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"),
XXXXXX X. XXXXXXX ("Xxxxxxx") and each of the other persons whose names appear
on the signature pages hereto (individually, a "Shareholder" and collectively,
the "Shareholders").
Xxxxxxx, 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 Xxxxxxx, and the issuance to Xxxxxxx 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 Xxxxxxx'x
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
Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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
manner described in Section 1 shall terminate upon the first to occur of the
following:
(a) The date when Xxxxxxx 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, Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx.
(e) The date upon which Xxxxxxx 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 Xxxxxx, 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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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 Xxxxxxx,
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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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. Xxxxxxx Xxx
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ W. Xxxxxxx Xxx
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Xxxxxxx X. Xxx
THE XXXXX XXXXXXX & XXXXXX X.
XXX FAMILY LLC
By: /s/ W. Xxxxxxx Xxx
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Name: W. Xxxxxxx Xxx
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Title: Manager
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/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
THE XXXX X. & XXXXXXXXX X.
XXXXXXXXX FAMILY LLC
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Manager
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. XxXxxxx
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