<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM 10-KSB/A
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the fiscal year ended: December 31, 1998
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the transition period from _______ to _______
Commission file number: 0-8115
PH GROUP INC.
(Name of Small Business Issuer in Its Charter)
OHIO 31-0737351
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2365 Scioto Harper Drive, Columbus, Ohio 43204
(Address of Principal Executive Offices) (Zip Code)
(614)279-8877
Issuer's Telephone Number, Including Area Code:
Securities registered under Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act:
Common Shares, without par value
(Title of Class)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
Check if there is no disclosure of delinquent filers in response to
Item 405 of Regulation S-B contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. [ ]
The issuer's revenues for its most recent fiscal year were $13,394,357.
The aggregate market value of Common Shares held by non-affiliates of
the Registrant on March 5, 1999 was $2,228,030.
The number of Common Shares outstanding on March 5, 1999 was 1,620,386.
<PAGE> 2
The following document has been incorporated by reference into this
Form 10-KSB:
Document Part of Form 10-KSB
Registrant's Proxy Statement for its Part III
1999 Annual Meeting of Shareholders to
be held on May 4, 1999
Transitional Small Business Disclosure Format (check one)
Yes No X
--- ---
<PAGE> 3
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT.
Information regarding the Registrant's directors and executive officers is set
forth at "ELECTION OF DIRECTORS", and the information required by Item 405 of
Regulation S-B is set forth at "SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE", in the Registrant's definitive Proxy Statement for its 1999 Annual
Meeting of Shareholders to be held on May 4, 1999, filed with the Securities
and Exchange Commission (the "1999 Proxy Statement"), which information is
incorporated herein by reference.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K.
(a) LIST OF EXHIBITS.
2. PLAN OF PURCHASE, SALE, REORGANIZATION, ARRANGEMENT, LIQUIDATION OR
SUCCESSION.
2.1. Asset Purchase Agreement, dated as of April 30, 1997, between PH
Group Inc. and St. Lawrence Press Company, Inc. (incorporated by reference to
Exhibit 2 of the Company's Quarterly Report on Form 10 - QSB for the quarterly
period ended March 31, 1997; Commission File No. 0-8115).
3. ARTICLES OF INCORPORATION AND CODE OF REGULATIONS
3.1. Certificate of Amendment by Shareholders to the Articles of
Incorporation of PH Group Inc. as filed with the Ohio Secretary of State on
May 8, 1998 (amending Article IV of Amended Articles of Incorporation).
3.2. Certificate of Amendment by Directors of PH Group Inc., as filed
with the Ohio Secretary of State on May 8, 1998 (adopting Amended and Restated
Articles of Incorporation).
3.3. Amended and Restated Code of Regulations of PH Group Inc.
(incorporated by reference to Exhibit 3.2 of the Company's Quarterly Report on
Form 10-QSB for the quarterly period ended March 31, 1997; Commission File No.
0-8115).
3.4. Certificate of Inspector of Election as to Approval of the
Proposal to Amend Sections 2 and 5 of Article I of the Amended Code of
Regulations of PH Group Inc. to Delete References Therein to "Common" Shares
and to Substitute Therefor "Voting" Shares, dated April 30, 1998 (incorporated
by reference to Exhibit 3.3 of the Company's Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1998; Commission file No. 0-8115).
10. MATERIAL CONTRACTS (*indicates management contract or compensatory
plan or arrangement).
2
<PAGE> 4
10.1. Bank Lending Agreement, (Second Amended and Restated Revolving
Credit/Term Loan Agreement dated June 29, 1998 between Star Bank, N.A. and PH
Group Inc.). (incorporated herein by reference to Exhibit 10.1 to the Company's
Annual Report on Form 10-KSB for the period ended December 31, 1998; Commission
File No. 0-8115).
10.2. Form of Option Agreement between the Company and Employees,
related to options granted under PH Group Inc. 1997 Stock Incentive Plan.
(incorporated herein by reference to Exhibit 10.2 to the Company's Annual
Report on Form 10-KSB for the period ended December 31, 1998; Commission File
No. 0-8115).
10.3. Form of Option Agreement between the Company and Consultants,
related to options granted under PH Group Inc. 1997 Stock Incentive Plan.
(incorporated herein by reference to Exhibit 10.3 to the Company's Annual
Report on Form 10-KSB for the period ended December 31, 1998; Commission File
No. 0-8115).
10.4. Form of Option Agreement between the Company and Directors,
related to options granted under PH Group Inc. 1997 Stock Incentive Plan.
(incorporated herein by reference to Exhibit 10.4 to the Company's Annual
Report on Form 10-KSB for the period ended December 31, 1998; Commission File
No. 0-8115).
10.5. Employment Agreement between the Company and Charles T. Sherman
dated January 23, 1997 (incorporated by reference to Exhibit 10.5 to the
Company's Annual Report on Form 10-KSB for the period ended December 31, 1997;
Commission File No. 0-8115).*
10.6. Split Dollar Agreement between the Company and Charles T. Sherman
dated September 11, 1997 (incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-KSB for the period ended December 31, 1997;
Commission File No. 0-8115).*
10.7. PH Group Inc. 1997 Stock Incentive Plan (incorporated by
reference to Exhibit 10.7 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1997; Commission File No. 0-8115).*
10.8. PH Group Inc. Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.8 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1997; Commission File No. 0-8115).*
10.9. PH Group Inc. agreement with major Sales Representative.
(incorporated herein by reference to Exhibit 10.9 to the Company's Annual Report
on Form 10-KSB for the period ended December 31, 1998; Commission File No.
0-8115).
23. CONSENT OF INDEPENDENT AUDITORS.
23.1. Consent of Deloitte & Touche LLP (incorporated herein by
reference to Exhibit 23.1 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1998; Commission File No. 0-8115).
23.2. Consent of Greene & Wallace, Inc. (incorporated herein by
reference to Exhibit 23.2 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1998; Commission File No. 0-8115).
24. POWERS OF ATTORNEY.
24.1. Powers of Attorney. (incorporated herein by reference to Exhibit
24.1 to the Company's Annual Report on Form 10-KSB for the period ended December
31, 1998; Commission File No. 0-8115).
24.2. Certified resolution of the Company's Board of Directors
authorizing officers and directors signing on behalf of the Company to sign
pursuant to a power of attorney. (incorporated herein by reference to Exhibit
24.2 to the Company's Annual Report on Form 10-KSB for the period ended December
31, 1998; Commission File No. 0-8115).
27. FINANCIAL DATA SCHEDULE
27. Financial Data Schedule (submitted electronically for SEC
information only). (incorporated herein by reference to Exhibit 27 to the
Company's Annual Report on Form 10-KSB for the period ended December 31, 1998;
Commission File No. 0-8115).
(b) REPORTS ON FORM 8-K.
There were no Forms 8-K filed by the Company during the fourth quarter
of fiscal year 1998.
3
<PAGE> 5
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
Registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Dated: April 30, 1999 PH GROUP INC.
(the "Registrant")
By: /s/ CHARLES T. SHERMAN
----------------------------------
Charles T. Sherman, President
4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page in
Sequentially
Numbered
Exhibit No. Description Copy
<S> <C> <C>
2.1. Asset Purchase Agreement, dated as of April 30, 1997, between PH Group *
Inc. and St. Lawrence Press Company, Inc. (incorporated by reference
to Exhibit 2 of the Company's Quarterly Report on Form 10 - QSB for the
quarterly period ended March 31, 1997; Commission File No. 0-8115).
3.1. Certificate of Amendment by Shareholders to the Articles of 7
Incorporation of PH Group Inc. as filed with the Ohio
Secretary of State on May 8, 1998 (amending Article IV of
Amended Articles of Incorporation).
3.2. Certificate of Amendment by Directors of PH Group Inc., as filled with 10
the Ohio Secretary of State on May 8, 1998 (adopting Amended and
Restated Articles of Incorporation).
3.3. Amended and Restated Code of Regulations of PH Group Inc. (incorporated *
by reference to Exhibit 3.2 of the Company's Quarterly Report on Form
10-QSB for the quarterly period ended March 31, 1997; Commission File
No. 0-8115).
3.4. Certificate of Inspector of Election as to Approval of the Proposal to *
Amend Sections 2 and 5 of Article I of the Amended Code of Regulations
of PH Group Inc. to Delete References Therein to "Common" Shares and to
Substitute Therefor "Voting" Shares, dated April 30, 1998 (incorporated
by reference to Exhibit 3.3 of the Company's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1998; Commission File No.
0-8115).
10.1. Bank Lending Agreement, (Second Amended and Restated Revolving *
Credit/Term Loan Agreement dated June 29, 1998 between Star Bank, N.A.
and PH Group Inc.). (incorporated herein by reference to Exhibit 10.1 to
the Company's Annual Report on Form 10-KSB for the period ended December
31, 1998; Commission File No. 0-8115).
10.2. Form of Option Agreement between the Company and Employees, related to *
options granted under PH Group Inc. 1997 Stock Incentive Plan.
(incorporated herein by reference to Exhibit 10.2 to the Company's
Annual Report on Form 10-KSB for the period ended December 31, 1998;
commission File No. 0-8115).
10.3. Form of Option Agreement between the Company and Consultants, related to *
options granted under PH Group Inc. 1997 Stock Incentive Plan.
(incorporated herein by reference to Exhibit 10.3 to the Company's
Annual Report on Form 10-KSB for the period ended December 31, 1998;
Commission File No. 0-8115).
10.4. Form of Option Agreement between the Company and Directors, related to *
options granted under PH Group Inc. 1997 Stock Incentive Plan.
(incorporated herein by reference to Exhibit 10.4 to the Company's
Annual Report on Form 10-KSB for the period ended December 31, 1998;
Commission File No. 0-8115).
10.5. Employment Agreement between the Company and Charles T.
Sherman dated January 23, 1997 (incorporated by reference to
Exhibit 10.5 to the Company's Annual Report on Form 10-KSB for
the period ended December 31, 1997; Commission File No.
0-8115).* *
10.6. Split Dollar Agreement between the Company and Charles T.
Sherman dated September 11, 1997 (incorporated by reference to
Exhibit 10.6 to the Company's Annual Report on Form 10-KSB for
the period ended December 31, 1997; Commission File No.
0-8115).* *
10.7. PH Group Inc. 1997 Stock Incentive Plan (incorporated by reference to
Exhibit 10.7 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1997; Commission File No. 0-8115).* *
</TABLE>
5
<PAGE> 7
<TABLE>
<S> <C> <C>
10.8. PH Group Inc. Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.8 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1997; Commission File No. 0-8115). *
10.9. PH Group Inc. agreement with major Sales Representative. (incorporated *
herein by reference to Exhibit 10.4 to the Company's Annual Report on
Form 10-KSB for the period ended December 31, 1998; Commission File No.
0-8115).
23.1. Consent of Deloitte & Touche LLP (incorporated herein by reference to *
Exhibit 23.1 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1998; Commission File No. 0-8115).
23.2. Consent of Greene & Wallace, Inc. (incorporated herein by reference to *
Exhibit 23.2 to the Company's Annual Report on Form 10-KSB for the
period ended December 31, 1998; Commission File No. 0-8115).
24.1. Powers of Attorney. (incorporated herein by reference to Exhibit 24.1 to *
the Company's Annual Report on Form 10-KSB for the period ended December
31, 1998; Commission File No. 0-8115).
24.2. Certified resolution of the Company's Board of Directors authorizing *
officers and directors signing on behalf of the Company to sign pursuant
to a power of attorney. (incorporated herein by reference to Exhibit
24.2 to the Company's Annual Report on Form 10-KSB for the period ended
December 31, 1998; Commission File No. 0-8115).
27. Financial Data Schedule (submitted electronically for SEC information *
only). (incorporated herein by reference to Exhibit 27 to the Company's
Annual Report on Form 10-KSB for the period ended December 31, 1998;
Commission File No. 0-8115).
</TABLE>
- ---
*Incorporated by reference
6
<PAGE> 1
Exhibit 3.1
[LOGO]
Prescribed by Charter No.: __________________________
BOB TAFT, Secretary of State Approved: _____________________________
30 East Broad Street, 14th Floor Date: _________________________________
Columbus, Ohio 43266-0418 Fee: $35.00
CERTIFICATE OF AMENDMENT
BY SHAREHOLDERS TO THE ARTICLES OF INCORPORATION OF
PH GROUP INC.
- --------------------------------------------------------------------------------
(Name of Corporation)
Charles T. Sherman, who is:
/ / Chairman of the Board /X/ President / / Vice President (Please check one)
and Kenneth J. Warren, who is:
/X/ Secretary / / Assistant Secretary (Please check One)
of the above named Ohio corporation organized for profit does hereby certify
that: (Please check the appropriate box and complete the appropriate
statements.)
/X/ a meeting of the shareholders was duly called for the purpose of adopting
this amendment and held on April 30, 1998 at which meeting a quorum of the
shareholders 1998 was present in person or by proxy, and by the affirmative
vote of the holds of shares entitling them to exercise __________% of the
voting power of the corporation.
/ / in a writing signed by all of the shareholders who would be entitled to
notice of a meeting held for that purpose, the following resolution to
amend the articles was adopted:
RESOLVED, that Article IV of the Company's Amended Articles of
Incorporation be, and it hereby is, amended in its entirety to read as presented
to the shareholders at this meeting and set forth in Exhibit A to the proxy
statement delivered to the shareholders in connection with this meeting.
IN WITNESS WHEREOF, the above named officers, acting for and on the
behalf of the corporation, have hereto subscribed their names this 30th day of
April, 1998.
By /s/ Charles T. Sherman By /s/ Kenneth J. Warren
---------------------------- ---------------------------
(President) (Secretary)
NOTE: OHIO LAW DOES NOT PERMIT ONE OFFICER TO SIGN IN TWO CAPACITIES, TWO
SEPARATE SIGNATURES ARE REQUIRED, EVEN IF THIS NECESSITATES THE ELECTION OF A
SECOND OFFICER BEFORE THE FILING CAN BE MADE.
<PAGE> 2
Exhibit A
ARTICLE IV
AUTHORIZED SHARES
Section 1. Number and Class of Shares. The number of shares which the
Corporation is authorized to have issued and outstanding is 12,500,000 shares.
The classes and the aggregate number of shares of each class are as follows:
(a) 10,000,000 Common Shares, without par value; and
(b) 2,500,000 Preferred Shares, without par value.
No holder of Common Shares or of Preferred Shares shall have as such, as a
matter of right, the preemptive right to subscribe for or purchase any part of
any new or additional issue of shares of any class whatsoever, or of securities
or other obligations convertible into or exchangeable for any shares of any
class whatsoever or which by warrants or otherwise entitle the holders thereof
to subscribe for or purchase any shares of any class whatsoever, whether now or
hereafter authorized and whether issued for cash or other consideration.
Section 2. Preferred Shares.
2.1. Issuance in Series. Any unissued or treasury Preferred Shares may
be issued from time to time in one or more series for such consideration as may
be fixed from time to time by the Board of Directors. The Board of Directors is
hereby expressly authorized to adopt amendments to the Articles of Incorporation
in respect of any unissued or treasury Preferred Shares to, among other things,
fix or change (a) the division of Preferred Shares into one or more series, (b)
the designation and authorized number of shares of each series, and (c) the
express terms of each series of Preferred Shares. The express terms of shares of
different series of Preferred Shares shall be identical except that there may be
variations in respect of:
2.1.1. the dividend or distribution rate;
2.1.2. the dates of payments of dividends or distributions
and the dates from which they are cumulative;
2.1.3. redemption rights and price;
2.1.4. liquidation price;
2.1.5. sinking fund requirements;
2.1.6. conversion rights; and
<PAGE> 3
2.1.7. restrictions on the issuance of shares of the same
series or of any other class or series.
2.2. Voting Rights. As to every matter requiring the approval of the
shareholders of the Corporation, every holder of Preferred Shares shall be
entitled to one vote for each Preferred Share standing in his name on the books
of the Corporation, with the same and identical voting rights, except as
otherwise provided herein, as a holder of Common Shares. The Preferred Shares
and Common Shares shall vote together as a single class, except as otherwise
required by law or the Articles of Incorporation.
2.3. Priority of Preferred Shares in Event of Dissolution. In the event
of any dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntarily or involuntarily, the holders of each series of Preferred
Shares shall be entitled, after payment or provision for payment of the debts
and other liabilities of the Corporation, to receive, out of the net assets of
the Corporation, the amount fixed and determined by the Board of Directors in
any amendment to the Articles of Incorporation providing for the issuance of a
particular series of Preferred Shares, before any distribution shall be made to
the holders of Common Shares. Neither the merger or consolidation of the
Corporations, nor the sale, lease or conveyance of all or part of its assets,
shall be deemed to be a liquidation, dissolution or winding up of the affairs of
the Corporation within the meaning of this Section 2.3.
2.4. Priority of Preferred Shares to Dividends or Other Distributions
As and when dividends or other distributions payable in cash, property or
capital stock of the Corporation may be declared by the Board of Directors,
holders of Preferred Shares shall be paid a dividend or distribution in an
amount to be determined by the Board of Directors in any amendment to the
Articles of Incorporation before payment of any such dividend or distribution is
made to holders of Common Shares.
2
<PAGE> 1
Exhibit 3.2
[LOGO]
Prescribed by Charter No.: __________________________
BOB TAFT, Secretary of State Approved: _____________________________
30 East Broad Street, 14th Floor Date: _________________________________
Columbus, Ohio 43266-0418 Fee: _________________________________
Form C-107 (January 1991)
CERTIFICATE OF AMENDMENT
BY DIRECTORS OF
PH GROUP INC.
- --------------------------------------------------------------------------------
(Name of Corporation)
Charles T. Sherman, who is:
/ / Chairman of the Board /X/ President / / Vice President (check one)
and Kenneth J. Warren, who is:
/X/ Secretary / / Assistant Secretary (check One)
of the above named Ohio corporation for profit do hereby certify that:
/ / a meeting of the Board of Directors was called and held on the ___ day of
______________, 19___.
/X/ in a writing signed by all the Directors pursuant to Section 1701.54 of the
Ohio Revised Code , the following resolution was adopted pursuant to
Section 1701.72(B) (insert the proper paragraph number) of the Ohio Revised
Code:
RESOLVED, that the Amended and Restated Articles of Incorporation of PH
Group Inc., in the form attached hereto as Exhibit A and made a part hereof,
which Amended and Restated Articles of Incorporation consolidate the original
articles and all previously adopted amendments to the articles that are in force
at the date hereof, be, and the same hereby are, adopted.
IN WITNESS WHEREOF, the above named officers, acting for and on the
behalf of the corporation, have hereto subscribed their names this 30th day of
April, 1998.
By /s/ Charles T. Sherman
------------------------------
(President)
By /s/ Kenneth J. Warren
------------------------------
(Secretary)
NOTE: Ohio law does not permit one officer to sign in two capacities. Two
separate signatures are required, even if this necessitates the election of a
second officer before the filing can be made.
<PAGE> 2
Exhibit A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PH GROUP INC.
ARTICLE I
The name of said corporation shall be PH Group Inc.
ARTICLE II
The place in Ohio where its principal office is to be located is in
Columbus, Franklin County, Ohio.
ARTICLE III
The purposes for which it is formed are to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to 1701.98,
inclusive, of the Revised Code.
This corporation reserves the right at any time and from time to time
substantially to change its purpose in the manner now or hereafter permitted by
statute. Any change of the purposes of the corporation which is authorized or
approved by the holders of shares entitling them to exercise the proportion of
the voting power of the corporation now or hereafter required by statute, shall
be binding and conclusive upon every shareholder as if he had voted therefor. No
shareholder, notwithstanding that he may have voted against such change of
purposes or may have objected thereto in writing, shall be entitled to payment
of the fair cash value of his shares.
ARTICLE IV
AUTHORIZED SHARES
Section 1. Number and Class of Shares. The number of shares
which the Corporation is authorized to have issued and outstanding is 12,500,000
shares. The classes and the aggregate number of shares of each class are as
follows:
(a) 10,000,000 Common Shares, without par value; and
(b) 2,500,000 Preferred Shares, without par value.
No holder of Common Shares or of Preferred Shares shall have as such, as a
matter of right, the preemptive right to subscribe for or purchase any part of
any new or additional issue of shares of any class whatsoever, or of securities
or other obligations convertible into or exchangeable for any shares of any
class whatsoever or which by warrants or otherwise entitle the holders thereof
<PAGE> 3
to subscribe for or purchase any shares of any class whatsoever, whether now or
hereafter authorized and whether issued for cash or other consideration.
Section 2. Preferred Shares.
2.1. Issuance in Series. Any unissued or treasury Preferred
Shares may be issued from time to time in one or more series for such
consideration as may be fixed from time to time by the Board of Directors. The
Board of Directors is hereby expressly authorized to adopt amendments to the
Articles of Incorporation in respect of any unissued or treasury Preferred
Shares to, among other things, fix or change (a) the division of Preferred
Shares into one or more series, (b) the designation and authorized number of
shares of each series, and (c) the express terms of each series of Preferred
Shares. The express terms of shares of different series of Preferred Shares
shall be identical except that there may be variations in respect of:
2.1.1. the dividend or distribution rate;
2.1.2. the dates of payments of dividends or
distributions and the dates from which they are cumulative;
2.1.3. redemption rights and price;
2.1.4. liquidation price;
2.1.5. sinking fund requirements;
2.1.6. conversion rights; and
2.1.7. restrictions on the issuance of shares of
the same series or of any other class or series.
2.2. Voting Rights. As to every matter requiring the approval
of the shareholders of the Corporation, every holder of Preferred Shares shall
be entitled to one vote for each Preferred Share standing in his name on the
books of the Corporation, with the same and identical voting rights, except as
otherwise provided herein, as a holder of Common Shares. The Preferred Shares
and Common Shares shall vote together as a single class, except as otherwise
required by law or the Articles of Incorporation.
2.3. Priority of Preferred Shares in Event of Dissolution. In
the event of any dissolution, liquidation or winding up of the affairs of the
Corporation, whether voluntarily or involuntarily, the holders of each series of
Preferred Shares shall be entitled, after payment or provision for payment of
the debts and other liabilities of the Corporation, to receive, out of the net
assets of the Corporation, the amount fixed and determined by the Board of
Directors in any amendment to the Articles of Incorporation providing for the
issuance of a particular series of Preferred Shares, before any distribution
shall be made to the holders of Common Shares. Neither the merger or
consolidation of the Corporation, nor the sale, lease or conveyance of all or
2
<PAGE> 4
part of its assets, shall be deemed to be a liquidation, dissolution or winding
up of the affairs of the Corporation within the meaning of this Section 2.3.
2.4. Priority of Preferred Shares to Dividends or Other
Distributions. As and when dividends or other distributions payable in cash,
property or capital stock of the Corporation may be declared by the Board of
Directors, holders of Preferred Shares shall be paid a dividend or distribution
in an amount to be determined by the Board of Directors in any amendment to the
Articles of Incorporation before payment of any such dividend or distribution is
made to holders of Common Shares.
ARTICLE V
A. Notwithstanding any provision of the Revised Code of Ohio, now or
hereafter in force, requiring for any purpose the vote of the holders of shares
entitling them to exercise two-thirds or any other proportion of the voting
power of the corporation or of any class or classes of shares thereof, such
action, unless otherwise expressly required by statute, may be taken by the vote
of the holders of shares entitling them to exercise a majority of the voting
power of the corporation or of such class or classes.
B. The corporation reserves the right to amend, alter, change or
repeal any provision contained in the Articles of Incorporation, in the manner
now or hereafter prescribed or permitted by statute, and all rights conferred
upon shareholders herein are granted subject to this reservation.
C. No person shall be disqualified from being a director of the
corporation because he or she is or may be a party to, and no director of the
corporation shall be disqualified from entering into any contract or other
transaction to which the corporation is or may be a party. No contract or other
transaction to which the corporation is or may be a party shall be void or
voidable for the reason that any director or officer or other agent of the
corporation is a party thereto, or otherwise has any direct or indirect interest
in such contract or transaction or in any other party thereto, for reason that
any interested director or officer or other agent of the corporation authorizes
or participates in authorization of such contract or transaction, (a) if the
material facts as to such interest are disclosed or are otherwise known to the
Board of Directors at the time the contract or transaction is authorized and at
least a majority of the disinterested members vote for or otherwise take action
authorizing such contract or transaction even though such disinterested
directors are less than a quorum, or (b) if the contract or transaction (i) is
not less favorable to the corporation than an arm's length contract or
transaction in which no director or officer or other agent of the corporation
has any interest or (ii) is otherwise fair to the corporation as of the time it
is authorized. Any interested director may be counted in determining the
presence of a quorum at any meeting of the Board of Directors which authorizes
the contract or transaction.
D. Section 1701.831 of the Ohio Revised Code, as amended from time to
time, shall not apply to "control share acquisitions" of shares of stock of the
corporation, as defined in Section 1701.01(Z) of the Ohio Revised Code, as
amended from time to time.
3
<PAGE> 5
E. No shareholder of the corporation may cumulative voting power in
the election of directors.
ARTICLE VI
The Board of Directors is hereby authorized to determine whether any,
and, if any, what part of the surplus, however created or arising, shall be used
or disposed of or declared in dividends or paid to shareholders, and, without
action of the shareholders, to use and apply such surplus, or any part thereof,
at any time or from time to time, in the purchase or acquisition of shares of
any class now or hereafter authorized, voting-trust certificates for shares,
bonds, debentures, notes, scrip, warrants, obligations, evidences of
indebtedness of the corporation, and other securities of the corporation, to
such extent or amount and in such manner and upon such terms as the Board of
Directors shall deem expedient.
ARTICLE VII
The provisions of Section 1701.13(E)(5)(a) of the Ohio Revised Code or
any statute of like tenor or effect which is hereafter enacted shall not apply
to the corporation. The corporation shall, to the fullest extent not prohibited
by any provision of applicable law other than Section 1701.13(E)(5)(a) of the
Ohio Revised Code or any statute of like tenor or effect which is hereafter
enacted, indemnify each director and officer against any and all costs and
expenses (including attorney fees, judgments, fines, penalties, amounts paid in
settlement and other disbursements) actually and reasonably incurred by or
imposed upon such person in connection with any action, suit, investigation or
proceeding (or any claim or other matter therein), whether civil, criminal,
administrative or otherwise becomes or is threatened to be made a party by
reason of being or at any time having been, while such a director or officer, an
employee or other agent of the corporation or, at the direction or request of
the corporation, a director, trustee, officer, administrator, manager employee,
adviser or other agent of or fiduciary for any other corporation, partnership,
trust venture or other entity or enterprise including any employee benefit plan.
The corporation shall indemnify any other person to the extent such
person shall be entitled to indemnification under Ohio law by reason of being
successful on the merits or otherwise in defense of an action to which such
person is named a party by reason of being an employee or other agent of the
corporation and the corporation may further indemnify any such person if it is
determined on a case by case basis by the Board of Directors that
indemnification is proper in the specific case.
Notwithstanding anything to the contrary in these Articles of
Incorporation, no person shall be indemnified to the extent, if any, it is
determined by the Board of Directors or by written opinion of legal counsel
designated by the Board of Directors for such purpose that indemnification is
contrary to applicable law.
4
<PAGE> 6
ARTICLE VIII
These Amended and Restated Articles of Incorporation supersede and
replace the original articles of PH Group Inc. and its predecessor and all
previously adopted amendments thereto that are in force on the date hereof.
5
