EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REINCORPORATION
This Agreement and Plan of Merger and Reincorporation (the "AGREEMENT")
is entered into as of the 6th day of April 2004 by and between Blackbaud, Inc.,
a South Carolina corporation ("BLACKBAUD-SC"), and Blackbaud, Inc., a Delaware
corporation ("BLACKBAUD-DE").
WITNESSETH:
WHEREAS, Blackbaud-DE is a corporation duly organized and existing
under the laws of the State of Delaware; and
WHEREAS, Blackbaud-SC is a corporation duly organized and existing
under the laws of the State of South Carolina; and
WHEREAS, on the date of this Agreement, Blackbaud-DE has authority to
issue (i) 180,000,000 shares of Common Stock, par value $.001 per share (the
"BLACKBAUD-DE COMMON STOCK"), of which 100 shares are issued and outstanding and
owned by Blackbaud-SC, and (ii) 20,000,000 shares of Preferred Stock, par value
$.001 per share, of which no shares are issued and outstanding; and
WHEREAS, Blackbaud-SC as of the date hereof has authority to issue (i)
95,000,000 shares of Common Stock, no par value per share (the "BLACKBAUD-SC
COMMON STOCK"), of which 67,854,195 shares were issued and outstanding as of the
date hereof, and (ii) 5,000,000 shares of Preferred Stock, no par value per
share, of which no shares are issued and outstanding; and
WHEREAS, the respective Boards of Directors for Blackbaud-DE and
Blackbaud-SC have determined that, for the purpose of effecting the
reincorporation of Blackbaud-SC in the State of Delaware, it is advisable, to
the advantage of and in the best interest of Blackbaud-SC and its shareholders
and Blackbaud-DE and its stockholders that Blackbaud-SC merge with and into
Blackbaud-DE upon the terms and conditions herein provided; and
WHEREAS, the respective Boards of Directors of Blackbaud-DE and
Blackbaud-SC and the sole stockholder of Blackbaud-DE have unanimously adopted
and approved this Agreement, and the Board of Directors of Blackbaud-SC has
directed that this Agreement be submitted to the shareholders of Blackbaud-SC
for their consideration;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Blackbaud-SC and Blackbaud-DE hereby agree as follows:
1. MERGER. Subject to the approval of the shareholders of Blackbaud-SC,
in accordance with the South Carolina Business Corporation Act (the "SCBCA") and
the Delaware General Corporation Law ("DGCL"), at such time as the parties
hereto shall thereafter mutually agree, Blackbaud-SC shall be merged with and
into Blackbaud-DE (the "MERGER"), the separate corporate existence of
Blackbaud-SC shall thereupon cease, and Blackbaud-DE shall be the
surviving corporation (the "SURVIVING CORPORATION") in the Merger. The name of
the Surviving Corporation shall be "Blackbaud, Inc." The Merger shall be
effective upon (a) the filing of duly executed Articles of Merger with the
Secretary of State of the State of South Carolina in accordance with the
provisions of the SCBCA and (b) the filing of a duly executed Certificate of
Merger with the Secretary of State of the State of Delaware in accordance with
the applicable provisions of the DGCL, the date and time of the later of such
filings being hereinafter referred to as the "EFFECTIVE TIME."
2. GOVERNING DOCUMENTS. The Certificate of Incorporation of
Blackbaud-DE in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation; and the Bylaws of
Blackbaud-DE in effect immediately prior to the Effective Time shall be the
Bylaws of the Surviving Corporation.
3. DIRECTORS AND OFFICERS. The directors and officers of Blackbaud-SC
immediately prior to the Effective Time shall be the directors and officers of
the Surviving Corporation from and after the Effective Time until their
respective successors are duly elected or appointed.
4. SUCCESSION. At the Effective Time, Blackbaud-DE shall succeed to
Blackbaud-SC in the manner of and as more fully set forth in Section 259 of the
DGCL and Section 33-11-106 of the SCBCA.
5. FURTHER ASSURANCES. From time to time, as and when required by
Blackbaud-DE or by its successors and assigns, there shall be executed and
delivered on behalf of Blackbaud-SC such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action, as
shall be appropriate or necessary in order to vest, perfect or confirm, of
record or otherwise, in Blackbaud-DE the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Blackbaud-SC, and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Blackbaud-DE are fully authorized
in the name and on behalf of Blackbaud-SC or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
6. COMMON STOCK OF BLACKBAUD-SC. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof, each share
of Blackbaud-SC Common Stock outstanding immediately prior thereto shall be
changed and converted into one fully paid and nonassessable share of
Blackbaud-DE Common Stock.
7. STOCK PURCHASE RIGHTS. A number of shares of the Surviving
Corporation's Common Stock and Preferred Stock shall be reserved for issuance
upon the exercise of warrants, stock purchase rights and convertible securities
equal to the number of shares of Blackbaud-SC Common Stock and Preferred Stock
so reserved immediately prior to the Effective Date of the Merger.
8. STOCK OPTIONS. On the Effective Time, Blackbaud-SC hereby assigns,
delegates and transfers to Blackbaud-DE, and Blackbaud-DE hereby assumes and
continues: (i) all of the stock option plans of Blackbaud-SC (including, without
limitation, all of the rights, title,
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interests, remedies, powers, obligations and duties of Blackbaud-SC under such
stock option plans) in existence on the Effective Time, and (ii) the outstanding
and unexercised portions of all outstanding options to purchase Blackbaud-SC
Common Stock (including, without limitation, all of the rights, title,
interests, remedies, powers, obligations and duties of Blackbaud-SC under such
stock options), whether granted under any such stock option plan or otherwise.
The outstanding and unexercised portions of all options to purchase Blackbaud-SC
Common Stock, including without limitation all options outstanding under the
stock option plans of Blackbaud-SC and any other outstanding stock options
shall, as of the Effective Time, become options to purchase the number of shares
of Blackbaud-DE Common Stock equal to the number of shares of Blackbaud-SC
Common Stock subject to such option (or the unexercised portion of such option)
with no other changes to the terms or conditions thereof, unless such changes
shall be required to maintain the tax qualified status of incentive stock
options under the Internal Revenue Code of 1986, as amended (the "CODE").
Consistent with the provisions of the Code and the regulations, Blackbaud-DE
may, in its discretion, grant new options to purchase shares of Blackbaud-DE
Common Stock under the continued stock plans or otherwise, in the stead of
Blackbaud-SC Common Stock as if Blackbaud-DE had been the creator of the stock
option plans and stock options of Blackbaud-SC, and Blackbaud-DE shall be
substituted for and have all the obligations and liabilities of Blackbaud-SC
under such continued stock plans and stock options. Subject to adjustment for
any subsequent stock splits, stock dividends, combinations, recapitalizations or
similar transactions, Blackbaud-DE Common Stock shall be substituted for
Blackbaud-SC Common Stock on a 1-for-1 basis as to any options granted by
Blackbaud-DE pursuant to the continued stock plans or otherwise subsequent to
the Effective Time. It is the intention of the parties hereto that while the
benefits of the stock option plans and stock options of Blackbaud-SC shall be
preserved for the employees of Blackbaud-SC, the assumption of such stock option
plans and the outstanding and unexercised portions of all options to purchase
Blackbaud-SC Common Stock by Blackbaud-DE shall not confer any additional
benefits on the holders of options granted under the stock option plans or
otherwise, whether now outstanding or hereafter granted.
9. STOCK CERTIFICATES. From and after the Effective Time, all of the
outstanding certificates which prior to that time represented shares of
Blackbaud-SC stock shall be deemed for all purposes to evidence ownership of and
to represent the shares of Blackbaud-DE stock into which the shares of
Blackbaud-SC stock represented by such certificates have been converted as
herein provided. The registered owner on the books and records of Blackbaud-DE
or its transfer agent of any such outstanding stock certificate shall, until
such certificate shall have been surrendered for transfer or otherwise accounted
for to Blackbaud-DE or its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of Blackbaud-DE stock evidenced by such
outstanding certificate as above provided.
10. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time,
Blackbaud-DE hereby assumes all obligations of Blackbaud-SC under any and all
employee benefit plans in effect as of said date or with respect to which
employee rights or accrued benefits are outstanding as of said date.
11. OUTSTANDING COMMON STOCK OF BLACKBAUD-DE. At the Effective Time,
the
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100 shares of Blackbaud-DE Common Stock presently issued and outstanding in the
name of Blackbaud-SC shall be canceled and retired and resume the status of
authorized and unissued shares of Blackbaud-DE Common Stock, and no shares of
Blackbaud-DE Common Stock or other securities of Blackbaud-DE shall be issued in
respect thereof.
12. COVENANTS OF BLACKBAUD-DE. Blackbaud-DE covenants and agrees that,
effective on or promptly following the Effective Time, it will qualify to do
business as a foreign corporation in the State of South Carolina , and in all
other states in which Blackbaud-SC is so qualified and in which the failure so
to qualify would have a material adverse effect on the business or financial
condition of Blackbaud-DE and its subsidiaries, taken together as a whole, and,
in connection therewith, shall irrevocably appoint an agent for service of
process as required under the applicable provisions of state law in other states
in which qualification is required hereunder.
13. BOOK ENTRIES. As of the Effective Time, entries shall be made upon
the books of Blackbaud-DE in accordance with the following:
(a) The assets and liabilities of Blackbaud-SC shall be
recorded at the amounts at which they were carried on the books of
Blackbaud-SC immediately prior to the Effective Time, with appropriate
adjustments to reflect the retirement of the 100 shares of Blackbaud-DE
Common Stock presently issued and outstanding.
(b) There shall be credited to the capital stock of
Blackbaud-DE the aggregate amount of the par value of all shares of
Blackbaud-DE stock resulting from the conversion of the outstanding
Blackbaud-SC Common Stock pursuant to the Merger.
(c) There shall be credited to the capital surplus account of
Blackbaud-DE the aggregate of the amounts shown in the capital stock
and capital surplus accounts of Blackbaud-SC immediately prior to the
Effective Time, less the amount credited to the common stock account of
Blackbaud-DE pursuant to Paragraph (b) above.
(d) There shall be credited to the retained earnings account
of Blackbaud-DE an amount equal to that carried in the retained earning
account of Blackbaud-SC immediately prior to the Effective Time.
14. RATIFICATION BY SHAREHOLDERS. This Agreement shall be submitted to
the shareholders of Blackbaud-SC for approval in accordance with applicable laws
and the Articles of Incorporation and Bylaws of Blackbaud-SC, and to the sole
stockholder of Blackbaud-DE for approval in accordance with applicable laws and
the Certificate of Incorporation and Bylaws of Blackbaud-DE. Blackbaud-DE and
Blackbaud-SC shall proceed expeditiously and cooperate fully in the procurement
of any other consents and approvals and the taking of any other action, and the
satisfaction of all other requirements prescribed by law or otherwise, necessary
for consummation of the Merger on the terms herein provided.
15. AMENDMENT. At any time prior to the Effective Time, whether before
or after approval and adoption of this Agreement by the shareholders of
Blackbaud-SC, this Agreement
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may be amended in any manner as may be determined in the judgment of the
respective Boards of Directors of Blackbaud-DE and Blackbaud-SC to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purposes and intent of this Agreement; provided,
that any amendment made subsequent to the approval or adoption of this Agreement
by the stockholders of Blackbaud-DE or the shareholders of Blackbaud-SC shall be
subject to all applicable limitations of the applicable provisions of the DGCL
and the SCBCA.
16. ABANDONMENT. At any time before the Effective Time, this Agreement
may be terminated and the merger contemplated by this Agreement may be abandoned
by the Board of Directors of either Blackbaud-SC or Blackbaud-DE or both,
notwithstanding any approval of this Agreement by the sole stockholder of
Blackbaud-DE and the shareholders of Blackbaud-SC.
17. COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which when taken together
shall constitute one instrument.
[Remainder of page intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, this Agreement and Plan of Merger and
Reincorporation, having first been duly approved by resolutions of the
respective Boards of Directors of Blackbaud-SC and Blackbaud-DE, is hereby
executed on behalf of each of said two corporations by their respective officers
thereunto duly authorized.
BLACKBAUD, INC.
a South Carolina corporation
By: /s/ TIMOTHY V. WILLIAMS
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Name: Timothy V. Williams
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Title: Vice President and CFO
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BLACKBAUD, INC.
a Delaware corporation
By: /s/ TIMOTHY V. WILLIAMS
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Name: Timothy V. Williams
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Title: Vice President and CFO
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