**Exhibit 3.1**

 

**AMENDED ANDRESTATEDCERTIFICATE OF INCORPORATIONOFINTRAWARE, INC.**

 

(Pursuant to Sections 242 and 245 of theGeneral Corporation Law of the State of Delaware)

 

Peter H. Jackson and DavidJ. Segre each hereby certifies:

 

(1)           Theyare the President and Secretary, respectively, of Intraware, Inc., acorporation organized and existing under the General Corporation Law of theState of Delaware (the “General Corporation Law”);

 

(2)           The original Certificate of Incorporation of thiscorporation, originally filed on August 13, 1996, is hereby amended andrestated in its entirety to read as follows:

 
| FIRST:  |   | The name of this corporation is Intraware, Inc. (the  “Corporation”).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
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| SECOND: |   | The address of the Corporation’s registered office in the State of  Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware  19801. The name of its registered agent at such address is The Corporation  Trust Company.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
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| THIRD:  |   | The purpose of the Corporation is to engage in any lawful act or  activity for which corporations may be organized under the General  Corporation Law of Delaware.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
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| FOURTH: |   | The Corporation is authorized to issue two classes of stock to be  designated respectively Common Stock and Preferred Stock. The total number of  shares of all classes of stock which the Corporation has authority to issue  is Two Hundred Sixty Million (260,000,000), consisting of Two Hundred Fifty  Million (250,000,000) shares of Common Stock, $0.0001 par value (the “Common  Stock”), and Ten Million (10,000,000) shares of Preferred Stock, $0.0001 par  value (the “Preferred Stock”).                                                                                                                                                                                                                                                                                        |
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|    |   | The Preferred Stock may be issued from time to time in one or more  series. The Board of Directors is hereby authorized subject to limitations  prescribed by law, to fix by resolution or resolutions the designations,  powers, preferences and rights, and the qualifications, limitations or  restrictions thereof, of each such series of Preferred Stock, including  without limitation authority to fix by resolution or resolutions, the dividend  rights, dividend rate, conversion rights, voting rights, rights and terms of  redemption (including sinking fund provisions), redemption price or prices,  and liquidation preferences of any wholly unissued series of Preferred Stock,  and the number of shares constituting any such series and the designation  thereof, or any of the foregoing. |
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|    |   | The Board of Directors is further authorized to increase (but not  above the total number of authorized shares of the class) or decrease                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |

 

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|     |   | (but not below the number of shares of any such series then  outstanding) the number of shares of any series, the number of which was  fixed by it, subsequent to the issue of shares of such series then  outstanding, subject to the powers, preferences and rights, and the  qualifications, limitations and restrictions thereof stated in the resolution  of the Board of Directors originally fixing the number of shares of such  series. If the number of shares of any series is so decreased, then the  shares constituting such decrease shall resume the status which they had  prior to the adoption of the resolution originally fixing the number of  shares of such series. |
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| FIFTH:   |   | The Corporation is to have perpetual existence.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
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| SIXTH:   |   | The election of directors need not be by written ballot unless the  Bylaws of the Corporation shall so provide.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
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| SEVENTH: |   | The number of directors which constitute the whole Board of Directors  of the Corporation shall be designated in the Bylaws of the Corporation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
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| EIGHTH:  |   | In furtherance and not in limitation of the powers conferred by the  laws of the State of Delaware, the Board of Directors is expressly authorized  to adopt, alter, amend or repeal the Bylaws of the Corporation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
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| NINTH:   |   | To the fullest extent permitted by the Delaware General Corporation  Law as the same exists or may hereafter be amended, no director of the  Corporation shall be personally liable to the Corporation or its stockholders  for monetary damages for breach of fiduciary duty as a director.                                                                                                                                                                                                                                                                                                                                                                                                |
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|     |   | The Corporation may indemnify to the fullest extent permitted by law  any person made or threatened to be made a party to an action or proceeding,  whether criminal, civil, administrative or investigative, by reason of the  fact that he, his testator or intestate is or was a director, officer or  employee of the Corporation or any predecessor of the Corporation or serves  or served at any other enterprise as a director, officer or employee at the  request of the Corporation or any predecessor to the Corporation.                                                                                                                                                       |
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|     |   | Neither any amendment nor repeal of this Article, nor the adoption of  any provision of this Amended and Restated Certificate of Incorporation  inconsistent with this Article, shall eliminate or reduce the effect of this  Article in respect of any matter occurring, or any cause of action, suit  or claim that, but for this Article, would accrue or arise, prior to such  amendment, repeal or adoption of an inconsistent provision.                                                                                                                                                                                                                                         |
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| TENTH:   |   | At the election of directors of the Corporation, each holder of stock  of any class or series shall be entitled to one vote for each share held. No  stockholder will be permitted to cumulate votes at any election of directors.                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
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|     |   | The number of directors which constitute the whole Board of Directors  of the Corporation shall be fixed exclusively by one or more resolution  adopted from time to time by the Board of Directors.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |

 

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|        |   | The Board of Directors shall be divided into three classes designated  as Class I, Class II, and Class III, respectively. Directors  shall be assigned to each class in accordance with a resolution or  resolutions adopted by the Board of Directors. At the first annual meeting of  stockholders following the date hereof, the term of office of the  Class I directors shall expire and Class I directors shall be  elected for a full term of three years. At the second annual meeting of  stockholders following the date hereof, the term of office of the  Class II directors shall expire and Class II directors shall be  elected for a full term of three years. At the third annual meeting of  stockholders following the date hereof, the term of office of the  Class III directors shall expire and Class III directors shall be  elected for a full term of three years. At each succeeding annual meeting of  stockholders, directors shall be elected for a full term of three years to  succeed the directors of the class whose terms expire at such annual meeting. |
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|        |   | Vacancies created by newly created directorships, created in  accordance with the Bylaws of this Corporation, may be filled by the vote of  a majority, although less than a quorum, of the directors then in office, or  by a sole remaining director.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
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| ELEVENTH:   |   | Meetings of stockholders may be held within or without the State of  Delaware, as the Bylaws may provide. The books of the Corporation may be kept  (subject to any provision contained in the laws of the State of Delaware)  outside of the State of Delaware at such place or places as may be designated  from time to time by the Board of Directors or in the Bylaws of the  Corporation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
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|        |   | The stockholders of the Corporation may not take any action by  written consent in lieu of a meeting, and must take any actions at a duly  called annual or special meeting of stockholders and the power of  stockholders to consent in writing without a meeting is specifically denied.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
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| TWELFTH:    |   | Advance notice of new business and stockholder nominations for the  election of directors shall be given in the manner and to the extent provided  in the Bylaws of the Corporation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
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| THIRTEENTH: |   | Notwithstanding any other provisions of this Restated Certificate of  Incorporation or any provision of law which might otherwise permit a lesser  vote or no vote, but in addition to any affirmative vote of the holders of  the capital stock required by law or this Restated Certificate of  Incorporation, the affirmative vote of the holders of at least two-thirds  (2/3) of the combined voting power of all of the then-outstanding shares of  the Corporation entitled to vote shall be required to alter, amend or repeal  Articles NINTH, TENTH, ELEVENTH or TWELFTH hereof, or this  Article THIRTEENTH, or any provision thereof or hereof, unless such  amendment shall be approved by a majority of the directors of the Corporation.                                                                                                                                                                                                                                                                                                                                                                              |
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| FOURTEENTH: |   | The Corporation reserves the right to amend, alter, change or repeal  any provision contained in this Amended and Restated Certificate of  Incorporation, in the manner now or hereafter prescribed by the laws of the  State of Delaware, and all rights conferred herein are granted subject to  this reservation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |

 

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(3)           This Amended and Restated Certificate of Incorporation hasbeen duly adopted by the Board of Directors of this Corporation in accordancewith Sections 242 and 245 of the General Corporation Law.

 

(4)           This Amended and Restated Certificate of Incorporation hasbeen duly approved, in accordance with Section 242 of the GeneralCorporation Law, by vote of the holders of a majority of the outstanding stockentitled to vote thereon.

 

IN WITNESS WHEREOF, theundersigned have executed this Amended and Restated Certificate ofIncorporation on this 9th day of February, 1999.

 

 
|                    | /s/ PETER H. JACKSON |   |
|-------------------------|---------------------------|--------|
|                    | Peter H. Jackson          |
|                    | *President*               |
|                    |                      |
| /s/ DAVID J. SEGRE |                      |   |
| David J. Segre          |                      |
| *Secretary*             |                      |
|                         |                           |        |  |

 

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