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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W. P. CAREY & CO. LLC
(Exact name of issuer 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)
1997 SHARE INCENTIVE PLAN
(Full title of the plan)
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WILLIAM P. CAREY
W. P. CAREY & CO. 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)
Copy to:
JEFFREY G. AROMATORIO, ESQ.
REED SMITH LLP
435 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219
(412) 288-3364
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CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING OF REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
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Limited Liability
Company Listed Shares 94,802 $ 7.69 $ 729,027 $ 67.07
627,254 16.25 10,192,877 937.75
26,000 16.86 438,360 40.33
326,896 18.26 5,969,121 549.16
1,100 19.60 21,560 1.98
1,100 19.35 21,285 1.96
74,600 19.85 1,480,810 136.23
1,100 19.65 21,615 1.99
10,000 18.75 187,500 17.25
7,000 19.40 135,800 12.49
2,250 19.79 44,528 4.10
36,100 19.65 709,365 65.26
7,000 19.95 139,650 12.85
10,000 20.65 206,500 19.00
2,250 19.75 44,438 4.09
1,100 19.67 21,637 1.99
2,250 21.40 48,150 4.43
1,100 20.35 22,385 2.06
2,250 19.85 44,663 4.11
4,450 23.90 106,355 9.78
1,100 24.01 26,411 2.43
1,100 22.73 25,003 2.30
659,198 23.00 15,161,554 1,394.86
3,600,000 23.275 (2) 83,790,000 7,708.68
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5,500,000 $119,588,594. $ 11,002.15
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(1) Plus such additional number of shares as may be required pursuant to the
W. P. Carey & Co. LLC 1997 Share Incentive 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 these 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 on the New York Stock Exchange Composite
transactions listing for June 19, 2002 as quoted in The Wall Street
Journal.
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PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (File No. 001-13779) are incorporated in this Registration
Statement by reference and made a part of this Registration Statement:
(a) The Company'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 Company pursuant to Section 13(a)
or 15(d) of the 1934 Act since the end of the fiscal year covered by the
annual report on Form 10-K referred to in paragraph (a) above; and
(c) Any description of the Limited Liability Company Listed Shares
which is contained in a registration statement filed by the Company
pursuant to the 1934 Act, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act on or subsequent to the filing of the annual report on
Form 10-K referred to in paragraph (a) above 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, except that the
information included in any document in response to Item 306 or paragraphs (i),
(k) or (l) of Item 402 of Regulation S-K is not incorporated by reference in
this Registration Statement.
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 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
Bylaws of the Company (the "Organizational Documents"), any Director or officer
of the Company is entitled to indemnification from the
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Company 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 Company 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 Company existing at the time of such
repeal or modification.
The Company has entered into indemnification agreements with each of its
Directors. The indemnification agreements require, among other things, that the
Company 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 Company 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 Company'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 Company may, if the
Directors of the Company deem it appropriate in their sole discretion, obtain
insurance for the benefit of the Company'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 Company and (ii) the Company to the extent that it has
indemnified the Directors and officers for such loss.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
An Exhibit Index, containing a list of all exhibits filed with this
Registration Statement, is included on page II-6.
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 (the "1933 Act");
(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,
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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 (a)(1)(i) and (a)(1)(ii) do not
apply if 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 (the "1934 Act") that are
incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
1933 Act, 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 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section
15(d) of the 1934 Act 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.
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to trustees, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6
above, 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 trustee, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such trustee, 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 11TH DAY OF
JUNE, 2002.
W. P. CAREY & CO. LLC
BY: /s/ William P. Carey
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WILLIAM P. CAREY, CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of William P. Carey, Gordon F. DuGan and
John J. Park 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 (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute, may lawfully do or cause to be
done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 11TH DAY OF JUNE, 2002.
Name Title
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/s/ William P. Carey Chairman of the Board and Chief Executive
-------------------------------- Officer (Principal Executive Officer)
William P. Carey
/s/ Francis J. Carey Director
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Francis J. Carey
/s/ Gordon F. DuGan President and Director
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Gordon F. DuGan
/s/ Donald E. Nickelson Director
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Donald E. Nickelson
/s/ Eberhard Faber IV Director
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Eberhard Faber IV
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Name Title
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/s/ Dr. Lawrence R. Klein Director
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Dr. Lawrence R. Klein
/s/ Charles C. Townsend, Jr. Director
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Charles C. Townsend, Jr.
/s/ Reginald Winssinger Director
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Reginald Winssinger
/s/ John J. Park Executive Vice President, Chief Financial
-------------------------------- Officer and Treasurer (Principal Financial
John J. Park Officer)
/s/ Claude Fernandez Executive Vice President - Financial
-------------------------------- Operations (Principal Accounting Officer)
Claude Fernandez
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W. P. CAREY & CO. LLC
1997 SHARE INCENTIVE PLAN
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
Exhibit No. Document Sequential Page
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4.1 Amended and Restated Limited Liability Company Agreement of Carey *
Diversified LLC, now W. P. Carey & Co. LLC, incorporated by
reference to Exhibit 3.1 to the Registration Statement of Carey
Diversified LLC on Form S-4 dated October 15, 1997 (No. 333-37901).
4.2 Bylaws of Carey Diversified LLC, now W. P. Carey & Co. LLC, *
incorporated by reference to Exhibit 3.2 to the Registration
Statement of Carey Diversified LLC on Form S-4 dated October 15,
1997 (No. 333-37901).
4.3 W. P. Carey & Co. LLC 1997 Share Incentive Plan, incorporated by *
reference to Exhibit 10.3 to the Registration Statement of Carey
Diversified LLC on Form S-4 dated October 15, 1997 (No. 333-37901).
5.1 Opinion of Reed Smith LLP as to the legality of the Limited 7
Liability Listed Shares, filed herewith.
23.1 Consent of Reed Smith LLP (contained in the opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants, 9
filed herewith.
24.1 Power of Attorney, filed herewith as part of the signature pages.
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* Incorporated herein by reference.
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