<PAGE> 4
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
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.
Exhibit
No.
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).
- 2 -
<PAGE> 5
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.
333-37901).
4.3 Carey Diversified LLC 1997 Share Incentive Plan,
incorporated by reference to Exhibit 10.3 to the
registrant's Registration Statement on Form S-4 dated
October 15, 1997 (No. 333-37901).
4.4 Carey Diversified LLC 1997 Non-Employee Directors'
Incentive Plan, incorporated by reference to Exhibit
10.2 to the registrant's Registration Statement on
Form S-4 dated October 15, 1997 (No. 33-37901).
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 PricewaterhouseCoopers LLP, filed herewith.
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
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 -
<PAGE> 6
(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 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.
---
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.
- 4 -
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 15th day of September, 1998.
CAREY DIVERSIFIED LLC
By: 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
---------- ----- ----
<S> <C> <C>
Francis J. Carey Chairman of the Board and September 15, 1998
- -------------------------- Chief Executive Officer
Francis J. Carey (Principal Executive Officer)
of the Registrant
William P. Carey Director of the Registrant September 15, 1998
- --------------------------
William P. Carey
Gordon F. DuGan President and Director of the September 15, 1998
- -------------------------- Registrant
Gordon F. DuGan
Steven M. Berzin Vice Chairman and Director of September 15, 1998
- -------------------------- the Registrant
Steven M. Berzin
Claude Fernandez Executive Vice President of September 15, 1998
- -------------------------- the Registrant
Claude Fernandez Executive Vice President and
John J. Park Chief Financial Officer of September 15, 1998
- -------------------------- the Registrant
John J. Park (Principal Financial Officer)
Barclay G. Jones III Director September 15, 1998
- --------------------------
Barclay G. Jones III
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
Donald E. Nickelson Director September 15, 1998
- --------------------------
Donald E. Nickelson
Charles C. Townsend, Jr. Director September 15, 1998
- --------------------------
Charles C. Townsend, Jr.
Eberhard Faber, IV Director September 15, 1998
- --------------------------
Eberhard Faber, IV
Lawrence R. Klein Director September 15, 1998
- --------------------------
Lawrence R. Klein
Reginald Winssinger Director September 15, 1998
- --------------------------
Reginald Winssinger
</TABLE>
- 2 -
<PAGE> 9
CAREY DIVERSIFIED LLC
CAREY DIVERSIFIED LLC 1997 SHARE INCENTIVE PLAN
CAREY DIVERSIFIED LLC 1997 NON-EMPLOYEE DIRECTORS' INCENTIVE PLAN
<TABLE>
<CAPTION>
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
Exhibit
No. Document
--- --------
<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 1997 Share
Incentive Plan, incorporated by reference
to Exhibit 10.3 to the registrant's
Registration Statement on Form S-4 dated
October 15, 1997 (No. 333-37901).
4.4 Carey Diversified LLC 1997 Non-Employee
Directors' Incentive Plan, incorporated
by reference to Exhibit 10.2 to the
registrant's Registration Statement on
Form S-4 dated October 15, 1997 (No.
333-37901).
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 PricewaterhouseCoopers LLP,
independent accountants, filed herewith.
24.1 Power of Attorney, contained on the
signature page to this Registration
Statement.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
REED SMITH SHAW & MCCLAY LLP
1301 K Street, N.W.
Suite 1100 - East Tower
Washington, D.C. 20005-3317
Phone: 202-414-9200
Fax: 202-414-9299
September 28, 1998
Carey Diversified LLC
50 Rockefeller Plaza
New York, New York 10020
Re: Registration Statement on Form S-8 for the
Carey Diversified LLC 1997 Share Incentive Plan and the
Carey Diversified LLC 1997 Non-Employee Directors'
Incentive Plan
(the "Plans")
Gentlemen:
We have acted as counsel to Carey Diversified LLC (the
"Company") in connection with the above-captioned Registration Statement
relating to 1,000,000 Limited Liability Company Listed Shares of the Company
(the "Shares") which may be purchased by employees, officers and directors
of the Company and its Affiliates under the Plans. Under the Plans,
participants may receive either unissued or reacquired Shares, or any
combination thereof. In rendering our opinion below, we have assumed that
any previously issued Shares reacquired by the Company and used under the
Plans 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 adopting the Plans; and
(4) the Plans, 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:
<PAGE> 2
REED SMITH SHAW & MCCLAY LLP
Carey Diversified LLC
September 28, 1998
Page 2
(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 Plans have been duly authorized, and upon such sale in accordance
with the provisions of the Plans 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/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
September 28, 1998
