Exhibit
10.10


 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (this “Agreement”)
is made and entered into as of July 12, 2004, by and among Kintera, Inc., a
Delaware corporation (the “Company”), and the investors signatory
hereto (each a “Investor” and collectively, the “Investors”).


 


This Agreement is made pursuant to the Share Purchase
Agreement, dated as of the date hereof among the Company and the Investors (the
“Purchase
Agreement”).


 


The Company and the Investors hereby agree as follows:


 


1.             Definitions. 
Capitalized terms used and not otherwise defined herein that are defined
in the Purchase Agreement will have the meanings given such terms in the
Purchase Agreement.  As used in this
Agreement, the following terms have the respective meanings set forth in this
Section 1:


 


“California Courts” means the state and
federal courts sitting in San Diego, California.


 


“Effective Date” means the date that the
Registration Statement filed pursuant to Section 2(a) or 2(b) is first declared
effective by the Commission.


 


“Effectiveness Date” means (a) with respect
to the initial Registration Statement required to be filed under Section 2(a),
the earlier of: (a)(i) the 120th day following the Filing Date, and
(ii) the fifth Trading Day following the date on which the Company is notified
by the Commission that the initial Registration Statement will not be reviewed
or is no longer subject to further review and comments, and (b) with respect to
any additional Registration Statements that may be required pursuant to Section
2(b), the earlier of (i) the 120th day following (x) if such
Registration Statement is required because the Commission shall have notified
the Company in writing that certain Registrable Securities were not eligible
for inclusion on a previously filed Registration Statement, the date or time on
which the Commission shall indicate as being the first date or time that such
Registrable Securities may then be included in a Registration Statement, or (y)
if such Registration Statement is required for a reason other than as described
in (x) above, the date on which the Company first knows, or reasonably should
have known, that such additional Registration Statement(s) is required, and
(ii) the fifth Trading Day following the date on which the Company is notified
by the Commission that such additional Registration Statement will not be
reviewed or is no longer subject to further review and comments.


 


“Effectiveness Period” has the meaning set
forth in Section 2(a).


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 

















 


“Filing Date” means (a) with respect to the
initial Registration Statement required to be filed under Section 2(a), the 30th
day following the Closing Date and (b) with respect to any additional
Registration Statements that may be required pursuant to Section 2(b), the 30th
day following (x) if such Registration Statement is required because the
Commission shall have notified the Company in writing that certain Registrable
Securities were not eligible for inclusion on a previously filed Registration
Statement, the date or time on which the Commission shall indicate as being the
first date or time that such Registrable Securities may then be included in a
Registration Statement, or (y) if such Registration Statement is required for a
reason other than as described in (x) above, the date on which the Company
first knows, or reasonably should have known, that such additional Registration
Statement(s) is required.


 


“Holder” or “Holders” means the holder or
holders, as the case may be, from time to time of Registrable Securities.


 


“Indemnified Party”
has the meaning set forth in Section 5(c).


 


“Indemnifying Party”
has the meaning set forth in Section 5(c).


 


“Losses” has the
meaning set forth in Section 5(a).


 


“Proceeding” means an action, claim, suit,
investigation or proceeding (including, without limitation, an investigation or
partial proceeding, such as a deposition), whether commenced or threatened.


 


“Prospectus” means the prospectus included
in a Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.


 


“Registrable Securities” means: (i) the
Shares and (ii) any securities issued or issuable upon any stock split,
dividend or other distribution, recapitalization or similar event with respect
to the Shares.


 


“Registration Statement” means the initial
registration statement required to be filed in accordance with Section 2(a) and
any additional registration statement(s) required to be filed under Section
2(b), including (in each case) the Prospectus, amendments and supplements to
such registration statements or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference therein.


 


“Rule 144” means Rule 144 promulgated by
the Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.


 


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“Rule 415” means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such Rule.


 


“Rule 424” means Rule 424 promulgated by
the Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.


 


“Securities Act” means the Securities Act
of 1933, as amended.


 


“Shares” means the shares of Common Stock
issued or issuable to the Investors pursuant to the Purchase Agreement.


 


2.             Registration.


 


(a)           On or prior to each Filing Date, the
Company shall prepare and file with the Commission a Registration Statement
covering the resale of all Registrable Securities not already covered by an
existing and effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415, on an appropriate form for such
purpose.  Such Registration Statement
shall contain (except if otherwise required pursuant to written comments
received from the Commission upon a review of such Registration Statement) the
“Plan of Distribution” attached hereto as Annex A.  The Company shall cause such Registration Statement to be
declared effective under the Securities Act as soon as possible but, in any
event, no later than its Effectiveness Date, and shall use its reasonable best
efforts to keep the Registration Statement continuously effective under the
Securities Act until the date which is the earlier of (i) five years after
its Effective Date, (ii) such time as all of the Registrable Securities covered
by such Registration Statement have been publicly sold by the Holders, or (iii)
such time as all of the Registrable Securities covered by such Registration
Statement may be sold by the Holders pursuant to Rule 144(k) as determined by
the counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent and the affected
Holders (the “Effectiveness Period”). 
Promptly following any date on which the Company becomes eligible to use
a registration statement on Form S-3 to register the Registrable Securities for
resale, but in no event more than thirty days after such date, the Company
shall file a registration statement on Form S-3 covering the Registrable Securities
(or a post-effective amendment on Form S-3 to the then effective Registration
Statement) and shall cause such Registration Statement to be declared
effective as soon as possible thereafter.


 


(b)           If for any reason the
Commission does not permit all of the Registrable Securities to be included in
the Registration Statement filed pursuant to Section 2(a), or for any other
reason any outstanding Registrable Securities are not then covered by an
effective Registration Statement, then the Company shall prepare and file by
the Filing Date for such Registration Statement, an additional Registration
Statement covering the resale of all Registrable Securities not already covered
by an existing and effective Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415, on an appropriate form for such
purpose.  Each such Registration
Statement shall contain (except if otherwise required pursuant to written
comments received from the Commission upon a review of such Registration Statement)
the “Plan of Distribution” attached hereto as Annex A.  The Company shall cause 


 


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each such
Registration Statement to be declared effective under the Securities Act as
soon as possible but, in any event, by its Effectiveness Date, and shall use
its reasonable best efforts to keep such Registration Statement continuously
effective under the Securities Act during the entire Effectiveness Period.


 


(c)           If: (i) a Registration Statement is
not filed on or prior to its Filing Date (if the Company files a Registration
Statement without affording the Holders the opportunity to review and comment
on the same as required by Section 3(a) hereof, the Company shall not be deemed
to have satisfied this clause (i)), or (ii) a Registration Statement is not
declared effective by the Commission on or prior to its required Effectiveness
Date, or (iii) after its Effective Date, without regard for the reason
thereunder or efforts therefore, such Registration Statement ceases for any
reason to be effective and/or available to the Holders as to all Registrable
Securities to which it is required to cover at any time prior to the expiration
of its Effectiveness Period for more than an aggregate of 20 Trading Days
(which need not be consecutive) (any such failure or breach being referred to
as an “Event,”
and for purposes of clauses (i) or (ii) the date on which such Event occurs, or
for purposes of clause (iii) the date which such 20 Trading Day-period is
exceeded, being referred to as “Event Date”), then in addition to any
other rights the Holders may have hereunder or under applicable law: (x) on
each such Event Date the Company shall pay to each Holder an amount in cash, as
partial liquidated damages and not as a penalty, equal to 1.0% (subject to
reduction as provided in the following sentence) of the aggregate Investment
Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and
(y) on each monthly anniversary of each such Event Date (if the applicable Event
shall not have been cured by such date) until the applicable Event is cured,
the Company shall pay to each Holder an amount in cash, as partial liquidated
damages and not as a penalty, equal to 1.0% (subject to reduction as provided
in the following sentence) of the aggregate Investment Amount paid by such
Holder for Shares pursuant to the Purchase Agreement.  After such time as the Company shall have become obligated
pursuant to this Section 3(c) to any Holder to make payments in aggregate of
4.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant
to the Purchase Agreement, then the amount of liquidated damages to be
calculated in accordance with the preceding sentence shall thereafter be
reduced from 1.0% to 0.5% with respect to all damages accruing in excess of
4.0% of the aggregate Investment Amount paid by such Holder for Shares.  If the Company fails to pay any partial
liquidated damages pursuant to this Section in full within seven days after the
date payable, the Company will pay interest thereon at a rate of 10% per annum
(or such lesser maximum amount that is permitted to be paid by applicable law)
to the Holder, accruing daily from the date such partial liquidated damages are
due until such amounts, plus all such interest thereon, are paid in full.  The partial liquidated damages pursuant to
the terms hereof shall apply on a daily pro-rata basis for any portion of a
month prior to the cure of an Event, except in the case of the first Event
Date.


 


(d)           Each Holder agrees to furnish to the
Company a completed Questionnaire in the form attached to this Agreement as Annex
B (a “Selling
Holder Questionnaire”).  The
Company shall not be required to include the Registrable Securities of a Holder
in a Registration Statement and shall not be required to pay any liquidated or
other damages under Section 2(c) to any Holder who fails to furnish to the
Company a fully completed Selling Holder Questionnaire at least two Trading
Days prior to the Filing Date (subject to the requirements set forth in Section
3(a)).


 


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3.             Registration Procedures.


 


In connection with
the Company’s registration obligations hereunder, the Company shall:


 


(a)           Not less than four Trading Days prior
to the filing of a Registration Statement or any related Prospectus or any
amendment or supplement thereto, the Company shall furnish to each Holders
copies of the “Selling Stockholders” section of such document, the “Plan of
Distribution” and any risk factor contained in such document that addresses
specifically this transaction or the Selling Stockholders, as proposed to be
filed which documents will be subject to the review of such Holder.  The Company shall not file a Registration Statement,
any Prospectus or any amendments or supplements thereto in which the “Selling
Stockholder” section thereof differs from the disclosure received from a Holder
in its Selling Holder Questionnaire (as amended or supplemented).


 


(b)           (i) 
Prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable Registrable Securities
for its Effectiveness Period and prepare and file with the Commission such
additional Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible to any comments received from the
Commission with respect to each Registration Statement or any amendment thereto
and, as promptly as reasonably possible provide the Holders true and complete
copies of all correspondence from and to the Commission relating to such
Registration Statement that would not result in the disclosure to the Holders
of material and non-public information concerning the Company; and (iv) comply
in all material respects with the provisions of the Securities Act and the
Exchange Act with respect to the Registration Statements and the disposition of
all Registrable Securities covered by each Registration Statement.


 


(c)           Notify the Holders as promptly as
reasonably possible (and, in the case of (i)(A) below, not less than three
Trading Days prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Trading Day following the day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a “review” of such Registration
Statement and whenever the Commission comments in writing on such Registration
Statement (the Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders that pertain to the Holders as
a Selling Stockholder or to the Plan of Distribution, but not information which
the Company believes would constitute material and non-public information); and
(C) with respect to each Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the
Commission or any other Federal or state governmental authority for amendments
or supplements to a Registration Statement or Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement covering any or all of
the Registrable Securities or the 


 


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initiation of any
Proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions to such
Registration Statement, Prospectus or other documents so that, in the case of
such Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.


 


(d)           Use its reasonable best efforts to
avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.


 


(e)           Furnish to each Holder, without
charge, at least one conformed copy of each Registration Statement and each
amendment thereto and all exhibits to the extent requested by such Person
(including those previously furnished) promptly after the filing of such
documents with the Commission.


 


(f)            Promptly deliver to each Holder,
without charge, as many copies of each Prospectus or Prospectuses (including
each form of prospectus) and each amendment or supplement thereto as such
Persons may reasonably request.  The
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto.


 


(g)           Prior to any public offering of
Registrable Securities, to register or qualify or cooperate with the selling
Holders in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer
and sale under the securities or Blue Sky laws of all jurisdictions within the
United States, to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statements.


 


(h)           Cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to the
Registration Statements, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered in such names
as any such Holders may request.


 


(i)            Upon the occurrence of any event
contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a
supplement or amendment, including a post-effective 


 


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amendment, to the
affected Registration Statements or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by reference,
and file any other required document so that, as thereafter delivered, no
Registration Statement nor any Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.


 


4.             Registration Expenses.  All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement.  The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made with any Trading
Market on which the Common Stock is then listed for trading, and (B) in
compliance with applicable state securities or Blue Sky laws), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is reasonably requested by the holders of a majority of the
Registrable Securities included in the Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement.  In
addition, the Company shall be responsible for all of its internal expenses incurred
in connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder.


 


5.             Indemnification.


 


(a)           Indemnification by the Company.  The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, agents, investment advisors, partners, members and
employees of each of them, each Person who controls any such Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and reasonable attorneys’ fees) and
expenses (collectively, “Losses”) (Losses shall not
include any diminution in value of the Registrable Securities), as incurred,
arising out of or relating to any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any Prospectus or any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, except to the extent, but only to the extent,
that (1) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution of 


 


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Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form
of Prospectus or in any amendment or supplement thereto (it being understood
that the Holder has approved Annex A hereto for this purpose) or (2) in the
case of an occurrence of an event of the type specified in Section
3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus
after the Company has notified such Holder in writing that the Prospectus is
outdated or defective and prior to the receipt by such Holder of an Advice or
an amended or supplemented Prospectus, but only if and to the extent that
following the receipt of the Advice or the amended or supplemented Prospectus
the misstatement or omission giving rise to such Loss would have been
corrected.  The Company shall notify the
Holders promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by
this Agreement.


 


(b)           Indemnification by Holders.
Each Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who
controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or employees
of such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, arising solely out of or based solely
upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue statement of a material
fact contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or arising solely out of
or based solely upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading to the
extent, but only to the extent that, (1) such untrue statements or omissions
are based solely upon information regarding such Holder furnished in writing to
the Company by such Holder expressly for use therein, or to the extent that
such information relates to such Holder or such Holder’s proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement (it
being understood that the Holder has approved Annex A hereto for this purpose),
such Prospectus or such form of Prospectus or in any amendment or supplement
thereto or (2) in the case of an occurrence of an event of the type specified
in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing that the
Prospectus is outdated or defective and prior to the receipt by such Holder of
an Advice or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have
been corrected.  In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.


 


(c)           Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an “Indemnified
Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is
sought (the “Indemnifying Party”) in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment of
all fees and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve
the 


 


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Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only)
to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have proximately and materially adversely prejudiced
the Indemnifying Party.


 


An Indemnified
Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or Parties unless:  (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or
(3) the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised by counsel that a conflict of
interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party).  The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent,
which consent shall not be unreasonably withheld.  No Indemnifying Party shall, without the prior written consent of
the Indemnified Party, effect any settlement of any pending Proceeding in
respect of which any Indemnified Party is a party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such Proceeding.


 


All fees and
expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten Trading Days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such Indemnified
Party to undertake to reimburse all such fees and expenses to the extent it is
finally judicially determined that such Indemnified Party is not entitled to
indemnification hereunder).


 


(d)           Contribution.  If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations.  The relative fault of
such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of
a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such action, statement or omission.  The
amount paid or payable by a party as a result of any Losses shall be deemed to
include, 


 


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subject to the
limitations set forth in Section 5(c), any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in this Section was available
to such party in accordance with its terms.


 


The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 5(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the immediately preceding paragraph.  Notwithstanding the provisions of this Section 5(d), no Holder
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the proceeds actually received by such Holder from the sale of
the Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.


 


The indemnity and
contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties.


 


6.             Miscellaneous.


 


(a)           Remedies.  In the event of a breach by the Company or
by a Holder, of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.  The Company and each Holder agree that
monetary damages would not provide adequate compensation for any losses
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.


 


(b)           No Piggyback on Registrations.  Except as and to the extent specified in the
Purchase Agreement, neither the Company nor any of its security holders (other
than the Holders in such capacity pursuant hereto) may include securities of
the Company in a Registration Statement other than the Registrable Securities,
and the Company shall not during the Registration Period enter into any agreement
providing any such right to any of its security holders.


 


(c)           Compliance.  Each Holder covenants and agrees that it
will comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.


 


(d)           Discontinued Disposition.  Each Holder agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the Company of
the occurrence of any event of the kind described in Section 3(c), such Holder
will forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder’s receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is advised
in writing (the “Advice”) by the Company that the use of the applicable
Prospectus may 


 


10

















 


be resumed, and,
in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus or Registration Statement. 
The Company may provide appropriate stop orders to enforce the
provisions of this paragraph.


 


(e)           Piggy-Back Registrations.  If at any time during the Effectiveness
Period there is not an effective Registration Statement covering all of the
Registrable Securities and the Company shall determine to prepare and file with
the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each Holder written notice of
such determination and, if within fifteen days after receipt of such notice,
any such Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
holder requests to be registered, subject to customary underwriter cutbacks
applicable to all holders of registration rights.


 


(f)            Amendments and Waivers.  The provisions of this Agreement, including
the provisions of this Section 6(f), may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of no less than a majority in interest of the then outstanding
Registrable Securities.  Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of certain Holders
and that does not directly or indirectly affect the rights of other Holders may
be given by Holders of at least a majority of the Registrable Securities to
which such waiver or consent relates.


 


(g)           Notices.  Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of (a) the date
of transmission, if such notice or communication is delivered via facsimile
(provided the sender receives a machine-generated confirmation of successful
transmission and reasonably promptly following such transmission sends such
notice or communication via U.S. mail or overnight courier) at the facsimile
number specified in this Section prior to 6:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section on a day that is not a Trading Day or later than 6:30
p.m. (New York City time) on any Trading Day, (c) the Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service,
or (d) upon actual receipt by the party to whom such notice is required to be
given.  The address for such notices and
communications shall be as follows:


 


	
  If to the Company:

  	
  Kintera, Inc.

  
	
   

  	
  9605 Scranton Road, Suite 240

  
	
   

  	
  San Diego, California 92121

  
	
   

  	
  Attn: Chief Financial Officer

  
	
   

  	
  Facsimile:

  



 


11

















 


	
  With a copy to:

  	
  Gray Cary

  
	
   

  	
  4365 Executive Drive,
  Suite 1100

  
	
   

  	
  San Diego, CA 92121

  
	
   

  	
  Facsimile No.:  (858) 677-1401

  
	
   

  	
  Attention:  Scott Stanton, Esq.

  
	
   

  	
   

  
	
  If to an Investor:

  	
  To the address set forth under such Investor’s name
  on the signature pages hereto.

  
	
   

  	
   

  
	
  If to any other Person who is then the registered
  Holder:

  
	
   

  	
   

  
	
   

  	
  To the address
  of such Holder as it appears in the stock transfer books of the Company

  



 


or such other address as may be designated in writing hereafter, in the
same manner, by such Person.


 


(h)           Successors and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. 
Other than in connection with a merger, consolidation, sale of all or
substantially all of the Company’s assets or other similar change in control
transaction, the Company may not assign its rights or obligations hereunder
without the prior written consent of each Holder.  Each Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under the Purchase Agreement.


 


(i)            Execution and Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement.  In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.


 


(j)            Governing Law.  All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof.  Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or its
respective Affiliates, employees or agents) will be commenced in the California
Courts.  Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the California Courts for
the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any California Court, or that such
Proceeding has been commenced in an improper or inconvenient forum.  Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
Proceeding by 


 


12

















 


mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law.  Each party hereto hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial
by jury in any Proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.  If
either party shall commence a Proceeding to enforce any provisions of this
Agreement, then the prevailing party in such Proceeding shall be reimbursed by
the other party for its attorney’s fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such Proceeding.


 


(k)           Cumulative Remedies.  The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.


 


(l)            Severability. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction.  It is hereby stipulated
and declared to be the intention of the parties that they would have executed
the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or
unenforceable.


 


(m)          Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(n)           Independent Nature of Investors’ Obligations
and Rights.  The obligations of each
Investor under this Agreement are several and not joint with the obligations of
each other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under this Agreement.  The Company’s obligations to each Investor under this Agreement are
identical to its obligations to each other Investor other than such differences
resulting solely from the number of Shares purchased by each Investor, but
regardless of whether such obligations are memorialized herein or in another
agreement between the Company and an Investor. 
Nothing contained herein or in the Purchase Agreement, and no
action taken by any Investor pursuant thereto, shall be deemed to constitute the
Investors as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Investors are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement or the Purchase Agreement.  Each Investor acknowledges that no other
Investor will be acting as agent of such Investor in enforcing its rights under
this Agreement.  Each Investor shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Investor to be joined as an additional party in any
Proceeding for such purpose.  The
Company acknowledges that each of the Investors has been provided with the same
Registration Rights Agreement for the purpose of closing a transaction with
multiple Investors and not because it was required or requested to do so by any
Investor.


 


13

















 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK

SIGNATURE PAGES TO FOLLOW]


 


14

















 


IN WITNESS
WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.


 


	
   

  	
  KINTERA,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK

SIGNATURE PAGES OF INVESTORS TO FOLLOW]


 


15

















 


IN WITNESS
WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.


 


 


	
   

  	
  NAME OF INVESTING ENTITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AUTHORIZED
  SIGNATORY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ADDRESS FOR NOTICE

  
	
   

  	
   

  
	
   

  	
  c/o:

  	
   

  
	
   

  	
   

  
	
   

  	
  Street:

  	
   

  
	
   

  	
   

  
	
   

  	
  City/State/Zip:

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
   

  
	
   

  	
  Tel:

  	
   

  
	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
   

  
	
   

  	
  Email:

  	
   

  
					



 


16

















 


Annex A


 


Plan of Distribution


 


The Selling
Stockholders and any of their pledgees, donees, transferees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. 
These sales may be at fixed or negotiated prices.  The Selling Stockholders may use any one or
more of the following methods when selling shares:


 


•                  ordinary
brokerage transactions and transactions in which the broker-dealer solicits
investors;


 


•                  block trades in
which the broker-dealer will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction;


 


•                  purchases by a
broker-dealer as principal and resale by the broker-dealer for its account;


 


•                  an exchange
distribution in accordance with the rules of the applicable exchange;


 


•                  privately
negotiated transactions;


 


•                  to cover short
sales made after the date that this Registration Statement is declared
effective by the Commission;


 


•                  broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per share;


 


•                  a combination of
any such methods of sale; and


 


•                  any other method
permitted pursuant to applicable law.


 


The Selling
Stockholders may also sell shares under Rule 144 under the Securities Act, if
available, rather than under this prospectus.


 


Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales.  Broker-dealers
may receive commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated.  The Selling
Stockholders do not expect these commissions and discounts to exceed what is
customary in the types of transactions involved.


 


The Selling
Stockholders may from time to time pledge or grant a security interest in some
or all of the Shares owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell
shares of Common Stock from time to time under this prospectus, or under an
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act of 1933 amending the list of selling stockholders to
include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus.


 


17

















 


Upon the Company
being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to
this prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv)the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction.  In addition, upon the Company being notified
in writing by a Selling Stockholder that a donee or pledgee intends to sell
more than 500 shares of Common Stock, a supplement to this prospectus will be
filed if then required in accordance with applicable securities law.


 


The Selling
Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus.


 


The Selling
Stockholders and any broker-dealers or agents that are involved in selling the
shares may be deemed to be “underwriters” within the meaning of the Securities
Act in connection with such sales.  In
such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.  Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the Selling Stockholder and/or the purchasers.  Each Selling Stockholder has represented and
warranted to the Company that it acquired the securities subject to this
registration statement in the ordinary course of such Selling Stockholder’s business
and, at the time of its purchase of such securities such Selling Stockholder
had no agreements or understandings, directly or indirectly, with any person to
distribute any such securities.


 


The Company has
advised each Selling Stockholder that it may not use shares registered on this
Registration Statement to cover short sales of Common Stock made prior to the
date on which this Registration Statement shall have been declared effective by
the Commission.  If a Selling
Stockholder uses this prospectus for any sale of the Common Stock, it will be
subject to the prospectus delivery requirements of the Securities Act.  The Selling Stockholders will be responsible
to comply with the applicable provisions of the Securities Act and Exchange
Act, and the rules and regulations thereunder promulgated, including, without
limitation, Regulation M, as applicable to such Selling Stockholders in
connection with resales of their respective shares under this Registration
Statement.


 


The Company is
required to pay all fees and expenses incident to the registration of the
shares, but the Company will not receive any proceeds from the sale of the
Common Stock.  The Company has agreed to
indemnify the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.


 


18

















 


Annex B


 


KINTERA,
INC.


 


Selling
Securityholder Notice and Questionnaire


 


The undersigned beneficial owner of common stock (the “Common
Stock”), of Kintera, Inc. (the “Company”) understands that the Company has
filed or intends to file with the Securities and Exchange Commission (the “Commission”)
a Registration Statement for the registration and resale of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement,
dated as of [  ], 2004 (the “Registration
Rights Agreement”), among the Company and the Investors named
therein.  A copy of the Registration
Rights Agreement is available from the Company upon request at the address set
forth below.  All capitalized terms used
and not otherwise defined herein shall have the meanings ascribed thereto in
the Registration Rights Agreement.


 


The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate:


 


QUESTIONNAIRE


 


	
  1.

  	
  Name.

  
	
   

  	
   

  
	
   

  	
  (a)

  	
  Full Legal Name of Selling Securityholder

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Full Legal Name of Registered Holder (if not the
  same as (a) above) through which Registrable Securities Listed in Item 3
  below are held:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Full Legal Name of Natural Control Person (which
  means a natural person who directly you indirectly alone or with others has
  power to vote or dispose of the securities covered by the questionnaire):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


2. 
Address for Notices to Selling Securityholder:


 


 


 


19

















 


 


	
  Telephone:

  
	
  Fax:

  
	
  Contact
  Person:

  



 


3. 
Beneficial Ownership of Registrable Securities:


 


	
   

  	
  (a)

  	
  Type and Principal Amount of Registrable Securities
  beneficially owned:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


4. 
Broker-Dealer Status:


 


	
   

  	
  (a)

  	
  Are you a broker-dealer?

  
	
   

  	
   

  	
   

  
	
  Yes  o     No  o

  
	
   

  	
   

  	
   

  
	
   

  	
  Note:

  	
  If yes, the Commission’s staff has indicated that
  you should be identified as an underwriter in the Registration Statement.

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Are you an affiliate of a broker-dealer?

  
	
   

  	
   

  	
   

  
	
  Yes  o     No  o

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  If you are an affiliate of a broker-dealer, do you
  certify that you bought the Registrable Securities in the ordinary course of
  business, and at the time of the purchase of the Registrable Securities to be
  resold, you had no agreements or understandings, directly or indirectly, with
  any person to distribute the Registrable Securities?

  
	
   

  	
   

  	
   

  
	
  Yes  o     No  o

  
	
   

  	
   

  	
   

  
	
   

  	
  Note:

  	
  If no, the Commission’s staff has indicated that you
  should be identified as an underwriter in the Registration Statement.

  



 


5. 
Beneficial Ownership of Other Securities of the Company Owned by the
Selling Securityholder.


 


	
   

  	
  Except as set forth below in this
  Item 5, the undersigned is not the beneficial or registered owner of any
  securities of the Company other than the Registrable Securities listed above
  in Item 3.

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  Type and Amount of Other Securities beneficially
  owned by the Selling Securityholder:

  



 


20

















 


 


 


6. 
Relationships with the Company:


 


	
   

  	
  Except as set forth below, neither
  the undersigned nor any of its affiliates, officers, directors or principal
  equity holders (owners of 5% of more of the equity securities of the
  undersigned) has held any position or office or has had any other material
  relationship with the Company (or its predecessors or affiliates) during the
  past three years.

  
	
   

  	
   

  
	
   

  	
  State any exceptions here:

  
	
   

  	
   

  
	
   

  	
   

  



 


The undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof and prior to the Effective Date for the
Registration Statement.


 


By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 6 and the
inclusion of such information in the Registration Statement and the related
prospectus.  The undersigned understands
that such information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.


 


IN WITNESS WHEREOF the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.


 


	
  Dated:

  	
   

  	
   

  	
  Beneficial Owner:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
						



 


PLEASE FAX A COPY OF THE COMPLETED
AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT
MAIL, TO:


 


[                 ]


 


21