-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UL00BwHvUDd1lQGCqy9szUt5pP8rUGKyIC/aLO6lmlHojXO4ZO45qR1aiFKxAsJu 8GEMQyugMPxLc2z5Pfe/hw== 0000912057-96-018051.txt : 19960816 0000912057-96-018051.hdr.sgml : 19960816 ACCESSION NUMBER: 0000912057-96-018051 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960815 EFFECTIVENESS DATE: 19960903 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: APS HOLDING CORPORATION CENTRAL INDEX KEY: 0000860420 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MOTOR VEHICLE SUPPLIES & NEW PARTS [5013] IRS NUMBER: 760306940 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-10217 FILM NUMBER: 96616332 BUSINESS ADDRESS: STREET 1: 15710 JOHN F KENNEDY BLVD STREET 2: WORLD HOUSTON PLZ STE 700 CITY: HOUSTON STATE: TX ZIP: 77032 BUSINESS PHONE: 7137412470 MAIL ADDRESS: STREET 1: 15710 JOHN F KENNEDY BLVD CITY: HOUSTON STATE: TX ZIP: 77032-2347 S-8 1 S-8 r AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 15, 1996 Registration No. 333- - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------- APS HOLDING CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 76-0306940 (State or other jurisdiction of (I.R.S.Employer incorporation or organization) Identification No.) WORLD HOUSTON PLAZA 15710 JOHN F. KENNEDY BOULEVARD SUITE 700 HOUSTON, TEXAS 77032-2347 (Address of principal executive offices, including zip code) ----------------- A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN (Full title of the plan) E. EUGENE LAUVER APS HOLDING CORPORATION WORLD HOUSTON PLAZA 15710 JOHN F. KENNEDY BOULEVARD SUITE 700 HOUSTON, TEXAS 77032-2347 (Name and address of agent for service) (713) 507-1100 (Telephone number, including area code, of agent for service) COPIES TO: Michael P. Finch Vinson & Elkins L.L.P. 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------- TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT OF SECURITIES TO BE TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION REGISTERED(1) REGISTERED(2) PRICE PER SHARE OFFERING PRICE (2) FEE - ------------------------------------------------------------------------------------------------------- Deferred Compensation Obligations . . . . . . . . . . . - ------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (the "Common Stock"). . - ------------------------------------------------------------------------------------------------------- Total . . . . . . . . . . . $10,000,000 100% $10,000,000 $3,449 - -------------------------------------------------------------------------------------------------------
(1) The Deferred Compensation Obligations of the Registrant to pay deferred compensation in the future in accordance with the terms of the A.P.S., Inc. Executive 401(k) Deferral Plan for a select group of eligible employees. (2) The amount to be registered is estimated solely for purposes of calculating the registration fee and includes such indeterminate number of shares of the Registrant's Common Stock as may be issued at indeterminate prices from time to time as one of the various investment options for participants in the A.P.S., Inc. Executive 401(k) Deferral Plan. - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents which have been filed with the Securities and Exchange Commission (the "Commission") by APS Holding Corporation, a Delaware corporation (the "Company"), are incorporated herein by reference and made a part hereof: (a) Annual Report on Form 10-K for the fiscal year ended January 27, 1996; (b) Quarterly Report on Form 10-Q for the quarter ended April 25, 1996; (c) Current Report on Form 8-K dated January 25, 1996; (d) Current Report on Form 8-KA dated January 25, 1996; and (e) Description of the Common Stock contained in the Company's Prospectus dated September 23, 1993 which description is included in the Company's Registration Statement on Form S-1 (Registration Statement No. 33-66412). All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the effective date of this Registration Statement, prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded. ITEM 4. DESCRIPTION OF SECURITIES. The Deferred Compensation Obligations registered hereunder (the "Obligations") are unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms of the A.P.S., Inc. Executive 401(k) Deferral Plan (the "Plan") and the A.P.S., Inc. Executive 401(k) Deferral Plan Trust Agreement, dated as of August 14, 1996, between A.P.S., Inc. and Texas Commerce Bank National Association, as Trustee (the "Trust Agreement"), which are filed as Exhibits 4.3 and 4.4 to this Registration Statement. Such Exhibits set forth a description of the Obligations and are incorporated herein by reference in their entirety in response to this Item 4., pursuant to Rule 411(b)(3) under the Securities Act of 1933. No participant under the Plan shall have any preferred claim to, or any beneficial ownership interest in, any assets which are subject to the Trust established by the Trust Agreement (the "Trust"). All such assets are subject to the claims of the creditors of the participant's employer until they are paid out of the Trust to the participant in accordance with the terms of the Plan. The Plan provides that payment of all Obligations of the Registrant's subsidiaries under the Plan is guaranteed by the Registrant, and that any such payment by the Registrant shall be made directly and not through the Trust. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. II-1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Reference is made to Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty, except (i) for acts or for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit. The Second Restated Certificate of Incorporation and Bylaws of the Company contain provisions eliminating the liability of directors to the extent permitted by Section 102(b)(7) of the DGCL. The Company is empowered by Section 145 of the DGCL, subject to the procedures and limitations stated therein, to indemnify any person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending or completed action, suit or proceeding in which such person is made a party by reason of his or her being or having been a director, officer, employee or agent of the Company. The statute provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. Article VI of the Bylaws of the Company provides for indemnification of each of the Company's directors, officers and employees to the full extent permitted by the DGCL. An Indemnification Agreement exists among the Company, APS, Inc., Clayton, Dubilier & Rice, Inc. ("CD&R") and The Clayton & Dubilier Private Equity Fund IV Limited Partnership ("Fund IV") that requires the Company and APS, Inc. to indemnify CD&R, Fund IV, the general partner of Fund IV, and their respective directors, officers, partners, employees, agents and controlling persons (within the meaning of the Securities Act of 1933) and each other person who is or becomes a director of the Company or APS, Inc. (the "Indemnitees") (i) from and against all claims relating to certain potential liabilities and claims that might arise under the securities laws from the operations of APS, Inc. and its predecessors and, except in the case of gross negligence or intentional misconduct, from providing management consulting and financial advisory services and (ii) to the fullest extent permitted by applicable Delaware law, from acting as directors of the Company and its subsidiaries or any breach or alleged breach of his or her fiduciary duty as a director of the Company and its subsidiaries. In addition, the Company has agreed to indemnify the Indemnitees against any suits, claims, damages or expenses which may be made against or incurred by them under applicable securities laws in connection with offerings of securities of the Company. However, the Company will not be obligated to indemnify any Indemnitee in the event that any such suit, claim, damage or expense is based upon an untrue statement in any document, contract or agreement related to an offering in reliance upon written information furnished by such Indemnitee specifically for use in such document, contract and agreement. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4.1 Second Restated Certificate of Incorporation of the Company filed September 20, 1993 (Incorporated by reference to the exhibits filed with APS Holding Corporation's Form 10-Q for the quarter ended October 25, 1993.) *4.2 Amended and Restated Bylaws of the Company amended as of November 14, 1994. *4.3 A.P.S., Inc. Executive 401(k) Deferral Plan, as adopted by the Registrant. *4.4 A.P.S., Inc. Executive 401(k) Deferral Plan Trust Agreement, dated August 14, 1996, between A.P.S., Inc. and Texas Commerce Bank National Association, as Trustee, as adopted by the Registrant. *5.1 Opinion of E. Eugene Lauver, Esq. *23.1 Consent of Coopers & Lybrand L.L.P. *24.1 Powers of Attorney (included on signature page). - ----------------------------- * Filed with this Registration Statement. II-2 UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if 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 Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-3 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 of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on the 15th day of August, 1996. APS HOLDING CORPORATION By: /s/ MARK S. HOFFMAN ----------------------------------- Mark S. Hoffman President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on August 15, 1996. POWER OF ATTORNEY Each person whose signature appears below appoints Mark S. Hoffman and E. Eugene Lauver, and each of them, his true and lawful attorneys-in-fact and agents (with full power to each of them to act alone), with full power of substitution and resubstitution, for him, and in his name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done (with full power to each of them to act alone), as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. SIGNATURE TITLE --------- ----- /s/ MARK S. HOFFMAN Director, President and Chief Executive Officer - ------------------------------ (Principal Executive Officer) Mark S. Hoffman /s/ THOMAS T. McENTIRE Acting Chief Financial and Accounting Officer - ------------------------------ Thomas T. McEntire Director - ------------------------------ Theodore Barry /s/ WILEY N. CALDWELL Director - ------------------------------ Wiley N. Caldwell /s/ MICHAEL J. DUBILIER Director - ------------------------------ Michael J. Dubilier II-4 /s/ JOSEPH P. FLANNERY Director - ------------------------------ Joseph P. Flannery /s/ DONALD J. GOGEL Director - ------------------------------ Donald J. Gogel /s/ HUBBARD C. HOWE Director - ------------------------------ Hubbard C. Howe /s/ H. JACK MEANY Director - ------------------------------ H. Jack Meany /s JERRY K. MYERS Director - ------------------------------ Jerry K. Myers II-5 EX-4.2 2 EXHIBIT 4.2 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- APS HOLDING CORPORATION BY-LAWS - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- APS HOLDING CORPORATION BY-LAWS AS AMENDED ON: JANUARY 17, 1990 JANUARY 10, 1991 NOVEMBER 22, 1993 NOVEMBER 14, 1994 /s/ E. EUGENE LAUVER, SECRETARY ------------------------------------ E. EUGENE LAUVER, SECRETARY NOVEMBER 14, 1994 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- APS HOLDING CORPORATION BY-LAWS ------------------------- TABLE OF CONTENTS SECTION PAGE - ------- ---- ARTICLE I SHAREHOLDERS 1.01 Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . 1 1.02 Special Meetings. . . . . . . . . . . . . . . . . . . . . . . 1 1.03 Notice of Meetings; Waiver. . . . . . . . . . . . . . . . . . 1 1.04 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.05 Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.06 Voting by Ballot. . . . . . . . . . . . . . . . . . . . . . . 3 1.07 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.08 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.09 Organization; Procedure . . . . . . . . . . . . . . . . . . . 3 1.10 Consent of Stockholders in Lieu of Meeting. . . . . . . . . . 4 ARTICLE II BOARD OF DIRECTORS 2.01 General Powers. . . . . . . . . . . . . . . . . . . . . . . . 5 2.02 Number and Term of Office . . . . . . . . . . . . . . . . . . 5 2.03 Election of Directors . . . . . . . . . . . . . . . . . . . . 5 2.04 Annual and Regular Meetings . . . . . . . . . . . . . . . . . 5 2.05 Special Meetings; Notice. . . . . . . . . . . . . . . . . . . 6 2.06 Quorum; Voting. . . . . . . . . . . . . . . . . . . . . . . . 6 2.07 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . 6 2.08 Action Without a Meeting. . . . . . . . . . . . . . . . . . . 8 2.09 Regulations; Manner of Acting . . . . . . . . . . . . . . . . 7 2.10 Action by Telephonic Communications . . . . . . . . . . . . . 7 2.11 Resignations. . . . . . . . . . . . . . . . . . . . . . . . . 7 2.12 Removal of Directors. . . . . . . . . . . . . . . . . . . . . 7 2.13 Vacancies and Newly Created Directorships . . . . . . . . . . 8 2.14 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 8 2.15 Reliance on Accounts and Reports, etc.. . . . . . . . . . . . 8 ARTICLE III EXECUTIVE COMMITTEE AND OTHER COMMITTEES 3.01 How Constituted . . . . . . . . . . . . . . . . . . . . . . . 8 3.02 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3.03 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.04 Quorum and Manner of Acting . . . . . . . . . . . . . . . . . 10 i SECTION PAGE - ------- ---- 3.05 Action by Telephonic Communications . . . . . . . . . . . . . 10 3.06 Absent or Disqualified Members. . . . . . . . . . . . . . . . 10 3.07 Resignations. . . . . . . . . . . . . . . . . . . . . . . . . 11 3.08 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.09 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE IV OFFICERS 4.01 Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4.02 Election. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4.03 Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4.04 Removal and Resignation; Vacancies. . . . . . . . . . . . . . 12 4.05 Authority and Duties of Officers. . . . . . . . . . . . . . . 12 4.06 The President . . . . . . . . . . . . . . . . . . . . . . . . 12 4.07 The Vice President. . . . . . . . . . . . . . . . . . . . . . 13 4.08 The Secretary . . . . . . . . . . . . . . . . . . . . . . . . 13 4.09 The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . 14 4.10 Additional Officers . . . . . . . . . . . . . . . . . . . . . 15 4.11 Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE V CAPITAL STOCK 5.01 Certificates of Stock, Uncertificated Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5.02 Signatures; Facsimile . . . . . . . . . . . . . . . . . . . . 16 5.03 Lost, Stolen or Destroyed Certificates. . . . . . . . . . . . 16 5.04 Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . 17 5.05 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 17 5.06 Registered Stockholders . . . . . . . . . . . . . . . . . . . 18 5.07 Transfer Agent and Registrar. . . . . . . . . . . . . . . . . 19 ARTICLE VI INDEMNIFICATION 6.01 Nature of Indemnity . . . . . . . . . . . . . . . . . . . . . 19 6.02 Successful Defense. . . . . . . . . . . . . . . . . . . . . . 20 6.03 Determination That Indemnification Is Proper. . . . . . . . . . . . . . . . . . . . . . . . . 20 6.04 Advance Payment of Expenses . . . . . . . . . . . . . . . . . 21 6.05 Procedure for Indemnification of Directors and Officers. . . . . . . . . . . . . . . . . 21 6.06 Survival; Preservation of Other Rights. . . . . . . . . . . . 22 6.07 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 22 6.08 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 23 ii SECTION PAGE - ------- ---- ARTICLE VII OFFICES 7.01 Registered Office . . . . . . . . . . . . . . . . . . . . . . 23 7.02 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . 23 ARTICLE VIII GENERAL PROVISIONS 8.01 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 23 8.02 Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . 24 8.03 Execution of Instruments. . . . . . . . . . . . . . . . . . . 24 8.04 Corporate Indebtedness. . . . . . . . . . . . . . . . . . . . 24 8.05 Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . 25 8.06 Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 8.07 Sale, Transfer, etc. of Securities. . . . . . . . . . . . . . 25 8.08 Voting as Stockholder . . . . . . . . . . . . . . . . . . . . 25 8.09 Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 8.10 Books and Records; Inspection . . . . . . . . . . . . . . . . 26 ARTICLE IX AMENDMENT OF BY-LAWS 9.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 26 ARTICLE X CONSTRUCTION 10.01 Construction. . . . . . . . . . . . . . . . . . . . . . . . . 26 iii APS HOLDING CORPORATION BY-LAWS As amended on January 17, 1990 ARTICLE I STOCKHOLDERS Section 1.01. ANNUAL MEETINGS. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held at such place, either within or without the State of Delaware, and at 10:00 A.M. local time on the first Tuesday in May (or, if such day is a legal holiday, then on the next succeeding business day), or at such other date and hour, as may be fixed from time to time by resolution of the Board of Directors and set forth in the notice or waiver of notice of the meeting. Section 1.02. SPECIAL MEETINGS. Special meetings of the stockholders may be called at any time by the President (or, in the event of his absence or disability, by any Vice President), or by the Board of Directors. A special meeting shall be called by the President (or, in the event of his absence or disability, by any Vice President), or by the Secretary, immediately upon receipt of a written request therefor by stockholders holding in the aggregate not less than a majority of the outstanding shares of the Corporation at the time entitled to vote at any meeting of the stockholders. If such officers or the Board of Directors shall fail to call such meeting within 20 days after receipt of such request, any stockholder executing such request may call such meeting. Such special meetings of the stockholders shall be held at such places within or without the State of Delaware, as shall be specified in the respective notices or waivers of notice thereof. Section 1.03. NOTICE OF MEETINGS; WAIVER. The Secretary or any Assistant Secretary shall cause written notice of the place, date and hour of each meeting of the stockholders, and in the case of a special meeting, the purpose or purposes for which such meeting is called, to be given personally or by mail, not less than ten nor more than sixty days prior to the meeting, to each stockholder of record entitled to vote at such meeting. If such notice is mailed, it shall be deemed to have been given to a stockholder when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the record of stockholders of the Corporation, or, if he shall have filed with the Secretary of the Corporation a written request that notices to him be mailed to some other address, then directed to him at such other address. Such further notice shall be given as may be required by law. No notice of any meeting of stockholders need be given to any stockholder who submits a signed waiver of notice, whether before or after the meeting. Neither the business to be transacted at, not the purpose of, any regular or special meeting of the stockholders need be specified in a written waiver of notice. The attendance of any stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting is not lawfully called or convened. Section 1.04. QUORUM. Except as otherwise required by law or by the Certificate of Incorporation, the presence in person or by proxy of the holders of record of a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business at such meeting. Section 1.05. VOTING. If, pursuant to Section 5.05 of these By-Laws, a record date has been fixed, every holder of record of shares entitled to vote at a meeting of stockholders shall be entitled to one vote for each share outstanding in his name on the books of the Corporation at the close of business on such record date. If no record date has been fixed, then every holder of record of shares entitled to vote at a meeting of stockholders shall be entitled to one vote for each share of stock standing in his name on the books of the Corporation at the close of business on the day next preceding the day on which notice of the meeting is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. Except as otherwise required by law or by the Certificate of Incorporation, the vote of a majority of the shares represented in person or by proxy at any meeting at which a quorum is present shall 2 be sufficient for the transaction of any business at such meeting. Section 1.06. VOTING BY BALLOT. No vote of the stockholders need be taken by written ballot or conducted by inspectors of election, unless otherwise required by law. Any vote which need not be taken by ballot may be conducted in any manner approved by the meeting. Section 1.07. ADJOURNMENT. If a quorum is not present at any meeting of the stockholders, the stockholders present in person or by proxy shall have the power to adjourn any such meeting from time to time until a quorum is present. Notice of any adjourned meeting of the stockholders of the Corporation need not be given if the place, date and hour thereof are announced at the meeting at which the adjournment is taken, provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date for the adjourned meeting is fixed pursuant to Section 5.05 of these By-Laws, a notice of the adjourned meeting, conforming to the requirements of Section 1.03 hereof, shall be given to each stockholder of record entitled to vote at such meeting. At any adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted on the original date of the meeting. Section 1.08. PROXIES. Any stockholder entitled to vote at any meeting of the stockholders or to express consent to or dissent from corporate action without a meeting may, by a written instrument signed by such stockholder or his attorney-in-fact, authorize another person or persons to vote at any such meeting and express such consent or dissent for him by proxy. No such proxy shall be voted or acted upon after the expiration of three years from the date of such proxy, unless such proxy provides for a longer period. Every proxy shall be revocable at the pleasure of the stockholder executing it, except in those cases where applicable law provides that a proxy shall be irrevocable. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary. Section 1.09. ORGANIZATION; PROCEDURE. At every meeting of stockholders the presiding officer shall be the President or, in the event of his absence or 3 disability, a presiding officer chosen by a majority of the stockholders present in person or by proxy. The Secretary, or in the event of his absence or disability, the Assistant Secretary, if any, or if there be no Assistant Secretary, in the absence of the Secretary, an appointee of the presiding officer, shall act as Secretary of the meeting. The order of business and all other matters of procedure at every meeting of stockholders may be determined by such presiding officer. Section 1.10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. To the fullest extent permitted by law, whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, such action may be taken without a meeting, without prior notice and without a vote of stockholders, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder or member who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered in the manner required by law to the Corporation, written consents signed by a sufficient number of holders or members to take action are delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. 4 ARTICLE II BOARD OF DIRECTORS Section 2.01. GENERAL POWERS. Except as may otherwise be provided by law, by the Certificate of Incorporation or by these By-Laws, the property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors and the Board of Directors may exercise all the powers of the Corporation. Section 2.02. NUMBER AND TERM OF OFFICE. The number of Directors constituting the entire Board of Directors shall be three, which number may be modified from time to time by resolution of the Board of Directors, but in no event shall the number of Directors be less than one. Each Director (whenever elected) shall hold office until his successor has been duly elected and qualified, or until his earlier death, resignation or removal. Section 2.03. ELECTION OF DIRECTORS. Except as otherwise provided in Sections 2.12 and 2.13 of these By-Laws, the Directors shall be elected at each annual meeting of the stockholders. If the annual meeting for the election of Directors is not held on the date designated therefor, the Directors shall cause the meeting to be held as soon thereafter as convenient. At each meeting of the stockholders for the election of Directors, provided a quorum is present, the Directors shall be elected by a plurality of the votes validly cast in such election. Section 2.04. ANNUAL AND REGULAR MEETINGS. The annual meeting of the Board of Directors for the purpose of electing officers and for the transaction of such other business as may come before the meeting shall be held as soon as possible following adjournment of the annual meeting of the stockholders at the place of such annual meeting of the stockholders. Notice of such annual meeting of the Board of Directors need not be given. The Board of Directors from time to time may by resolution provide for the holding of regular meetings and fix the place (which may be within or without the State of Delaware) and the date and hour of such meetings. Notice of regular meetings need not be given, provided, however, that if the Board of Directors shall fix or change the time or place of any regular meeting, notice of such action shall be mailed promptly, or sent by telegram, 5 radio or cable, to each Director who shall not have been present at the meeting at which such action was taken, addressed to him at his usual place of business, or shall be delivered to him personally. Notice of such action need not be given to any Director who attends the first regular meeting after such action is taken without protesting the lack of notice to him, prior to or at the commencement of such meeting, or to any Director who submits a signed waiver of notice, whether before or after such meeting. Section 2.05. SPECIAL MEETINGS; NOTICE. Special meetings of the Board of Directors shall be held whenever called by the President or, in the event of his absence or disability, by any Vice President, at such place (within or without the State of Delaware), date and hour as may be specified in the respective notices or waivers of notice of such meetings. Special meetings of the Board of Directors may be called on 24 hours' notice, if notice is given to each Director personally or by telephone or telegram, or on five days' notice, if notice is mailed to each Director, addressed to him at his usual place of business. Notice of any special meeting need not be given to any Director who attends such meeting without protesting the lack of notice to him, prior to or at the commencement of such meeting, or to any Director who submits a signed waiver of notice, whether before or after such meeting, and any business may be transacted thereat. Section 2.06. QUORUM; VOTING. At all meetings of the Board of Directors, the presence of a majority of the total authorized number of Directors shall constitute a quorum for the transaction of business. Except as otherwise required by law, the vote of a majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. Section 2.07. ADJOURNMENT. A majority of the Directors present, whether or not a quorum is present, may adjourn any meeting of the Board of Directors to another time or place. No notice need be given of any adjourned meeting unless the time and place of the adjourned meeting are not announced at the time of adjournment, in which case notice conforming to the requirements of Section 2.05 shall be given to each Director. Section 2.08 ACTION WITHOUT A MEETING. Any action required or permitted to be taken at any meeting of 6 the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing, and such writing or writings are filed with the minutes of proceedings of the Board of Directors. Section 2.09. REGULATIONS; MANNER OF ACTING. To the extent consistent with applicable law, the Certificate of Incorporation and these By-Laws, the Board of Directors may adopt such rules and regulations for the conduct of meetings of the Board of Directors and for the management of the property, affairs and business of the Corporation as the Board of Directors may deem appropriate. The Directors shall act only as a Board, and the individual Directors shall have no power as such. Section 2.10. ACTION BY TELEPHONIC COMMUNICATIONS. Members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting. Section 2.11. RESIGNATIONS. Any Director may resign at any time by delivering a written notice of resignation, signed by such Director, to the President or the Secretary. Unless otherwise specified therein, such resignation shall take effect upon delivery. Section 2.12. REMOVAL OF DIRECTORS. Any Director may be removed at any time, either for or without cause, upon the affirmative vote of the holders of a majority of the outstanding shares of stock of the Corporation entitled to vote for the election of such Director, cast at a special meeting of stockholders called for the purpose. Any vacancy in the Board of Directors caused by any such removal may be filled at such meeting by the stockholders entitled to vote for the election of the Director so removed. If such stockholders do not fill such vacancy at such meeting (or in the written instrument effecting such removal, if such removal was effected by consent without a meeting), such vacancy may be filled in the manner provided in Section 2.13 of these By-Laws. Section 2.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If any vacancies shall occur in the Board of Directors, by reason of death, resignation, removal or 7 otherwise, or if the authorized number of Directors shall be increased, the Directors then in office shall continue to act, and such vacancies and newly created directorships may be filled by a majority of the Directors then in office, although less than a quorum. A Director elected to fill a vacancy or a newly created directorship shall hold office until his successor has been elected and qualified or until his earlier death, resignation or removal. Any such vacancy or newly created directorship may also be filled at any time by vote of the stockholders. Section 2.14. COMPENSATION. The amount, if any, which each Director shall be entitled to receive as compensation for his services as such shall be fixed from time to time by resolution of the Board of Directors. Section 2.15. RELIANCE ON ACCOUNTS AND REPORTS, ETC. A Director, or a member of any Committee designated by the Board of Directors shall, in the performance of his duties, be fully protected in relying in good faith upon the records of the Corporation and upon information, opinions, reports or statements presented to the Corporation by any of the Corporation's officers or employees, or Committees designated by the Board of Directors, or by any other person as to the matters the member reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation. ARTICLE III EXECUTIVE COMMITTEE AND OTHER COMMITTEES Section 3.01. HOW CONSTITUTED. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more Committees, including an Executive Committee, each such Committee to consist of such number of Directors as from time to time may be fixed by the Board of Directors. The Board of Directors may designate one or more Directors as alternate members of any such Committee, who may replace any absent or disqualified member or members at any meeting of such Committee. Thereafter, members (and alternate members, if any) of each such Committee may be designated at the annual meeting of the Board of Directors. Any such Committee may be abolished or re-designated from time to time by the 8 Board of Directors. Each member (and each alternate member) of any such Committee (whether designated at an annual meeting of the Board of Directors or to fill a vacancy or otherwise) shall hold office until his successor shall have been designated or until he shall cease to be a Director, or until his earlier death, resignation or removal. Section 3.02. POWERS. During the intervals between the meetings of the Board of Directors, the Executive Committee, except as otherwise provided in this section, shall have and may exercise all the powers and authority of the Board of Directors in the management of the property, affairs and business of the Corporation, including the power to declare dividends and to authorize the issuance of stock. Each such other Committee, except as otherwise provided in this section, shall have and may exercise such powers of the Board of Directors as may be provided by resolution or resolutions of the Board of Directors. Neither the Executive Committee nor any such other Committee shall have the power or authority: (a) to amend the Certificate of Incorporation (except that a Committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) of the General Corporation Law, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series), (b) to adopt an agreement of merger or consolidation; (c) to recommend to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets; or (d) to recommend to the stockholders a dissolution of the Corporation or a revocation of a dissolution; 9 (e) to declare a dividend; (f) to authorize the issuance of stock; (g) to remove the President of the Corporation or a Director; (h) to authorize any borrowing of funds, other than under existing facilities, that is material to the capital structure of the Corporation; (i) to authorize any new compensation or benefit program; (j) to appoint or discharge the Corporation's independent public accountants; (k) to authorize the annual operating plan, annual capital expenditure plan and strategic plan; (l) to abolish or usurp the authority of another committee of the Board of Directors; or (m) to approve the acquisition of any business or a business division from any person or entity, whether by asset purchase, stock purchase, merger or other business combination, when such transaction would require a waiver under, consent or modification to the Loan Agreement dated September 30, 1993, with the several lenders and Chemical Bank, as Agent. The Executive Committee shall have, and any such other Committee may be granted by the Board of Directors, power to authorize the seal of the Corporation to be affixed to any or all papers which may require it. Section 3.03. PROCEEDINGS. Each such Committee may fix its own rules of procedure and may meet at such place (within or without the State of Delaware), at such 10 time and upon such notice, if any, as it shall determine from time to time. Each such Committee shall keep minutes of its proceedings and shall report such proceedings to the Board of Directors at the meeting of the Board of Directors next following any such proceedings. Section 3.04. QUORUM AND MANNER OF ACTING. Except as may be otherwise provided in the resolution creating such Committee, at all meetings of any Committee the presence of members (or alternate members) constituting a majority of the total authorized membership of such Committee shall constitute a quorum for the transaction of business. The act of the majority of the members present at any meeting at which a quorum is present shall be the act of such Committee. Any action required or permitted to be taken at any meeting of any such Committee may be taken without a meeting, if all members of such Committee shall consent to such action in writing and such writing or writings are filed with the minutes of the proceedings of the Committee. The members of any such Committee shall act only as a Committee, and the individual members of such Committee shall have no power as such. Section 3.05. ACTION BY TELEPHONIC COMMUNICATIONS. Members of any Committee designated by the Board of Directors may participate in a meeting of such Committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting. Section 3.06. ABSENT OR DISQUALIFIED MEMBERS. In the absence or disqualification of a member of any Committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Section 3.07. RESIGNATIONS. Any member (and any alternate member) of any Committee may resign at any time by delivering a written notice of resignation, signed by such member, to the Chairman or the President. Unless otherwise specified therein, such resignation shall take effect upon delivery. 11 Section 3.08. REMOVAL. Any member (and any alternate member) of any Committee may be removed at any time, either for or without cause, by resolution adopted by a majority of the whole Board of Directors. Section 3.09. VACANCIES. If any vacancy shall occur in any Committee, by reason of disqualification, death, resignation, removal or otherwise, the remaining members (and any alternate members) shall continue to act, and any such vacancy may be filled by the Board of Directors. ARTICLE IV OFFICERS Section 4.01. NUMBER. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. The Board of Directors also may elect one or more Assistant Secretaries and Assistant Treasurers in such numbers as the Board of Directors may determine. Any number of offices may be held by the same person. No officer need be a Director of the Corporation. Section 4.02. ELECTION. Unless otherwise determined by the Board of Directors, the officers of the Corporation shall be elected by the Board of Directors at the annual meeting of the Board of Directors, and shall be elected to hold office until the next succeeding annual meeting of the Board of Directors. In the event of the failure to elect officers at such annual meeting, officers may be elected at any regular or special meeting of the Board of Directors. Each officer shall hold office until his successor has been elected and qualified, or until his earlier death, resignation or removal. Section 4.03. SALARIES. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors. Section 4.04. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be removed for or without cause at any time by the Board of Directors. Any officer may resign at any time by delivering a written notice of resignation, signed by such officer, to the Board of Directors or the President. Unless otherwise specified 12 therein, such resignation shall take effect upon delivery. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise, shall be filled by the Board of Directors. Section 4.05. AUTHORITY AND DUTIES OF OFFICERS. The officers of the Corporation shall have such authority and shall exercise such powers and perform such duties as may be specified in these By-Laws, except that in any event each officer shall exercise such powers and perform such duties as may be required by law. Section 4.06. THE PRESIDENT. The President shall preside at all meetings of the stockholders and directors at which he is present, shall be the chief executive officer and the chief operating officer of the Corporation, shall have general control and supervision of the policies and operations of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall manage and administer the Corporation's business and affairs and shall also perform all duties and exercise all powers usually pertaining to the office of a chief executive officer and a chief operating officer of a corporation. He shall have the authority to sign, in the name and on behalf of the Corporation, checks, orders, contracts, leases, notes, drafts and other documents and instruments in connection with the business of the Corporation, and together with the Secretary or an Assistant Secretary, conveyances of real estate and other documents and instruments to which the seal of the Corporation is affixed. He shall have the authority to cause the employment or appointment of such employees and agents of the Corporation as the conduct of the business of the Corporation may require, to fix their compensation, and to remove or suspend any employee or agent elected or appointed by the President or the Board of Directors. The President shall perform such other duties and have such other powers as the Board of Directors or the Chairman may from time to time prescribe. Section 4.07. THE VICE PRESIDENT. Each Vice President shall perform such duties and exercise such powers as may be assigned to him from time to time by the President. In the absence of the President, the duties of the President shall be performed and his powers may be exercised by such Vice President as shall be designated by the President, or failing such designation, such duties 13 shall be performed and such powers may be exercised by each Vice President in the order of their earliest election to that office; subject in any case to review and superseding action by the President. Section 4.08. THE SECRETARY. The Secretary shall have the following powers and duties: (a) He shall keep or cause to be kept a record of all the proceedings of the meetings of the stockholders and of the Board of Directors in books provided for that purpose. (b) He shall cause all notices to be duly given in accordance with the provisions of these By-Laws and as required by law. (c) Whenever any Committee shall be appointed pursuant to a resolution of the Board of Directors, he shall furnish a copy of such resolution to the members of such Committee. (d) He shall be the custodian of the records and of the seal of the Corporation and cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized in accordance with these By-Laws, and when so affixed he may attest the same. (e) He shall properly maintain and file all books, reports, statements, certificates and all other documents and records required by law, the Certificate of Incorporation or these By-Laws. (f) He shall have charge of the stock books and ledgers of the Corporation and shall cause the stock and transfer books to be kept in such manner as to show at any time the number of shares of stock of the Corporation of each class issued and outstanding, the names (alphabetically arranged) and the addresses of the holders of record of such shares, the number of shares held by each holder and the date as of which each became such holder of record. 14 (g) He shall sign (unless the Treasurer, an Assistant Treasurer or Assistant Secretary shall have signed) certificates representing shares of the Corporation the issuance of which shall have been authorized by the Board of Directors. (h) He shall perform, in general, all duties incident to the office of secretary and such other duties as may be specified in these By-Laws or as may be assigned to him from time to time by the Board of Directors, or the President. Section 4.09. THE TREASURER. The Treasurer shall have the following powers and duties: (a) He shall (at the direction of the Chief Financial Officer of the Corporation) have charge and supervision over and be responsible for the moneys, securities, receipts and disbursements of the Corporation, and shall keep or cause to be kept full and accurate records of all receipts of the Corporation. (b) He shall cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 8.05 of these By-Laws. (c) He shall cause the moneys of the Corporation to be disbursed by checks or drafts (signed as provided in Section 8.06 of these By-Laws) upon the authorized depositaries of the Corporation and cause to be taken and preserved proper vouchers for all moneys disbursed. (d) He shall (at the direction of the Chief Financial Officer of the Corporation) render to the Board of Directors or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer, and render a full financial report at the annual meeting of the stockholders, if called upon to do so. (e) He shall be empowered from time to time to require from all officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation. 15 (f) He may sign (unless an Assistant Treasurer or the Secretary or an Assistant Secretary shall have signed) certificates representing stock of the Corporation the issuance of which shall have been authorized by the Board of Directors. (g) He shall perform, in general, all duties incident to the office of treasurer and such other duties as may be specified in these By-Laws or as may be assigned to him from time to time by the Board of Directors, or the President. Section 4.10. ADDITIONAL OFFICERS. The Board of Directors may appoint such other officers and agents as it may deem appropriate, and such other officers and agents shall hold their offices for such terms and shall exercise such powers and perform such duties as may be determined from time to time by the Board of Directors. The Board of Directors from time to time may delegate to any officer or agent the power to appoint subordinate officers or agents and to prescribe their respective rights, terms of office, authorities and duties. Any such officer or agent may remove any such subordinate officer or agent appointed by him, for or without cause. Section 4.11. SECURITY. The Board of Directors may require any officer, agent or employee of the Corporation to provide security for the faithful performance of his duties, in such amount and of such character as may be determined from time to time by the Board of Directors. ARTICLE V CAPITAL STOCK Section 5.01. CERTIFICATES OF STOCK, UNCERTIFICATED SHARES. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until each certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock in the Corporation represented by certificates and 16 upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the Corporation, by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares registered in certificate form. Such certificate shall be in such form as the Board of Directors may determine, to the extent consistent with applicable law, the Certificate of Incorporation and these By-Laws. Section 5.02. SIGNATURES; FACSIMILE. All of such signatures on the certificate may be a facsimile, engraved or printed, to the extent permitted by law. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Section 5.03. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors may direct that a new certificate be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon delivery to the Board of Directors of an affidavit of the owner or owners of such certificate, setting forth such allegation. The Board of Directors may require the owner of such lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate. Section 5.04. TRANSFER OF STOCK. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Within a reasonable time after the transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of 17 the General Corporation Law of the State of Delaware. Subject to the provisions of the Certificate of Incorporation and these By-Laws, the Board of Directors may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, transfer and registration of shares of the Corporation. Section 5.05. RECORD DATE. In order to determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors, and which shall not be more than sixty nor less than ten days before the date of such meeting. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at 18 the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights of the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 5.06. REGISTERED STOCKHOLDERS. Prior to due surrender of a certificate for registration of transfer, the Corporation may treat the registered owner as the person exclusively entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to exercise all the rights and powers of the owner of the shares represented by such certificate, and the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person, whether or not the Corporation shall have notice of such claim or interests. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the Corporation for transfer or uncertificated shares are requested to be transferred, both the transferor and transferee request the Corporation to do so. Section 5.07. TRANSFER AGENT AND REGISTRAR. The Board of Directors may appoint one or more transfer agents and one or more registrars, and may require all certificates representing shares to bear the signature of any such transfer agents or registrars. 19 ARTICLE VI INDEMNIFICATION Section 6.01. NATURE OF INDEMNITY. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to become a director or officer of the Corporation, or is or was serving or has agreed to serve at the request of the Corporation as a director or officer, of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, and may indemnify any person who was or is a party or is threatened to be made a party to such an action, suit or proceeding by reason of the fact that he is or was or has agreed to become an employee or agent of the Corporation, or is or was serving or has agreed to serve at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful; except that in the case of an action or suit by or in the right of the Corporation to procure a judgment in its favor (1) such indemnification shall be limited to expenses (including attorneys' fees) actually and reasonably incurred by such person in the defense or settlement of such action or suit, and (2) no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. 20 The termination of any action, suit or proceeding by judgment, order settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 6.02. SUCCESSFUL DEFENSE. To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 6.01 hereof or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Section 6.03. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any indemnification of a director or officer of the Corporation under Section 6.01 hereof (unless ordered by a court) shall be made by the Corporation unless a determination is made that indemnification of the director or officer is not proper in the circumstances because he has not met the applicable standard of conduct set forth in Section 6.01 hereof. Any indemnification of an employee or agent of the Corporation under Section 6.01 hereof (unless ordered by a court) may be made by the Corporation upon a determination that indemnification of the employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 6.01 hereof. Any such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. Section 6.4. ADVANCE PAYMENT OF EXPENSES. Expenses (including attorneys' fees) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors may authorize the Corporation's counsel to represent such director, officer, employee or agent in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding. 21 Section 6.05. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any indemnification of a director or officer of the Corporation under Sections 6.01 and 6.02, or advance of costs, charges and expenses to a director or officer under Section 6.04 of this Article, shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the Corporation that the director or officer is entitled to indemnification pursuant to this Article is required, and the Corporation fails to respond within sixty days to a written request for indemnity, the Corporation shall be deemed to have approved such request. If the Corporation denies a written request for indemnity or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article shall be enforceable by the director or officer in any court of competent jurisdiction. Such person's costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 6.04 of this Article where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Section 6.01 of this Article, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 6.01 of this Article, nor the fact that there has been an actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and 22 its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 6.06. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing indemnification provisions shall be deemed to be a contract between the Corporation and each director, officer, employee and agent who serves in any such capacity at any time while these provisions as well as the relevant provisions of the Delaware Corporation Law are in effect and any repeal or modification thereof shall not affect any right or obligation then existing with respect to any state of facts then or previously existing or any action, suit or proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such a "contract right" may not be modified retroactively without the consent of such director, officer, employee or agent. The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 6.07. INSURANCE. The Corporation shall purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the Corporation , or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him or on his behalf in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article, PROVIDED that such insurance is available on acceptable terms, which determination shall be made by a vote of a majority of the entire Board of Directors. Section 6.08. SEVERABILITY. If this Article or any portion hereof shall be invalidated on any ground 23 by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director or officer and may indemnify each employee or agent of the Corporation as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law. ARTICLE VII OFFICES Section 7.01. REGISTERED OFFICE. The registered office of the Corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle. Section 7.02. OTHER OFFICES. The Corporation may maintain offices or places of business at such other locations within or without the State of Delaware as the Board of Directors may from time to time determine or as the business of the Corporation may require. ARTICLE VIII GENERAL PROVISIONS Section 8.01. DIVIDENDS. Subject to any applicable provisions of law and the Certificate of Incorporation, dividends upon the shares of the Corporation may be declared by the Board of Directors at any regular or special meeting of the Board of Directors and any such dividend may be paid in cash, property, or shares of the Corporation's Capital Stock. A member of the Board of Directors, or a member of any Committee designated by the Board of Directors shall be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or Committees of the Board of Directors, or by any other person as to 24 matters the Director reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid. Section 8.02. RESERVES. There may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation or for such other purpose as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may similarly modify or abolish any such reserve. Section 8.03. EXECUTION OF INSTRUMENTS. The President, any Vice President, the Secretary or the Treasurer may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors or the President may authorize any other officer or agent to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. Any such authorization may be general or limited to specific contracts or instruments. Section 8.04. CORPORATE INDEBTEDNESS. No loan shall be contracted on behalf of the Corporation, and no evidence of indebtedness shall be issued in its name, unless authorized by the Board of Directors or the President. Such authorization may be general or confined to specific instances. Loans so authorized may be effected at any time for the Corporation from any bank, trust company or other institution, or from any firm, corporation or individual. All bonds, debentures, notes and other obligations or evidences of indebtedness of the Corporation issued for such loans shall be made, executed and delivered as the Board of Directors or the President shall authorize. When so authorized by the Board of Directors or the President, any part of or all the properties, including contract rights, assets, business or good will of the Corporation, whether then owned or thereafter acquired, may be mortgaged, pledged, hypothecated or 25 conveyed or assigned in trust as security for the payment of such bonds, debentures, notes and other obligations or evidences of indebtedness of the Corporation, and of the interest thereon, by instruments executed and delivered in the name of the Corporation. Section 8.05. DEPOSITS. Any funds of the Corporation may be deposited from time to time in such banks, trust companies or other depositaries as may be determined by the Board of Directors or the President, or by such officers or agents as may be authorized by the Board of Directors or the President to make such determination. Section 8.06. CHECKS. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such agent or agents of the Corporation, and in such manner, as the Board of Directors or the President form time to time may determine. Section 8.07. SALE, TRANSFER, ETC. OF SECURITIES. To the extent authorized by the Board of Directors or by the President, any Vice President, the Secretary or the Treasurer or any other officers designated by the Board of Directors or the President may sell, transfer, endorse, and assign any shares of stock, bonds or other securities owned by or held in the name of the Corporation, and may make, execute and deliver in the name of the Corporation, under its corporate seal, any instruments that may be appropriate to effect any such sale, transfer, endorsement or assignment. Section 8.08. VOTING AS STOCKHOLDER. Unless otherwise determined by resolution of the Board of Directors, the President or any Vice President shall have full power an authority on behalf of the Corporation to attend any meeting of stockholders of any corporation in which the Corporation may hold stock, and to act, vote (or execute proxies to vote) and exercise in person or by proxy all other rights, powers and privileges incident to the ownership of such stock. Such officers acting on behalf of the Corporation shall have full power and authority to execute any instrument expressing consent to or dissent from any action of any such corporation without a meeting. The Board of Directors may by resolution from time to time confer such power and authority upon any other person or persons. 26 Section 8.09. SEAL. The seal of the Corporation shall be circular in form and shall contain the name of the Corporation, the year of its incorporation and the words "Corporate Seal" and "Delaware". The form of such seal shall be subject to alteration by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced; or may be used in any other lawful manner. Section 8.10. BOOKS AND RECORDS; INSPECTION. Except to the extent otherwise required by law, the books and records of the Corporation shall be kept at such place or places within or without the State of Delaware as may be determined from time to time by the Board of Directors. ARTICLE IX AMENDMENT OF BY-LAWS Section 9.01. AMENDMENT. These By-Laws may be amended, altered or repealed (a) by resolution adopted by a majority of the Board of Directors at any special or regular meeting of the Board if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting; or (b) at any regular or special meeting of the stockholders if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting. ARTICLE X CONSTRUCTION Section 10.01. CONSTRUCTION. In the event of any conflict between the provisions of these By-Laws as in effect from time to time and the provisions of the certificate of incorporation of the Corporation as in effect from time to time, the provisions of such certificate of incorporation shall be controlling. 27 EX-4.3 3 EXHIBIT 4.3 EXHIBIT 4.3 A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN Effective Date: September 1, 1996 TABLE OF CONTENTS ARTICLE PAGE - ------- ---- I. DEFINITIONS AND CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . 1 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (a) ACCOUNT(S). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (b) AFFILIATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (c) BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (d) CODE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (e) COMMITTEE:. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (f) COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . 2 (g) COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (h) COMPANY DEFERRAL ACCOUNT. . . . . . . . . . . . . . . . . . . . 2 (i) COMPANY DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . 2 (j) DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (k) DISABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (l) EFFECTIVE DATE. . . . . . . . . . . . . . . . . . . . . . . . . 2 (m) ELIGIBLE INDIVIDUAL . . . . . . . . . . . . . . . . . . . . . . 2 (n) ENTRY DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (o) FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (p) INSIDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (q) MEMBER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (r) MEMBER DEFERRAL ACCOUNT . . . . . . . . . . . . . . . . . . . . 2 (s) MEMBER DEFERRALS. . . . . . . . . . . . . . . . . . . . . . . . 3 (t) PARENT BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . 3 (u) PARENT COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 3 (v) PARTNERSHIP PLAN. . . . . . . . . . . . . . . . . . . . . . . . 3 (w) PAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (x) PLAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (y) PLAN ADMINISTRATOR. . . . . . . . . . . . . . . . . . . . . . . 3 (z) PLAN YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (aa) REGULATION S-K. . . . . . . . . . . . . . . . . . . . . . . . . 3 (bb) RETIREMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (cc) STOCK FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (dd) TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (ee) TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 3 (ff) TRUST FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (gg) TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (hh) UNFORESEEABLE FINANCIAL EMERGENCY . . . . . . . . . . . . . . . 3 (ii) VALUATION DATES . . . . . . . . . . . . . . . . . . . . . . . . 4 (jj) VESTED INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 4 (kk) VESTING SERVICE . . . . . . . . . . . . . . . . . . . . . . . . 4 1.2 NUMBER AND GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.3 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 (i) II. PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.1 ELIGIBILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.2 PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. ACCOUNT CREDITS AND ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . 5 3.1 MEMBER DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.2 COMPANY DEFERRALS. . . . . . . . . . . . . . . . . . . . . . . . . . 7 3.3 ALLOCATION OF NET INCOME OR NET LOSS EQUIVALENTS.. . . . . . . . . . 8 IV. DEEMED INVESTMENT OF FUNDS. . . . . . . . . . . . . . . . . . . . . . . . 8 V. DETERMINATION OF VESTED INTEREST AND FORFEITURES. . . . . . . . . . . . . 9 5.1 MEMBER DEFERRAL ACCOUNT. . . . . . . . . . . . . . . . . . . . . . . 9 5.2 COMPANY DEFERRAL ACCOUNT . . . . . . . . . . . . . . . . . . . . . . 9 5.3 FORFEITURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 VI. WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 6.1 IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 6.2 UNFORESEEABLE FINANCIAL EMERGENCY. . . . . . . . . . . . . . . . . .10 6.3 ELECTIVE WITHDRAWAL. . . . . . . . . . . . . . . . . . . . . . . . .10 VII. DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 7.1 AMOUNT OF BENEFIT. . . . . . . . . . . . . . . . . . . . . . . . . .11 7.2 TIME OF PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . .11 7.3 ALTERNATIVE FORMS OF BENEFIT PAYMENTS. . . . . . . . . . . . . . . .11 7.4 DESIGNATION OF BENEFICIARIES . . . . . . . . . . . . . . . . . . . .12 7.5 CHANGE IN PAY-OUT OF CERTAIN BENEFITS. . . . . . . . . . . . . . . .12 7.6 ACCELERATED PAY-OUT DUE TO EMERGENCY . . . . . . . . . . . . . . . .13 7.7 DEFERRED PAY-OUT DUE TO LOSS OF TAX DEDUCTION. . . . . . . . . . . .13 7.8 MODIFICATIONS DUE TO CHANGE IN CONTROL . . . . . . . . . . . . . . .13 7.9 PAYMENT OF BENEFITS. . . . . . . . . . . . . . . . . . . . . . . . .13 7.10 UNCLAIMED BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . .13 VIII. ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . .14 8.1 APPOINTMENT OF PLAN ADMINISTRATOR. . . . . . . . . . . . . . . . . .14 8.2 MEMBERSHIP OF PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . .14 8.3 RECORDS AND PROCEDURES . . . . . . . . . . . . . . . . . . . . . . .14 8.4 SELF-INTEREST OF PLAN ADMINISTRATOR. . . . . . . . . . . . . . . . .14 8.5 COMPENSATION AND BONDING . . . . . . . . . . . . . . . . . . . . . .14 8.6 PLAN ADMINISTRATOR POWERS AND DUTIES . . . . . . . . . . . . . . . .14 8.7 COMPANY TO SUPPLY INFORMATION. . . . . . . . . . . . . . . . . . . .15 8.8 CLAIMS REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . .15 8.9 MANDATORY ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . .16 8.10 INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 (ii) IX. ADMINISTRATION OF FUNDS . . . . . . . . . . . . . . . . . . . . . . . . .17 9.1 PAYMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . .17 9.2 TRUST FUND PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . .17 X. NATURE OF THE PLAN. . . . . . . . . . . . . . . . . . . . . . . . . . . .17 XI. ADOPTING ENTITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 XII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 12.1 NOT CONTRACT OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . .18 12.2 ALIENATION OF INTEREST FORBIDDEN . . . . . . . . . . . . . . . . . .18 12.3 WITHHOLDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 12.4 GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 12.5 AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . . . .19 12.6 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 12.7 GOVERNING LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . .19 (iii) A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN W I T N E S S E T H : WHEREAS, A.P.S., INC. and other adopting entities desire to adopt the A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN (the "PLAN") for the benefit of certain eligible individuals; NOW THEREFORE, the Plan is hereby adopted as follows, effective as of September 1, 1996: I. DEFINITIONS AND CONSTRUCTION 1.1 DEFINITIONS. Where the following words and phrases appear in the Plan, they shall have the respective meanings set forth below, unless their context clearly indicates to the contrary. (a) ACCOUNT(S): The Member Deferral Account and/or Company Deferral Account of a Member, including the amounts credited thereto. (b) AFFILIATE: Each corporation or unincorporated entity, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with A.P.S., Inc. For this purpose, control shall be determined by a more than 50% ownership standard. (c) BOARD: The Board of Directors of A.P.S., Inc. (d) CODE: The Internal Revenue Code of 1986, as amended. (e) COMMITTEE: A committee of the Board of Directors of the Parent Company that is composed solely of two or more directors, none of whom (i) is an officer of the Parent Company or a parent or subsidiary thereof or is otherwise employed by the Parent Company or a parent or subsidiary thereof; (ii) receives compensation, either directly or indirectly, from the Parent Company or a parent or subsidiary thereof for services rendered as a consultant or in any capacity other than as a director, except for an amount that does not exceed the dollar amount for which disclosure would be required pursuant to Item 404(a) of Regulation S-K; (iii) possesses an interest in any other transaction for which disclosure would be required pursuant to Item 404(a) of Regulation S-K; or (iv) is engaged in a business -1- relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K. (f) COMMON STOCK: APS Holding Corporation Class A Common Stock, $.01 par value. (g) COMPANY: A.P.S., Inc. and any other adopting entity which adopts the Plan pursuant to the provisions of Article XI. (h) COMPANY DEFERRAL ACCOUNT: An individual account for each Member to which is credited the Company Deferrals made on his behalf pursuant to Section 3.2 and which is credited (or debited) for such account's allocation of net income (or net loss) equivalents as provided in Section 3.3. (i) COMPANY DEFERRALS: Deferrals made by the Company on a Member's behalf pursuant to Section 3.2. (j) DEFERRALS: Company Deferrals and Member Deferrals made hereunder. (k) DISABILITY: The total and permanent disability of a Member, as determined in the sole discretion of the Plan Administrator, based on a written medical opinion (unless waived by the Plan Administrator as unnecessary), that such Member is permanently incapable of performing his job for physical or mental reasons. (l) EFFECTIVE DATE: September 1, 1996. (m) ELIGIBLE INDIVIDUAL: Any individual (i) who is employed by the Company as a Regional Vice President or a Corporate Director or with a higher level title and (ii) whose annual base compensation is at least $75,000. (n) ENTRY DATE: The first day of each Plan Year and, with respect to an Eligible Individual who becomes a Member on other than the first day of a Plan Year, the date such Eligible Individual becomes a Member in such Plan Year. (o) FUNDS: The investment funds designated from time to time for the deemed investment of Accounts pursuant to Article IV. (p) INSIDER: An officer or director subject to Section 16(b) of the Securities Exchange Act of 1934. (q) MEMBER: Each Eligible Individual who has met the eligibility requirements for participation in the Plan and who has become a Member pursuant to Article II. (r) MEMBER DEFERRAL ACCOUNT: An individual account for each Member to which is credited his Member Deferrals pursuant to Section 3.1 and which is credited (or debited) for such account's allocation of net income (or net loss) equivalents as provided in Section 3.3. -2- (s) MEMBER DEFERRALS: Deferrals made by a Member pursuant to Section 3.1. (t) PARENT BOARD: The Board of Directors of the Parent Company. (u) PARENT COMPANY: APS Holding Corporation, a Delaware corporation. (v) PARTNERSHIP PLAN: The A.P.S., Inc. Partnership Plan, as amended from time to time. (w) PAY: The total of all amounts paid by the Company to or for the benefit of a Member for services rendered or labor performed, which are required to be reported on such Member's federal income tax withholding statement(s) (Form W-2 or its subsequent equivalent), excluding taxable income resulting from the exercise of nonqualified stock options, the imputed value of group term life insurance, relocation reimbursements and from non-cash executive perquisites, plus any amounts such Member could have received in cash in lieu of Member Deferrals pursuant to Section 3.1. (x) PLAN: The A.P.S., Inc. Executive 401(k) Deferral Plan, as amended from time to time. (y) PLAN ADMINISTRATOR: The Plan administrator designated pursuant to Section 8.1. (z) PLAN YEAR: The short period commencing on the Effective Date and ending on December 31, 1996, and thereafter the twelve-consecutive month period commencing January 1 of each year. (aa) REGULATION S-K: Regulation S-K under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended (17 C.F.R. 229.10 et seq.). (bb) RETIREMENT: Termination of employment with the Company and its Affiliates after attainment of age sixty-five or attainment of age fifty-five with ten years of Vesting Service. (cc) STOCK FUND: The A.P.S. Holding Corporation Common Stock Fund. (dd) TRUST: The trust, if any, established under the Trust Agreement. (ee) TRUST AGREEMENT: The agreement, if any, entered into between the Company and the Trustee pursuant to Article X. (ff) TRUST FUND: The funds and properties, if any, held pursuant to the provisions of the Trust Agreement, together with all income, profits and increments thereto. (gg) TRUSTEE: The trustee appointed by the Board who is qualified and acting under the Trust Agreement at any time. (hh) UNFORESEEABLE FINANCIAL EMERGENCY: An unexpected need of a Member for cash that (i) arises from an illness, casualty loss, sudden financial reversal, or such other unforeseeable -3- occurrence that is caused by an event beyond the control of such Member, (ii) would result in severe financial hardship to such Member if his Deferral election was not cancelled pursuant to Section 3.1(k) and/or if a withdrawal or benefit payment pursuant to Article VI or Section 7.6 was not permitted, and (iii) is not reasonably satisfiable from other resources of such Member. Cash needs arising from foreseeable events, such as the purchase of a house or education expenses for children, shall not be considered to be the result of an Unforeseeable Financial Emergency. (ii) VALUATION DATES: Each Entry Date and any other interim Valuation Date designated by the Plan Administrator on a nondiscriminatory basis. Notwithstanding the foregoing, an interim Valuation Date shall be designated as the date next preceding the date a withdrawal or payment of a Member's benefit is to be made or to commence pursuant to Article VI or Article VII. (jj) VESTED INTEREST: The portion of a Member's Accounts which, pursuant to the Plan, is nonforfeitable. (kk) VESTING SERVICE: With respect to any Member, such Member's "Years of Vesting Service" under the Partnership Plan. 1.2 NUMBER AND GENDER. Wherever appropriate herein, words used in the singular shall be considered to include the plural and words used in the plural shall be considered to include the singular. The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender. 1.3 HEADINGS. The headings of Articles and Sections herein are included solely for convenience, and if there is any conflict between such headings and the text of the Plan, the text shall control. II. PARTICIPATION 2.1 ELIGIBILITY. Any Eligible Individual who is a "Participant" in the Partnership Plan with respect to a "Plan Year" under the Partnership Plan and who elects the maximum "Salary Reduction Contributions" as are permitted under the Partnership Plan for such Plan Year shall be eligible to become a Member of the Plan for such Plan Year by electing to make Member Deferrals pursuant to Section 3.1. 2.2 PARTICIPATION. (a) Prior to each Entry Date, the Plan Administrator shall notify those Eligible Individuals who are determined by the Plan Administrator to be eligible to initially become Members pursuant to Section 2.1 as of such Entry Date. Any such Eligible Individual may become a Member for the Plan Year beginning on such Entry Date by effecting, prior to such Entry Date and within the -4- time period prescribed by the Plan Administrator, the Member Deferral election prescribed by the Plan Administrator. Notwithstanding any provision herein to the contrary, an Eligible Individual who first becomes an Eligible Individual on other than the first day of a Plan Year may become a Member on the first day of the calendar month coinciding with or next following the date he first becomes an Eligible Individual for the remainder of such Plan Year with respect to Member Deferrals pursuant to Section 3.1 by effecting, prior to or within 30 days after the date he first becomes an Eligible Individual and within the time period prescribed by the Plan Administrator, the Member Deferral election prescribed by the Plan Administrator; provided, however, any such Eligible Individual must meet the eligibility requirements of Section 2.1 in order to be eligible to make Member Deferrals pursuant to Section 3.1. (b) Notwithstanding any provision herein to the contrary, an Eligible Individual who has become a Member of the Plan shall cease to be entitled to make Member Deferrals hereunder effective as of any date designated by the Plan Administrator. Any such Plan Administrator action shall be communicated to the affected individual prior to the effective date of such action. Any such Eligible Individual may again become entitled to make Member Deferrals hereunder for any subsequent Plan Year selected by the Plan Administrator in its sole discretion. III. ACCOUNT CREDITS AND ALLOCATIONS 3.1 MEMBER DEFERRALS. (a) As a condition to Plan participation, a Member meeting the eligibility requirements of Section 2.1 shall elect to defer from his Pay an amount equal to 6% of his "Compensation" while a "Participant," as defined under the Partnership Plan, for a Plan Year without regard to the maximum dollar limitation under Section 401(a)(17) of the Code and without regard to the exclusion for deferred compensation respecting Member Deferrals under the Plan, reduced by his "Salary Reduction Contributions" made to the Partnership Plan for such "Plan Year;" and (b) A Member meeting the eligibility requirements of Section 2.1 may elect to defer from his Pay an integral percentage of from 1% to 25% of his base annual salary for a Plan Year; and/or (c) A Member meeting the eligibility requirements of Section 2.1 may elect to defer from his Pay an integral percentage of from 1% to 25% of his annual incentive bonus for the fiscal year of the Company commencing within a Plan Year. (d) Notwithstanding the foregoing, with respect to an Eligible Individual who first becomes a Member on other than the first day of a Plan Year, any such Member Deferrals pursuant to Section 3.1(a) and/or 3.1(b) shall apply only for the portion of such Plan Year commencing with the date he first becomes a Member and ending on the last day of such Plan Year. Notwithstanding the foregoing, with respect to the Plan's initial election, any such Member Deferrals pursuant to -5- Section 3.1(c) shall apply to the annual incentive bonus for the fiscal year of the Company commencing in 1996. (e) Pay for a Plan Year not so deferred by such election pursuant to this Section shall be received by such Member in cash. A Member's election to defer an amount of his Pay pursuant to this Section shall be made by effecting, in the form prescribed by the Plan Administrator, a Member Deferral election pursuant to which the Member authorizes the Company to reduce his Pay in the elected amount and the Company, in consideration thereof, agrees to credit an equal amount to the Plan. The reduction in a Member's Pay pursuant to Section 3.1(a) and/or 3.1(b) shall be effected by equal Pay reductions each pay period during the applicable portion of the Plan Year as determined by the Plan Administrator following the effective date of such election. The reduction in a Member's Pay pursuant to Section 3.1(c) shall be effected by a Pay reduction at the time such annual bonus is paid. Such Pay reductions shall be within the Plan Year to which the Member Deferral election relates, except that Pay reductions attributable to elections pursuant to Section 3.1(c) shall be made within the next following Plan Year. Member Deferrals made by a Member shall be credited to his Member Deferral Account as of the date deferred. (f) Notwithstanding the foregoing, a Member Deferral election of a Member pursuant to Section 3.1(a) and/or 3.1(b) for a Plan Year shall be automatically suspended during such Member's unpaid leave of absence and upon termination of such Member's employment with the Company and its Affiliates. A Member Deferral election of a Member pursuant to Section 3.1(a) and/or 3.1(b) may, with the consent of the Plan Administrator, be suspended for the remainder of the Plan Year in which such Member has an unpaid leave of absence. A Member Deferral election of a Member pursuant to Section 3.1(c) may, with the consent of the Plan Administrator, be suspended for the Plan Year in which such Member has an unpaid leave of absence or terminates employment with the Company and its Affiliates. Any such Member may again become entitled to make Member Deferrals hereunder for any subsequent Plan Year following return to full-time employment. (g) A Member Deferral election pursuant to Section 3.1 shall become effective as of the Entry Date which is on or after the date the election is effected by the Member; provided, that for a Member's initial year of eligibility for the Plan, Member Deferrals pursuant to Section 3.1(c) shall apply for the full annual incentive bonus payable for the fiscal year of the Company commencing within the Plan Year in which such Member's initial year of eligibility occurs. A Member Deferral election shall remain in force and effect for the entire (or partial, if applicable) Plan Year to which such election relates. A Member Deferral election pursuant to Section 3.1 (other than with respect to the timing of distributions prior to termination of employment with the Company and its Affiliates) shall remain in force and effect for each subsequent Plan Year (following the Member's initial year of participation in the Plan) for which he satisfies the eligibility requirements set forth in Section 2.1, unless and until such election is changed or revoked by such Member prior to the Entry Date of the subsequent Plan Year to which such change or revocation relates. (h) A Member Deferral election shall indicate the applicable time and form of payment, as provided in Sections 7.2 and 7.3, for the Pay deferred thereunder for such Plan Year and -6- the net income (or net loss) equivalents allocated with respect thereto. Such time and form of payment election for such Plan Year shall also apply to any Company Deferrals for such Plan Year and the net income (or net loss) equivalents allocated with respect thereto. Each Member's Accounts shall be divided into subaccounts to reflect such Member's various elections respecting time and form of payment. (i) A Member who has made a Member Deferral election pursuant to Section 3.1 may change his election, as of the Entry Date of any subsequent Plan Year, by effecting a new Member Deferral election prior to such Entry Date and within the time period prescribed by the Plan Administrator. (j) A Member who has made a Member Deferral election pursuant to Section 3.1 may cancel his election, as of the Entry Date of any subsequent Plan Year, by effecting the same in the form prescribed by the Plan Administrator prior to such Entry Date and within the time period prescribed by the Plan Administrator. A Member who so cancels his Member Deferral election may again make a new such Member Deferral election for a subsequent Plan Year, if he satisfies the eligibility requirements set forth in Section 2.1, by effecting a new such Member Deferral election prior to the Entry Date of such Plan Year and within the time period prescribed by the Plan Administrator. (k) In the event that the Plan Administrator, upon written petition of a Member, determines in its sole discretion that such Member has suffered an Unforeseeable Financial Emergency, the Member Deferral election of such Member then in effect, if any, shall be terminated as soon as administratively practicable after such determination. A Member whose Member Deferral election has been so terminated may again make a new Member Deferral election for a subsequent Plan Year that begins at least twelve months after the effective date of such termination, if he satisfies the eligibility requirements set forth in Section 2.1, by effecting a new Member Deferral election for such Plan Year and within the time period prescribed by the Plan Administrator. 3.2 COMPANY DEFERRALS. (a) For each calendar month, the Company shall make Company Deferrals on a Member's behalf in an amount which equals 50% of the Member Deferrals made pursuant to Section 3.1(a) by such Member during such month. (b) Company Deferrals made on a Member's behalf pursuant to Section 3.2(a) shall be credited to his Company Deferral Account in accordance with the procedures established from time to time by the Plan Administrator. (c) As of any date selected by the Company, the Company may make Company Deferrals on a Member's behalf in such amount, if any, as the Company shall determine in its sole discretion. Such Company Deferrals may be made on behalf of some Members but not others, and such Company Deferrals may vary among individual Members in amount and/or with respect to the Account to which they are credited. -7- 3.3 ALLOCATION OF NET INCOME OR NET LOSS EQUIVALENTS. (a) As of each Valuation Date, the Plan Administrator shall determine the net income (or net loss) equivalents of each Fund for the period elapsed since the next preceding Valuation Date. The net income (or net loss) equivalent of each Fund since the next preceding Valuation Date shall be ascertained by the Plan Administrator based upon changes in net asset value in such manner as it deems appropriate, which may include expenses of operating the Fund. (b) For purposes of allocations of net income (or net loss) equivalents, each Member's Accounts shall be divided into subaccounts to reflect such Member's deemed investment in a particular Fund or Funds pursuant to Article IV. As of each Valuation Date, the net income (or net loss) equivalent of each Fund, separately and respectively, shall be allocated among the corresponding subaccounts of the Members who were deemed to have had such corresponding subaccounts invested in such Funds since the next preceding Valuation Date. (c) So long as there is any balance in any Account, such Account shall continue to receive allocations pursuant to this Section. IV. DEEMED INVESTMENT OF FUNDS Each Member shall designate, in accordance with the procedures established from time to time by the Plan Administrator, the manner in which the amounts allocated to his Accounts shall be deemed to be invested from among the Funds made available from time to time for such purpose by the Plan Administrator, and such Funds shall include the Stock Fund. Such Member may designate one of such Funds for the deemed investment of all the amounts allocated to his Accounts or he may split the deemed investment of the amounts allocated to his Accounts between such Funds in 5% increments. Notwithstanding the foregoing, a Member may not initially designate the Stock Fund for greater than 50% of the amounts to be allocated to his Accounts. If a Member fails to make a proper designation, then his Accounts shall be deemed to be invested in the Fund or Funds designated by the Plan Administrator from time to time in a uniform and nondiscriminatory manner. Any such initial designation by an Insider affecting the Stock Fund shall be approved in advance of the effective date of such initial designation by either the Parent Board or the Committee. A Member may change his deemed investment designation for future amounts to be allocated to his Accounts. Any such change shall be made as of the first day of any calendar quarter in accordance with the procedures established by the Plan Administrator, and the frequency of such changes may be limited by the Plan Administrator. Any such change in designation by an Insider affecting the Stock Fund shall be approved in advance of the effective date of such change of designation by either the Parent Board or the Committee. Notwithstanding the foregoing, a Member may not designate the Stock Fund for greater than 50% of the future amounts to be allocated to his Accounts. -8- A Member may elect to convert his deemed investment designation with respect to the amounts already allocated to his Accounts. Any such conversion shall be made as of the first day of any calendar quarter in accordance with the procedures established by the Plan Administrator, and the frequency of such conversions may be limited by the Plan Administrator. No election of a conversion designation by an Insider which has the effect of increasing the total amount allocated to the Stock Fund may be made on a date which is less than six months following (i) the date of any prior election of a conversion designation by such Insider which had the effect of decreasing the total amount allocated to the Stock Fund or (ii) the date of any election by such Insider with respect to any other plan of the Parent Company or any subsidiary thereof which had the effect (directly or indirectly) of making a disposition on behalf of such Insider of Common Stock. No election of a conversion designation by an Insider which has the effect of decreasing the total amount allocated to the Stock Fund may be made on a date which is less than six months following (i) the date of any prior election of a conversion designation by such Insider which had the effect of increasing the total amount allocated to the Stock Fund or (ii) the date of any election by such Insider with respect to any other plan of the Parent Company or any subsidiary thereof which had the effect (directly or indirectly) of making an acquisition on behalf of the Insider of Common Stock. The restrictions contained herein regarding investment designations, changes, and/or conversions by Insiders respecting the Stock Fund are intended to comply with, and enable Insiders to rely upon, the exemption provided by Rule 16b-3 under the Securities Exchange Act of 1934. Any future amendment to Rule 16b-3 or any successor rule promulgated by the Securities and Exchange Commission affecting the investment by Insiders in the Stock Fund shall be incorporated by reference herein and be deemed to be an amendment to the Plan in order that Insiders shall continue to be entitled to rely upon the exemption provided by such rule without any interruption. Notwithstanding the foregoing, the Plan Administrator may alter the designation, change and/or conversion restrictions applicable to an Insider, as set forth in this Article IV, as a result of changes in Rule 16b-3 under the Securities Exchange Act of 1934. V. DETERMINATION OF VESTED INTEREST AND FORFEITURES 5.1 MEMBER DEFERRAL ACCOUNT. A Member shall have a 100% Vested Interest in his Member Deferral Account at all times. 5.2 COMPANY DEFERRAL ACCOUNT. A Member shall have a Vested Interest in his Company Deferral Account equal to his "Vested Percentage" in his "Employer Matching Contribution Account" under the Partnership Plan. Further, a Member shall have a 100% Vested Interest in his Company Deferral Account upon his termination of employment with the Company and its Affiliates due to Retirement, Disability, or death. 5.3 FORFEITURES. A Member who terminates employment with the Company and its Affiliates with a Vested Interest in his Company Deferral Account that is less than 100% shall forfeit to the Company the nonvested portion of such Company Deferral Account as of the date of such termination. -9- VI. WITHDRAWALS 6.1 IN GENERAL. Except as provided in this Article VI and in Article VII, Members shall not be permitted to make withdrawals from the Plan. Members shall not, at any time, be permitted to borrow from the Plan. 6.2 UNFORESEEABLE FINANCIAL EMERGENCY. In the event that the Plan Administrator, upon written petition of a Member, determines in its sole discretion that such Member has suffered an Unforeseeable Financial Emergency, such Member shall be entitled to a benefit, determined as of any Valuation Date, in an amount not to exceed the lesser of (1) the amount determined by the Plan Administrator as necessary to meet such Member's needs created by the Unforeseeable Financial Emergency or (2) the then value of such Member's Vested Interest in his Accounts. Such withdrawal benefit shall be paid in a single lump sum, cash payment as soon as administratively practicable after the Plan Administrator has made its determinations with respect to the availability and amount of such benefit. If a Member's Account(s) contain more than one distribution subaccount, such withdrawal benefit shall be considered to have been distributed, first, from the subaccount with respect to which the earliest distribution would be made, then, from the subaccount with respect to which the next earliest distribution would be made, and continuing in such manner until all of such subaccounts necessary to satisfy the withdrawal benefit have been exhausted. Moreover, within the applicable Account or subaccount, such withdrawal benefit shall be considered to have been distributed from Deferrals (including net income (or net loss) equivalents attributable thereto) on a first-in, first-out basis. 6.3 ELECTIVE WITHDRAWAL. (a) A Member may elect at any time, by effecting the election procedure prescribed by the Plan Administrator, to withdraw as a benefit all, but not less than all, of his Vested Interest in his Accounts as of any Valuation Date, subject to a withdrawal penalty of 10% of the amount withdrawn. Upon any such withdrawal, the withdrawal penalty shall be forfeited to the Company. Upon any such withdrawal, such Member's participation in the Plan shall terminate and no further Deferrals shall be made under the Plan on behalf of such Member for the remainder of the Plan Year in which the withdrawal is made and for the next subsequent Plan Year. (b) No election of a withdrawal of an amount allocated to the Stock Fund may be made by an Insider on a date which is less than six months following (i) the date of any prior election to convert such Insider's deemed investment designation which had the effect of increasing the total amount allocated to the Stock Fund or (ii) the date of any election by such Insider with respect to any other plan of the Parent Company or any subsidiary thereof which had the effect (directly or indirectly) of making an acquisition on behalf of such Insider of Common Stock. -10- VII. DISTRIBUTIONS 7.1 AMOUNT OF BENEFIT. A Member or, in the event of the death of the Member, the Member's designated beneficiary as provided in Section 7.4, shall be entitled to a benefit equal in value to the Member's Vested Interest in his Accounts as of the Valuation Date next preceding the date the payment of such benefit is to be made or to commence pursuant to Section 7.2 (plus any annual bonus Deferral not previously allocated to such Accounts). 7.2 TIME OF PAYMENT. Payment of a Member's benefit under Section 7.1 shall be made or commence, with respect to such Member's Accounts, or with respect to such Member's subaccounts established pursuant to Section 3.1(h) separately and respectively, as soon as administratively practicable as of the date provided hereunder. A Member may, pursuant to Section 3.1(h), elect distribution, with respect to all or a part of his Deferrals for any Plan Year made pursuant to Section 3.1(b) and/or 3.1(c), but not with respect to net income equivalents thereon, to be made as of an Entry Date that is at least two years following the end of such Plan Year. Notwithstanding the foregoing, payment of a Member's benefit under Section 7.1 (but excluding any distribution elected pursuant to the preceding sentence) shall be made or commence as soon as administratively practicable after the first day of the calendar month following the date the Member terminates his employment with the Company and its Affiliates for any reason, including Retirement, Disability or death. For this purpose, a Member on Disability for a period of two years shall be deemed to have terminated his employment with the Company and its Affiliates as of the end of such two-year period. 7.3 ALTERNATIVE FORMS OF BENEFIT PAYMENTS. A Member's benefit under Section 7.1 payable (a) prior to termination of employment with the Company and its Affiliates or (b) payable after termination of employment with the Company and its Affiliates for a reason other than Retirement (inclusive of termination due to Disability) or death, shall be paid, with respect to such Member's Accounts, or with respect to such Member's subaccounts established pursuant to Section 3.1(h) separately and respectively, in one lump sum payment. A Member's benefit under Section 7.1 payable after a Member's Retirement (inclusive of termination due to Disability) for a reason other than death shall be paid, with respect to such Member's Accounts, or with respect to such Member's subaccounts established pursuant to Section 3.1(h) separately and respectively, in one of the following forms irrevocably elected by such Member pursuant to Section 3.1(h): (a) One lump sum payment; provided, that if such Member dies prior to the date the payment of his lump sum benefit is made, then such lump sum benefit shall be made to the Member's designated beneficiary as provided in Section 7.4; or (b) Annual installment payments for a term certain of either 5, 10, or 15 years payable to the Member or, in the event of such Member's death prior to the end of such term certain, to his designated beneficiary as provided in Section 7.4; provided, that to the extent such Member designates a non-spouse beneficiary, such beneficiary's share of the remaining installments shall be paid in one lump sum. -11- A Member's benefit under Section 7.1 payable after a Member's termination of employment by reason of death shall be paid, with respect to such Member's Accounts, or with respect to such Member's subaccounts established pursuant to Section 3.1(h) separately and respectively, in one of the following forms irrevocably elected by such Member pursuant to Section 3.1(h): (c) One lump sum payment; or (d) Annual installment payments for a term certain of either 5, 10, or 15 years payable to the Member's designated beneficiary as provided in Section 7.4 or, in the event of such beneficiary's death prior to the end of such term certain, to such beneficiary's executor or administrator, or to his heirs-at-law if there is no administration of such beneficiary's estate. Plan provisions to the contrary notwithstanding, if payments are to be made in annual installments, "installment valuation dates" shall be established as of each payment date. As of each such "installment valuation date," net income (or net loss) equivalents shall be allocated to the Member's Account(s) or subaccount(s). The installment payment to be made on behalf of a Member as of each such "installment valuation date" shall be determined by multiplying the balance of such Member's Account(s) or subaccount(s) as of such "installment valuation date" (after allocation of net income (or net loss) equivalents) by a fraction, the numerator of which is one and the denominator of which is the number of years remaining in the installment period. 7.4 DESIGNATION OF BENEFICIARIES. (a) Each Member shall have the right to designate the beneficiary or beneficiaries to receive payment of his benefit in the event of his death. Each such designation shall be made by executing the beneficiary designation form prescribed by the Plan Administrator and filing same with the Plan Administrator. Any such designation may be changed at any time by execution of a new designation in accordance with this Section. (b) If no such designation is on file with the Plan Administrator at the time of the death of the Member or such designation is not effective for any reason as determined by the Plan Administrator, then the designated beneficiary or beneficiaries to receive such benefit shall be as follows: (1) If a Member leaves a surviving spouse, his benefit shall be paid to such surviving spouse; (2) If a Member leaves no surviving spouse, his benefit shall be paid to such Member's executor or administrator, or to his heirs at law if there is no administration of such Member's estate. 7.5 CHANGE IN PAY-OUT OF CERTAIN BENEFITS. Notwithstanding any provision in Section 7.3 to the contrary, if a Member's benefit payments respecting any one subaccount established pursuant to Section 3.1(h) are to be paid in installments and the aggregate amount to be paid as of -12- the commencement of such installments with respect to such subaccount is less than $25,000, then the Plan Administrator shall cause the benefit payments with respect to such subaccount to be paid in one lump sum payment. 7.6 ACCELERATED PAY-OUT DUE TO EMERGENCY. Notwithstanding any provision in Sections 7.2 and 7.3 to the contrary, in the event that the Plan Administrator, upon written petition of a Member, determines in its sole discretion that such Member has suffered an Unforeseeable Financial Emergency, such Member shall be entitled to an accelerated payout of his benefit pursuant to Section 6.2. Any remaining amounts in such Member's Accounts following payment of such emergency benefit shall be payable at the time(s) and in the form(s) otherwise provided in Sections 7.2 and 7.3. 7.7 DEFERRED PAY-OUT DUE TO LOSS OF TAX DEDUCTION. If the Company determines in good faith that there is a reasonable likelihood that any benefits paid to a Member pursuant to this Article VII would not be deductible by the Company under applicable income tax provisions then in effect, then to the extent deemed necessary by the Company to ensure that the entire amount of any such distribution to a Member is deductible, the Company may defer payment of all or any portion of such benefits. Any amount deferred pursuant to this Section 7.7 shall continue to receive net income (or net loss) equivalents pursuant to the Plan until distribution. The amounts so deferred shall be distributed to the Member (or his beneficiary in the event of the Member's death) at the earliest possible date, as determined by the Company in good faith, as of which such deductibility will be ensured. 7.8 MODIFICATIONS DUE TO CHANGE IN CONTROL. Notwithstanding any provisions in Sections 7.2 and 7.3 to the contrary, in the event of the occurrence of a "Change in Control," as defined in Section 12.3 of the Trust, the Plan Administrator may, in its sole discretion, (a) change the time(s) and/or form(s) of payment elected by such Member pursuant to Sections 3.1(h), 7.2, and 7.3 to accelerate payment, (b) trigger full vesting in a Member's Company Deferral Account, and/or (c) terminate future Deferrals under the Plan. 7.9 PAYMENT OF BENEFITS. To the extent the Trust Fund has sufficient assets, the Trustee shall pay benefits to Members or their beneficiaries, except to the extent the Company pays the benefits directly and provides adequate evidence of such payment to the Trustee. To the extent the Trustee does not or cannot pay benefits out of the Trust Fund, the benefits shall be paid by the Company. Any benefit payments made to a Member or for his benefit pursuant to any provision of the Plan shall be debited to such Member's Accounts. All benefit payments shall be made in cash to the fullest extent practicable. 7.10 UNCLAIMED BENEFITS. In the case of a benefit payable on behalf of a Member, if, after exercising reasonable diligence, the Plan Administrator is unable to locate the Member or beneficiary to whom such benefit is payable, upon the Plan Administrator's determination thereof, such benefit shall be forfeited to the Company. Notwithstanding the foregoing, if subsequent to any such forfeiture the Member or beneficiary to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit shall be restored to the Plan by the Company. -13- VIII. ADMINISTRATION OF THE PLAN 8.1 APPOINTMENT OF PLAN ADMINISTRATOR. The general administration of the Plan shall be vested in the Plan Administrator which shall be the Compensation Committee of the Board of Directors of the Parent Company. At any time, the Plan Administrator may be changed by the Board. 8.2 MEMBERSHIP OF PLAN ADMINISTRATOR. As the membership of the Compensation Committee of the Board changes, so shall the membership of the Plan Administrator. 8.3 RECORDS AND PROCEDURES. The Plan Administrator shall keep appropriate records of its proceedings and the administration of the Plan and shall make available for examination during business hours to any Member or beneficiary such records as pertain to that individual's interest in the Plan. The Plan Administrator shall provide quarterly statements to each Member or beneficiary of his interest in the Plan. The Plan Administrator shall designate the person or persons who shall be authorized to sign for the Plan Administrator and, upon such designation, the signature of such person or persons shall bind the Plan Administrator. 8.4 SELF-INTEREST OF PLAN ADMINISTRATOR. No individual comprising the Plan Administrator shall have any right to vote or decide upon any matter relating solely to himself under the Plan or to vote in any case in which his individual right to claim any benefit under the Plan is particularly involved. In any case in which an individual comprising the Plan Administrator is so disqualified to act, the remaining individuals comprising the Plan Administrator or, if none, the Board shall decide the matter in which he is disqualified. 8.5 COMPENSATION AND BONDING. The Plan Administrator shall not receive compensation with respect to its services as Plan Administrator. The Plan Administrator shall not be required to furnish bond or security for the performance of its duties hereunder. 8.6 PLAN ADMINISTRATOR POWERS AND DUTIES. The Plan Administrator shall supervise the administration and enforcement of the Plan according to the terms and provisions hereof and shall have all powers necessary to accomplish these purposes, including, but not by way of limitation, the right, power, authority and duty: (a) to make rules, regulations and bylaws for the administration of the Plan which are not inconsistent with the terms and provisions hereof, provided such rules, regulations and bylaws are evidenced in writing and copies thereof are delivered to the Trustee and to the Company; (b) to construe all terms, provisions, conditions and limitations of the Plan; -14- (c) to correct any defect or supply any omission or reconcile any inconsistency that may appear in the Plan, in such manner and to such extent as it shall deem expedient to carry the Plan into effect for the greatest benefit of all interested parties; (d) to employ and compensate such accountants, attorneys, investment advisors and other agents and employees as the Plan Administrator may deem necessary or advisable in the proper and efficient administration of the Plan; (e) to determine all questions relating to eligibility; (f) to determine the amount, manner and time of payment of any benefits and to prescribe procedures to be followed by Members and their beneficiaries in obtaining benefits; (g) to make a determination as to the right of any person to a benefit under the Plan; and (h) to receive and review reports from the Trustee as to the financial condition of the Trust Fund, including its receipts and disbursements. 8.7 COMPANY TO SUPPLY INFORMATION. The Company shall supply full and timely information to the Plan Administrator relating to the Pay of all Members, their ages, their Retirement, Disability, death or other termination of employment and such other pertinent facts as the Plan Administrator may require. The Company shall advise the Trustee of such of the foregoing facts as are deemed necessary for the Trustee to carry out the Trustee's duties under the Plan. When making a determination in connection with the Plan, the Plan Administrator shall be entitled to rely upon the aforesaid information furnished by the Company. 8.8 CLAIMS REVIEW. In any case in which a claim for Plan benefits of a Member or beneficiary is denied or modified, the Plan Administrator shall furnish written notice to the claimant within ninety days (or within 180 days if additional information requested by the Plan Administrator necessitates an extension of the ninety-day period), which notice shall: (a) State the specific reason or reasons for the denial or modification; (b) Provide specific reference to pertinent Plan provisions on which the denial or modification is based; (c) Provide a description of any additional material or information necessary for the Member, his beneficiary, or representative to perfect the claim and an explanation of why such material or information is necessary; and (d) Explain the Plan's claim review procedure as contained herein. -15- In the event a claim for Plan benefits is denied or modified, if the Member, his beneficiary, or a representative of such Member or beneficiary desires to have such denial or modification reviewed, he must, within sixty days following receipt of the notice of such denial or modification, submit a written request for review by the Plan Administrator of its initial decision. In connection with such request, the Member, his beneficiary, or the representative of such Member or beneficiary may review any pertinent documents upon which such denial or modification was based and may submit issues and comments in writing. Within sixty days following such request for review the Plan Administrator shall, after providing a full and fair review, render its final decision in writing to the Member, his beneficiary or the representative of such Member or beneficiary stating specific reasons for such decision and making specific references to pertinent Plan provisions upon which the decision is based. If special circumstances require an extension of such sixty-day period, the Plan Administrator's decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If an extension of time for review is required, written notice of the extension shall be furnished to the Member, beneficiary, or the representative of such Member or beneficiary prior to the commencement of the extension period. 8.9 MANDATORY ARBITRATION. If a Member or beneficiary is not satisfied with the decision of the Plan Administrator pursuant to the Plan's claims review procedure, such Member or beneficiary may, within 180 days of receipt of the written decision of the Plan Administrator, request by written notice to the Plan Administrator, that his claim be submitted to arbitration pursuant to the arbitration procedures then in effect as adopted by the Plan Administrator. Such arbitration shall be the sole and exclusive procedure available to a Member or beneficiary for review of a decision of the Plan Administrator. In reviewing the decision of the Plan Administrator, the arbitrator shall use the standard of review which would be used by a Federal court in reviewing such decision under the provisions of the Employee Retirement Income Security Act of 1974, as amended. The costs of such arbitration shall be apportioned by the arbitrator between the Member or beneficiary and the Plan with a view toward apportionment to the non-prevailing party. The arbitrator's decision shall be final and legally binding on both parties. This Section shall be governed by the provisions of the Federal Arbitration Act. 8.10 INDEMNITY. To the extent permitted by applicable law, the Company shall indemnify and save harmless the Board and any individual acting as Plan Administrator against any and all expenses, liabilities and claims (including legal fees incurred to defend against such liabilities and claims) arising out of their discharge in good faith of responsibilities under or incident to the Plan. Expenses and liabilities arising out of willful misconduct shall not be covered under this indemnity. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or provided by the Company under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, as such indemnities are permitted under applicable law. -16- IX. ADMINISTRATION OF FUNDS 9.1 PAYMENT OF EXPENSES. All expenses incident to the administration of the Plan and Trust, including but not limited to, legal, accounting, Trustee fees, and expenses of the Plan Administrator, shall be paid by the Company. 9.2 TRUST FUND PROPERTY. All income, profits, recoveries, contributions, forfeitures and any and all moneys, securities and properties of any kind at any time received or held by the Trustee, if any, shall be held as a commingled Trust Fund pursuant to the terms of the Trust Agreement. The Plan Administrator shall maintain Account(s) in the name of each Member, but the maintenance of an Account designated as the Account of a Member shall not mean that such Member shall have a greater or lesser interest than that due him by operation of the Plan and shall not be considered as segregating any funds or property from any other funds or property contained in the commingled fund. No Member shall have any title to any specific asset in the Trust Fund, if any. X. NATURE OF THE PLAN The Company intends and desires by the adoption of the Plan to recognize the value to the Company of the past and present services of individuals covered by the Plan and to encourage and assure their continued service with the Company by making more adequate provision for their future retirement security. The Plan is intended to constitute an unfunded, unsecured plan of deferred compensation for a select group of management or highly compensated employees of the Company. Plan benefits herein provided are a contractual obligation of the Company which shall be paid out of the Trust Fund or out of the Company's general assets. Subject to the terms hereof and of the Trust Agreement, the Company shall transfer money or other property to the Trustee to provide Plan benefits hereunder, and the Trustee shall pay Plan benefits to Members and their beneficiaries out of the Trust Fund in accordance with the terms of the Trust Agreement. The Board shall establish the Trust and direct the Company to enter into the Trust Agreement. The Company shall remain the owner of all assets in the Trust Fund and the assets shall be subject to the claims of Company creditors if the Company ever becomes insolvent. For purposes hereof, the Company shall be considered "insolvent" if (a) the Company is unable to pay its debts as they become due, or (b) the Company is subject to a pending proceeding as a debtor under the United Sates Bankruptcy Code (or any successor federal statute). The chief executive officer of the Company and its board of directors shall have the duty to inform the Trustee in writing if the Company becomes insolvent. Such notice given under the preceding sentence by any party shall satisfy all of the parties' duty to give notice. When so informed, the Trustee shall suspend payments to the Members and hold the assets for the benefit of the Company's general creditors. If the Trustee receives a written allegation that the Company is insolvent, the Trustee shall suspend payments to the Members and hold the Trust Fund for the benefit of the Company's general creditors, and shall -17- determine within the period specified in the Trust Agreement whether the Company is insolvent. If the Trustee determines that the Company is not insolvent, the Trustee shall resume payments to the Members. No Member or beneficiary shall have any preferred claim to, or any beneficial ownership interest in, any assets of the Trust Fund. XI. ADOPTING ENTITIES It is contemplated that other corporations, associations, partnerships or proprietorships may adopt this Plan and thereby become the Company. Any such entity, whether or not presently existing, may become a party hereto by appropriate action of its officers without the need for approval of its board of directors or noncorporate counterpart or of the Board; provided, however, that such entity must be an Affiliate. The provisions of the Plan shall apply separately and equally to each Company and its employees in the same manner as is expressly provided for A.P.S., Inc. and its employees, except that the power to appoint or otherwise affect the Plan Administrator or the Trustee and the power to amend or terminate the Plan or amend the Trust Agreement shall be exercised by the Board alone. Transfer of employment among Companies and Affiliates shall not be considered a termination of employment hereunder. Any Company may, by appropriate action of its officers without the need for approval of its board of directors or noncorporate counterpart or the Board, terminate its participation in the Plan. Moreover, the Board may, in their discretion, terminate a Company's Plan participation at any time. XII. MISCELLANEOUS 12.1 NOT CONTRACT OF EMPLOYMENT. The adoption and maintenance of the Plan shall not be deemed to be a contract between the Company and any person or to be consideration for the employment of any person. Nothing herein contained shall be deemed to give any person the right to remain under contract with the Company or to be retained in the employ of the Company or to restrict the right of the Company to discharge any person at any time nor shall the Plan be deemed to give the Company the right to require any person to remain under contract with the Company or remain in the employ of the Company or to restrict any person's right to terminate his services at any time. 12.2 ALIENATION OF INTEREST FORBIDDEN. The interest of a Member or his beneficiary or beneficiaries hereunder may not be sold, transferred, assigned, or encumbered in any manner, either voluntarily or involuntarily, and any attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be null and void; neither shall the benefits hereunder be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person to whom such benefits or funds are payable, nor shall they be an asset in bankruptcy or subject to garnishment, attachment or other legal or equitable proceedings. -18- 12.3 WITHHOLDING. All Deferrals and payments provided for hereunder shall be subject to applicable withholding and other deductions as shall be required of the Company under any applicable local, state or federal law. 12.4 GUARANTY. Plan provisions to the contrary notwithstanding, in the event any Company fails to make payment of the benefits due under the Plan on behalf of its Members, whether through the Trust or directly, APS Holding Corporation shall be liable for and shall make payment of such benefits due as a guarantor of such entity's obligations hereunder. The guaranty obligations provided herein shall be satisfied directly and not through the Trust. 12.5 AMENDMENT AND TERMINATION. The Board may from time to time, in their discretion, amend, in whole or in part, any or all of the provisions of the Plan; provided, however, that no amendment may be made that would impair the rights of a Member with respect to amounts already allocated to his Account(s). The Board may terminate the Plan at any time. In the event that the Plan is terminated, the balance in a Member's Account(s) shall be paid to such Member or his designated beneficiary in the manner specified by the Plan Administrator, which may include one lump sum payment in full satisfaction of all of such Member's or beneficiary's benefits hereunder. 12.6 SEVERABILITY. If any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof; instead, each provision shall be fully severable and the Plan shall be construed and enforced as if said illegal or invalid provision had never been included herein. 12.7 GOVERNING LAWS. ALL PROVISIONS OF THE PLAN SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF TEXAS EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW. EXECUTED this 14th day of August, 1996. A.P.S., INC. By: /s/ E. EUGENE LAUVER --------------------------------- E. Eugene Lauver Vice President FOR PURPOSES OF THE GUARANTY IN SECTION 12.4: APS HOLDING CORPORATION By: /s/ E. EUGENE LAUVER --------------------------------- E. Eugene Lauver Vice President -19- EX-4.4 4 EXHIBIT 4.4 EXHIBIT 4.4 A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN TRUST AGREEMENT TABLE OF CONTENTS ARTICLE I - GENERAL TRUST PROVISIONS . . . . . . . . . . . . . . . . . . . . 2 1.1 ESTABLISHMENT OF TRUST . . . . . . . . . . . . . . . . . . . . . . 2 1.2 SEPARATE SUB-TRUSTS. . . . . . . . . . . . . . . . . . . . . . . . 2 1.3 TRUST IRREVOCABLE. . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4 NON-ALIENATION . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.5 ACCEPTANCE BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE II - GENERAL DUTIES OF THE PARTIES . . . . . . . . . . . . . . . . . 3 2.1 GENERAL DUTIES OF THE COMPANY AND THE TRUSTEE. . . . . . . . . . . 3 2.2 ADDITIONAL GENERAL DUTIES OF TRUSTEE . . . . . . . . . . . . . . . 4 ARTICLE III - INVESTMENT, ADMINISTRATION AND DISBURSEMENT OF TRUST FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3.1 INVESTMENT OF TRUST FUND . . . . . . . . . . . . . . . . . . . . . 4 3.2 VALUATION OF TRUST FUND. . . . . . . . . . . . . . . . . . . . . . 6 3.3 ADDITIONAL INVESTMENT POWERS OF TRUSTEE. . . . . . . . . . . . . . 6 3.4 ADMINISTRATIVE POWERS OF TRUSTEE . . . . . . . . . . . . . . . . . 7 3.5 DEALINGS WITH TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . 7 3.6 DISTRIBUTIONS FROM TRUST FUND. . . . . . . . . . . . . . . . . . . 8 ARTICLE IV - SETTLEMENT OF ACCOUNTS. . . . . . . . . . . . . . . . . . . . . 10 ARTICLE V - TAXES, EXPENSES AND COMPENSATION OF TRUSTEE. . . . . . . . . . . 10 5.1 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.2 EXPENSES AND COMPENSATION. . . . . . . . . . . . . . . . . . . . . 11 ARTICLE VI - FOR PROTECTION OF TRUSTEE . . . . . . . . . . . . . . . . . . . 11 6.1 COMMUNICATIONS WITH THE COMPANY, THE PLAN ADMINISTRATOR AND THE MEMBERS. . . . . . . . . . . . . . . . . . . . . . . . . . 11 6.2 ADVICE OF COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . 12 6.3 FIDUCIARY RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE VII - INDEMNITY OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE VIII - RESIGNATION AND REMOVAL OF TRUSTEE. . . . . . . . . . . . . . 13 8.1 RESIGNATION OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 13 8.2 REMOVAL OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 14 8.3 SUCCESSOR TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . 14 8.4 TRANSFER OF TRUST FUND TO SUCCESSOR. . . . . . . . . . . . . . . . 14 -i- ARTICLE IX - DURATION AND TERMINATION OF TRUST AND AMENDMENT . . . . . . . . 15 9.1 DURATION AND TERMINATION . . . . . . . . . . . . . . . . . . . . . 15 9.2 DISTRIBUTION UPON TERMINATION. . . . . . . . . . . . . . . . . . . 15 9.3 AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE X - CLAIMS OF COMPANY'S CREDITORS. . . . . . . . . . . . . . . . . . 16 10.1 INSOLVENCY OF COMPANY. . . . . . . . . . . . . . . . . . . . . . . 16 10.2 TRUSTEE'S RESPONSIBILITIES IF COMPANY MAY BE INSOLVENT . . . . . . 16 10.3 TRUST RECOVERY OF PAYMENTS TO CREDITORS. . . . . . . . . . . . . . 17 ARTICLE XI - ADOPTING ENTITIES . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE XII - MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 17 12.1 LAWS OF THE STATE OF TEXAS TO GOVERN . . . . . . . . . . . . . . . 17 12.2 TITLES AND HEADINGS NOT TO CONTROL . . . . . . . . . . . . . . . . 18 12.3 CHANGE IN CONTROL. . . . . . . . . . . . . . . . . . . . . . . . . 18 12.4 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . 18 12.5 CONTROLLING DOCUMENT . . . . . . . . . . . . . . . . . . . . . . . 19 -ii- A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN TRUST AGREEMENT THIS AGREEMENT AND DECLARATION OF TRUST, made this 14th day of August, 1996, by and between A.P.S., INC. and TEXAS COMMERCE BANK NATIONAL ASSOCIATION (hereinafter referred to as the "TRUSTEE"). WHEREAS, A.P.S., INC. has established the A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN (hereinafter referred to as the "PLAN") for the benefit of certain individuals who are eligible for benefits under the terms of the Plan (such individuals being referred to herein as the "MEMBERS"), which Plan provides for the payment of certain deferred compensation benefits (the "BENEFITS") to the Members and the beneficiaries of the respective Members who may become entitled to any payments under the terms of the Plan in the event of the Member's death ("BENEFICIARIES"); and WHEREAS, other adopting entities may adopt the Plan (such other adopting entities, if any, along with A.P.S., INC. hereinafter referred to as the "COMPANY," jointly and severally); and WHEREAS, the Plan contemplates that the Company will pay the entire cost of the Benefits from its general assets; and WHEREAS, A.P.S., INC. desires to establish the A.P.S., INC. EXECUTIVE 401(k) DEFERRAL PLAN TRUST AGREEMENT (the "TRUST") to aid the Company in meeting the obligations under the Plan; and WHEREAS, the Trust is intended to be a "grantor trust" with the corpus and income of the Trust treated as assets and income of the Company for federal income tax purposes; and WHEREAS, the Company intends that the assets of the Trust shall at all times be subject to the claims of general creditors of the Company as provided in Article X; and WHEREAS, the Company intends that the existence of the Trust shall not alter the characterization of the Plan as "unfunded" for purposes of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and shall not be construed to provide income to any Member prior to actual payment of Benefits under the Plan; and WHEREAS, under the Trust, the Trustee covenants that it will hold all property which it may receive hereunder, IN TRUST, for the uses and purposes and upon the terms and conditions hereinafter stated; -1- NOW, THEREFORE, the parties hereto adopt this Trust Agreement, effective September 1, 1996, and agree, as follows: ARTICLE I GENERAL TRUST PROVISIONS 1.1 ESTABLISHMENT OF TRUST. A.P.S., Inc. hereby adopts the Trust Agreement, establishing the Trust with the Trustee, consisting of such sums of money and other property acceptable to the Trustee as from time to time shall be paid or delivered to the Trustee by the Company. All such money and other property, all investments and reinvestments made therewith or proceeds thereof and all earnings and profits thereon, less all payments and charges as authorized herein, shall constitute the "TRUST FUND." The Trust Fund shall at all times be subject to the claims of general creditors of the Company as provided in Article X. No Member or Beneficiary shall have any preferred claim to, or any beneficial ownership interest in, any assets of the Trust Fund prior to the time such assets are paid to such Member or Beneficiary as Benefits. 1.2 SEPARATE SUB-TRUSTS. Contrary provisions of the Trust notwithstanding, except as provided in Article XI, the provisions of the Trust shall apply separately and equally to A.P.S., Inc. and to each adopting entity that has entered into this Trust Agreement pursuant to Article XI. Each Company shall bear the cost of providing Benefits for its own Members and their Beneficiaries, and the portion of the Trust Fund attributable to the contributions of each Company shall be available only to provide benefits to such Company's Members and their Beneficiaries or to satisfy claims of such Company's Bankruptcy Creditors in the event such Company becomes Insolvent (as such terms are defined in Section 10.1). 1.3 TRUST IRREVOCABLE. The Trust shall be irrevocable and shall be held for the exclusive purpose of providing benefits under the Plan to Members and their Beneficiaries and defraying expenses of the Trust in accordance with the provisions of this Trust Agreement. Except as provided in Sections 3.6(c) and 3.6(d) and Articles IX and X hereof, no part of the income or corpus of the Trust Fund shall be recoverable by or for the Company. 1.4 NON-ALIENATION. No right or interest to receive benefits from the Trust may be assigned, sold, anticipated, alienated or otherwise transferred by any Member or Beneficiary. 1.5 ACCEPTANCE BY TRUSTEE. The Trustee accepts the Trust established under this Trust Agreement on the terms and subject to the provisions set forth herein, and it agrees to discharge and perform fully and faithfully all of the duties and obligations imposed upon it under this Trust Agreement. -2- ARTICLE II GENERAL DUTIES OF THE PARTIES 2.1 GENERAL DUTIES OF THE COMPANY AND THE TRUSTEE. (a) The Company has provided or will provide the Trustee with a copy of the Plan and shall provide the Trustee with a copy of any amendment to the Plan promptly upon its adoption. The Plan, as of the date of execution of this Trust Agreement, is hereby incorporated by reference into and shall form a part of this Trust Agreement as fully as if set forth herein verbatim. Any amendment to the Plan shall also be incorporated by reference into and form a part of this Trust Agreement, effective as of the effective date of such amendment. Schedule A to this Trust Agreement sets forth the name and mailing address of each Member entitled to receive Benefits, the Beneficiaries, if any, designated by each Member, each Member's aggregate balance ("ACCOUNT BALANCE") in the accounts maintained under the Plan on his behalf, and each Member's vested rights ("Vested Interest") in his Account Balance. Such Schedule (as amended from time to time as provided herein) is hereinafter referred to as the "BENEFIT SCHEDULE." The Company shall be responsible for notifying the Trustee of any changes in the information set forth on the Benefit Schedule, including, but not limited to, the addition of new Members and a change in the mailing address of a Member. (b) Subject to the provisions of Section 2.1(c), the Trustee shall keep the Benefit Schedule accurate and current based entirely upon information provided by the administrator established pursuant to the Plan (the "PLAN ADMINISTRATOR"), including but not limited to, preparing by March 31 of each year a completely updated Benefit Schedule as of December 31 of the immediately preceding year in order to permit distributions from the Trust Fund to be made in accordance with the provisions of Section 3.6. The Company shall keep accurate books and records with respect to the eligibility of individuals to participate in the Plan and the Benefits payable under the Plan, and shall provide such information to the Trustee and any independent third party referred to in the immediately preceding sentence and shall also provide access to such books and records at such time or times as the Trustee shall reasonably request. (c) If, at any time, the Company fails or refuses to give the Trustee Member data or access to such books and records in accordance with Section 2.1(b), the Trustee shall deliver a written request to the Company to provide access to books and records of the Company and to provide such data as required in accordance with Section 2.1(b). If the Company fails or refuses to comply with the Trustee's written request pursuant to the preceding sentence prior to the expiration of thirty days from the date of delivery thereof by the Trustee, the Trustee shall, after ten days written notice to the Company, immediately pay to each Member an amount equal to such Member's Vested Interest in his Account Balance as set forth on the most recent Benefit Schedule, reduced by any taxes to be withheld pursuant to Section 3.6. Such payment shall be made in accordance with the provisions of Section 3.6. For this purpose, the Company shall be deemed to have complied with the Trustee's written request if, in the Trustee's judgment, it shall have substantially complied at the end of the thirty-day period and is endeavoring in good faith to complete compliance without delay. -3- (d) The Plan Administrator shall notify each Member and Beneficiary of a then deceased Member in writing of any changes in the Benefit Schedule with respect to such Member or Beneficiary. The Trustee shall notify all Members and such Beneficiaries of any failure of the Company to provide information required in this Section 2.1. (e) It is intended that Benefits payable to Members shall be determined under the provisions of the Plan and shall be calculated under the provisions of the Plan as of the date of payment. The Company shall contribute such amounts to the Trust Fund so as to provide the Benefits under the Plan. Payment of Benefits shall be based upon the amounts set forth on the Benefit Schedule only under the circumstances set forth in Section 2.1(c). If the actual Benefits payable to a Member under the provisions of the Plan exceeds the amount set forth on the Benefit Schedule which is paid pursuant to Section 2.1(c), the Company shall be liable for payment of the remaining portion of such Benefits. (f) Trust provisions to the contrary notwithstanding, the Company shall have the right at any time, and from time to time, in its sole discretion, to substitute marketable securities of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. 2.2 ADDITIONAL GENERAL DUTIES OF TRUSTEE. The Trustee shall manage, invest and reinvest the Trust Fund as the Trustee may determine in the exercise of its fiduciary duties hereunder, consistent with the provisions of Article III. The Trustee shall collect the income on the Trust Fund, and make distributions therefrom, all as hereinafter provided. ARTICLE III INVESTMENT, ADMINISTRATION AND DISBURSEMENT OF TRUST FUND 3.1 INVESTMENT OF TRUST FUND. The following provisions shall apply with respect to investment of the Trust Fund: (a) At any time prior to the occurrence of a Change in Control (as such term is defined in Section 12.3), the Trustee shall invest and reinvest the assets of the Trust Fund in accordance with the written directions received from time to time by the Trustee from the Plan Administrator. Specifically, but not by way of limitation, the Plan Administrator may, in its discretion, direct the Trustee to follow the deemed investment directions of each Member or Beneficiary of a deceased Member, whether written or telephonic, with respect to a portion of the Trust Fund assets equal in value to the Account Balance maintained under the Plan on behalf of such individual, within parameters established by, and as agent for, the Plan Administrator; (b) To the extent that the Trustee is directed by the Plan Administrator, the Trustee may invest in securities (including stock or rights to acquire stock) or obligations issued by the Company; -4- (c) To the extent that the Trustee is directed by the Plan Administrator, the Trustee may establish one or more separate investment accounts within the Trust Fund, each separate account being hereinafter referred to as an Investment Fund. Except as otherwise provided, the Trustee shall transfer to each such Investment Fund such portion of the assets of the Trust Fund as the Plan Administrator directs. The Trustee shall be under no duty to question, and shall not incur any liability on account of following, any direction of the Plan Administrator. The Trustee shall be under no duty to review the investment guidelines, objectives, and restrictions established, or the specific investment directions given by the Plan Administrator for any Investment Fund, or to make suggestions to the Plan Administrator in connection therewith. To the extent that directions from the Plan Administrator to the Trustee represent deemed investment elections of the Members, the Trustee shall have no responsibility for such investment elections and shall incur no liability on account of investing the assets of the Trust Fund in accordance with such directions. All interest, dividends, and other income received with respect to, and any proceeds received from the sale or other disposition of securities or other property held in, an Investment Fund shall be credited to and reinvested in such Investment Fund. All expenses of the Trust Fund which are allocable to a particular Investment Fund shall be so allocated and charged. The Plan Administrator may direct the Trustee to eliminate an Investment Fund or Funds, and the Trustee shall thereupon dispose of the assets of such Investment Fund and reinvest the proceeds thereof in accordance with the directions of the Plan Administrator; and (d) From and after the occurrence of a Change in Control, or if the Plan Administrator fails to provide the Trustee with such written directions, the Trustee shall have, with respect to the Trust Fund, power in its discretion to invest and reinvest such assets in (i) common and preferred stocks, bonds, notes and debentures (including convertible stocks and securities but not including any stock, debt instruments, or other securities of the Company, the Trustee or their affiliates) which are readily marketable and listed on a United States national securities exchange or the NASDAQ national market, (ii) interest-bearing deposit accounts or certificates of deposit maturing within one year after acquisition thereof, entered into or issued by a United States national or state bank or trust company having capital, surplus and undivided profits, at the holding company level, of at least $75 million, (iii) direct obligations of, and obligations fully guaranteed by, the United States of America or any agency of the United States of America which is backed by the full faith and credit of the United States of America (so long as such obligations shall mature within one year after acquisition thereof), (iv) any common, collective or commingled fund, including a fund maintained by the Trustee, established and maintained primarily for the purpose of investing and reinvesting in assets of the type described in (i), (ii) and (iii) above, and (v) insurance contracts issued by one or more insurance companies. Further, notwithstanding the provisions of the preceding sentence, after the occurrence of a Change in Control or in the event the Plan Administrator fails to provide the Trustee with written directions pursuant to the first sentence of this Section, the Trustee shall have the power in its discretion to retain, maintain, continue, sell, or take any other actions relative to any assets then held in the Trust Fund (including, without limitation, to take actions in accordance with deemed investment directions obtained directly from a Member or Beneficiary of a deceased Member with -5- respect to a portion of the Trust Fund assets equal in value to the Account Balance maintained under the Plan on behalf of such individual). 3.2 VALUATION OF TRUST FUND. As soon as practicable after December 31 of each year and as of such other dates as may be specified by the Company or the Plan Administrator, the Trustee shall report to the Company and the Plan Administrator the assets held in the Trust Fund as of such day and shall determine and include in such report the fair market value as of such day of each such asset. In determining such fair market values, the Trustee shall use such market quotations and other information as are available to it and may in its discretion be appropriate. The report of any such valuation shall not constitute a representation by the Trustee that the amounts reported as fair market values would actually be realized upon the liquidation of the Trust Fund. The Trustee shall not be accountable to the Company or to any other person on the basis of any such valuation, but its accountability shall be in accordance with the provisions of Article IV hereof. 3.3 ADDITIONAL INVESTMENT POWERS OF TRUSTEE. Subject to the provisions of Sections 3.1, 3.6 and 9.2 hereof, the Trustee shall have, with respect to the Trust Fund, the power in its discretion: (a) To retain any property at any time received by it; (b) To sell, exchange, convey, transfer or dispose of, and to grant options for the purchase or exchange with respect to, any property at any time held by it; (c) To register and carry any securities or any other property in the name of the Trustee, or in the name of the nominee of the Trustee (or to hold any such property unregistered) without increasing or decreasing the fiduciary liability of the Trustee, and to exercise any option, right or privilege to convert any convertible securities, including shares or fractional shares of the Trustee so long as the conversion privilege is offered pro rata to all shareholders; (d) To cause any securities to be held in book-entry or in bearer form; (e) To hold uninvested, without liability for interest thereon, any moneys received by it until the same shall be invested or disbursed; and (f) To hold property for investment that may be unproductive of income. 3.4 ADMINISTRATIVE POWERS OF TRUSTEE. The Trustee shall have the power in its discretion: (a) To exercise all voting rights with respect to the shares of stock held in the Trust Fund and to grant proxies, discretionary or otherwise; provided, however, voting rights with respect to stock issued by the Company or its affiliates shall be exercised by the Plan Administrator prior to the occurrence of a Change in Control; -6- (b) To cause any shares of stock to be registered and held in the name of one or more of its nominees, or one or more nominees of any system for the central handling of securities, without increase or decrease of liability; (c) To collect and receive any and all money and other property due to the Trust Fund and to give full discharge therefor; (d) Subject to the provisions of Section 3.6 hereof: to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trustee; to commence or defend suits or legal proceedings to protect any interest of the Trust; and to represent the Trust in all suits or legal proceedings in any court or before any other body or tribunal; (e) To organize under the laws of any state a corporation or limited liability company for the purpose of acquiring and holding title to any property which it is authorized to acquire under this Trust Agreement and to exercise with respect thereto any or all of the powers set forth in this Trust Agreement; (f) To determine how all receipts and disbursements shall be credited, charged or apportioned as between income and principal; (g) To determine the amount and time of Benefit payments in accordance with directions from the Plan Administrator or its delegates and in compliance with the provisions of Section 3.6; (h) To employ and compensate such attorneys, counsel, brokers or other agents or employees and to delegate to them such of the duties, rights and powers of the Trustee as may be deemed advisable in handling and administering the Trust; and (i) Generally to do all acts, whether or not expressly authorized, which the Trustee may deem necessary or desirable for the protection of the Trust Fund. 3.5 DEALINGS WITH TRUSTEE. Persons dealing with the Trustee shall be under no obligation to see to the proper application of any money paid or property delivered to the Trustee or to inquire into the Trustee's authority as to any transaction. 3.6 DISTRIBUTIONS FROM TRUST FUND. (a) Except as set forth in Section 3.6(c), Section 3.6(d), Section 9.2 and Article X hereof, distributions from the Trust Fund shall be made by the Trustee to the Members and Beneficiaries at the times and in the amounts set forth in the Plan and, to the maximum extent permitted by applicable law, the Trustee shall be fully protected in so doing. Any amounts so paid shall be reduced by the amount of any federal, state, or local income or other taxes that may be required by law to be withheld or paid by the Trustee and the Trustee shall withhold, pay and report such amounts to the appropriate governmental authorities; provided, that the Company shall -7- withhold, pay and report any FICA or FUTA taxes; and, provided, further, that the Company, the Plan Administrator, the Members, and the Beneficiaries shall provide the Trustee with all of the information necessary for the Trustee to determine the amount of such taxes required to be withheld or paid by the Trustee and the Trustee shall be fully protected in relying upon such information. Notwithstanding any provision of this Trust Agreement to the contrary, the Company shall be obligated to pay the Benefits. To the extent that the Trust Fund is not sufficient to pay any Benefit when due, the Company shall pay such Benefit directly. In the event Benefits are due to more than one Member or Beneficiary on the same date and the Trust Fund is not sufficient to pay all such Benefits, the Trust Fund shall be applied pro rata among such Members and Beneficiaries on the basis of the Benefits due to be paid such individuals on such date, as determined by the Plan Administrator or its delegates. Nothing in this Trust Agreement shall relieve the Company of its liabilities to pay Benefits except to the extent such liabilities are met by application of Trust Fund assets. (b) Prior to the occurrence of a Change in Control, the Plan Administrator shall direct the Trustee in writing as to the time and amount of Benefits to be distributed to the Members and Beneficiaries. From and after the occurrence of a Change in Control, a Member or Beneficiary who believes that he or she is entitled to Benefits may apply in writing directly to the Trustee for payment of such Benefits. Such application shall advise the Trustee of the circumstances which entitle such Member or Beneficiary to payment of such Benefits. The Trustee shall, in such case, reach its own independent determination as to the Member's or Beneficiary's entitlement to Benefits, even though the Trustee may be informed from another source (including the Company or the Plan Administrator) that payments are not due under the Plan. If the Trustee so desires, it may, in its sole discretion, make such additional inquiries and/or take such additional measures as it deems necessary in order to enable it to determine whether Benefits are due and payable, including, but not limited to, interviewing appropriate persons, requesting affidavits, soliciting oral or written testimony under oath, or holding a hearing or other proceeding. After the occurrence of a Change in Control, the Trustee shall determine whether Benefits are payable as promptly as possible. (c) At any time and from time to time, the Plan Administrator may direct the Trustee in writing to distribute to the Company cash held by the Trustee as part of the Trust Fund in an amount equal to the Benefits accrued under the Plan that have been forfeited under the terms of the Plan. As soon as practicable after receipt of such a direction and, if such direction is received by the Trustee after the occurrence of a Change in Control, the Trustee's independent determination that such benefits have, in fact, been forfeited in accordance with the terms of the Plan, the Trustee shall distribute such amount to the Company. (d) At any time and from time to time prior to the occurrence of a Change in Control, the Company may apply in writing to the Trustee for a distribution by the Trustee to the Company of assets held by the Trustee as part of the Trust Fund ("TRUST ASSETS") in an amount (the "REFUND AMOUNT") equal to or less than the difference, if any, between (i) the Net Fair Market Value of the Trust Assets (as such term is hereinafter defined) as of the last day of the month coincident with or immediately preceding the date of such application, and (ii) the aggregate Account Balances for all Members and Beneficiaries as of such date. Such application shall advise the Trustee of the manner in which the Refund Amount was calculated. Upon the receipt of such -8- an application from the Company, the Trustee shall reach its own independent determination as to the Company's entitlement to the Refund Amount, even though the Trustee may be informed from another source (including a Member) that the Company is not entitled to the Refund Amount. If the Trustee so desires, it may, in its sole discretion, make such additional inquiries and/or take such additional measures as it deems necessary in order to enable it to determine whether the Company is entitled to the Refund Amount, including, but not limited to, interviewing appropriate persons, requesting affidavits, soliciting oral or written testimony under oath, or engaging such independent third parties as the Trustee may deem necessary to assist in making such determination. The Trustee shall determine whether the Company is entitled to all or any portion of the Refund Amount as promptly as possible. If the Trustee determines that the Company is entitled to all or any portion of the Refund Amount, then the Trustee shall distribute such amount to the Company in cash or in kind as determined by the Trustee in its sole discretion. As used herein, the term "NET FAIR MARKET VALUE OF THE TRUST ASSETS" shall mean the fair market value of the Trust Assets, as determined by the Trustee in its sole discretion, reduced by all liabilities of the Trust, whether or not such liabilities are secured by any or all of the Trust Assets, other than liabilities to Members or Beneficiaries under the Plan. In determining such fair market value, the Trustee shall use such market quotations and other information as are available to it and may in its discretion be appropriate; provided, however, that the fair market value of any life insurance contract which constitutes a portion of the Trust Assets shall be its net cash surrender value. The determination of the Net Fair Market Value of the Trust Assets by the Trustee shall not constitute a representation by the Trustee that the amounts reported as fair market values would actually be realized upon the liquidation of the Trust Assets. The Trustee shall not be accountable to the Company or to any other person, including the Members or Beneficiaries, on the basis of any such valuation except as otherwise provided in this Trust Agreement. (e) The Trustee shall not itself commence any legal action, whether in the nature of an interpleader action, request for declaratory judgment or otherwise, requesting a court to make a determination under Section 3.6(a), (b), (c) or (d) hereof in the Trustee's stead without first using its best efforts to make such determination. (f) Notwithstanding any other provision of this Trust Agreement, if any amounts held in the Trust are found in a "determination" (within the meaning of Section 1313(a) of the Internal Revenue Code of 1986) to have been includible in gross income of a Member or Beneficiary prior to payment of such amounts from the Trust, the Trustee shall, as soon as practicable, pay such amounts to such Member or Beneficiary, as applicable, (but not in excess of such Member's or Beneficiary's Vested Interest in his Account Balance at the time of such payment). For purposes of this Section 3.6, the Trustee shall be entitled to rely on an affidavit by a Member or Beneficiary, as applicable, and a copy of the determination to the effect that a determination described in the preceding sentence has occurred. -9- ARTICLE IV SETTLEMENT OF ACCOUNTS The Trustee shall keep full accounts of all of its receipts and disbursements. Its books and records with respect to the Trust Fund shall be open to inspection by the Company, any Member or any Beneficiary of a deceased Member or their representatives at all times during business hours of the Trustee. Within sixty days after December 31 of each year, or any termination of the duties of the Trustee, the Trustee shall prepare, sign and mail to the Company and the Plan Administrator an account of its acts and transactions as Trustee hereunder. If, within sixty days after the mailing of the account or any amended account, the Company and the Plan Administrator have not filed with the Trustee notice of any objection to any act or transaction of the Trustee, the account or amended account shall become an account stated. If any objection has been filed, and if the objecting party is satisfied that it should be withdrawn or if the account is adjusted to the objecting party's satisfaction, the objecting party shall in writing filed with the Trustee signify its approval of the account and it shall become an account stated. When an account becomes an account stated, such account shall be finally settled, and the Trustee shall be completely discharged and released, as if such account had been settled and allowed by a judgment or decree of a state or federal court of competent jurisdiction in an action or proceeding in which the Trustee, the Company and the Plan Administrator were parties. The Trustee, the Company or the Plan Administrator shall have the right to apply at any time to a state or federal court of competent jurisdiction for judicial settlement of any account of the Trustee not previously settled as hereinabove provided. In any such action or proceeding it shall be necessary to join as parties the Trustee, the Company and the Plan Administrator and any judgment or decree entered therein shall be conclusive upon all such parties. ARTICLE V TAXES, EXPENSES AND COMPENSATION OF TRUSTEE 5.1 TAXES. The Company agrees that all income, deductions and credits of the Trust Fund belong to it as owner for income tax purposes and will be included on the Company's income tax returns. The Company shall from time to time pay taxes (references in this Trust Agreement to the payment of taxes shall include interest and applicable penalties) of any and all kinds whatsoever which at any time are lawfully levied or assessed upon or become payable in respect of the Trust Fund, the income or any property forming a part thereof, or any security transaction pertaining thereto. To the extent that any taxes levied or assessed upon the Trust Fund are not paid by the Company or contested by the Company pursuant to the last sentence of this Section 5.1, the Trustee shall pay such taxes out of the Trust Fund and the Company shall upon demand by the Trustee deposit into the Trust Fund an amount equal to the amount paid from the Trust Fund to satisfy such tax liability. If requested by the Company, the Trustee shall, at Company expense, contest the validity of such taxes in any manner deemed appropriate by the Company or its counsel, but only if it has received an indemnity bond or other security satisfactory to it to pay any expenses of such contest. Alternatively, the Company may itself contest the validity of any such taxes, but any such -10- contest shall not affect the Company's obligation to reimburse the Trust Fund for taxes paid from the Trust Fund. 5.2 EXPENSES AND COMPENSATION. The Trustee shall be paid compensation by the Company as the Company and the Trustee may from time to time agree. The Trustee shall be reimbursed by the Company for its reasonable expenses of management and administration of the Trust, including reasonable compensation of counsel and any agent engaged by the Trustee to assist it in such management and administration. In the event that the Company shall fail or refuse to pay such compensation or make such reimbursement within sixty days of demand, the Trustee may satisfy such obligations out of the assets of the Trust Fund; in that event, the Company shall immediately upon demand by the Trustee deposit into the Trust Fund a sum equal to the amount paid by the Trust Fund for such fees and expenses. ARTICLE VI FOR PROTECTION OF TRUSTEE 6.1 COMMUNICATIONS WITH THE COMPANY, THE PLAN ADMINISTRATOR AND THE MEMBERS. (a) The Company shall certify to the Trustee the name or names of any person or persons authorized to act for the Company and for the Plan Administrator. Such certification shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary of the Company. Until the Company notifies the Trustee, in a similarly signed notice, that any such person is no longer authorized to act for the Company or for the Plan Administrator, as applicable, the Trustee may continue to rely upon the authority of such person. (b) The Trustee may rely upon any certificate, notice or direction of the Company or the Plan Administrator which the Trustee reasonably believes to have been signed by a duly authorized officer or agent of the Company or the Plan Administrator, as applicable. (c) Communications to the Trustee shall be sent in writing to its principal address, Attention: Legal Department, or to such other address as the Trustee may specify. No communication shall be binding upon the Trust Fund or the Trustee until it is received by the Trustee and unless it is in writing and signed by an authorized person. (d) Communications to the Company shall be sent in writing to the Company at 15710 John F. Kennedy Boulevard, Suite 700, Houston, Texas 77032, Attention: General Counsel, or to such other address as the Company may specify in writing to the Trustee. Communications to the Plan Administrator shall be sent in writing to the Company's address, Attention: Executive 401(k) Deferral Plan Administrator. Communications to a Member or Beneficiary shall be sent in writing to the address of such person as stated on the Benefit Schedule, or to such other address as such person may specify in writing to the Trustee. No communication shall be binding upon the Company, the Plan Administrator, or a Member or Beneficiary until it is received by such person. -11- 6.2 ADVICE OF COUNSEL. The Trustee may consult with any legal counsel with respect to the construction of this Trust Agreement, its duties hereunder or any act which it proposes to take or omit, and shall not be liable for any action taken or omitted in good faith pursuant to such advice. Expenses of such counsel shall be deemed to be expenses of management and administration of the Trust within the meaning of Section 5.2 hereof. 6.3 FIDUCIARY RESPONSIBILITY. (a) The Trustee shall discharge its duties under this Trust Agreement in effectuating the Plan in a manner consistent with the objectives of this Trust Agreement and the Plan. The Trustee shall not be liable for any loss sustained by the Trust Fund by reason of the purchase, retention, sale or exchange of any investment in good faith and in accordance with the provisions of this Trust Agreement. The Trustee shall have no responsibility or liability for any failure of the Company to make contributions to the Trust Fund or for any insufficiency of assets in the Trust Fund to pay Benefits when due. The Trustee shall not be liable hereunder for any act taken or omitted to be taken in good faith, except for its own negligence or misconduct. (b) The Trustee shall not be responsible for any act or failure to act of another fiduciary except to the extent otherwise provided by law. (c) No bond shall be required of the Trustee unless otherwise required by law. (d) The Trustee shall have no responsibility to negotiate any insurance contracts respecting the Plan and Trust, nor shall the Trustee have any responsibility to conduct any due diligence as to such insurance contracts. (e) The Trustee's duties and obligations shall be limited to those expressly imposed upon it by this Trust Agreement. (f) The Company at any time may employ as agent (to perform any act, keep any records or accounts, or make any computations required of the Company or the Plan Administrator by this Trust Agreement or the Plan) the individual, corporation or association serving as Trustee hereunder. Nothing done by said individual, corporation or association as such agent shall affect its responsibilities or liability as Trustee hereunder. -12- ARTICLE VII INDEMNITY OF TRUSTEE The Company hereby indemnifies and holds the Trustee harmless from and against any and all losses, damages, costs, expenses or liabilities (herein, "LIABILITIES"), including reasonable attorneys' fees and other costs of litigation, to which the Trustee may become subject pursuant to, arising out of, occasioned by, incurred in connection with or in any way associated with this Trust Agreement, including the acts or omissions of other fiduciaries, except for any act or omission constituting negligence or misconduct of the Trustee. If one or more Liabilities shall arise, or if the Company fails to indemnify the Trustee as provided herein, or both, then the Trustee may engage counsel of the Trustee's choice, but at the Company's expense, either to conduct the defense against such Liabilities or to conduct such actions as may be necessary to obtain the indemnity provided for herein, or to take both such actions. The Trustee shall notify the Company within fifteen days after the Trustee has so engaged counsel of the name and address of such counsel. If the Trustee shall be entitled to indemnification by the Company pursuant to this Article VII and the Company shall not provide such indemnification upon demand, the Trustee may apply assets of the Trust Fund in full satisfaction of the obligations for indemnity by the Company, and any legal proceeding by the Trustee against the Company for such indemnification shall be on behalf of the Trust. ARTICLE VIII RESIGNATION AND REMOVAL OF TRUSTEE 8.1 RESIGNATION OF TRUSTEE. The Trustee may resign upon sixty days' prior written notice to the Board of Directors of A.P.S., Inc. (the "BOARD"), the Plan Administrator, each Member and each Beneficiary of a deceased Member, except that any such resignation shall not be effective until the Board have appointed in writing a successor trustee, which must be a bank, trust company, or an individual, and such successor has accepted the appointment in writing; provided, however, that if such appointment is to become effective at any time after the occurrence of a Change in Control, then the consent of a majority of the Members to the appointment of such successor trustee must be obtained. For all purposes of this Trust Agreement where the consent of a majority of the Members is required, the determination of majority consent shall be based upon receiving the consent of any combination of Members whose sum of Account Balances as of the time of determination is greater than fifty percent of the sum of Account Balances for all Members at such time, rather than upon receiving the consent of a majority of the number of Members. For purposes of this determination, Beneficiaries of deceased Members shall be considered Members. The Board shall make a good faith effort, following receipt of notice of resignation from the Trustee, to find and appoint a successor Trustee who will adhere to the obligations imposed on such successor under the terms of this Trust Agreement, and in particular, but without limitation, the obligation to exercise judgment independent of the Company in the circumstances described in Section 3.6 hereof. The appointment of a successor trustee shall also be conditioned upon obtaining from such successor a written statement that the successor has read the Trust Agreement and understands its obligations thereunder. If the consent of a majority of the Members is required for the appointment of a -13- successor Trustee, then the Trustee shall be responsible for securing such Member consents in a timely fashion and, unless ordered by a court of competent jurisdiction, shall not reveal to the Board, the Plan Administrator or any other person any information concerning such consents, except whether the required majority has been achieved. Any notice sent to Members by the Trustee canvassing the Members as to their consent to a successor trustee, shall include the name and address of the proposed successor trustee. Any consent of a Member required under this Section 8.1 shall be deemed given if no written objection is received by the Trustee from such Member within fourteen days after request for such consent is sent postpaid by United States registered or certified mail with return receipt requested to such Member. Provisions of the Trust Agreement to the contrary notwithstanding, if the Trustee gives notice of resignation to the Plan Administrator and no successor Trustee has been appointed within sixty days of receipt of such written notice, the compensation of the Trustee then in effect shall increase by 50%, effective as of the lapse of such sixty-day time period. 8.2 REMOVAL OF TRUSTEE. The Board may remove the Trustee upon sixty days' prior written notice to the Trustee, the Plan Administrator, each Member and each Beneficiary of a deceased Member, except that any such removal shall not be effective until the close of such notice period and (a) delivery by the Board to the Trustee of an instrument in writing appointing a successor trustee meeting the requirements of Section 8.1, and (b) an acceptance of such appointment in writing executed by such successor. Notwithstanding the provisions of the preceding sentence, if such appointment of a successor trustee is to become effective at any time after the occurrence of a Change in Control, then the removal of the Trustee and the appointment of a successor trustee shall not be effective until the Trustee has received the consent of a majority of the Members (as determined in accordance with the provisions of Section 8.1 hereof) to such removal and such appointment. Upon the receipt by the Trustee of a written notice of removal, the Trustee shall be responsible for securing the Member consents (if such consents are required pursuant to the preceding provisions of this Section 8.2) in a timely fashion and, unless ordered by a court of competent jurisdiction, shall not reveal to the Board, the Plan Administrator or any other person any information concerning such consents, except whether the required majority has been achieved. Any notice sent to Members by the Trustee canvassing the Members as to their consent to removal of the Trustee and the appointment of a proposed successor trustee, shall include the name and address of the proposed successor trustee. Any consent of a Member required under this Section 8.2 shall be deemed given if no written objection is received by the Trustee from such Member within fourteen days after request for such consent is sent postpaid by United States registered or certified mail with return receipt requested to such Member. 8.3 SUCCESSOR TRUSTEE. All of the provisions set forth herein with respect to the Trustee shall relate to each successor with the same force and effect as if such successor had been originally named as the Trustee hereunder. -14- 8.4 TRANSFER OF TRUST FUND TO SUCCESSOR. Upon the resignation or removal of the Trustee and appointment of a successor, the Trustee shall transfer and deliver the Trust Fund to such successor. Following the effective date of the appointment of the successor, the Trustee's responsibility hereunder shall be limited to managing the assets in its possession and transferring such assets to the successor, and settling its final account. Neither the Trustee nor the successor shall be liable for the acts of the other. ARTICLE IX DURATION AND TERMINATION OF TRUST AND AMENDMENT 9.1 DURATION AND TERMINATION. The Trust is hereby declared to be irrevocable and shall continue until (a) all payments required by Section 3.6 have been made or (b) until the Trust Fund contains no assets and retains no claims to recover assets from the Company or any other person or entity, whichever shall first occur. Notwithstanding the preceding provisions of this Section 9.1, unless earlier terminated, the Trust shall terminate twenty-one (21) years after the death of the last to die of all of the Members and their issue living on the date of execution of this Trust Agreement; provided, however, that if at that time the Trust may be continued in force without violating the rule against perpetuities or any other law of the State of Texas, then the Trust shall remain in effect until otherwise terminated as provided hereunder. 9.2 DISTRIBUTION UPON TERMINATION. If this Trust terminates under the provisions of Section 9.1, the Trustee shall liquidate the Trust Fund and, after its final account has been settled as provided in Article IV, shall distribute to the Company the net balance of any assets of the Trust remaining after all expenses have been paid and all Benefits, whether or not due and payable under the terms of the Plan on the date of such termination, have been paid to the Members and Beneficiaries. Upon making such distribution, the Trustee shall be relieved from all further liability. The powers of the Trustee hereunder shall continue so long as any assets of the Trust Fund remain in its hands. 9.3 AMENDMENT. The Board may from time to time amend, in whole or in part, any or all of the provisions of this Trust Agreement; provided, however, that (a) no amendment will be made to this Trust Agreement or the Plan which will cause this Trust Agreement, the Plan or the assets of the Trust Fund to be governed by or subject to Part 2, 3 or 4 of Title I of ERISA, (b) no such amendment shall adversely affect any Benefits to the date of such amendment in respect of any Member or Beneficiary or the amount of assets of the Trust Fund available to pay such Benefits, (c) no such amendment shall purport to alter the irrevocable character of the Trust established under this Trust Agreement, (d) no such amendment shall increase the duties or responsibilities of the Trustee unless the Trustee consents thereto in writing, and (e) after the occurrence of a Change in Control, no amendment will be made to this Trust Agreement without the consent of a majority of the Members (as determined pursuant to the provisions of Section 8.1 hereof). Upon receipt of a request from the Board for an amendment which requires the consent of a majority of the Members, the Trustee shall be responsible for securing Member consents in a timely fashion, and unless ordered by a court of competent jurisdiction, shall not reveal to the Board, the Plan Administrator or any other person any information concerning such consents, except whether the required majority has -15- been achieved. Any consent of a Member required under this Section 9.3 shall be deemed given if no written objection is received by the Trustee from such Member within fourteen days after request for such consent is sent postpaid by United States registered or certified mail with return receipt requested to such Member. This Trust Agreement may be amended, to the extent permitted in this Section 9.3, by an instrument in writing executed on behalf of A.P.S., Inc. by its authorized representatives, consents to which instrument have been obtained from the required majority of Members if such consents are required. ARTICLE X CLAIMS OF COMPANY'S CREDITORS 10.1 INSOLVENCY OF COMPANY. As used in this Article X, the Company shall be deemed to be "INSOLVENT" if (a) the Company is unable to pay its debts as they come due, or (b) the Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code (or any successor federal statute). In the event that the Company shall be deemed Insolvent, the assets of the Trust Fund shall be held for the benefit of the general creditors of the Company (hereinafter referred to as "BANKRUPTCY CREDITORS"). 10.2 TRUSTEE'S RESPONSIBILITIES IF COMPANY MAY BE INSOLVENT. (a) If at any time the Company or a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, the Trustee shall within thirty days independently determine whether the Company is Insolvent and, pending such determination, the Trustee shall discontinue any payment of Benefits under the Plan and this Trust Agreement and shall hold the Trust Fund for the benefit of Bankruptcy Creditors. As a condition of being a Member of the Plan and this Trust Agreement, each Member hereby waives his priority credit position, if any, under applicable state law. The Trustee shall resume payments of Benefits under the Plan and this Trust Agreement in accordance with Section 3.6 hereof only after the Trustee has determined that the Company is not Insolvent (or is no longer Insolvent, if the Trustee initially determined the Company to be Insolvent) or upon receipt of an order of a court of competent jurisdiction requiring such payments. The Company, by its chief executive officer and its Board of Directors, shall further be obligated to give the Trustee prompt notice in writing in the event that the Company becomes Insolvent, with the same consequences as provided in the preceding two sentences. In determining whether the Company is Insolvent, the Trustee may rely conclusively upon, and shall be protected in relying upon, court records showing that the Company is Insolvent, or a current report or statement from a nationally recognized credit reporting agency showing that the Company is Insolvent. For purposes of this Trust Agreement, knowledge and information concerning the Company which is not in the possession of the Trustee, or its employees, shall not be imputed to the Trustee. The Trustee shall have no duty or obligation to ascertain whether the Company is Insolvent unless and until it receives a writing that the Company is Insolvent as described in the first or third sentence of this Section 10.2(a). -16- (b) If the Trustee determines that the Company is Insolvent, the Trustee shall hold the assets of the Trust Fund for the benefit of the Bankruptcy Creditors, and shall disburse the assets of the Trust Fund to satisfy such claims as a court of competent jurisdiction shall direct. (c) If the Trustee discontinues payment of Benefits pursuant to Section 10.2(a) and subsequently resumes such payments, the first payment to a Member or Beneficiary following such discontinuance shall include an aggregate amount equal to the difference between the payments that would have been made to such Member or Beneficiary, as applicable, under this Trust Agreement but for this Section 10.2 and the aggregate payments actually made to such Member or Beneficiary, as applicable, by the Company pursuant to the Plan during any such period of discontinuance. In the event that upon resumption of payments pursuant to the preceding sentence, the assets of the Trust Fund are insufficient to pay Benefits in full, Benefit payments to the affected Members and Beneficiaries shall be prorated so as to equitably apportion the assets of the Trust Fund among all affected Members and Beneficiaries in proportion to their Benefits. 10.3 TRUST RECOVERY OF PAYMENTS TO CREDITORS. In the event that at any time an amount is paid from the Trust Fund to Bankruptcy Creditors of the Company, the Trustee shall demand that the Company deposit into the Trust Fund a sum equal to the amount paid by the Trust Fund to such Bankruptcy Creditors and, if such payment is not made within ninety days of such demand, the Trustee shall take such action as it deems prudent or advisable to recover payment. ARTICLE XI ADOPTING ENTITIES It is contemplated that other corporations, associations, partnerships or proprietorships that have adopted the Plan may adopt this Trust Agreement and thereby become the Company. Any such entity, whether or not presently existing, may become a party hereto by appropriate action of its officers without the need for approval of its board of directors or noncorporate counterpart or of the Board. The provisions of the Trust Agreement shall apply separately and equally to each Company and its Members and their Beneficiaries in the same manner as is expressly provided for A.P.S., Inc. and its Members and their Beneficiaries, except that (a) the power to appoint or otherwise affect the Trustee and the power to amend the Trust Agreement shall be exercised by the Board alone, and (b) the determination of whether a Change in Control has occurred shall be based solely on A.P.S. Holding Corporation. ARTICLE XII MISCELLANEOUS 12.1 LAWS OF THE STATE OF TEXAS TO GOVERN. This Trust Agreement and the Trust hereby created shall be construed and regulated by the laws of the State of Texas. -17- 12.2 TITLES AND HEADINGS NOT TO CONTROL. The titles to Articles and headings of Sections in this Trust Agreement are placed herein for convenience of reference only and, in case of any conflict, the text of this Trust Agreement, rather than such titles or headings, shall control. 12.3 CHANGE IN CONTROL. As used in this Trust Agreement, the term "CHANGE IN CONTROL" shall mean the occurrence of one or more of the following events: (a) A.P.S. Holding Corporation shall not be the surviving entity in any merger, consolidation or other reorganization to which it is a party (or survives only as a subsidiary of an entity other than a previously wholly-owned subsidiary of A.P.S. Holding Corporation); (b) A.P.S. Holding Corporation sells, leases or exchanges all or substantially all of its assets to any other person or entity (other than a wholly-owned subsidiary of A.P.S. Holding Corporation); (c) A.P.S. Holding Corporation is dissolved and liquidated or adopts a plan of dissolution and liquidation; (d) any person or entity, including a "group" as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, acquires or gains ownership or control (including, without limitation, power to vote) of more than 50% of the outstanding shares of A.P.S. Holding Corporation's voting stock (based upon voting power); or (e) as a result of or in connection with a contested election of directors, the persons who were directors of A.P.S. Holding Corporation before such election shall cease to constitute a majority of the Board. Notwithstanding the foregoing, any sale of the outstanding shares of A.P.S. Holding Corporation held by Clayton & Dubilier Fund IV to a third party shall not be deemed to be a Change in Control. A.P.S. Holding Corporation, by its chief executive officer and its Board of Directors, shall be obligated to give the Trustee prompt notice in writing of the occurrence of a Change in Control. In the event the Trustee receives such a notice or if at any time a Member or a Beneficiary of a deceased Member alleges in writing to the Trustee that a Change in Control has occurred, the Trustee shall within thirty days independently determine whether a Change in Control has occurred and, pending such determination, the Trustee shall assume that a Change in Control has occurred for all purposes of this Trust Agreement and the Plan. The Trustee shall have no duty or obligation to ascertain whether a Change in Control has occurred unless it receives a written notice as described in either of the preceding two sentences. In determining whether a Change in Control has occurred, the Trustee may, in its sole discretion, make such additional inquiries and/or take such additional measures as it deems necessary, including, but not limited to, interviewing appropriate persons, requesting affidavits, soliciting oral or written testimony under oath, or engaging such independent third parties as the Trustee may deem necessary to assist in making such determination. Notwithstanding the foregoing, if at any time A.P.S. Holding Corporation notifies the Trustee in writing that the Trustee should interpret this Trust Agreement and the Plan as if a Change in Control had occurred, then for all purposes of this Trust Agreement and the Plan, the Trustee shall so interpret this Trust Agreement and the Plan. Once the notice described in the preceding sentence is received by the Trustee, it may not be rescinded by A.P.S. Holding Corporation. 12.4 SUCCESSORS AND ASSIGNS. This Trust Agreement may not be assigned by either party without the prior written consent of the other, and any purported assignment without such prior written consent shall be null and void. This Trust Agreement shall be binding upon the successors and permitted assigns of each party hereto. -18- 12.5 CONTROLLING DOCUMENT. Should an inconsistency or conflict exist between the specific terms of this Trust Agreement and those of the Plan, then the relevant terms of this Trust Agreement shall govern and control. IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be executed as of the day and year first above written. A.P.S., INC. BY: /s/ E. EUGENE LAUVER ---------------------------------- E. EUGENE LAUVER VICE PRESIDENT TEXAS COMMERCE BANK NATIONAL ASSOCIATION, TRUSTEE BY: /s/ FRANCES SLOTT ---------------------------------- FRANCES SLOTT VICE PRESIDENT -19- EX-5.1 5 EXHIBIT 5.1 EXHIBIT 5.1 [OPINION OF E. EUGENE LAUVER, ESQ.] August 15, 1996 APS Holding Corporation World Houston Plaza 15710 John F. Kennedy Blvd. Suite 700 Houston, Texas 77032-2347 Ladies and Gentlemen: As Vice President and General Counsel of APS Holding Corporation, a Delaware corporation (the "Company"), I have represented the Company in connection with the approval by the Board of Directors of the Company of the A.P.S., Inc. Executive 401(k) Deferral Plan (the "Plan"), and the registration pursuant to a Registration Statement on Form S-8 being filed with the Securities and Exchange Commission (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"), of the offering and issuance of the Deferred Compensation Obligations of the Company under the Plan (the "Deferred Compensation Obligations"), which includes the purchase by the Plan in the open market of shares of Company Common Stock, par value $.01 per share (the "Shares"). This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. In this connection, I have examined certain corporate records of the Company, including its Second Restated Certificate of Incorporation, its Bylaws, as amended, and minutes of meetings (or unanimous consents in lieu of meetings) of its directors, the corporate proceedings of the Company with respect to the adoption by the Board of Directors of the Plan and the A.P.S., Inc. Executive 401(k) Deferral Plan Trust Agreement, dated as of August 14, 1996, between A.P.S., Inc. and Texas Commerce Bank National Association, as Trustee (the "Trust Agreement"). I have also examined the Registration Statement (in the form to be filed with the Securities and Exchange Commission), together with the Plan, the Trust Agreement, other exhibits thereto and such other documents as I have deemed necessary for the purpose of expressing the opinions contained herein. I am rendering this opinion as of the date on which the Registration Statement becomes effective. Based on the foregoing, I am of the opinion that (i) the Plan and the Trust Agreement have been duly and validly approved by the Company, (ii) the Deferred Compensation Obligations have been duly and validly authorized by the Company, and (iii) the Shares have been validly authorized and issued and are fully paid and nonassessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name in the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder. Very truly yours, /s/ Eugene Lauver ---------------------------------- E. Eugene Lauver Vice President and General Counsel EX-23.1 6 EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 15, 1996, on our audits of the consolidated financial statements and financial statement schedules of APS Holding Corporation and Subsidiaries as of January 27, 1996 and January 28, 1995, and for the years ended January 27, 1996, January 28, 1995 and January 29, 1994, which report is included in the Company's annual report on Form 10-K for the fiscal year ended January 27, 1996. COOPERS & LYBRAND L.L.P. Houston, Texas August 15, 1996 -----END PRIVACY-ENHANCED MESSAGE-----