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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
U S LIQUIDS INC.
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(Name of Issuer)
COMMON STOCK, PAR VALUE $.01
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(Title of Class of Securities)
902974 10 4
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(CUSIP NUMBER)
John D. Robertson
1600 Bank of Oklahoma Plaza
201 Robert S. Kerr
Oklahoma City, Oklahoma 73102
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(Name, Address and Telephone Number
of Person authorized to Receive
Notices and Communications)
DECEMBER 9, 1997
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_____].
Note: Six copies of this statement, including all exhibits should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
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CUSIP NO. 902974 10 4
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1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
William M. DeArman ###-##-####
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2. Check the Appropriate Box if a Member of a Group (a) [ ]
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(b) [ X ]
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3. SEC Use Only
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4. Source of Funds
PF/00
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5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to items
2(d) or 2(e)
[ ]
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6. Citizenship or Place of Organization
UNITED STATES
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7. Sole Voting Power
Number of 185,000*
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Shares 8. Shared Voting Power
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Beneficially
Owned by Each 200,000*
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Reporting Person 9. Sole Dispositive Power
With
185,000
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10. Shared Dispositive Power
200,000
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
385,000
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12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares
[ X ]
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EXCLUDES 60,000 SHARES HELD BY OR FOR THE BENEFIT OF THE REPORTING PERSON'S
CHILDREN.
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13. Percent of Class Represented by Amount in Row (11)
5.3%
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14. Type of Reporting Person
IN
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* Subject to the terms of an Agreement to Vote Stock described in the response
to Item 6 below.
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SCHEDULE 13D
Item 1. SECURITY ISSUER.
Title of class of equity securities: Common Stock, $.01 par value
Issuer: U S Liquids Inc.
Address of principal executive offices: 411 N. Sam Houston Parkway East,
Suite 400, Houston, Texas 77060.
Item 2. IDENTITY AND BACKGROUND.
This statement is filed by William M. DeArman.
William M. DeArman is a private investor. Mr. DeArman's address is 5420
Huckleberry Lane, Houston, Texas 77056. Mr. DeArman is a United States
citizen.
Mr. DeArman has not, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors)
or been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The funds used to purchase the Common Stock of the Issuer came from the
personal funds of Mr. DeArman and the funds of a trust of which Mr. DeArman
is the sole beneficiary. The aggregate purchase price of the 385,000
shares of Common Stock beneficially owned by Mr. DeArman was $126,650.
Item 4. PURPOSE OF TRANSACTION.
The purpose of the acquisition of the shares of Common Stock by Mr. DeArman
is for investment, and the purchases were made in the ordinary course of
business. Mr. DeArman may make further purchases of shares of Common Stock
from time to time and may dispose of any or all of the shares of Common
Stock beneficially owned by him at any time. Mr. DeArman does not have any
current plans or proposals which relate to, or could result in, any of the
matters referred to in paragraphs (b) through (j), inclusive, of Item 4 of
Schedule 13D. Mr. DeArman may, at any time and from time to time, review
or reconsider his position and formulate plans or proposals with respect
thereto, but has no present intention of doing so.
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Item 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate number of shares of Common Stock of the Issuer
beneficially owned by Mr. DeArman is 385,000 or approximately 5.3%.
This amount does not include 12,500 shares held individually by one of
Mr. DeArman's children or 47,500 shares held by trusts for the benefit of
certain of Mr. DeArman's children. Mr. DeArman disclaims beneficial
ownership of these 60,000 shares held by or for the benefit of his
children.
(b) Subject to the terms of a certain Agreement to Vote Stock described in
the response to Item 6 below, Mr. DeArman has the sole power to vote and to
dispose of 185,000 shares of Common Stock of the Issuer and shares the
power to vote and dispose of 200,000 shares of Common Stock of the Issuer.
Delaware Charter Guarantee & Trust Company, P. O. Box 8963, Wilmington,
Delaware 19899-8963, shares the power to vote and dispose of such 200,000
shares of Common Stock held for the benefit of Mr. DeArman.
(c)
<TABLE>
<CAPTION>
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IDENTITY OF PERSON DATE OF NO. OF ACQUIRED(A)/ PRICE TYPE OF
WHO EFFECTED THE TRANSACTION SHARES DISPOSED (D) PER TRANSACTION
TRANSACTION SHARE
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<S> <C> <C> <C> <C> <C>
William M. DeArman 12/08/97 100,000 D $14.00 Private Transaction
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William M. DeArman 12/08/97 2,000 D N/A Gift
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William M. DeArman 12/08/97 2,000 D N/A Gift
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William M. DeArman 12/09/97 2,500 A $13.00 Private Transaction
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</TABLE>
(d) Not Applicable.
(e) Not Applicable.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
On June 16, 1997, contemporaneously with the Issuer's acquisition of all of
the outstanding capital stock of Mesa Processing, Inc., T&T Grease Service, Inc.
and Phoenix Fats & Oils, Inc., each a Texas corporation under common ownership
(collectively, the
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"Mesa Companies"), Mr. DeArman, the Issuer, Thomas B. Blanton, W. Gregory Orr,
Earl J. Blackwell and certain entities controlled by Messrs. Orr or Blackwell
entered into an Agreement to Vote Stock providing that, for as long as Mr.
Blanton is the beneficial owner of at least 5% of the outstanding Common Stock,
the Issuer is obligated to nominate Mr. Blanton for election to the Board of
Directors of the Issuer and Messrs. Orr, Blackwell and DeArman are obligated to
vote all of the shares of Common Stock controlled by them in favor of Mr.
Blanton's election to the Board of Directors.
Pursuant to the terms of a Stock Distribution Agreement executed between
Mr. DeArman and the Issuer contemporaneously with the Issuer's acquisition of
the Mesa Companies, Mr. DeArman was granted certain registration rights with
respect to 145,950 shares of Common Stock beneficially owned by him.
In addition, in connection with the Issuer's initial public offering, Mr.
DeArman agreed not to sell or otherwise dispose of any shares of Common Stock
until February 16, 1998 without the prior written consent of Van Kasper &
Company, one of the managing underwriters of the Issuer's initial public
offering. On December 8, 1997, Van Kasper & Company consented to (i) the sale
by Mr. DeArman of 100,000 shares of Common Stock in a private transaction, and
(ii) the transfer by gift by Mr. DeArman of 4,000 total shares of Common Stock.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
The following are filed herewith as Exhibits to this Schedule 13D:
99.1 Stock Distribution Agreement, dated June 16, 1997, between
Mr. DeArman and U S Liquids Inc.
99.2 Agreement to Vote Stock, dated June 16, 1997, between U S Liquids
Inc., Thomas B. Blanton, W. Gregory Orr, Earl J. Blackwell, William M. DeArman
and certain other parties.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATED: December 16, 1997.
/s/ William M. DeArman
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William M. DeArman
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STOCK DISTRIBUTION AGREEMENT
This Stock Distribution Agreement (the "Agreement") is made between and
among the person whose name is set forth as the "Holder" on the signature page
hereto (the "Holder") and U S LIQUIDS INC., a Delaware corporation ("Liquids"),
effective as of June 16, 1997 (the "Effective Date").
R E C I T A L S:
Contemporaneous with the execution of this Agreement, Liquids has acquired
(the "Acquisitions") all of the outstanding capital stock of American Wastewater
Inc. ("AWW"), a Texas corporation, and Mesa Processing, Inc. ("Mesa"), T&T
Grease Service, Inc. ("T&T") and Phoenix Fats & Oils, Inc. ("Phoenix"), each a
Texas corporation under common ownership. In connection with the Acquisitions,
Liquids has agreed to register for resale certain of the shares of Liquids
common stock, par value $.01 per share (the "Liquids Stock"), beneficially owned
by the Holder. For purposes of this Agreement, the shares of Liquids Stock
beneficially owned by the Holder as of the date hereof is referred to as the
"Holder's Stock." The portion of the Holder's Stock with respect to which the
Holder has registration rights hereunder and with respect to which Liquids has a
registration obligation hereunder is referred to as the "Registerable Stock."
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. REGISTRATION OF LIQUIDS STOCK. Within nine (9) months after the
execution of this Agreement, Liquids will file with the SEC a registration
statement (the "Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), registering for
resale up to thirty percent (30%) of each Holder's Stock (subject to and in
compliance with the applicable securities laws and other laws regarding such
resale), and will use its commercially reasonable efforts to cause the
Registration Statement to become effective as soon as practicable, and
thereafter, until the termination of this Agreement, to keep the Registration
Statement effective and, if necessary, to amend and supplement the same. Any
shares of Registrable Stock not resold by the Holder during the period in which
those shares are registered for resale will continue to be registered for
resale, provided however, that Liquids will have no obligation to register or to
continue the registration of any such shares for resale following the expiration
of two (2) years from the effective date of the Registration Statement. The
registration rights granted under this Agreement shall be nontransferable. The
Holder shall cooperate fully with Liquids by furnishing all information
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concerning the Holder required or appropriate for preparation and inclusion in
the Registration Statement. If permitted by applicable law (and unless
prohibited by the terms of any agreement entered into by Liquids prior to the
date hereof), Liquids shall include the Registrable Stock in any shelf
registration statement, filed by Liquids registering shares for issuance in
connection with future acquisition by Liquids.
2. REGISTRATION PROCEDURES.
(a) In performing its obligations under Section 1, Liquids will,
subject to the limitations provided herein, use its commercially reasonable
efforts to:
(i) prepare and file with the U.S. Securities and Exchange
Commission (the "SEC") such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith
(the "Prospectus") as may be necessary to keep the Registration
Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Stock covered by the Registration Statement until such time as all
such Registrable Stock have been disposed of in accordance with the
intended method of disposition by the Holder;
(ii) furnish to the Holder one signed and such number of
conformed copies of the Registration Statement and of each such
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the Prospectus (including each
preliminary prospectus and any summary prospectus) and any other
Prospectus filed under Rule 424 under the Securities Act, and such
other documents, as the Holder may reasonably request;
(iii) (a) register or qualify the Registrable Stock under
such other securities or Blue Sky laws of such jurisdictions as the
Holder shall reasonably request, (b) keep such registration or
qualification in effect for so long as the Registration Statement
remains in effect, and (c) take any other action which may be
reasonably necessary or advisable to enable the Holder to consummate
the disposition of the Registrable Stock in such jurisdictions, except
that Liquids shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision
(iii) be obligated to be so qualified, to consent to general service
of process in any such jurisdiction, or to take any such action which
would impose unreasonable expense on Liquids;
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(iv) cause the Registrable Stock to be registered with or
approved by such other United States federal or state governmental
agencies or authorities as may be necessary to enable the Holder to
consummate the disposition of the Registrable Stock;
(v) notify the Holder at any time when a Prospectus is
required to be delivered under the Securities Act, upon discovery that
or upon the happening of any event as a result of which, the
Prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made, and prepare and furnish to the Holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made;
(vi) list or qualify the Registrable Stock on any
securities exchange or quotation system of any national securities
association on which any of the Liquids Stock is then listed or
qualified;
(vii) if requested by the Holder, promptly incorporate in a
supplement or post-effective amendment such information as the Holder
reasonably requests to be included therein with respect to the number
of shares of the Registrable Stock being sold by the Holder and the
Holder's plan of distribution and promptly make all required filings
of such prospectus supplement or post-effective amendment;
(viii) cooperate with the Holder to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing shares of Registrable Stock to be sold under the
Registration Statement, in such denominations and registered in such
names as the Holder may reasonably request;
(ix) if the offering is underwritten, furnish at the request
of the Holder on the date that the Holder's Stock is delivered to any
underwriters for sale pursuant to such registration and after the
Registration Statement has become effective: (A) an opinion dated such
date of counsel representing Liquids, addressed to the
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underwriters and to the Holder, stating that such Registration
Statement has become effective under the Securities Act and that (1)
to the actual knowledge of such counsel (as that term is defined in
the opinion), no stop order suspending the effectiveness thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or have been threatened under the Securities Act, (2)
the Registration Statement, the Prospectus, and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the SEC thereunder (except that such counsel need
express no opinion as to financial statements contained therein) and
(3) to such other ordinary and customary matters as may reasonably be
requested by counsel for such underwriters or by the Holder or its
counsel, and (B) a letter dated such date from the independent public
accountants retained by Liquids, addressed to such underwriters and to
the Holder, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of Liquids included in the
Registration Statement or the Prospectus, or any amendment or
supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other ordinary and customary
financial matters (including information as to the period ending no
more than five business days prior to the date of such letter) with
respect to the registration of which such letter is being given as
such underwriters or the Holder may reasonably request; provided
however, the parties hereto understand and agree that Liquids cannot
as a matter of right or law require its counsel or independent public
accountants to render and deliver any opinion as to any matter which
they are unwilling to render and deliver; and
(x) make available for inspection by the Holder, any
underwriting participating in any distribution pursuant to such
Registration Statement on behalf of the Holder, and by any attorney,
accountant or other professional retained by the Holder or any such
underwriter, all relevant and non-confidential financial and other
pertinent corporate records and information reasonably requested by
the Holder, or any such underwriter, attorney, accountant or
professional in connection with such Registration Statement.
(b) All expenses incident to Liquids' performance of its obligations
under this Agreement, including all registration
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and filing fees, fees and expenses of compliance with securities and Blue
Sky laws, printing expenses, fees and disbursements of Liquids' counsel,
independent certified public accountants, and other persons retained by
Liquids (all such expenses being herein called "Registration Expenses")
will be borne by Liquids. The Holder shall be responsible for all selling
fees, expenses, discounts and commissions relating to Holder's Stock
(including the Registrable Stock) and for the fees and expenses of counsel
and other persons engaged by the Holder.
3. OBLIGATIONS OF HOLDER.
(a) The Holder agrees that he will offer and sell the Holder's Stock
in compliance with all applicable state and federal securities laws, except
those laws compliance with which are within the control of Liquids and
which are not within the control of the Holder. Specifically, without
limitation, the Holder agrees as follows:
(i) The Holder agrees not to use any prospectus (as that
term is defined under the Securities Act) for the purpose of offering
or selling the Registrable Stock to the public except for the
Prospectus, as the same may be supplemented and amended from time to
time.
(ii) Neither the Holder nor any affiliate of the Holder
shall engage in any practice which would violate Rule 10b-6
promulgated under the Securities Exchange Act of 1934 ("Exchange
Act").
(iii) Neither the Holder nor any affiliate of the Holder
shall solicit purchases of Holder's Stock to facilitate the
distribution of the Registrable Stock in violation of Rule 10b-2
promulgated under the Exchange Act.
(iv) Neither the Holder nor any affiliate of the Holder
shall effect any stabilizing transactions to facilitate the offer and
sale of the Registrable Stock to the public in violation of Rule 10b-7
promulgated under the Exchange Act.
As used above, the term "affiliate" shall not include Liquids.
(b) The Holder agrees to promptly notify Liquids as and when any of
the Registrable Stock is sold and when the Holder elects to terminate all
further offers and sales of Shares pursuant to the Registration Statement.
The Holder acknowledges that any of the Registrable Stock which has not
been sold within two (2) years after the effective date of the
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Registration Statement or any earlier termination of the distribution of
the Registrable Stock will be removed from registration by means of a
post-effective amendment to the Registration Statement.
(c) It shall be a condition precedent to the obligations of Liquids
to take any action with respect to registering the Registrable Stock that
the Holder furnish Liquids in writing such information regarding the
Holder, the Holder's Stock and other securities of Liquids held by the
Holder, and the distribution of such Holder's Stock as Liquids may from
time to time reasonably request in writing. If the Holder refuses to
provide Liquids with any of such information on the grounds that it is not
necessary to include such information in the Registration Statement,
Liquids may exclude the Registrable Stock from the Registration Statement.
The Holder agrees that upon receipt of any notice from Liquids of the
happening of any event of the kind described in Section 2(a)(v), the Holder
will forthwith discontinue the Holder's disposition of shares pursuant to
the Registration Statement until the Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2(a)(vii) and,
if so directed by Liquids, will deliver to Liquids (at Liquids' expense)
all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus current at the time of receipt of such
notice.
(d) In the event the Holder intends to sell any Registrable Stock
under the Registration Statement, the Holder agrees to provide written
notice to Liquids at least two (2) business days prior to making any offers
or sales of the Registrable Stock, which written notice shall specify the
number of Registrable Stock which the Holder proposes to offer and sell and
which shall describe any changes to the information set forth in the
Registration Statement and the prospectus (the "Prospectus") included as a
part thereof, as the same may have been amended and supplemented from time
to time, concerning the Holder or the plan of distribution of the
Registrable Stock. The Holder represents and warrants that such
information as so updated will be true and correct and will not omit
information necessary to make the statements contained therein not
misleading. Within two (2) business days after its receipt of such written
notice, Liquids shall (i) notify the Holder that no supplement or amendment
is then required with respect to the Prospectus, or (ii) notify the Holder
that such a supplement or amendment is required, in which event Liquids
shall prepare and file with the SEC such supplement or amendment as soon as
reasonably practicable and shall endeavor to cause any such amendment to
become effective. Immediately after filing a supplement with the SEC or
immediately after an amendment is declared effective by the
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SEC, whichever is appropriate, Liquids will provide copies thereof to the
Holder, as provided in Section 2, and the Holder may then commence offers
and sales of Registrable Stock under the Registration Statement.
(e) The Holder agrees that for the period ending on the second
anniversary of the issuance of the Holder's Stock he will not sell,
exchange, pledge or otherwise transfer any of the Holder's Stock except in
transactions (i) made pursuant to the Registration Statement, or (ii) which
are exempt from the registration requirements of the Securities Act and all
applicable state securities laws, and Liquids is provided with an opinion
of counsel to the Holder and other evidence as may be reasonably
satisfactory to Liquids to the effect that such transfer will not be in
violation of the Securities Act and all applicable state securities laws.
4. PUBLIC OFFERING BY LIQUIDS. Notwithstanding the registration rights
granted to the Holder under this Agreement, in the event Liquids files a
registration statement for an underwritten public offering of Liquids Stock (a
"Public Offering") within two (2) years of the effective date of the
Registration Statement, then upon the request of Liquids' underwriter in such
Public Offering, the Holder agrees to enter into an agreement pursuant to which
the Holder will be prohibited from transferring the Registrable Stock for such
period of time, not to exceed six (6) months after completion of the Public
Offering, as Liquids' underwriter may request. In the event Liquids makes a
Public Offering and Liquids' underwriter imposes transfer restrictions on the
sale of Registrable Stock, the period during which the Registration Statement
will be kept current shall not be extended beyond the maximum two-year period
from the effective date of the Registration Statement as provided in Section 1.
5. POOLING RESTRICTIONS. It is a material factor to Liquids in entering
into this Agreement that the transactions contemplated by this Agreement be
treated as a "pooling-of-interests" for accounting purposes. Therefore,
notwithstanding any other provision of this Agreement, prior to notice by
Liquids of the publication and dissemination by Liquids of consolidated
financial results which include results of combined operations of each of the
Mesa Companies and AWW (as that term is defined in the Merger Agreement) for at
least a thirty-day period on a consolidated basis following the closing date of
the Merger Agreement, the Holder shall not sell or otherwise transfer or dispose
of, or in any other way reduce his risk relative to, any shares of the Holder's
Stock (including, by way of example and not limitation, engaging in put, call,
short-sale, straddle or similar market transactions). The Holder, therefore,
covenants and agrees that he will fulfill any requests reasonably made of him by
Liquids in writing if made by
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Liquids for the purpose of satisfying the requirements of the Securities Release
Nos. 130 and 135 relating to "pooling of interests" accounting. Additionally,
the certificates evidencing the Holder's Stock will bear a legend substantially
in the form set forth below and containing such other information as Liquids may
deem necessary or appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED, AND U S LIQUIDS INC. SHALL NOT BE REQUIRED TO
GIVE EFFECT TO ANY ATTEMPTED SALE, TRANSFER OR ASSIGNMENT PRIOR TO THE
PUBLICATION AND DISSEMINATION OF FINANCIAL STATEMENTS BY U S LIQUIDS
INC. WHICH INCLUDE THE RESULTS OF AT LEAST THIRTY (30) DAYS OF
COMBINED OPERATIONS OF U S LIQUIDS INC. AND THE MESA COMPANIES FOR
WHICH THESE SHARES ARE ISSUED. UPON THE WRITTEN REQUEST OF THE RECORD
HOLDER OF THIS CERTIFICATE DIRECTED TO U S LIQUIDS INC., THE ISSUER
AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED
WITH THE TRANSFER AGENTS) WHEN THE REQUIREMENTS HAVE BEEN MET.
Liquids agrees to make publication and dissemination of its consolidated
financial results which includes results of combined operations of Liquids, the
Mesa Companies (as defined in the Merger Agreement), and AWW for at least a
thirty (30) day period on a consolidated basis following the closing date of the
Merger Agreement as soon as practicable following the end of the first full
calendar month ending after such thirty (30) day period.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY LIQUIDS. To the extent permitted by law,
Liquids will, and hereby does, indemnify and hold harmless the Holder
against any losses, claims, damages or liabilities to which the Holder may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and Liquids will reimburse the Holder
for any legal or any other expenses reasonably incurred by him in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; PROVIDED that Liquids shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action
or proceeding
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in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information pertaining to the Holder, or, as
to periods prior to the date hereof, to AWW or its business or activities,
or to any other business or activity in which the Holder has been involved
in any way, in each case furnished to Liquids by or for the Holder, and
PROVIDED FURTHER that Liquids shall not be liable to the Holder or any
other person to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is
based upon any violation by him of the Securities Act or the Exchange Act.
Nothing contained herein shall limit the rights of the Holder to receive
indemnification from Liquids to which the Holder may be entitled other than
as set forth herein.
(b) INDEMNIFICATION BY THE HOLDER. To the extent permitted by law,
the Holder will, and hereby does, indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this
Section) each underwriter, each person (including an individual or a legal
entity) who controls such underwriter within the meaning of the Securities
Act, Liquids, each director of Liquids, each officer of Liquids and each
other person, if any, who controls Liquids within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such Registration Statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon
and in strict conformity with written information pertaining to the Holder,
or, as to periods prior to the date hereof, to AWW or its business or
activities, or to any other business or activity in which the Holder has
been involved in any way, furnished to Liquids by the Holder expressly for
use in the preparation of such Registration Statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement,
and with respect to any violation by the Holder of the Securities Act or
the Exchange Act; provided however, that the liability of the Holder
hereunder shall be limited to the proportion of any loss, claim, damage, or
liability which is equal to the proportion that the public offering price
of shares sold by the Holder under such Registration Statement bears to the
total public offering price of shares sold thereunder, but not to exceed
the proceeds received by the Holder from the sale of the Holder's Stock
covered by such Registration Statement.
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(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Section,
except to the extent that the indemnifying party is actually prejudiced by
such failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties
actually exists in respect of such claim or if the defendants in any such
action include both the indemnified party and the indemnifying party, and
the indemnified party shall have reasonably concluded that there may be
defenses available to it which are different from or additional to those
available to the indemnifying party (in either of which cases the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of
such action, with the expenses and fees of such separate counsel and other
expenses relating to such participation to be reimbursed by the
indemnifying party as incurred), the indemnifying party shall be entitled
to participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so as
to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the consent of the indemnified party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this Section (with appropriate
modifications) shall be given by Liquids and the Holder with respect to any
required registration or other qualification of securities under any
Federal or state law or regulation of any governmental authority other than
the Securities Act.
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<PAGE>
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
Section shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) CONTRIBUTION. If the indemnification provided for in this
Section from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, claims,
damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified
parties in connection with the actions which resulted in such losses,
claims, damage, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue statement of
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth above, any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. If indemnification is available under this Section, the
indemnifying parties shall indemnify each indemnified party to the full
extent provided herein without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable
consideration provided for in this Section.
7. NOTICES. All notices required or permitted herein must be in writing
and shall be deemed to have been duly given the first business day following the
date of service if served personally, on
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<PAGE>
the first business day following the date of actual receipt if delivered by
telecopier, telex or other similar communication to the party or parties to whom
notice is to be given, or on the third business day after mailing if mailed to
the party or parties to whom notice is to be given by registered or certified
mail, return receipt requested, postage prepaid, to the Holder at the address
reflected on Liquids' records, and to Liquids at the address set forth below, or
to such other addresses as either party hereto may designate to the other by
notice from time to time for this purpose.
HOLDER: _________________________
_________________________
_________________________
LIQUIDS: U S Liquids Inc.
411 N. Sam Houston Parkway East, Suite 400
Houston, Texas 77060
ATTN: Chief Executive Officer
WITH A COPY TO:
Len Cason
Hartzog Conger & Cason
1600 Bank of Oklahoma Plaza
Oklahoma City, Oklahoma 73102
8. INTEGRATED AGREEMENT. This Agreement contains and constitutes the
entire agreement between and among the parties with respect to the matters set
forth herein and supersedes all prior agreements and understandings between the
parties hereto relating to the subject matter hereof. There are no agreements,
understandings, restrictions, warranties or representations among the parties
relating to the subject matter hereof other than those set forth or referred to
herein. This instrument is not intended to have any legal effect whatsoever, or
to be a legally binding agreement or any evidence thereof, until it has been
signed by all parties hereto.
9. BINDING EFFECT. This Agreement shall be binding on and enforceable by
the Holder and by Liquids and its successors. No transferee of any of the
Holder's Stock shall acquire any rights under this Agreement except with the
written consent of Liquids, which may be withheld for any reason.
10. CONSTRUCTION. This Agreement shall be construed, enforced and
governed in accordance with the laws of the State of
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<PAGE>
Texas. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter gender thereof or to the plurals of each, as the
identity of the person or persons or the context may require. The descriptive
headings contained in this Agreement are for reference purposes only and are not
intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision contained herein.
11. INVALIDITY. If any provision contained in this Agreement shall for
any reason be held to be invalid, illegal, void or unenforceable in any respect,
such provisions shall be deemed modified so as to constitute a provision
conforming as nearly as possible to such invalid, illegal, void or unenforceable
provisions while still remaining valid and enforceable, and the remaining terms
or provisions contained herein shall not be affected thereby.
12. TERMINATION. If the Merger Agreement is terminated for any reason or
the AWW Merger is not consummated in accordance with the terms thereof, this
Agreement shall immediately terminate and be of no further force or effect.
13. RULE 144 REPORTING. For so long as the Holder is otherwise eligible
to sell any of the Holder's Stock in accordance with Rule 144 under the
Securities Act, Liquids agrees with the Holder as follows:
(a) Liquids shall make and keep public information available, as
those terms are understood and defined in Rule 144, at all times from and
after ninety (90) days following the effective date of the first
registration of Liquids under the Securities Act of an offering of its
securities to the general public.
(b) Liquids shall file with the SEC in a timely manner all reports
and other documents as the SEC may prescribe under Section 13(a) or 15(d)
of the Exchange Act at any time after Liquids has become subject to such
reporting requirements of the Exchange Act.
(c) Liquids shall furnish to the Holder upon request (i) a written
statement by Liquids as to its compliance with the reporting requirements
of Rule 144 (at any time from and after ninety (90) days following the
effective date of the first registration statement of Liquids for an
offering of its securities to the general public), and of the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements), (ii) a copy of the most recent annual or quarterly
report of Liquids, and (iii) such other reports and documents so filed as
the Holder may
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<PAGE>
reasonably request to avail himself of any rule or regulation of the SEC
allowing the Holder to sell any of the Holder's Stock without registration.
[Intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates shown below.
HOLDER:
/s/ William M. Dearman
-------------------------------
Date: June 16, 1997
--------------------------
LIQUIDS: U S LIQUIDS INC.
By: /s/ W. Gregory Orr
-------------------------------
Date: June 17, 1997
--------------------------
<PAGE>
AGREEMENT TO VOTE STOCK
This Agreement to Vote Stock (the "Agreement") is made and entered into
this 16th day of June, 1997, between and among U S LIQUIDS INC. ("Liquids"),
THOMAS B. BLANTON ("Blanton") and each of the other persons whose names appear
on the signature pages hereto (individually, a "Shareholder" and collectively,
the "Shareholders").
Blanton, Liquids, and certain other parties have entered into an Agreement
and Plan of Merger (the "Merger Agreement") which contemplates, among other
things, the merger of separate subsidiaries of Liquids into Mesa Processing,
Inc., T&T Grease Service, Inc., and Phoenix Fats & Oils, Inc., each a Texas
corporation wholly-owned by Blanton, and the issuance to Blanton by Liquids of
its shares of Liquids' common stock, par value $.01 per share ("Liquids Stock").
The execution and delivery of this Agreement is a condition to Blanton's
obligation to close under the Merger Agreement.
The Shareholders are or will become the legal and beneficial owners of
certain of the issued and outstanding shares of Liquids Stock.
The Shareholders have agreed, in consideration for the willingness of
Blanton to enter into the Merger Agreement, to enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. OBLIGATION TO VOTE LIQUIDS STOCK. During the term of this Agreement
and for so long as the conditions set forth in Section 2 below continue to be
satisfied, (a) Liquids shall use its commercially reasonable best efforts to
cause Blanton to be nominated for election as a member of the Board of Directors
of Liquids, and (b) each Shareholder shall vote all shares of Liquids Stock with
respect to which that Shareholder has the voting power (regardless of when that
Liquids Stock was acquired by the Shareholder) and shall to the extent
reasonably possible cause any entity which that Shareholder controls (as that
term is defined under Section 13 of the Securities Exchange Act of 1934, as
amended) to vote all of their shares of Liquids Stock to nominate, elect, and
maintain Blanton as a member of the Board of Directors of Liquids.
2. TERMINATION. This Agreement shall terminate and the obligations of
the Shareholders to vote their Liquids Stock in the
<PAGE>
manner described in Section 1 shall terminate upon the first to occur of the
following:
(a) The date when Blanton ceases to beneficially own that number of
shares of Liquids Stock equal to five percent (5%) of all shares of issued
and outstanding Liquids Stock. For this purpose, Blanton shall be deemed
to beneficially own all shares of Liquids Stock which he beneficially owns
within the meaning of Rule 13(d)(3) of the Securities Exchange Act of 1934,
as amended, and he shall be deemed to beneficially own all shares of
Liquids Stock actually owned by his spouse or by any lineal descendant of
his or by any trust which has his spouse or any lineal descendant of his as
the sole current income beneficiaries.
(b) The failure of Blanton to satisfy the minimum criteria for
membership on the Board of Directors as set forth in the Certificate of
Incorporation or Bylaws of Liquids.
(c) The date upon which Liquids becomes bankrupt, dissolves,
liquidates, or ceases to engage in any active trade or business.
(d) The execution of a written consent to terminate this Agreement
which has been signed by Blanton.
(e) The date upon which Blanton resigns as a director of Liquids.
3. SPECIFIC PERFORMANCE. The parties agree that this Agreement may be
enforced by any party hereto by bringing suit in any court having jurisdiction
within the State of Texas, County of Harris, for specific performance of the
terms of this Agreement, it being specifically agreed that the Liquids Stock is
unique and that damages at law would be inadequate to compensate for a breach of
this Agreement (provided, however, that the right to any such damages is not
waived by Liquids or any of the parties hereto). In the event Liquids or any of
the individual parties hereto shall commence legal proceedings to enforce the
terms of this Agreement and shall prevail, the party hereto against whom such
proceedings were instituted or party's legal representative shall pay to the
prevailing party any reasonable attorney's fees incurred by such party in
connection therewith.
4. GENERAL. If any term or provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
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<PAGE>
The rights or obligations under this Agreement may not be assigned by any
party hereto without the prior written consent of each other party hereto. This
Agreement shall not be binding upon any person other than the parties hereto.
This Agreement may not be amended except by a written instrument executed
by all of the parties hereto.
This Agreement may be executed in separate counterparts, each of which when
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
The section headings contained herein are for convenience only and shall
not affect the construction hereof. The term "person" may include an individual
person or any legal entity.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas.
The parties acknowledge that this Agreement is for the benefit of Blanton,
and the parties agree that additional stockholders of Liquids may be added to
this Agreement and become parties hereto by executing an Addendum hereto.
[Intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the
parties as of the date first above written.
U S LIQUIDS INC.
By: /s/ W. Gregory Orr
----------------------------
/s/ Thomas B. Blanton
-------------------------------
Thomas B. Blanton
/s/ W. Gregory Orr
-------------------------------
Gregory W. Orr
THE WILEY GREGORY & GENENE M.
ORR FAMILY LLC
By: /s/ W. Gregory Orr
----------------------------
Name: W. Gregory Orr
---------------------
Title: Manager
---------------------
/s/ Earl J. Blackwell
-------------------------------
Earl J. Blackwell
THE EARL J. & CHRISTINE J.
BLACKWELL FAMILY LLC
By: /s/ Earl J. Blackwell
----------------------------
Name: Earl J. Blackwell
---------------------
Title: Manager
---------------------
/s/ William M. Dearman
-------------------------------
William M. DeArman
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