EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
BLACKBAUD, INC.
The undersigned, for the purpose of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, does
hereby execute this Certificate of Incorporation and does hereby certify as set
forth below.
ARTICLE I.
The name of the corporation is "Blackbaud, Inc." (the "Corporation").
ARTICLE II.
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, in the City of Dover, Kent County, Delaware
19901. The name of its registered agent at such address is Incorporating
Services, Ltd.
ARTICLE III.
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV.
Section 1. Authorized Shares. The Corporation shall have authority to
issue Two Hundred Million (200,000,000) shares of capital stock, of which One
Hundred Eighty Million (180,000,000) shares shall be designated Common Stock
("Common Stock"), par value $0.001 per share, and of which Twenty Million
(20,000,000) shares shall be designated Preferred Stock ("Preferred Stock"),
$0.001 par value per share.
Section 2. Preferred Stock. The Preferred Stock may be issued from time
to time in one or more series. The Board of Directors of the Corporation is
authorized to determine or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions, if any), the redemption price or prices, the liquidation preferences
and other designations, powers, preferences and relative, participating,
optional or other special rights, if any, and the qualifications, limitations
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 (but not below the number of shares of any such series then outstanding).
Section 3. Voting of Shares. Except as otherwise provided by law, or by
the resolution or resolutions adopted by the Board of Directors designating the
rights, powers and
preferences of any series of Preferred Stock, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other purposes
on which stockholders are entitled to vote. Each share of Common Stock shall
have one vote, and the Common Stock shall vote together as a single class. No
stockholder shall be entitled to exercise any right of cumulative voting.
ARTICLE V.
Section 1. Board of Directors. The Board of Directors of the
Corporation shall have that number of directors set out in the Bylaws of the
Corporation as adopted or as set from time to time by a duly adopted amendment
thereto by the Board of Directors or stockholders of the Corporation. The Board
of Directors shall be divided into three classes, as nearly equal in number as
possible. The initial classification of directors shall be determined in
accordance with a resolution or resolutions adopted by the Board of Directors.
The term of office of the first class shall expire at the first annual meeting
of stockholders or any special meeting in lieu thereof following January 1,
2005, the term of office of the second class shall expire at the second annual
meeting of stockholders or any special meeting in lieu thereof following January
1, 2005, and the term of office of the third class shall expire at the third
annual meeting of stockholders or any special meeting in lieu thereof following
January 1, 2005. At each annual meeting of stockholders or special meeting in
lieu thereof following such initial classification, directors elected to succeed
those directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of the stockholders or special
meeting in lieu thereof after their election and until their successors are duly
elected and qualified.
Section 2. Vacancies. Newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office even though less than a quorum, or by a sole remaining
director and any director so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to which
such director has been elected expires and until such director's successor shall
have been duly elected and qualified; provided, however, that if such vacancy
was caused by an action of the stockholders, the vacancy shall be filled only by
a majority of the votes entitled to be cast by shares actually present in person
or represented by proxy at the meeting and entitled to vote on the matter. In
the event of any increase or decrease in the authorized number of directors, (a)
each director then serving as such shall nevertheless continue as a director of
the class of which he or she is a member until the expiration of his or her
current term or his or her prior death, retirement, removal or resignation and
(b) the newly created or eliminated directorships resulting from such increase
or decrease shall be apportioned by the Board of Directors as evenly as is
practicable among the three classes of directors. In the event of a vacancy in
the Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled. Notwithstanding the foregoing, 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.
2
Section 3. Removal. Any director or the entire Board of Directors may
be removed from office at any time with or without cause, but only by the
affirmative vote of holders of at least a majority of the total voting power of
the outstanding capital stock of the Corporation entitled to vote generally in
the election of directors (the "Voting Stock").
Section 4. Procedures for Elections of Directors. Unless and except
that the Bylaws of the Corporation shall so require, the election of directors
of the Corporation need not be by written ballot.
ARTICLE VI.
Any action required or permitted to be taken by stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of Voting Stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares of Voting Stock were present and voted.
Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time only by the Board of Directors, or as
otherwise set forth in the Bylaws of the Corporation.
ARTICLE VII.
The Corporation reserves the right at any time, and from time to time,
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the rights reserved in this
Article.
ARTICLE VIII.
Section 1. Elimination of Certain Liability of Directors. 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 to the extent such exemption from liability or limitation thereof is not
permitted under the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.
3
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, to
the fullest extent permitted by law, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
amounts paid or to be paid in settlement, and excise taxes or penalties arising
under the Employee Retirement Income Security Act of 1974) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b)
hereof, the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of the Board, provide indemnification
to employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the Corporation within
thirty days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense (including reasonable
attorneys' fees) of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
4
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the Corporation (including its Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 3. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
ARTICLE IX.
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors of the Corporation is
expressly authorized to make, alter and repeal the Bylaws of the Corporation,
other than Sections 3.4 and 3.12, subject to the power of the stockholders of
the Corporation to alter or repeal any Bylaw whether adopted by them or
otherwise.
ARTICLE X.
The Corporation shall be governed in all manner and respects by the
provisions of Section 203 of the Delaware General Corporation Law ("Section
203"); provided, however, that in no case shall Hellman & Friedman Capital
Partners III, L.P., a California limited partnership, H&F Orchard Partners III,
L.P., a California limited partnership, H&F International Partners III, L.P., a
California limited partnership, or any successor to all or substantially all of
their assets, or any affiliate thereof (collectively, the "H&F Investors"), or
any person or entity to which any H&F Investor sells, distributes or otherwise
transfers Common Stock or other Voting Stock, regardless of the total percentage
of Common Stock or other Voting Stock owned by the H&F Investors or such person
or entity, be deemed an "interested stockholder" for any purpose whatsoever
under Section 203, provided that the foregoing provision shall not apply with
respect to any transferee who purchases shares of Common Stock or other Voting
Stock (i) pursuant to
5
an underwritten, broadly distributed public offering, or (ii) in a transaction
effected through a broker pursuant to Rule 144 promulgated under Section 4(1) of
the Securities Act of 1933, as amended.
ARTICLE XI.
The name and mailing address of the incorporator are as follows:
Anthony L. Williams
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
The powers of the incorporator are to terminate upon filing of this
Certificate of Incorporation with the Secretary of State of the State of
Delaware.
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
herein are true.
Dated: March 22, 2004
/s/ Anthony L. Williams
-----------------------
Anthony L. Williams
Incorporator
6