<PAGE>
Exhibit 3.1
SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAPTURA SOFTWARE, INC.
Captura Software, Inc., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
A. The name of the corporation is Captura Software, Inc. The corporation
was originally incorporated under the name CapSoft, Inc., and the original
Certificate of Incorporation of the corporation was filed with the Secretary of
State of the State of Delaware on November 22, 1994.
B. This Seventh Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of the General Corporation
Law of the State of Delaware by the Board of Directors and the Stockholders of
the corporation.
C. Pursuant to Section 242 and Section 245 of the General Corporation Law
of the State of Delaware, this Seventh Amended and Restated Certificate of
Incorporation amends and restates the provisions of the Certificate of
Incorporation of this corporation.
D. The text of the Certificate of Incorporation is hereby restated in its
entirety to read as follows:
<PAGE>
ARTICLE I.
The name of the corporation is Captura Software, Inc. (the "Corporation").
ARTICLE II.
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, Delaware 19801, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE IV.
This Corporation is authorized to issue two classes of stock to be
designated, respectively, Common Stock and Preferred Stock. The total number of
shares of Common Stock which the Company is authorized to issue is 100,000,000,
$0.001 par value, and the total number of shares of Preferred Stock the Company
is authorized to issue is 5,000,000, $0.001 par value. The Preferred Stock may
be issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board). The Board of
Directors is further authorized to determine or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and to fix the number of shares of any series of
Preferred Stock and the designation of any such series of Preferred Stock. The
Board of Directors, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of
shares in any such series then outstanding), the number of shares of any series
subsequent to the issue of shares of that series.
ARTICLE V.
The Corporation is to have perpetual existence.
ARTICLE VI.
Elections of directors need not be by written ballot unless a stockholder
demands election by written ballot at the meeting and before voting begins or
unless the Bylaws of the Corporation shall so provide.
2
<PAGE>
ARTICLE VII.
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of directors
which constitute the whole Board of Directors of the corporation shall be
established from time to time by resolution of the Board of Directors.
2. 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.
3. Notwithstanding the foregoing provisions of this Article VII, each
director shall serve until his or her successor is duly elected and qualified or
until his or her death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
4. Any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other causes shall be filled only by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors. Newly created
directorships resulting from any increase in the number of directors shall,
unless the Board of Directors determines by resolution that any such newly
created directorship shall be filled by the stockholders, be filled only by the
affirmative vote of the directors then in office, even though less than a quorum
of the Board of Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
5. The affirmative vote of sixty-six and two-thirds percent (66-2/3%) of
the voting power of the then outstanding shares of voting stock of the
corporation entitled to vote generally in the election of directors ("Voting
Stock"), voting together as a single class, shall be required for the adoption,
amendment or repeal of the following sections of the corporation's Bylaws by the
stockholders of this corporation: 2.2 (Annual Meeting), 2.3 (Special Meeting),
2.5 (Advance Notice of Stockholder Nominees and Stockholder Business) 2.9
(Voting) (if such amendment is intended to provide for cumulative voting), and
2.11 (No Stockholder Action by Written Consent Without A Meeting).
3
<PAGE>
6. No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of the stockholders called in accordance with
the Bylaws.
7. Any director, or the entire Board of Directors, may be removed from
office at any time for cause and upon the affirmative vote of the holders of at
least a majority of the voting power of all of the then-outstanding shares of
the Voting Stock, voting together as a single class.
ARTICLE VIII.
Notwithstanding any other provisions of this 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 any particular class
or series of the Voting Stock required by law, this Certificate of Incorporation
or any Preferred Stock Designation, the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then-outstanding shares of the Voting Stock, voting together as a single
class, shall be required to alter, amend or repeal any aspect of Article VII or
this Article VIII.
ARTICLE IX.
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, except as provided in ARTICLE VIII of this
Certificate, and all rights conferred upon the stockholders herein are granted
subject to this right.
ARTICLE X.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
4
<PAGE>
ARTICLE XI.
1. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) 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) under Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which the director derived any improper
personal benefit, and to the extent that such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation law
as the same exists or may hereafter be amended. If the Delaware General
Corporation Law is amended after the filing of this Certificate of Incorporation
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of the director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
2. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as may hereafter be amended, a director of the
Corporation shall be indemnified by the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
3. The Corporation shall 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 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.
4. Neither any amendment nor repeal of this Article XI, nor the adoption
of any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article XI, shall eliminate or reduce the effect of this Article XI,
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article XI, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE XII.
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 statutes) 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.
5
<PAGE>
ARTICLE XIII.
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.
[Remainder of Page Intentionally Left Blank]
6
<PAGE>
IN WITNESS WHEREOF, the Board of Directors of the Company has caused this
Certificate of Incorporation to be signed by Dan Vetras, its President and Chief
Executive Officer, effective as of _________________, 2000.
CAPTURA SOFTWARE, INC.
By:
------------------------------
Dan Vetras
President and Chief Executive Officer
Attest:
==========================
D. Robert Colliton
Chief Financial Officer
7
