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EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TALENTPOINT, INC.
A BUSINESS-STOCK DOMESTIC CORPORATION
In compliance with the requirements of the Pennsylvania Business
Corporation Law of 1988, as amended, 15 Pa.C.S. (S)1911 et. seq. (relating to
amendment of articles of incorporation), the corporation hereby desires to amend
and restate its Articles of Incorporation in their entirety as follows:
FIRST: Name: The name of the corporation is: TalentPoint, Inc.
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SECOND: Address: The location and address of this corporation's initial
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registered office in this Commonwealth of Pennsylvania and the county of venue
is: 170 South Warner Road, Suite 110, Wayne, PA 19087, Montgomery County.
THIRD: The corporation is incorporated under the provisions of the Business
Corporation Law of 1988. (15 Pa. C.S. (S)(S) 1101 et. seq.)
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FOURTH: Description of Capital Stock.
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The authorized capital stock of the Corporation shall consist of the
following: (i) One Hundred Million shares (100,000,000) of Class A Common
Stock, $.01 par value (the "Class A Common"), (ii) Two Hundred Thousand shares
(200,000) of Class B Common Stock, $.01 par value (the "Class B Common", and
together with the Class A Common, the "Common Stock") and (iii) One Hundred
Thousand shares (100,000) of Preferred Stock, $.01 par value, the rights and
preferences of which may be designated by the Board of Directors (the "Preferred
Stock").
1. DIVIDENDS AND DISTRIBUTIONS
1.1 Class A Common Stock Dividends. Subject to the provisions of law
and this Certificate of Incorporation, the holders of Common Stock
shall be entitled to receive dividends out of funds legally available
therefor, at such times and in such amounts as the Board of Directors
in its sole discretion may determine.
1.2 Class B Common Stock Dividends. Subject to the provisions of law
and this Certificate of Incorporation, in the event that the Board of
Directors of the Corporation shall declare a dividend payable upon the
then outstanding shares of Class A Common (other than a stock dividend
on the Class A Common payable solely in the form of additional shares
of Class A Common), the holders of the
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Class B Common shall be entitled to the amount of dividends per share
of Class B Common that would be payable on the largest number of whole
shares of Class A Common into which each share of Class B Common held
by each holder could be converted pursuant to the provisions of
Section 4 hereof, such number determined as of the record date for the
determination of holders of Class A Common entitled to receive such
dividend.
1.3 Record Date for Dividends. The Board of Directors of the Corporation
may fix a record date for the determination of holders of shares of
Common Stock entitled to receive payment of a dividend declared
thereon, which record date shall be no more than 60 days and no less
than 10 days prior to the date fixed for the payment thereof.
2. LIQUIDATION, DISSOLUTION OR WINDING-UP.
2.1 Liquidating Distribution. In the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation,
after payment of all amounts owing to holders of capital stock ranking
senior to the Common Stock, all remaining assets available for
distribution (after payment or provision for payment of all debts and
liabilities of the Corporation) shall be distributed to the respective
holders of the Common Stock ratably in proportion to the number of
shares of Class A Common they then hold or into which their Class B
Common then is convertible.
2.2 Distributions Other Than Cash. The amount deemed distributed to the
holders of Common Stock upon any liquidation, dissolution, or winding-
up shall be the cash or the fair market value of the property, rights,
or securities distributed to such holders by the acquiring person,
firm, or other entity. The value of such property, rights, or other
securities shall be determined in good faith by the Board of Directors
of the Corporation.
3. VOTING RIGHTS. Except as otherwise required by law, as provided in Section
5 hereof, or, with respect to any series of Preferred Stock as otherwise
provided by the Board of Directors, the holders of the Common Stock shall
have the following respective voting rights:
3.1 Class B Common Voting Rights. Each holder of shares of Class B Common
shall be entitled to notice of any stockholders' meeting and to vote
on any matters on which the Class A Common may be voted (other than
elections of directors). Each share of Class B Common shall be
entitled to a number of votes equal to the number of shares of Class A
Common into which such share of Class B Common is then convertible (as
adjusted from time to time in the manner set forth herein).
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3.2 Class A Common Voting Rights. The holders of Class A Common shall be
entitled to one vote per share for the election of directors and on
all other matters for which a vote of common stockholders is required.
3.3 Class A Warrant Voting Rights. The holders of the Corporation's Class
A Warrants for the purchase of Class A Common shall be entitled to
notice of any stockholders' meeting and to vote on any matters on
which the Class A Common may be voted (other than elections of
directors). Each Class A Warrant shall be entitled to a number of
votes equal to the number of whole shares of Class A Common into which
such Class A Warrant is then exercisable (as adjusted from time to
time in the manner set forth in the Class A Warrant).
3.4 Non-Cumulative Voting. All voting for election of directors shall be
non-cumulative.
4. CONVERSION OF CLASS B COMMON. The holders of the Class B Common shall have
conversion rights as follows:
4.1 Right of Class B Common to Convert. Each issued and outstanding share
of Class B Common shall be convertible, at the option of the holder
thereof, at any time after the date of issuance and without the
payment of any additional consideration therefor, into that number of
fully paid and nonassessable shares of Class A Common as is determined
by dividing $167 by the Class B Conversion Price (as defined below) in
effect at the time of conversion. The "Class B Conversion Price" at
which shares of Class A Common shall be deliverable upon conversion of
Class B Common shall initially be $167 per share. Such initial Class
B Conversion Price shall be subject to adjustment (in order to adjust
the number of shares of Class A Common into which the Class B Common
is convertible) as hereinafter provided.
4.2 Fractional Shares. No fractional shares of Class A Common shall be
issued upon conversion of the Class B Common. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to the product of such fraction
multiplied by the then effective Class B Conversion Price.
4.3 Mechanics of Conversion.
(1) In order for a holder of Class B Common to convert shares of
Class B Common into shares of Class A Common, such holder shall
surrender the certificate or certificates for such shares of
Class B Common, at the office of the transfer agent for the Class
B Common (or at the principal office of the Corporation if the
Corporation serves as its own transfer agent), together with
written notice that such holder elects to convert all or any
number of the shares of the Class B Common represented by such
number
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of the shares of the Class B Common represented by such
certificate or certificates. Such notice shall state such
holder's name or the names of the nominees in which such holder
wishes the certificate or certificates for shares of Class A
Common to be issued and the number of shares of Class B Common to
be converted. If required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied by a
written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered
holder or his or its attorney duly authorized in writing. The
date of receipt of such certificates and notice by the transfer
agent (or by the Corporation if the Corporation serves as its own
transfer agent) shall be the conversion date (the "Conversion
Date") and the conversion shall be deemed effective as of the
close of business on the Conversion Date. The Corporation shall,
as soon as practicable after the Conversion Date, issue and
deliver at such office to such holder of Class B Common, or to
his or its nominees, a certificate or certificates for the number
of shares of Class A Common to which such holder shall be
entitled, together with cash in lieu of any fraction of a share.
(2) The Corporation shall at all times when the Class B Common shall
be outstanding, reserve and keep available out of its authorized
but unissued stock, for the purpose of effecting the conversion
of the Class B Common, such number of its duly authorized shares
of Class A Common as shall from time to time be sufficient to
effect the conversion of all outstanding Class B Common. Before
taking any action that would cause an adjustment reducing the
Class B Conversion Price below the then-existing par value of the
shares of Class A Common issuable upon conversion of the Class B
Common, the Corporation shall take any corporate action that may,
in the opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and
nonassessable shares of Class A Common at such adjusted Class B
Conversion Price.
(3) Upon any such conversion, no adjustment to the Class B Conversion
Price shall be made for any declared and unpaid dividends on the
Class B Common surrendered for conversion or on the Class A
Common delivered upon conversion.
(4) All shares of Class B Common surrendered for conversion as herein
provided shall no longer be deemed to be outstanding and all
rights with respect to such shares, including the rights, if any,
to receive notices and to vote shall immediately cease and
terminate at the close of business on the Conversion Date (except
only the right of the holders thereof to receive shares of Class
A Common in exchange therefor) and any shares of Class B Common
so converted shall be retired and canceled and shall not be
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reissued, and the Corporation from time to time shall take
appropriate action to reduce the authorized Class B Common
accordingly.
4.4 Adjustments to Class B Conversion Price for Diluting Issues:
(1) Special Definitions. For the purposes of this Section 4.4, the
following definitions shall apply:
(1) "Option" means any outstanding right, option or warrant to
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subscribe for, purchase or otherwise acquire Common Stock or
Convertible Securities excluding rights, warrants and
options granted on or after the Original Issue Date to
employees, officers, directors or consultants of the
Corporation of any subsidiary thereof pursuant to any stock
option plan or agreement adopted by the Board of Directors.
(2) "Original Issue Date" with respect to the Class B Common
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means the date on which any shares of Class B Common first
were issued.
(3) "Convertible Securities" means any evidences of
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indebtedness, shares (other than Class B Common Stock) or
other securities directly or indirectly convertible into or
exchangeable for Class A Common Stock.
(2) Issue of Options and Convertible Securities Deemed Issue of Class
A Common. If the Corporation at any time or from time to time
shall issue any Options or Convertible Securities, or shall fix a
record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible
Stock, then the maximum number of shares of Class A Common (as
set forth in the instrument relating thereto without regard to
any provision contained therein for a subsequent adjustment of
such number) issuable upon the exercise of such Options or, in
the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be
deemed to be additional shares of Class A Common issued as of the
time of such issue or, in case such a record date shall have been
fixed, as of the close of business on such record date, provided,
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that additional shares of Class A Common shall not be deemed to
have been issued unless the consideration per share determined
pursuant to Section 4.(d) of such shares of Class A Common would
be less than the Class B Conversion Price in effect on the date
of and immediately prior to such issue, or such record date, as
the case may be, and provided, further, that in any such case in
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which additional shares of Class A Common are deemed to be issued
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(1) no further adjustment in the Class B Conversion Price
shall be made upon the subsequent issue of Convertible
Securities or shares of Class A Common upon the
exercise of such Options or conversion or exchange of
such Convertible Securities; and
(2) upon the expiration of any such Options or any rights
of conversion or exchange under such Convertible
Securities which shall not have been exercised, the
Class B Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date
with respect thereto) and any subsequent adjustments
based thereon shall, upon such expiration, be
recomputed as if:
(1) In the case of Convertible Securities or Options
for Class A Common Stock, the only shares of Class
A Common issued for purposes of Section 4.4(c)
were the shares of Class A Common Stock, if any,
actually issued upon the exercise of such Options
or the conversion or exchange of such Convertible
Securities and the consideration received therefor
was the consideration actually received by the
Corporation for the issue of all such Options,
whether or not exercised, plus the additional
consideration actually received by the Corporation
upon the exercise of such Options or portion
thereof, or for the issue of all such Convertible
Securities, whether or not converted or exchanged,
plus the additional consideration, if any,
actually received by the Corporation upon the
conversion or exchange of such Convertible
Securities or portion thereof, and
(2) in the case of Options for Convertible Securities,
only the Convertible Securities, if any, actually
issued upon the exercise thereof were issued at
the time of issue of such Options, and the
consideration received by the Corporation for the
additional shares of Class A Common Stock deemed
to have been then issued was the consideration
actually received by the Corporation for the issue
of all such Options, whether or not exercised,
plus the consideration deemed to have been
received by the Corporation determined pursuant to
Section 4.4(d) upon the
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issue of the Convertible Securities with respect
to which such Options were actually exercised;
(3) no recomputation pursuant to the preceding clauses
(2) and (3) shall have the effect of increasing
the Class B Conversion Price to an amount that
exceeds the lower of (i) the applicable Class B
Conversion Price on the original adjustment date,
or (ii) the Class B Conversion Price that would
have resulted from any issuance of additional
shares of Class A Common between the original
adjustment date and such recomputation date.
(3) Adjustment of Conversion Price Upon Certain Events. If the
Corporation shall issue shares of Class A Common (other than
Class A Common issued or issuable (i) upon conversion of shares
of Class B Common; (ii) as a dividend or distribution on Class B
Common; (iii) by reason of a dividend, stock split, split-up or
other distribution on shares of Class A Common; (iv) upon the
exercise of options to employees, officers or directors excluded
from the definition of "Option" in Section 4.4(a)(1); or (v) upon
the exercise, at any time from and after the Original Issue Date,
of Options granted or issued on or before the Original Issue
Date), including Class A Common deemed to be issued pursuant to
Section 4.4(b) hereof, but excluding Class A Common issued
pursuant to Section 4.4(e), which event is dealt with in Section
4.4(e), without consideration or for a consideration per share
less than the Class B Conversion Price in effect on the date of
and immediately prior to such issue, then and in such event, such
Class B Conversion Price shall be reduced, concurrently with such
issue to a price (calculated to the nearest cent) determined by
multiplying such Class B Conversion Price by a fraction (x) the
numerator of which shall be the sum of (A) the product of the
total number of shares of Class A Common Stock outstanding
immediately prior to such issuance multiplied by the Class B
Conversion Price in effect hereunder at the time of such
issuance, plus (B) the aggregate consideration received by the
Corporation for the total number of additional shares of Class A
Common so issued, and (y) the denominator of which shall be the
product of (A) the total number of shares of Class A Common Stock
outstanding immediately after such issuance, (B), multiplied by
the Class B Conversion Price in effect hereunder at the time of
such issuance, provided that the Class B Conversion Price shall
not be so reduced at such time if the amount of such reduction
would be an amount less than one-tenth (1/10) of one percent (1%)
of the Class B Conversion Price, but any such amount shall be
carried forward and reduction with respect thereto made at the
time of and together with any subsequent reduction which,
together with such amount and any other amounts so carried
forward, shall
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aggregate one-tenth (1/10) of one percent (1%) of the Class B
Conversion Price or more.
(4) Determination of Consideration. For purposes of this Section
4.4, the consideration received by the Corporation for the issue
of any Additional Shares of Class A Common shall be computed as
follows:
(1) Cash and Property: Such consideration shall:
(i) insofar as it consists of cash, be computed at the
aggregate of cash received by the Corporation,
excluding amounts paid or payable for accrued interest
or accrued dividends;
(2) insofar as it consists of property other than cash, be
computed at the fair market value thereof at the time
of such issue, as determined in good faith by the Board
of Directors; and
(3) in the event shares of Class A Common are issued
together with other shares or securities or other
assets of the Corporation for consideration which
covers both, be the proportion of such consideration so
received, computed as provided in clauses (a) and (b)
above, as determined in good faith by the Board of
Directors.
(2) Options and Convertible Securities. The consideration per
share received by the Corporation for Class A Common deemed
to have been issued pursuant to Section 4.4(b), relating to
Options and Convertible Securities, shall be determined by
dividing
(x) the total amount, if any, received or receivable by the
Corporation as consideration for the issue of such Options or Convertible
Securities, plus the aggregate amount of additional consideration (as set forth
in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration until such subsequent
adjustment occurs) payable to the Corporation upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities, by
(y) the maximum number of shares of Class A Common (as set forth
in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number until such subsequent
adjustment occurs) issuable upon the exercise of such Options or the conversion
or exchange of such Convertible Securities.
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(5) Adjustment for Stock Splits, Stock Dividends, Subdivisions,
Combinations or Consolidation of Class A Common. In the event
the outstanding shares of Class A Common shall be split,
subdivided, combined or consolidated, by reclassification or
otherwise, into a greater or lesser number of shares of Class A
Common, and in the event that the Corporation shall issue shares
of Class A Common by way of a stock dividend or other
distribution to the holders of Class A Common, the Class B
Conversion Price in effect immediately prior to such split,
subdivision, stock dividend, combination or consolidation shall,
concurrently with the effectiveness of such split, subdivision,
stock dividend, combination or consolidation, be increased or
decreased proportionately.
4.5 Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Class B Conversion Price pursuant to this
Section 4, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Class B Common a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based. The Corporation shall,
upon the written request at any time of any holder of Class B Common,
furnish or cause to be furnished to such holder a similar certificate
setting forth (i) such adjustments and readjustments, (ii) the Class B
Conversion Price then in effect, and (iii) the number of shares of
Class A Common and the amount, if any, of other property that then
would be received upon the conversion of Class B Common.
4.6 Merger or Sale of Assets. If at any time or from time to time there
shall be a merger or consolidation of the Corporation with or into
another corporation, or the sale of all or substantially all of the
assets of the Corporation to any other corporation (collectively, an
"Acquisition"), then, as a part of such Acquisition, provision shall
be made so that the holders of the Class B Common shall thereafter be
entitled to receive upon conversion of the Class B Common, the number
of shares of stock or other securities or property of the Corporation,
or of the successor corporation resulting from such Acquisition, to
which a holder of Class A Common issuable upon conversion would have
been entitled on such Acquisition. In any such case, appropriate
adjustment (as determined by the Board of Directors) shall be made in
the application of the provisions of this Section 4 with respect to
the rights and interest thereafter of the holders of the Class B
Common after the Acquisition to the end that the provisions of this
Section 4 (including adjustment of the Class B Conversion Price then
in effect and the number of shares acquirable upon conversion of the
Class B Common) shall be applicable after the Acquisition in as nearly
equivalent a manner as may be practicable.
4.7 Notice of Record Date. In the event that there occurs any of the
following events:
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(1) the Corporation declares a dividend (or any other distribution)
on its Class A Common payable in Class A Common or other
securities of the Corporation;
(2) the Corporation subdivides or combines its outstanding shares of
Class A Common;
(3) there occurs or is proposed to occur any reclassification of the
Class A Common of the Corporation (other than a subdivision or
combination of its outstanding shares of Class A Common Stock or
a stock dividend or stock distribution thereon), or of any
consolidation or merger of the Corporation into or with another
corporation, or of the sale of all or substantially all of the
assets of the Corporation; or
(4) the involuntary or voluntary liquidation, dissolution, or
winding-up of the Corporation;
then the Corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Class B Common, and shall cause to be mailed
to the holders of the Class B Common at their addresses as shown on the records
of the Corporation or such transfer agent, at least ten days prior to the record
date specified in (1) below or twenty days before the date specified in (2)
below, a notice stating the following information:
(1) the record date of such dividend, distribution, subdivision
or combination, or, if a record is not to be taken, the date
as of which the holders of Class A Common of record to be
entitled to such dividend, distribution, subdivision, or
combination are to be determined, or
(2) the date on which such reclassification, consolidation,
merger, sale, liquidation, dissolution, or winding-up is
expected to become effective, and the date as of which it is
expected that holders of Class A Common of record shall be
entitled to exchange their shares of Class A Common for
securities or other property deliverable upon such
reclassification, consolidation, merger, sale, liquidation,
dissolution, or winding-up.
4.8 No Impairment. The Corporation will not, by amendment of this
Certification of Incorporation or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or
performed hereunder by the corporation but will at all times in good
faith assist in the carrying out of all the provisions of this Section
4 and in the taking of all such action as may be necessary or
appropriate in order to protect the intended conversion rights of the
holders of the Class B Common against impairment.
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5. RESTRICTIONS AND LIMITATIONS.
5.1 Vote Required. Except as expressly provided herein or required by
law, for so long as any shares of Class B Common remain outstanding
(subject to appropriate adjustment for any stock dividend, stock
split, combination, or other similar recapitalization affecting such
shares), then without the approval by vote or written consent of the
holders of at least a majority of the voting power of the then
outstanding shares of Class B Common, the Corporation shall not, and
shall not permit any subsidiary (meaning any corporation or trust of
which the outstanding shares of such corporation or trust entitled to
vote in the election of directors, trustees, or persons having similar
functions), to do any of the following:
(1) Alter or change the powers, preferences or rights of the Class B
Common or any series of Preferred Stock, or the qualifications,
limitations or restrictions thereof, if any such alteration or
change would adversely affect the rights of the holders of the
Class B Common;
(2) Increase or decrease (other than by conversion or as otherwise
required or permitted hereby) the total number of authorized
shares of Class B Common;
(3) Amend its Certificate of Incorporation or by-laws.
The holders of the Class B Common shall vote as a separate class with respect to
any matter or proposed action as to which applicable law or this Certificate of
Incorporation requires the vote, consent, or approval of the holders of the
Class B Common.
6. UNDESIGNATED PREFERRED STOCK. The Board of Directors of the Corporation is
hereby authorized within the limitations and restrictions stated in this
Certificate of Incorporation, to determine or alter the rights,
preferences, powers, privileges and the restrictions, qualifications and
limitations granted to or imposed upon any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series and
the designation thereof; and to increase or decrease the number of shares
constituting any such series.
FIFTH: Perpetual Existence. The corporation shall have perpetual existence.
SIXTH: Cumulative Voting. The shareholders of the corporation shall not be
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entitled to cumulate their votes for the election of directors.
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