As filed with the Securities and Exchange Commission on March 21, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BUCKEYE PARTNERS, L.P.
(Exact name of issuer as specified in its charter)
Delaware 23-2432497
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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UNIT OPTION AND DISTRIBUTION EQUIVALENT PLAN
(Full title of the plan)
STEPHEN C. MUTHER, ESQUIRE
Secretary
Buckeye Management Company
3900 Hamilton Boulevard
Allentown, Pennsylvania 18103
(Name and address of agent for service)
(610) 820-8300
(Telephone number, including area code, of agent for service)
Copy to:
HOWARD L. MEYERS, ESQUIRE
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, Pennsylvania 19103-6993
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of securities Amount to Proposed Proposed Amount of
to be registered be maximum maximum registration fee
registered offering aggregate
price offering
per share price
===============================================================================
L.P. Units 92,600 $22.15(1)
representing limited 267,400 $36.9375(2)
partnership $11,928,178 $4,113
interests
===================================================================================
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(1) Based upon exercise price of outstanding options as of the date of grant, as reduced by the distribution equivalents that have accrued and are estimated to accrue with respect to such options in accordance with the Unit Option and Distribution Equivalent Plan.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the purpose of calculating the registration fee, based upon the average of the reported high and low sales prices of L.P. Units on March 15, 1994, as reported on the New York Stock Exchange.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following documents, as filed by Buckeye Partners, L.P. (the "Partnership") with the Securities and Exchange Commission (the "SEC"), are incorporated by reference herein and made a part hereof:
(a) Annual Report on Form 10-K for the year ended December 31, 1993;
(b) The description of the L.P. Units of the Partnership contained in a registration statement on Form 8-A filed under the Securities Exchange Act of 1934 (the "Exchange Act") with the SEC on December 8, 1986, as amended by Form 8 thereto filed with the SEC on December 15, 1986, including any amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Partnership pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents.
Not applicable.
Not applicable.
The Partnership is a Delaware limited partnership, the general partner of which is Buckeye Management Company, a Delaware corporation (the "General Partner"). All of the Partnership's operations are conducted through four subsidiary operating partnerships (together, the "Operating Partnerships") pursuant to separate amended and restated agreements of limited partnership for each of the Operating Partnerships (together, the "Operating Partnership Agreements"). The Amended and Restated Agreement of Limited Partnership of the Partnership (the "Partnership Agreement") and the Operating Partnership Agreements are referred to hereafter as the "Partnership Agreements."
The Partnership Agreements provide that the Partnership or Operating Partnership, as the case may be, will indemnify (to the extent permitted by applicable law) certain persons (each, an "Indemnitee") against expenses (including legal fees and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnitee in connection with any threatened, pending or completed claim, demand, action, suit or proceeding to which the Indemnitee is or was an actual or threatened party and which relates to the Partnership Agreement or Operating Partnership Agreement or the property, business, affairs or management of the Partnership or any Operating Partnership. This indemnity is available only if the Indemnitee acted in good faith and the action or omission which is the basis of such claim, demand, action, suit or proceeding does not involve the gross negligence or willful misconduct of such Indemnitee. Indemnitees include the General Partner, any affiliate of the General Partner, any person who is or was a director, officer, employee or agent of the General Partner or any affiliate, or any person who is or was serving at the request of the General Partner or any such affiliate as a director, officer, partner, trustee, employee or agent of another person. Expenses subject to indemnity will be paid by the applicable partnership to the Indemnitee in advance, subject to receipt of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined by a court of competent jurisdiction that the Indemnitee is not
entitled to indemnification. The Partnership maintains a liability insurance policy on behalf of the Indemnitees.
Section 145 of the Delaware General Corporation Law sets forth the extent to which a person is a director or officer of a Delaware corporation or serves at the request of a Delaware corporation as a director, officer, employee or agent of any other enterprise may be indemnified against any liabilities they may incur in their capacity as such. Article VI of the General Partner's Bylaws provides for the indemnification of directors and officers of the General Partner and such directors and officers who serve at the request of the General Partner as directors, officers, employees, or agents of any other enterprise against certain liabilities under certain circumstances.
Not applicable.
The exhibits filed as part of this Registration Statement are as follows:
Exhibit Location or
Number Exhibit Sequential
- ------- ------- Page Numbers
------------
5.1 Opinion of Morgan, Lewis & Bockius....................... 8-9
10.1 Buckeye Partners, L.P. Unit Option and Distribution
Equivalent Plan.......................................... *
10.2 Buckeye Management Company Unit Option Loan Program...... **
23.1 Consent of Deloitte & Touche............................. 10
23.2 Consent of Morgan, Lewis & Bockius (included as part of
Exhibit 5.1)............................................. 9
24.1 Powers of Attorney (included on signature page).......... 5-6
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* Incorporated by reference to Exhibit 10.10 to the Partnership's Quarterly Report on Form 10-Q for the quarter ended September 30, 1991, filed with the SEC pursuant to the Exchange Act.
** Incorporated by reference to Exhibit 10.11 to the Partnership's Quarterly Report on Form 10-Q for the quarter ended September 30, 1991, filed with the SEC pursuant to the Exchange Act.
(a) 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 "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; 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;
(2) That, for the purpose of determining any liability under the 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.
(b) The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Act, each filing of the Partnership's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this 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.
(c) Insofar as indemnification for liabilities arising under the 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 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 Act and will be governed by the final adjudication of such issue.
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 Philadelphia, Commonwealth of Pennsylvania, on this 28th day of January, 1994.
BUCKEYE PARTNERS, L.P.
(Registrant)
By: Buckeye Management Company,
as General Partner
By: /s/ Alfred W. Martinelli
----------------------------------------
Alfred W. Martinelli
Chairman of the Board
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KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Buckeye Management Company hereby constitutes and appoints Ernest R. Varalli and Stephen C. Muther, or either of them (with full power to each of them to act alone), his true and lawful attorney-in-fact and agent, with full power of substitution, for him and on his behalf and in his name, place and stead, in any and all capacities, to sign and file the Registration Statement on Form S-8 under the Securities Act of 1933, as amended, and any or all amendments (including, without limitation, post-effective amendments and any amendment or amendments increasing the amount of securities for which registration is being sought), with all exhibits and any and all documents required to be filed with respect thereto, with the Securities and Exchange Commission or any regulatory authority, granting unto such attorneys-in-fact and agents, and each of them, 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 in order to effectuate the same, as fully to all intents and purposes as he himself might or could do if personally present, hereby ratifying and confirming all that such attorneys-in-fact and agents, or any or them, or their substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act, of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Dated: January 28, 1994 By: /s/ Brian F. Billings
------------------------------------
Brian F. Billings
Director
Dated: January 28, 1994 By: /s/ A. Leon Fergenson
------------------------------------
A. Leon Fergenson
Director
Dated: January 28, 1994 By: /s/ Neil M. Hahl
------------------------------------
Neil M. Hahl
President and Director
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Dated: January 28, 1994 By: /s/ Edward F. Kosnik
-----------------------------------
Edward F. Kosnik
Director
Dated: January 28, 1994 By: /s/ Alfred W. Martinelli
------------------------------------
Alfred W. Martinelli
Chairman of the Board and Director
(Principal Executive Officer)
Dated: January 28, 1994 By: /s/ William C. Pierce
------------------------------------
William C. Pierce
Director
Dated: January 28, 1994 By: /s/ Ernest R. Varalli
-----------------------------------
Ernest R. Varalli
Executive Vice President
Chief Financial Officer,
Treasurer and Director
(Principal Accounting and
Financial Officer)
Dated: January 28, 1994 By: /s/ Robert H. Young
------------------------------------
Robert H. Young
Director
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Pages
- ------ --------------
5.1 - Opinion of Morgan, Lewis & Bockius.... 8-9
10.1 - Buckeye Partners, L.P. Unit Option
and Distribution Equivalent Plan...... *
10.2 - Buckeye Management Company Unit
Option Loan Program................... *
23.1 - Consent of Deloitte & Touche.......... 10
23.2 - Consent of Morgan, Lewis & Bockius
(included as part of Exhibit 5.1)..... 9
24.1 - Powers of Attorney (included on
signature page)....................... 5-6
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* Incorporated by reference, as described in Item 8 to the Registration Statement on Form S-8.
EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS
Philadelphia Counselors At Law Washington New York 2000 One Logan Square Los Angeles Miami Philadelphia, Pennsylvania 19103-6993 London Princeton Telephone: (215) 963-5000 Frankfurt Brussels Fax: (215) 963-5299 Tokyo |
March 21, 1994
Buckeye Partners, L.P.
3900 Hamilton Boulevard
Allentown, Pennsylvania 18103
Gentlemen:
We have acted as counsel to Buckeye Partners, L.P., a Delaware limited partnership (the "Partnership"), in connection with preparation of a registration statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), relating to the offering of up to 360,000 limited partnership interests of the Partnership represented by units (the "LP Units") to be issued pursuant to options granted or to be granted under the Partnership's Unit Option and Distribution Equivalent Plan (the "Plan"). We have examined such records, documents, statutes and decisions as we have deemed relevant in rendering this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original of all documents submitted to us as copies thereof.
In our opinion, the LP Units to be issued pursuant to the exercise of options granted or to be granted in accordance with the terms of the Plan, will be, when issued in accordance with the terms of such options and the Plan, validly issued, fully paid and nonassessable, except as such non-assessability may be affected by the matters described in the caption "Limited Liability" attached hereto as Exhibit A and incorporated in this opinion by reference.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such opinion, we do not thereby admit that we
are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
Morgan, Lewis & Bockius
Buckeye Partners, L.P
March 21, 1994
EXHIBIT A
Limited Liability
The following description relates to certain limited liability aspects associated with the ownership of limited partnership interests represented by units ("LP Units") of Buckeye Partners, L.P., a Delaware limited partnership (the "Partnership").
The liability of a holder of LP Units (an "LP Unitholder") who does not take part in the control of the business of the Partnership and who acts in conformity with the provisions of the Partnership's Amended and Restated Agreement of Limited Partnership, dated as of November 18, 1986 (the "Partnership Agreement"), will generally be limited under Delaware law to the amount of such LP Unitholder's capital contribution to the Partnership in respect of such LP Unitholder's LP Units plus such LP Unitholder's share of the Partnership's assets and undistributed profits. An LP Unitholder may not receive a distribution from the Partnership to the extent that at the time of the distribution, after giving effect to the distribution, all liabilities of the Partnership, other than liabilities to LP Unitholders on account of their interest in the Partnership, exceed the fair value of the Partnership's assets. For the purpose of determining the fair value of the assets of a limited partnership, Delaware law provides that the fair value of property subject to nonrecourse liability shall be included in the assets of the Partnership only to the extent that the fair value of that property exceeds that nonrecourse liability. Delaware law provides that a limited partner who receives such a distribution and knew at the time of the distribution that the distribution was in violation of Delaware law shall be liable to the Partnership for the amount of the distribution for three years from the date of the distribution. A transferee of LP Units is liable for the capital contribution obligations of the prior LP Unitholder in respect of such LP Units, other than obligations unknown to such transferee at the time he became a limited partner and which could not be ascertained from the Partnership Agreement.
Because the Partnership is organized under Delaware law, it is believed, but cannot be determined with certainty, that the limited liability of the LP Unitholders will be determined by reference to Delaware law. However, the Partnership is itself the limited partner in subsidiary operating partnerships (the "Operating Partnerships") doing business in 11 states, and in some of those states the limitations on the liability of limited partners for the obligations of a limited partnership have not been clearly established. If it were determined that the Partnership was, by virtue of its limited partnership interests in the Operating Partnerships or otherwise, conducting business in any such state and if the Partnership had not complied with the applicable limited partnership statute, or that the right of LP Unitholders as a group to remove or replace the general partner of the Partnership (the "General Partner") and Buckeye Pipe Line Company, a corporate subsidiary of the General Partner, or to take other action pursuant to the Partnership Agreement, constituted "control" of the Partnership's business, then LP Unitholders might be held personally
liable for Partnership obligations to the same extent as a general partner.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of Buckeye Partners, L.P. on Form S-8 of our reports dated February 14, 1994, appearing in the Annual Report on Form 10-K of Buckeye Partners, L.P. and its subsidiaries for the year ended December 31, 1993.
DELOITTE & TOUCHE
Philadelphia, Pennsylvania
March 21, 1994