-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q8h2Qq7cwh8MqkpVukrOEBuBPRrl52OFL5/ko+vNGyXHCpEQMl3HVzENtx6EuJ6b qrzORcWocJg1xy/GUrFUTA== 0000950133-98-002225.txt : 19980608 0000950133-98-002225.hdr.sgml : 19980608 ACCESSION NUMBER: 0000950133-98-002225 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980605 EFFECTIVENESS DATE: 19980605 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CAREY DIVERSIFIED LLC CENTRAL INDEX KEY: 0001025378 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 133912578 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-56121 FILM NUMBER: 98642978 BUSINESS ADDRESS: STREET 1: 50 ROCKEFELLER PLAZA STREET 2: 2ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2124921100 MAIL ADDRESS: STREET 1: 50 ROCKEFELLER PLAZA STREET 2: 50 ROCKEFELLER PLAZA CITY: NEW YORK STATE: NY ZIP: 10020 FORMER COMPANY: FORMER CONFORMED NAME: CAREY DIVERSIFIED PROPERTIES LLC DATE OF NAME CHANGE: 19961017 S-8 1 CAREY DIVERSIFIED LLP FORM S-8 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 EMPLOYEE SHARE PURCHASE 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 1301 K STREET, N.W. SUITE 1100-EAST TOWER WASHINGTON, DC 20005-3317 ---------- 2 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 - ----------------------------------------------------------------------------------------------------------------- Limited Liability Company Listed Shares . . . 500,000 shs. $21.65 $10,825,000.00 $3,280.30 ========================================================================================================================
(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. 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 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.
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). 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).
-2- 5 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 -3- 6 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- 7 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.
Signatures Title Date ---------- ----- ---- /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
8 /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
-2- 9 CAREY DIVERSIFIED LLC CAREY DIVERSIFIED LLC EMPLOYEE SHARE PURCHASE PLAN -------------- REGISTRATION STATEMENT ON FORM S-8
Exhibit Index ------------- Exhibit No. Document ------- ------------------------------------------- 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.
EX-4.3 2 EMPLOYEE SHARE PURCHASE PLAN 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. 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. -2- 3 (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- -3- 4 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. -4- 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). -5- 6 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. -6- 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. -7- 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 ------------- -8- EX-5.1 3 OPINION OF REED SMITH SHAW & MCCLAY LLP 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, 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 EX-23.2 4 CONSENT OF COOPERS & LYBRAND L.L.P. 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 -----END PRIVACY-ENHANCED MESSAGE-----