S-3D
As filed with the Securities and Exchange Commission on
March 19, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
W. P. CAREY & CO. LLC
(Exact name of registrant as specified in its charter)
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| State of Delaware
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13-3912578 |
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(I.R.S. Employer |
| incorporation or organization)
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Identification Number) |
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| 50 Rockefeller Plaza |
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| New York, NY
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10020 |
| (Address of Principal Executive Offices)
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(Zip Code) |
(212) 492-1100
(Registrant’s telephone number, including area code)
Gordon F. DuGan
President
W. P. Carey & Co. LLC
50 Rockefeller Plaza
New York, New York 10020
(Name and Address of Agent for Service)
Copy to:
Jonathan Stapleton, Esq.
Baker & McKenzie LLP
1114 Avenue of the Americas
New York, NY 10036
(212) 626-4100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. þ
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933 other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. o
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer þ | Accelerated filer o |
Non-accelerated filer o
(Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed |
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maximum |
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securities to |
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to be |
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offering price |
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aggregate |
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registration |
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be registered |
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registered (1) |
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per share (2) |
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offering price (2) |
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fee (2) |
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Listed Shares, no par value |
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5,000,000 |
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21.73 |
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108,650,000 |
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6,063 |
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This Registration Statement shall also cover any additional Listed Shares that become issuable
under the Dividend Reinvestment and Stock Purchase Plan by reason of any stock dividend, stock
split or other similar transaction. |
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Estimated solely for purposes of calculating the registration fee, and pursuant to Rule 457(c)
under the Securities Act of 1933, as amended, computed based upon the average of the high and low
prices of the Registrant’s Listed Shares reported on the New York Stock Exchange on March 13, 2009. |
This registration statement shall become effective upon filing with the Securities and Exchange
Commission in accordance with Section 8(a) of the Securities Act and Rules 456 and 462 promulgated
thereunder.
W. P. CAREY & CO. LLC
Prospectus
Dividend Reinvestment And Share Purchase Plan
5,000,000 Listed Shares
Our
Dividend Reinvestment and Share Purchase Plan (the “Plan”)
provides an economical and convenient method to designate all or a portion
of the cash dividends on your shares of WPC stock for reinvestment in more shares under the Plan.
The Plan is also designed to provide an easy way for an existing shareholder to increase his or her
holdings in WPC through the Plan. W. P. Carey & Co. LLC is a Delaware limited liability company,
which we will refer to as WPC.
W. P. Carey & Co. LLC shares are traded on the New York Stock Exchange under the ticker symbol
“WPC.”
Some of the significant features of the Plan are as follows:
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As a participant in the Plan, you can automatically reinvest all or a portion of
your quarterly cash dividend. |
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Participants can add to an existing position in WPC by making optional cash payments
of $500 to $25,000 per month by writing a check or making automatic purchases through
deductions from a U.S. bank account. |
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The Plan allows participants to keep all of their WPC shares in safekeeping for easy
transfer or sale. |
This Prospectus is not an offer to sell securities and it is not soliciting an offer to buy
securities in any jurisdiction where the offer or sale is not permitted. Before you participate in
the plan, please carefully read this Prospectus, including “Risk Factors” on page 1, and the
information referred to under the heading “Incorporation by Reference.”
All questions concerning the Plan should be directed to:
Mellon Investor Services
P.O. Box 358035
Pittsburgh, PA 15252-8035
Telephone: (888) 200-8690
These
securities have not been approved or disapproved by the Securities
and Exchange Commission (the “SEC”)
nor any state securities commission nor has the SEC or
any state securities commission passed upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
This prospectus is dated March 19, 2009.
TABLE OF CONTENTS
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i
You should rely only on the information contained in this Prospectus or the information to which we
have referred you. We have not authorized anyone to provide you with information that is different.
You should not assume that the information in this Prospectus is accurate as of any date other
than the date on the front cover of this Prospectus, or that information incorporated by reference
is accurate as of any date other than the date of the document incorporated by reference.
ii
RISK FACTORS
Investing in our Listed Shares involves risks. Before making an investment decision, you should
read and carefully consider the risk factors described in our annual, quarterly and current reports
filed with the SEC, which are incorporated by reference into this Prospectus, as well as other
information we include or incorporate by reference in this Prospectus. Additional risks and
uncertainties not currently known to us, or that we currently deem to be immaterial, also may
affect our business, financial condition and/or future operating results.
W. P. CAREY & CO. LLC
We are a provider of long-term net lease financing for companies worldwide. We invest primarily in
commercial properties that are each triple-net leased to single corporate tenants, domestically and
internationally, and earn revenue as the advisor to publicly owned, non-traded real estate
investment trusts (“CPA® REITs”) sponsored by us that invest in similar properties. We are
currently the advisor to the following CPA® REITs: Corporate Property Associates 14 Incorporated
(“CPA®:14”), Corporate Property Associates 15 Incorporated (“CPA®:15”), Corporate Property
Associates 16 – Global Incorporated (“CPA®:16 – Global”) and Corporate Property Associates 17 –
Global Incorporated (“CPA®:17”), and were the advisor to Corporate Property Associates 12
Incorporated (“CPA®:12”) until its merger with CPA®:14 in 2006
(the “CPA®:12/14 Merger”).
Our real estate investment portfolio, as well as those of the CPA® REITs we advise, consists
primarily of single-tenant commercial real property. Generally, we place primary emphasis on the
creditworthiness of the tenant, but we also fully evaluate the underlying real estate. Our leases
generally are full recourse obligations of the tenant or its affiliates and place the economic
burden of ownership largely on the tenant by requiring it to pay the costs of maintenance,
insurance, taxes, structural repairs and other operating expenses (referred to as triple-net
leases).
Most of our properties either were acquired as a result of our consolidation in 1998 with nine
affiliated Corporate Property Associates limited partnerships and their successors or were
subsequently acquired from certain CPA® REITs in connection with the provision of liquidity to
shareholders of those REITs, as further described below. Because our advisory agreements with the
existing CPA® REITs require that we use our best efforts to present to them a continuing and
suitable program of investment opportunities that meet their investment criteria, we generally
provide investment opportunities to these funds first and earn revenues from transaction and asset
management services performed on their behalf. Our principal focus on our owned real estate
portfolio in recent years has therefore been on enhancing the value of our existing properties.
Under advisory agreements that we have with each of the CPA® REITs, we perform services and earn
asset management revenue related to the day-to-day management of the CPA® REITs and provide
transaction-related services and earn structuring revenue in connection with structuring and
negotiating real estate and real estate-related investments and mortgage financing on their behalf.
In addition, we provide further services and earn revenue when each CPA® REIT is liquidated. We
are also reimbursed for certain costs incurred in providing services, including broker-dealer
commissions paid on behalf of the CPA® REITs, marketing costs and the cost of personnel provided
for the administration of the CPA® REITs. As a result of electing to receive certain payments for
services in shares, we also hold ownership interests in the CPA® REITs.
We were formed as a limited liability company under the laws of Delaware on July 15, 1996. We
commenced operations on January 1, 1998 by combining the limited partnership interests of nine CPA®
partnerships, at which time we listed on the New York Stock Exchange (“NYSE”) under the symbol
“WPC.” As a limited liability company, we are not subject to federal income taxation as long as we
satisfy certain requirements relating to our operations and pass through any tax liabilities or
benefits to our shareholders; however, certain of our subsidiaries engaged in investment management
operations are subject to federal, state and local income taxes and certain subsidiaries may be
subject to foreign taxes.
In October 2007, we completed a restructuring whereby we transferred our real estate assets from a
wholly owned subsidiary into a newly formed, wholly owned REIT subsidiary (“Carey REIT II”). Carey
REIT II elected to be treated as a REIT under sections 856 through 860 of the Internal Revenue Code
of 1986, as amended (the “Code”), with the filing of its 2007 return.
Our principal executive offices are located at 50 Rockefeller Plaza, New York, NY 10020 and our
telephone number is (212) 492-1100. As of December 31, 2008, we employed 154 individuals through
our wholly-owned subsidiaries.
1
FORWARD LOOKING STATEMENTS
| This prospectus contains forward-looking statements within the meaning of the
federal securities laws. There statements may be identified by the use of
forward-looking terminology such as “estimates,” “projects,” “anticipates,” “expects,”
“intends,” “believes,” or the negative thereof or other variations thereon or
comparable terminology, or by discussions of strategy that involve risks and
uncertainties. You should exercise caution in relying on forward-looking statements as
they involve known and unknown risks, uncertainties and other factors that may
materially affect our future results, performance, achievements or transactions.
Factors, risks and uncertainties which could impact actual results and cause them to
differ from what is anticipated in the forward-looking statements statement contained
herein are discussed in this Prospectus as well as in our other filings with the SEC,
including but not limited to those under the heading “Risk Factors” in this Prospectus. |
All forward-looking statements made in this Prospectus supplement that are attributable to us or
persons acting on behalf of us are expressly qualified in their entirety by the factors listed
above in the section captioned “Risk Factors” and other cautionary statements included in this
Prospectus, including by way of incorporation by reference. We disclaim any obligation to update
information contained in any forward-looking statement.
DESCRIPTION OF THE PLAN
The following questions and answers defined the terms and conditions of the Plan.
Purpose of the Plan
The primary purpose of the Plan is to provide current holders of shares with an economical and
convenient method of increasing their investment in us by investing cash dividends in additional
shares and/or by investing optional cash payments in shares at the current market value without
payment of any brokerage commission or service charge. If you do not participate in the Plan, you
will receive cash dividends, as declared and paid in the usual manner.
The Plan was originally adopted by our Board of Directors on February 11, 2001 and became effective
on February 11, 2001. The Plan was amended by our Board of Directors on March 3, 2009 effective as
of March 19, 2009.
Our Dividend Reinvestment and Share Purchase Plan is described in the following questions and
answers:
1. What features are available to participants in the Plan?
Dividend Reinvestment. Participants may purchase additional shares, if desired, by automatically
reinvesting all or a portion of their cash dividends in shares through the Plan.
Optional Cash Investment. Participants may also purchase additional shares by making optional cash
payments of $500 to $25,000 per month or by making an initial optional cash payment of $500 to
$25,000 in the Plan.
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Voluntary Participation. Participation in the Plan is entirely voluntary, and participants may
terminate their participation at any time. Shareholders who do not choose to participate in the
Plan will continue to receive cash dividends, as declared, in the usual manner. Participants may
also request that any or all of the shares they hold in the Plan be sold by the plan administrator.
2. Who will handle the administration of the Plan?
We have designated Mellon Bank, N.A. as the plan administrator to administer the Plan and act as
agent for the participants. Mellon Bank N.A. has designated its affiliate, Mellon Shareholder
Services, to perform certain services for the Plan. These companies will purchase and hold shares
for participants keep records and statements and perform other duties required by the Plan.
All correspondence regarding the Plan should be directed to:
Mellon Investor Services
P.O. Box 358035
Pittsburgh, PA 15252-8035
Telephone: (888) 200-8690
Please mention W. P. Carey & Co. LLC and this Plan in all correspondence.
Dividend Reinvestment Program
| 3. |
How does an existing shareholder participate in the Plan? |
If you own our shares that are registered in your name, you may enroll in the Plan immediately by
completing the enrollment form and returning it to the plan administrator in the prepaid envelope.
Alternatively, you may enroll on-line through Investor ServiceDirect. See question #8 for more
details.
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I already own shares, but they are held at a bank or broker. Can I use these shares to
participate in the Plan? |
If the shares are held with a bank or broker you may make arrangements with your financial advisor
to have some or all of your shares registered directly in your name. Once you own at least one
share in registered form you will need to complete the enrollment form and return it to the
administrator in the prepaid envelope.
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I do not currently own shares. Can I participate in the Dividend Reinvestment Program? |
No. To participate in the Dividend Reinvestment Program, you must be one of our existing
shareholders.
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I am not sure where my shares are held. How can I find out? |
Please
call Mellon Investor Services at 1-888-200-8690 to inquire.
7. What are my dividend options?
Full Dividend Reinvestment. By selecting this option you are authorizing Mellon Investor Services
to apply all of your dividends on all of our shares registered in your name toward the purchase of
additional shares.
Partial Dividend Reinvestment. If you select this option, Mellon will apply the dividends from the
number of shares specified on your enrollment form toward more shares and pay the balance of the
remaining dividends in cash.
Full Cash Dividend Payment. If you select this option, all of the dividends from your shares will
be paid in cash by check or direct deposit.
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8. How may I change my dividend option or discontinue reinvesting my dividends?
You may change or withdraw from the Plan with respect to all or a portion of the shares held in
your account in the Plan at any time. If the request to withdraw is received prior to a dividend
record date, the request will be processed on the day following receipt of the request by the plan
administrator.
If the request to withdraw is received by the plan administrator on or after a dividend record
date, but before the payment date, the plan administrator, in its sole discretion, may either pay
such dividend in cash or reinvest it in shares for your account. The request for withdrawal will
then be processed as promptly as possible following such dividend payment date. All dividends
subsequent to the effective date of the withdrawal will be paid in cash unless you re-enroll in the
Plan, which you may do at any time.
You may do so by:
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Calling Mellon Investor Services directly at 888-200-8690 and instruct them to
change your dividend option; |
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Instructing Mellon Investor Services by mail at: |
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Mellon Investor Services
Attn: Investment Plan Services
P.O. Box 358035
Pittsburgh, PA 15252-8035 |
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Submitting a new election on an enrollment authorization form; or |
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Accessing your personal account by visiting Mellon’s Investor ServiceDirect at
www.melloninvestor.com/isd. You can enroll, obtain information and perform certain transactions on your account
online via Investor ServiceDirect® (ISD). To gain access, use the
12-digit Investor
Identification Number (IID), which can be found in a bolded box on your check stub,
statement or advice to establish your PIN. In order to access your account through ISD,
you will be required to complete an account activation process. This one-time
authentication process will be used to validate your identity in addition to your 12-digit
IID and self-assigned PIN. |
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How can I have my dividends directly deposited in my bank account? |
Simply call Mellon Investor Services at 888-200-8690 and ask to have a direct deposit form mailed
to you or visit the Investor Relations section of our website at
www.wpcarey.com to print the form.
| 10. |
If I am enrolled in the full or partial dividend reinvestment Plan, when will the investment
be made? |
The investment date for shares acquired through the Plan will be the date or dates of actual
investment, but no later than 30 days following the dividend payment date.
When open market purchases are made by the plan administrator, such purchases may be made on any
securities exchange where the shares are traded, in the over-the-counter market or by negotiated
transactions, and may be subject to such terms with respect to price, delivery and other matters as
agreed to by the plan administrator. Shares will be allocated and credited to participants’
accounts on the appropriate investment date. No interest will be paid on cash dividends pending
reinvestment under the terms of the Plan.
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At what price will the shares be purchased? |
Shares purchased with reinvested dividends will be purchased for the Plan at the market price.
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“Market Price” means the weighted average of the actual prices paid, computed to four decimal
places, for all of the shares purchased by the plan administrator with all participants’ reinvested
dividends and optional cash payments for the related month.
The price of the shares will be determined by the weighted average price of all shares purchased
for the entire Plan on the investment date. Neither we nor any participant shall have any
authorization or power to direct the time or price at which shares will be purchased or the
selection of the broker or dealer through or from whom purchases are to be made by the plan
administrator. However, when open market purchases are made by the plan administrator, the plan
administrator shall use its best efforts to purchase the shares at the lowest possible price.
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How will I be assured that my dividends are fully reinvested? |
Your account in the Plan will be credited with the number of shares, including fractional shares
computed to four decimal places, equal to the total amount to be invested for you divided by the
applicable weighted average market price.
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What is the source of the shares being purchased under the Plan? |
Shares purchased through the Plan will be purchased on the open market.
Share Purchase Program
| 14. |
I am currently a shareholder. How do I make an additional investment in your shares? |
The Plan allows for optional cash purchases to be made on a monthly basis. You may purchase a
minimum of $500 and a maximum of $25,000 by including a check or money order payable to “Mellon
Bank/W. P. Carey & Co. LLC DRP” with the authorization form and sending them directly to the plan
administrator. You can also authorize an individual automatic deduction from your bank account
through Investor ServiceDirect (see question #8 above for more details). If you wish to make
regular monthly purchases, you may authorize automatic monthly deductions from your bank account.
| 15. |
I am not currently a shareholder. Can I participate in the Share Purchase Program? |
No. To participate in the Share Purchase Program, you must be one of our existing shareholders.
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Am I able to make more than one investment? |
Yes. The Plan allows you to make investments on a monthly basis. Each optional cash payment must
be accompanied by an authorization form. Each month, the plan administrator will apply any
optional cash payment received from you no later than the optional cash payment due date to the
purchase of additional shares for the account of the participant on the following investment date.
The optional cash payment due date is one business day prior to the investment date.
| 17. |
When will the shares be purchased for my account? |
Optional cash purchases will be made on the 20th day of each month or the business day immediately
preceding the 20th day of the month if the 20th day of the month is not a business day.
| 18. |
How will the price be determined for my investment? |
The price of the shares will be determined by the weighted average market price of all shares
purchased for the entire Plan on the investment date. Neither we nor any participant shall have
any authorization or power to direct
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the time or price at which shares will be purchased or the
selection of the broker or dealer through or from whom purchases are to be made by the plan
administrator.
However, the plan administrator
shall use its best efforts to purchase the shares at the lowest possible price.
19. If I change my mind, can I cancel my investment?
Your optional cash payments will be returned to you as soon as practicable after the plan
administrator receives such a request from you. Your investment may be cancelled only by written
request (to the attention of Mellon Investor Services). Your request must be received at least two
business days prior to the investment date with respect to which the optional cash payments you
delivered to the plan administrator are scheduled to be invested. In the case of requests received
less than two business days prior to such date, the plan administrator, in its sole discretion, may
either return or invest such cash payments.
20. Will there be interest paid on funds pending investment?
No. Interest will not be paid on funds held in your plan accounts. Since no interest is paid on
cash held by the plan administrator, it normally will be in your best interest to defer optional
cash payments until shortly before the optional cash payment due date.
21. When the shares are purchased, where are they held?
Normally, shares purchased for you will be held in book-entry form.
No certificates will be issued to you for shares in the Plan unless you submit a request to the
plan administrator. At any time, you may request the plan administrator to send a certificate for
some or all of the whole shares credited to your account. This request should be mailed to the
plan administrator. There is no fee for this service. Any remaining whole shares and any
fractions of shares will remain credited to your plan account. We will not issue certificates for
fractional shares under any circumstances.
22. How may I receive a certificate for my shares?
You may obtain a certificate by:
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Using the tear-off section of the investment statement you will receive shortly
after each investment date and requesting a certificate for a specified number of whole
shares; |
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Contacting Mellon at 888-200-8690; |
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Sending a written notice specifying the number of shares you are requesting to be
issued in certificate form; or |
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Accessing your account via the internet at www.melloninvestor.com and authorizing
the certificate issuance. |
| 23. |
How will I know how many shares I own? |
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The plan administrator will provide you with a current activity statement reflecting
the exact number of shares purchased shortly after an investment has been made. |
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You are able to view real-time account information through Mellon’s Investor
ServiceDirect web-site at www.melloninvestor.com. You can simply log in with your
IID and a self-established PIN. |
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In addition, you will receive copies of other communications sent to shareholders, including our
annual report to shareholders, the notice of annual meeting and proxy statement in connection with
our annual meeting of shareholders and Internal Revenue Service information necessary for the
completion of your tax return.
24. I currently hold a certificate for shares. May I place my shares into safekeeping in my
existing account?
You may also elect to deposit with the plan administrator certificates for your other shares
registered in your name for safekeeping under the Plan without charge. Certificates forwarded to
the plan administrator by registered mail will be automatically covered by a blanket bond up to the
first $100,000 of value. Safekeeping provides a convenient way to keep track of shares. Only shares
held in safekeeping may be sold through the Plan.
25. How do I withdraw from the Plan?
If you wish to withdraw from the Plan with respect to all or a portion of the shares held in your
account in the Plan, you must notify the plan administrator in writing or by marking and returning
the tear-off section of the plan activity statement you will receive from the plan administrator
following each purchase of additional shares by telephone, or through Investor ServiceDirect. Upon
your withdrawal from the Plan or termination of the Plan by us, certificates
for the appropriate number of whole shares credited to your account under the Plan will be issued
free of charge. A cash payment will be made for any fraction of a share.
Upon withdrawal from the Plan, you may also request in writing that the plan administrator sell all
or part of the shares credited to your account in the Plan. The plan administrator will sell the
shares as requested within 10 business days after processing the request for withdrawal. You will
receive the proceeds of the sale, less a nominal fee per transaction paid to the plan
administrator, any brokerage fees or commissions and any applicable stock transfer taxes, generally
within five business days of the sale. See Addendem A: Dividend Reinvestment and Stock Purchase
Plan Fees and General Information for a description of applicable fees.
26. I do not wish to withdraw from the Plan, but would like to sell some of my shares. Can I do
this through the Plan?
You may sell shares at any time by contacting the plan administrator. The plan administrator will
record sales orders on the date of receipt, and process them, where practicable, on the next
business day. The plan administrator will send by check the proceeds from the sale of the shares
(excluding a nominal fee, brokerage commissions and other costs). See Addendem A: Dividend
Reinvestment and Stock Purchase Plan Fees and General Information for a description of applicable
fees.
If you sell or transfer all of your shares other than the shares you hold in the Plan, you will
still remain in the Plan with respect to any held plan shares and will continue to earn dividends
unless you notify the plan administrator to terminate participation by giving the plan
administrator a withdrawal notice prior to the next relevant dividend record date.
27. Will interest be paid on funds received prior to or during the pricing period?
No interest will be paid by us or the plan administrator on optional cash payments held pending
investment.
7
Other Important Information
28. What are your responsibilities and those of the plan administrator under the program?
We and the plan administrator will not be liable in administering the Plan for any act done in good
faith or required by applicable law or for any good faith omission to act including, without
limitation:
| |
• |
|
any claim or liability arising out of failure to terminate a participant’s account upon his
or her death; or |
| |
| |
• |
|
with respect to the price at which shares are purchased and/or the times when such
purchases are made or with respect to any fluctuation in the market value before or after
purchase or sale of shares. |
Notwithstanding the foregoing, nothing contained in the Plan limits our liability with respect to
alleged violations of federal securities laws. We and the plan administrator shall be entitled to
rely on completed forms and the proof of due authority to participate in the Plan, without further
responsibility of investigation or inquiry.
Any questions of interpretation arising under the Plan will be determined by us and any such
determination will be final. We may adopt rules and regulations to facilitate the administration of
the Plan. The terms and conditions of the Plan and its operation will be governed by the laws of
the State of Delaware.
29. What are the responsibilities of the participant under the Plan?
Shares purchased through the Plan are subject to escheat to the state in which the participant
resides in the event that such shares are deemed, under such state’s laws, to have been abandoned
by the participant. Therefore, you should notify the plan administrator promptly in writing of any
change of address. Account statements and other communications to participants will be addressed to
them at the last address of record provided by participants to the plan administrator.
You will have no right to draw checks or drafts against your plan account or to instruct the plan
administrator with respect to any shares or cash held by the plan administrator except as expressly
provided herein.
30. How do I vote my shares acquired through any part of the Plan?
You will receive a proxy card covering both directly held shares and shares held in the Plan. If a
proxy is returned properly signed and marked for voting, all of the shares covered by the proxy
will be voted as marked. If you beneficially own shares that are registered in a name other than
your own (for example, in the name of a bank, broker or other nominee), you will receive a proxy
covering plan shares through your bank, broker or other nominee. If your proxy is returned properly
signed but no voting instructions are given, all of your shares will be voted in accordance with
recommendations of our Board of Directors, unless applicable laws require otherwise. If your proxy
is not returned, or if it is returned unexecuted or improperly executed, shares registered in your
name may be voted only by your in person.
31. What are the tax consequences related to the plan?
We are not in a position to advise you on the tax consequences of your participation in the
plan. As a general rule, participants in the plan will have the same federal income tax obligations
as participants who do not participate in the plan, and reinvested dividends must be included in
gross income.
Whether you participate in the plan or not, we will provide you with a year-end statement
(form K-1) to be used in preparing your tax returns as applicable under IRS guidelines. You should
consult with your own tax advisor for advice applicable to your particular situation.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC.
The reports, proxy statements and other information filed by us may be inspected without charge at
the public reference room of the SEC, which is located at 100 F Street, N.E., Washington, D.C.
20549. You may obtain copies of all or any part of the reports, proxy statements and other
information from the public reference room, upon the payment of the prescribed fees. You may obtain
information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330.
8
The SEC maintains a web site at www.sec.gov that contains reports, proxy statements and other
information regarding registrants like us that file electronically with the SEC. You can inspect
the reports, proxy statements and other information on this website. You also can inspect reports,
proxy statements and other information about us at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with them, which means that
we can disclose important information to you by referring you to those documents. The information
incorporated by reference is an important part of this Prospectus, and information that we file
later with the SEC will automatically update and supersede this information. We incorporate by
reference the following documents previously filed by us with the SEC:
| • |
|
Our annual report for the year ended December 31, 2008 on Form 10-K, filed on March 2,
2009, which incorporates by reference certain portions of our proxy statement to be filed with
the SEC on or before April 30, 2009 and to be delivered to shareholders in connection with
our 2009 Annual Meeting of Shareholders scheduled to be held on June
11, 2009. |
| |
| • |
|
Our current reports dated March 5, 2009 and March 12, 2009 on Form 8-K; and |
| |
| • |
|
Our Registration Statement on Form 8-A, dated January 1, 1998, describing our Listed
Shares, including any amendments or reports filed for the purpose of updating such
description. |
All documents filed with or furnished to the SEC by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the
date of this Prospectus and prior to the termination of the offering of the securities made hereby
shall be deemed to be incorporated by reference into this Prospectus; provided, however, that we
are not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any
Current Report on Form 8-K, unless, and to the extent, specified in any such Current Report on Form
8-K. Any statement herein or in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in any subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein 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 prospectus.
We will provide without charge to each person to whom a copy of this prospectus has been delivered,
upon the written or oral request of any such person, a copy of any or all of the documents referred
to above that have been or may be incorporated in this prospectus by reference (other than exhibits
to such documents unless such exhibits are themselves specifically incorporated by reference).
Requests for such copies should be directed to the following:
W. P. Carey & Co. LLC
50 Rockefeller Plaza
New York, New York 10020
Attention: Investor Relations
Telephone: (212) 492-1100
This prospectus is not an offer to sell nor is it seeking an offer to buy our securities in any
jurisdiction where the offer or sale is not permitted. The information contained or incorporated by
reference in this prospectus is correct as of the date of this prospectus, regardless of the time
of the delivery of this prospectus or any sale of our securities.
No dealer, salesperson or other person is authorized to give any information or to represent
anything not contained in this prospectus. You must not rely on any unauthorized information or
representations.
LEGAL MATTERS
The validity of the shares offered hereby has been passed upon by Baker & McKenzie LLP, New York,
NY.
EXPERTS
The financial statements and management’s assessment of the effectiveness of internal
control over financial reporting (which is included in Management’s Report on Internal
Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual
Report on Form 10-K for the year ended December 31, 2008 have been so incorporated in reliance on
the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
9
INDEMNIFICATION
Our
Amended and Restated Limited Liability Company Agreement contains provisions
regarding the indemnification by us of directors, officers and other persons under specified
conditions. Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling our company pursuant to the foregoing
provisions, we have been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
10
Addendum A
Dividend Reinvestment and Stock Purchase Plan Fees and General Information
As of March 19, 2009
| |
|
|
| Allow non-U.S. Enrollment
|
|
Yes |
| U.S. Geographic Restriction
|
|
No |
| |
|
|
| Enrollment:
|
|
|
| |
|
|
| Electronic Purchases
|
|
YES |
| Minimum Purchase
|
|
$500 |
| Maximum Purchase
|
|
$25,000 |
| Discount on Purchases
|
|
0% |
Purchase Trading Fee
(Does not include any fees charged by your
financial institution)
|
|
Free |
Electronic Purchase Service Fee
(Does not include any fees charged by your
financial institution)
|
|
Free |
| Check Purchase Service Fee
|
|
Free |
| |
|
|
| Additional Purchases:
|
|
|
| |
|
|
| Minimum Periodic Electronic or Check Purchase
|
|
$500 |
| Maximum Periodic Electronic or Check Purchase
|
|
$25,000 |
| Discount on Periodic Purchase
|
|
0% |
Periodic Electronic Purchase Trading Fee
(Does not include any fees charged by your
financial institution)
|
|
Free |
| |
|
|
Periodic Electronic Purchase Service Fee
(Does not include any fees charged by your
financial institution)
|
|
Free |
| Periodic Check Purchase Service Fee
|
|
Free |
| |
|
|
| Dividend Options:
|
|
|
| |
|
|
| Dividend Reinvestment Option
|
|
Full, Partial or None |
| Dividend Reinvestment Trading Fee
|
|
Free |
| Dividend Reinvestment Service Fee
|
|
Free |
| Direct Deposit of Dividends
|
|
Yes |
| |
|
|
| Sales Transaction Service Fee
|
|
$15.00 |
| Sales Transaction Trading Fee
|
|
$0.12/Share |
11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses expected to be incurred in connection with the issuance and distribution of the
securities being registered are as set forth below. All such expenses, except for the SEC
registration and filing fees, are estimated:
| |
|
|
|
|
SEC Registration |
|
$ |
6,063 |
|
Legal Fees and Expenses |
|
|
22,500 |
|
Accounting Fees and Expenses |
|
|
5,000 |
|
Printing Fees |
|
|
15,000 |
|
Miscellaneous |
|
|
5,000 |
|
|
|
|
|
Total |
|
$ |
48,563 |
|
Item 15. Indemnification of Directors and Officers.
No directors or officers of W. P. Carey & Co. LLC. (the “Company”) shall be liable, responsible
or accountable in damages or otherwise to the Company or any of its shareholders for any act or
omission performed or omitted by him or her, or for any decision, except in the case of
fraudulent or illegal conduct of such person. The fact that an action, omission to act or decision
is taken on the advice of counsel for the Company shall be evidence of good faith and lack of
fraudulent conduct.
To the fullest extent permitted by law, all directors and officers of the Company shall be entitled
to indemnification from the 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 or her, except in the case of fraudulent or illegal conduct of such person; provided, that any
indemnity shall be paid out 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 person acted fraudulently or illegally.
The indemnification provided by the Company’s Amended and Restated Limited Liability Company Agreement is not 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 of the Company’s Amended and Restated Limited Liability Company Agreement
shall not adversely affect any right or protection of a director or officer of the Company existing
at the time of such repeal of modifications.
The Company may, if the Board of Directors of the Company deems it appropriate in its sole
discretion, obtain insurance for the benefit of the Company’s directors and officers, or enter into
indemnification agreements with such directors and officers, relating to the liability of such
persons.
Item 16. Exhibits
| |
3.1 |
|
Amended and Restated Limited Liability Company Agreement (incorporated by reference to
Quarterly Report on Form 10-Q for the quarter ended June 30, 2006 filed August 9, 2006) |
| |
| |
3.2 |
|
Amended and Restated Bylaws (incorporated by reference to Form 8-K filed April 29, 2005) |
| |
| |
4.1 |
|
Form of Listed Share Stock Certificate (incorporated by reference to Registration
Statement on Form S-4 (No. 333-37901) filed October 15, 1997) |
| |
| |
5.1 |
|
Opinion of Baker & McKenzie LLP as to legality |
II-1
| |
23.1 |
|
Consent of Baker & McKenzie LLP (included in Exhibits 5.1) |
| |
| |
23.2 |
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
| |
| |
24.1 |
|
Power of Attorney (included on signature page) |
Item 17. Undertakings
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;
(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. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
(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), (1)(ii) and (1)(iii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this registration statement, or is contained in
a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purpose of determining any liability under the Securities 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.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered that remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under
the Securities Act, each filing of WPC’s annual report, pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement 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.
Insofar as indemnification for liabilities arising under the Securities 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 SEC such indemnification
is against public policy as expressed in the Securities 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
II-2
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 Securities Act and will be governed by the final adjudication of such
issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3 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 March 19, 2009.
| |
|
|
|
|
| |
W. P. CAREY & CO. LLC
|
|
| |
By: |
/s/
Mark J. DeCesaris
|
|
| |
|
Mark J. DeCesaris |
|
| |
|
Managing Director and Acting Chief Financial
Officer |
|
| |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints each of
Gordon F. DuGan and
Susan C. Hyde, acting alone, his or her true and lawful
attorney-in-fact and agent, with power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all post-effective
amendments to this registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing necessary and
requisite to be done, as fully and to all the intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by
the following persons in the capacities and on the dates indicated.
| |
|
|
|
|
| Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Wm. Polk Carey Wm. Polk Carey
|
|
Chairman of the Board and Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Gordon F. DuGan Gordon F. DuGan
|
|
President, Chief Executive Officer
and Director (Principal Executive
Officer)
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Mark J. DeCesaris Mark J. DeCesaris
|
|
Managing director and Acting Chief
Financial Officer (Principal Financial
Officer)
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Thomas J. Ridings Jr. Thomas J. Ridings Jr.
|
|
Executive Director and Chief
Accounting Officer (Principal
Executive Officer)
|
|
March 19, 2009 |
II-4
| |
|
|
|
|
| Signature |
|
Title |
|
Date |
|
|
|
|
|
| /s/ Francis J. Carey |
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Trevor P. Bond
Trevor P. Bond
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Nathaniel S. Coolidge
Nathaniel S. Coolidge
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Eberhard Faber IV Eberhard Faber IV
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Benjamin
H. Griswold IV
Benjamin
H. Griswold IV
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Dr.
Lawrence R. Klein
Dr.
Lawrence R. Klein
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
| /s/ Dr. Karsten
von Köller |
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Robert
E. Mittelstaedt
Robert
E. Mittelstaedt
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
/s/ Charles
E. Parente
Charles
E. Parente
|
|
Director
|
|
March 19, 2009 |
|
|
|
|
|
| /s/ Reginald Winssinger |
|
Director
|
|
March 19, 2009 |
II-5
EXHIBIT INDEX
| |
|
|
| Exhibit number |
|
Document |
|
|
|
3.1
|
|
Amended and Restated Limited Liability Company Agreement (incorporated by reference
to Quarterly Report on Form 10-Q for the quarter ended June 30, 2006 filed August
9, 2006) |
|
|
|
3.2
|
|
Amended and Restated Bylaws (incorporated by reference to Form 8-K filed April 29,
2005) |
|
|
|
4.1
|
|
Form of Listed Share Stock Certificate (incorporated by reference to Registration
Statement on Form S-4 (No. 333-37901) filed October 15, 1997) |
|
|
|
5.1
|
|
Opinion of Baker & McKenzie LLP as to legality |
|
|
|
23.1
|
|
Consent of Baker & McKenzie LLP (included in Exhibits 5.1) |
|
|
|
23.2
|
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
|
|
|
24.1
|
|
Power of Attorney (included on signature page) |
II-6