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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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CALCULATION OF REGISTRATION FEE
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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
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Limited Liability Company
Listed Shares . . . 500,000 shs. $21.65 $10,825,000.00 $3,280.30
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(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.
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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
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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.
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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).
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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.
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
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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.
Signatures Title Date
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/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
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William P. Carey
/s/ Gordon F. DuGan President and Director of the Registrant May 19, 1998
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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
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Barclay G. Jones III
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/s/ Donald E. Nickelson Director May 19, 1998
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Donald E. Nickelson
/s/ Charles C. Townsend, Jr. Director May 19, 1998
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Charles C. Townsend, Jr.
/s/ Eberhard Faber, IV Director May 19, 1998
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Eberhard Faber, IV
/s/ Lawrence R. Klein Director May 19, 1998
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Lawrence R. Klein
/s/ Reginald Winssinger Director May 19, 1998
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Reginald Winssinger
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CAREY DIVERSIFIED LLC
CAREY DIVERSIFIED LLC EMPLOYEE SHARE PURCHASE PLAN
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REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
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Exhibit
No. Document
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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.