As filed with the Securities and Exchange Commission on December 20, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
U S LIQUIDS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0519797
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
411 N. SAM HOUSTON PARKWAY EAST, SUITE 400, HOUSTON, TEXAS 77060-3545
(Address of principal executive offices)
U S LIQUIDS INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of plan)
GARY J. VAN ROOYAN COPY TO:
U S LIQUIDS INC. JOHN D. ROBERTSON, ESQ.
411 N. SAM HOUSTON PARKWAY EAST, SUITE 400 HARTZOG CONGER & CASON
HOUSTON, TEXAS 77060-3545 201 ROBERT S. KERR, SUITE 1600
(281) 272-4500 OKLAHOMA CITY, OKLAHOMA 73102
(405) 235-7000
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE
- --------------------- ------------- --------------- --------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par 500,000 $7.3125 $3,656,250 $1,017
value $.01
per share
- --------------------- ------------- --------------- --------------- ----------------
</TABLE>
(1) Pursuant to Rule 457(h) and Rule 457(c), this price is estimated solely
for the purpose of calculating the registration fee and is based upon the
average of the high and low price per share of the Registrant's common
stock as reported on the American Stock Exchange on December 16, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
U S Liquids Inc. (the "Company") shall deliver or cause to be delivered to
each participant, to the extent material (and prior to the making of any
investment decision), one or more documents containing the information specified
in Item 1. The document or documents themselves are not required to be filed
with the Securities and Exchange Commission (the "Commission") pursuant to Rule
428 and the Note to Part I.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Company shall provide to each participant, prior to the making of any
investment decision, a written statement advising the participant of the
availability without charge, upon written or oral request, of the documents
incorporated by reference in Item 3 of Part II and stating that these documents
are incorporated by reference into the Section 10(a) prospectus. The statements
shall also indicate the availability without charge, upon written or oral
request, of other documents required to be delivered to employees pursuant to
Rule 428(b) and include the address (giving title or department) and telephone
number to which the request is to be directed. The written statement itself is
not required to be filed with the Commission pursuant to Rule 428 and the Note
to Part I.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed below are incorporated by reference in this
Registration Statement; and all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such document:
o the Company's Annual Report on Form 10-K for the year
ended December 31, 1998;
o Quarterly Report on Form 10-Q for the quarter ended March
31, 1999;
o Quarterly Report on Form 10-Q for the quarter ended June
30, 1999;
o Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999;
o Current Report on Form 8-K filed with the Commission on
January 29, 1999, as amended on February 16, 1999; and
o the description of the common stock, $.01 par value per share,
of the Company contained in the Company's Registration
Statement on Form 8-A filed with the Commission on August 11,
1997 pursuant to Section 12(b) of the Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation contains a provision which
limits, to the fullest extent permitted by Delaware law, the liability of a
director to the Company or its stockholders for monetary damages for a breach of
such director's fiduciary duty as a director. Delaware law presently permits
such limitation of a director's liability except where a director (i) breaches
his or her duty of loyalty to the Company or its stockholders, (ii) fails to act
in good faith or engages in intentional misconduct or a knowing violation of
law, (iii) authorizes payment of an unlawful dividend or stock repurchase, or
(iv) obtains an improper personal benefit.
The Company's Certificate of Incorporation also provides that directors
and officers shall be indemnified against liabilities arising from their service
as directors or officers to the fullest extent permitted by law, which generally
requires that the individual act in good faith and in a manner he or she
reasonably believes to be in or not opposed to the Company's best interests. The
Company has obtained directors and officers liability insurance to limit its
exposure under these provisions.
ITEM 7. EXEMPTION FROM REGISTRATION
Not Applicable.
ITEM 8. EXHIBITS
4.1 Second Amended and Restated Certificate of Incorporation of the
Company (Exhibit 3.1 of the U S Liquids Inc. Registration Statement
on Form S-1 (File No. 333-30065), effective August 19, 1997,
is hereby incorporated by reference).
4.2 Amended and Restated Bylaws of the Company (Exhibit 3.2 of the U S
Liquids Inc. Registration Statement on Form S-1 (File No.
333-30065), effective August 19, 1997, is hereby incorporated by
reference).
+4.3 U S Liquids Inc. Employee Stock Purchase Plan.
+5 Opinion of Hartzog Conger & Cason.
+23.1 Consent of Arthur Andersen LLP.
+23.2 Consent of Hartzog Conger & Cason (contained in its opinion
filed as Exhibit 5 hereto).
+24.1 Powers of Attorney (set forth on page II-4).
- ----------------------------
+ Filed herewith.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
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(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all 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 Houston, State of Texas, on the 17th day of
December, 1999.
U S LIQUIDS INC.
By: /s/ MICHAEL P. LAWLOR
-------------------------------
Michael P. Lawlor,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Earl J. Blackwell and Gary J. Van Rooyan, or
either of them, his or her true and lawful attorney-in-fact and agent, with full
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 amendments to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact, agent or their substitutes may lawfully do or cause to be
done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
INDICATED CAPACITIES ON DECEMBER 17, 1999.
SIGNATURE TITLE
By: /s/ MICHAEL P. LAWLOR Chief Executive Officer and Director
- ----------------------------------
Michael P. Lawlor
By: /s/ W. GREGORY ORR Chief Operating Officer, President
- ---------------------------------- and Director
W. Gregory Orr
By: /s/ EARL J. BLACKWELL Chief Financial Officer and Senior
- ---------------------------------- Vice President - Finance
Earl J. Blackwell
By: /s/ HARRY O. NICODEMUS IV Vice President and Controller
- ----------------------------------
Harry O. Nicodemus IV
By: /s/ WILLIAM A. ROTHROCK IV Director
- ----------------------------------
William A. Rothrock IV
By: /s/ ROGER A. RAMSEY Director
- ----------------------------------
Roger A. Ramsey
By: /s/ ALFRED TYLER 2ND Director
- ----------------------------------
Alfred Tyler 2nd
By: /s/ JOHN N. HATSOPOULOS Director
- ----------------------------------
John N. Hatsopoulos
By: /s/ JAMES F. MCENEANEY, JR. Director
- ----------------------------------
James F. McEneaney, Jr.
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION
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4.1 Second Amended and Restated Certificate of
Incorporation of the Company.
4.2 Amended and Restated Bylaws of the Company.
4.3 U S Liquids Inc. Employee Stock Purchase Plan.
5 Opinion of Hartzog Conger & Cason.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hartzog Conger & Cason (contained in its
opinion filed as Exhibit 5 hereto).
24.1 Powers of Attorney (set forth on page II-5).
II-5
EXHIBIT 4.3
U S LIQUIDS INC.
EMPLOYEE STOCK PURCHASE PLAN
U S LIQUIDS INC. hereby establishes the U S LIQUIDS INC. Employee
Stock Purchase Plan (the "Plan"), the terms of which are as set forth below.
1. DEFINITIONS.
As used in the Plan the following terms shall have the meanings set
forth below:
(a) "Account" means an account (whether a ledger account or
brokerage account) established by the Company for a Participant.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the committee appointed by the Board to
administer the Plan.
(e) "Company" means US Liquids Inc., a Delaware corporation, or any
successor.
(f) "Company Stock" means the common stock, $0.01 par value, of the
Company.
(g) "Continuous Employment" means the absence of any interruption or
termination of service as an Eligible Employee with the Participating
Companies. Continuous Employment shall not be considered interrupted in
the case of an authorized leave of absence, provided that such leave is
for a period of not more than 90 days or reemployment upon the expiration
of such leave is guaranteed by contract or statute.
(h) "Eligible Compensation" means, with respect to a Participant,
the total cash compensation paid to the Participant by the Participating
Companies during the Option Period, including any elective salary deferral
contributions made therefrom by the Participant pursuant to Code Sections
125, 129 or 401(k), but excluding any severance pay and auto allowance.
(i) "Eligible Employee" means an employee of the Participating
Companies who is (a) customarily employed for at least 20 hours per week
and more than five months
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in a calendar year and (b) has completed six months of employment.
(j) "Enrollment Date" means the first day of each Option Period.
(k) "Exercise Date" means the last day of each Option Period.
(l) "Exercise Price" means the price per share of the Company Stock
offered in a given Option Period, which shall be 85% of the Fair Market
Value of a share of the Company Stock on the Enrollment Date or Exercise
Date for the applicable Option Period, whichever is lower.
(m) "Fair Market Value" means, with respect to a share of Company
Stock as of any Enrollment Date or Exercise Date, the closing sales price
(or average of the closing bid and ask prices, if applicable) per share of
the Company Stock for such date (or, in the event that the Company Stock
is not traded on such date, on the immediately preceding trading date), as
reported in THE WALL STREET JOURNAL.
(n) "Option Period" means each six-month period commencing on
January 1 and terminating on the following June 30 or commencing on July 1
and terminating on the following December 31; provided, however, upon
termination of the Plan the final Option Period may be a shorter period
ending on such date as may be established by the Board.
(o) "Participant" means an Eligible Employee who has elected to
participate in the Plan by filing an enrollment agreement with the Company
as provided in Section 7 below.
(p) "Participating Companies" means the Company and each present and
future Subsidiary that the Committee, in its sole discretion, from time to
time designates a Participating Company.
(q) "Subsidiary" means any corporation, domestic or foreign, of
which the Company owns, directly or indirectly, not less than 50% of the
total combined voting power of all classes of stock or other equity
interests and that otherwise qualifies as a "subsidiary corporation"
within the meaning of Section 424(f) of the Code or any successor thereto,
and shall include any limited liability company or partnership which is
100% owned directly or indirectly by the Company and either is for federal
tax purposes disregarded as an entity or elects to be taxed as a
corporation.
2. PURPOSE OF THE PLAN.
The purpose of the Plan is to provide an incentive for present and
future Eligible Employees of the Participating Companies to acquire a
proprietary interest (or increase an existing proprietary interest) in the
Company through the purchase of Company Stock. It is the intention of
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the Company that the Plan qualify as an "employee stock purchase plan" under
Section 423 of the Code. Accordingly, the provisions of the Plan shall be
administered, interpreted and construed in a manner consistent with the
requirements of that section of the Code.
3. SHARES RESERVED FOR THE PLAN.
There shall be reserved for issuance and purchase by Participants
under the Plan an aggregate of 500,000 shares of Company Stock, subject to
adjustment as provided in Section 13 below. Shares of Company Stock subject to
the Plan may be newly issued shares, shares purchased on the open-market,
treasury shares or any combination thereof, as determined by the Committee. If
and to the extent that any option to purchase shares of Company Stock shall not
be exercised for any reason or if such right to purchase shares shall terminate
as provided herein, the shares that have not been so purchased hereunder shall
again become available for the purposes of the Plan unless the Plan shall have
been terminated.
4. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by a Committee appointed by, and
which shall serve at the pleasure of, the Board. The Committee shall have
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to correct any defect or rectify any omission
in this Plan or to reconcile any inconsistency in this Plan or any option, and
to make all other determinations necessary or advisable for the administration
of the Plan, all of which actions and determinations shall be final, conclusive
and binding on all persons. The act or determination of a majority of the
members of the Committee shall be deemed to be the act or determination of the
Committee.
(b) The Committee may request advice or assistance or employ such
other persons as it in its discretion deems necessary or appropriate for the
proper administration of the Plan, including, but not limited to employing a
brokerage firm, bank or other financial institution to assist in the purchase of
shares, delivery of reports or other administrative aspects of the Plan.
(c) All Eligible Employees granted options under the Plan shall have
the same rights and privileges; however, the Plan will not fail to satisfy this
requirement merely because the amount of Company Stock which may be purchased by
any Eligible Employee is determined on the basis of a uniform relationship to
the Eligible Compensation of Eligible Employees, or because the Plan provides
that no Eligible Employee may purchase more than a maximum amount of Company
Stock as set forth under the Plan.
(d) All expenses of administering the Plan relating to purchases of
Company Stock by a Participant as well as maintaining Accounts for Participants
shall be paid by the Participating Companies. Any fees relating to sales of
Company Stock shall be paid by the Participant.
(e) A separate Account will be maintained for each Participant in
the Plan.
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Statements of Accounts will be given to Participants promptly following each
Exercise Date, which statements will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and the
remaining cash balance, if any.
5. ELIGIBILITY TO PARTICIPATE IN THE PLAN.
Each Eligible Employee who is employed by a Participating Company on
an Enrollment Date shall be eligible to participate in the Plan for the Option
Period beginning on that Enrollment Date subject to the further provisions of
the Plan.
6. OPTION PERIODS.
The Plan shall consist of consecutive Option Periods until the Plan
is terminated.
7. ELECTION TO PARTICIPATE IN THE PLAN.
(a) Each Eligible Employee may elect to participate in the Plan by
completing an enrollment agreement in the form (written or electronic) provided
by the Company (or its designee) and filing such enrollment agreement with the
Company (or its designee) prior to the applicable Enrollment Date.
(b) Payroll deductions for a Participant shall commence on the first
payroll date following the Participant's Enrollment Date and shall continue
until (i) changed or terminated by the Participant as provided below, (ii) the
termination of the Plan, or (iii) the Participant ceases to be an Eligible
Employee, whichever occurs first.
8. PAYROLL DEDUCTIONS AND CONTRIBUTIONS.
(a) All Participant contributions to the Plan shall be made by
payroll deductions except as provided below. At the time a Participant files the
enrollment agreement with respect to an Option Period, the Participant shall
authorize payroll deductions to be made on each payroll date during the Option
Period in an amount (from 1% to 10% as designated by the Participant) of the
Eligible Compensation which the Participant receives on each payroll date during
such Option Period. The amount of such payroll deductions shall be a whole
percentage (i.e., 1%, 2%, 3%, etc.) of the Participant's Eligible Compensation.
During the first 30 days of each Option Period, a Participant may also make one
direct contribution (in a check acceptable to the Company) of up to a maximum of
10% of the Participant's Eligible Compensation that is to be paid to the
Participant that Option Period assuming continued employment for that period.
(b) All contributions and payroll deductions made for a Participant
may be deposited in the Company's general corporate account or in a brokerage
account established with a Plan service provider and shall be credited to the
Participant's Account under the Plan. No interest shall accrue or be credited
with respect to the payroll deductions of a Participant under the Plan.
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Pending application of the Accounts, the Company may, but shall not be obligated
to, segregate the payroll deductions and contributions.
(c) Except as provided in Section 11, a Participant may not change
his contribution election during an Option Period.
9. GRANT OF OPTIONS.
(a) Subject to the limitations set forth in Sections 3 and 9(b)
hereof, each Participant shall be granted an option on the Enrollment Date to
purchase on the Exercise Date for such Option Period (at the Exercise Price for
such Option Period) a number of whole shares of the Company Stock determined by
dividing such Participant's payroll deductions accumulated during the Option
Period by the Exercise Price for such Option Period.
(b) Notwithstanding any provision of the Plan to the contrary, no
Participant shall be granted an option under the Plan (i) if, immediately after
the grant, such Participant (or any other person whose stock would be attributed
to such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company or of any
Subsidiary of the Company, or (ii) which permits such Participant's rights to
purchase stock under all employee stock purchase plans of the Company and its
Subsidiaries to accrue at a rate which exceeds $25,000 of Fair Market Value of
such stock (determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time.
10. EXERCISE OF OPTIONS.
Unless a Participant withdraws from the Plan as provided in Section
11, the Participant's option for the purchase of shares will be exercised
automatically on each Exercise Date, and the maximum number of whole shares
subject to the option will be purchased for the Participant at the applicable
Exercise Price with the accumulated payroll deductions and contributions then
credited to the Participant's Account. Any amounts remaining in the Account
representing a fractional share shall be carried over to the next Option Period.
11. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A Participant may withdraw all, but not less than all, of the
payroll deductions and contributions credited to the Participant's Account under
the Plan at any time prior to an Exercise Date by giving written notice to the
Company. All of the Participant's payroll deductions and contributions credited
to the Participant's Account will be paid to him promptly after receipt of the
Participant's notice of withdrawal, the Participant's participation in the Plan
will be automatically terminated, and no further payroll deductions for the
purchase of shares will be made or contributions permitted. Payroll deductions
will not resume on behalf of a Participant who has withdrawn from the Plan
unless written notice is delivered to the Company within the
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enrollment period preceding the commencement of a new Option Period directing
the Company to resume payroll deductions.
(b) Upon termination of the Participant's Continuous Employment
prior to the Exercise Date of the Option Period for any reason, including
retirement or death, the payroll deductions and contributions credited to the
Participant's Account will be returned to the Participant or, in the case of
death, to the Participant's estate, and the Participant's options to purchase
shares under the Plan will be automatically terminated.
(c) In the event a Participant ceases to be an Eligible Employee
during an Option Period, the Participant will be deemed to have elected to
withdraw from the Plan, the payroll deductions credited to the Participant's
Account will be returned to the Participant, and the Participant's options to
purchase shares under the Plan will be terminated.
(d) A Participant may terminate his or her contribution election
during an Option Period and elect to either withdraw all amounts credited to his
or her Account or to have his or her Account held until the end of the Option
Period and applied to the purchase of shares. In either event, however, payroll
deductions will not resume on behalf of the Participant on a future Enrollment
Date unless a new election is made by the Participant.
(e) A Participant's withdrawal during an Option Period will not
affect the Participant's eligibility to participate in a succeeding Option
Period.
12. TRANSFERABILITY.
Options to purchase Company Stock granted under the Plan are not
transferable by a Participant and are exercisable only by the Participant.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) If the outstanding shares of Company Stock are increased or
decreased, or are changed into or are exchanged for a different number or kind
of shares, as a result of one or more reorganizations, restructurings,
recapitalizations, reclassifications, stock splits, reverse stock splits, stock
dividends or the like, upon authorization of the Committee, appropriate
adjustments may be made in the number and/or kind of shares, and the per share
option price thereof, which may be issued in the aggregate and to any
Participant upon exercise of options granted under the Plan.
(b) In the event of the proposed dissolution or liquidation of the
Company, each Option Period will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Committee. In the
event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, each
option under the Plan shall be assumed or an equivalent option shall be
substituted by such
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successor corporation or a parent or subsidiary of such successor corporation,
unless the Committee determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, that the Participant shall have the
right to exercise the option as to all of the optioned stock, including shares
as to which the option would not otherwise be exercisable. If the Committee
makes an option fully exercisable in lieu of assumption or substitution in the
event of a merger or sale of assets, the Committee shall notify the Participant
that the option shall be fully exercisable for a stated period, which shall not
be less than 10 days from the date of such notice, and the option will terminate
upon the expiration of such period.
(c) In all cases, the Committee shall have full discretion to
exercise any of the powers and authority provided under this Section 13, and the
Committee's actions hereunder shall be final and binding on all Participants. No
fractional shares of stock shall be issued under the Plan pursuant to any
adjustment authorized under the provisions of this Section 13.
14. AMENDMENT OF THE PLAN.
The Board (and the Committee as to ministerial matters) may at any
time, or from time to time, amend the Plan in any respect; provided, however,
that the Plan may not be amended in any way that will cause rights issued under
the Plan to fail to meet the requirements for employee stock purchase plans as
defined in Section 423 of the Code or any successor thereto, including, without
limitation, shareholder approval if required.
15. TERMINATION OF THE PLAN.
The Plan and all rights of Eligible Employees hereunder shall
terminate:
(a) on the Exercise Date that Participants become entitled to
purchase a number of shares greater than the number of reserved shares
remaining available for purchase under the Plan; or
(b) at any time, at the discretion of the Board.
In the event that the Plan terminates under circumstances described
in Section 15(a) above, reserved shares remaining as of the termination date
shall be sold to Participants on a pro rata basis.
16. NOTICES.
All notices or other communications by a Participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
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17. SHAREHOLDER APPROVAL.
The Plan shall be subject to approval by the shareholders of the
Company within twelve months after the date the Plan is adopted by the Board. If
such shareholder approval is not obtained prior to the first Option Period, the
Plan shall be null and void immediately prior to such date.
18. CONDITIONS UPON ISSUANCE OF SHARES.
(a) The Plan, the grant and exercise of options to purchase shares
of Company Stock under the Plan, and the Company's obligation to sell and
deliver shares upon the exercise of options to purchase shares shall be subject
to all applicable federal, state and foreign laws, rules and regulations, and to
such approvals by any regulatory or governmental agency as may, in the opinion
of counsel for the Company, be required. In the event the Company is required to
obtain from any commission or agency authority to issue any stock certificate,
the inability of the Company to obtain from any such commission or agency
authority that counsel for the Company deems necessary for the lawful issuance
of any such certificate will relieve the Company from liability to any
Participant, except to return to him the amount of the balance in his account.
(b) The Company may make such provisions as it deems appropriate for
withholding of amounts that the Company determines it is required to withhold
pursuant to applicable tax laws in connection with the purchase or sale by a
Participant of any Company Stock acquired pursuant to the Plan. The Company may
require a Participant to satisfy any relevant tax requirements before
authorizing any issuance of Company Stock to such Participant.
-8-
EXHIBIT 5
[HARTZOG CONGER & CASON LETTERHEAD]
December 20, 1999
U S Liquids Inc.
411 N. Sam Houston Parkway East
Suite 400
Houston, Texas 77060
Gentlemen:
U S Liquids Inc., a Delaware corporation (the "Company"), intends to file
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, a registration statement on Form S-8 (the "Registration Statement")
with respect to 500,000 shares of its common stock, $.01 par value per share
(the "Common Stock"), to be issued from time to time pursuant to the Company's
Employee Stock Purchase Plan.
You have requested our opinion in connection with the Company's filing of
the Registration Statement. We have examined and relied on originals or copies,
certified or otherwise identified to our satisfaction as being true copies, of
such records of the Company, such agreements, certificates of officers of the
Company and others, and such other documents, certificates and corporate or
other records as we have deemed necessary as a basis for the opinion expressed
in this letter including, without limitation, the Company's Second Amended and
Restated Certificate of Incorporation, the Employee Stock Purchase Plan and the
Registration Statement. In our examination, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as certified or photostatic
copies. We have investigated such questions of law for the purpose of rendering
the opinion in this letter as we have deemed necessary. We express no opinion in
this letter concerning any law other than the General Corporation Law of the
State of Delaware.
On the basis of and in reliance on the foregoing, we are of the opinion
that the shares of Common Stock to be issued pursuant to the Employee Stock
Purchase Plan, when and if issued in accordance with the terms of the Employee
Stock Purchase Plan, will be legally issued, fully paid and non-assessable.
The opinion in this letter is rendered only to the Company in connection
with the Registration Statement. We consent to the filing of this letter as an
exhibit to the Registration Statement. The opinion may not be relied upon by the
Company for any other purpose, or relied upon by any other
<PAGE>
HARTZOG CONGER & CASON LETTERHEAD
December 20, 1999
Page 2
person, firm or entity for any purpose. This letter may not be paraphrased,
quoted or summarized, nor may it be duplicated or reproduced in whole or in
part.
Very truly yours,
HARTZOG CONGER & CASON
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February 8,
1999 and March 22, 1999 included in U S Liquids Inc.'s Form 8-K/A filed with the
SEC on February 16, 1999 and Form 10-K for the year ended December 31, 1998,
respectively, and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Houston, Texas
December 17, 1999
