Exhibit 10.11


 


SECURITIES PURCHASE AGREEMENT


 


This Securities
Purchase Agreement (this “Agreement”) is
dated as of November 29, 2004, among Kintera, Inc., a Delaware corporation
(the “Company”), and the investors identified
on the signature pages hereto (each, an “Investor” and
collectively, the “Investors”).


 


WHEREAS, subject
to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act (as defined below) and Rule 506
promulgated thereunder, the Company desires to issue and sell to each Investor,
and each Investor, severally and not jointly, desires to purchase from the
Company certain securities of the Company, as more fully described in this
Agreement.


 


NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and the Investors agree as follows:


 


1.                                       Definitions


 


(a)                                  Definitions.  In addition to the terms defined elsewhere in
this Agreement, for all purposes of this Agreement, the following terms shall
have the meanings indicated in this Section 1:


 


“Action” means any action, suit, inquiry, notice of
violation, proceeding (including any partial proceeding such as a deposition)
or investigation pending or threatened in writing against or affecting the
Company, any Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency, regulatory authority
(federal, state, county, local or foreign), stock market, stock exchange or
trading facility.


 


“Affiliate” means any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under
Rule 144.


 


“Business Day” means any day except Saturday, Sunday and any
day which is a federal legal holiday or a day on which banking institutions in
the State of New York are authorized or required by law or other governmental
action to close.


 


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


 


“Closing” means each closing of the purchase and sale of the
Securities to an Investor pursuant to this Agreement.


 


“Closing Date” for each Closing means the Business Day
immediately following the date on which all of the conditions set forth in
Sections 5(a) and 5(b) hereof are satisfied for an Investor and the
Company, or such other date as such parties may agree.


 


“Commission” means the Securities and Exchange Commission.


 


“Common Stock” means the common stock of the Company, par
value $.001 per share, and any securities into which such common stock may
hereafter be reclassified.


 


“Common Stock Equivalents” means any securities of the
Company or any Subsidiary which entitle the holder thereof to acquire Common
Stock at any time, including without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time convertible
into or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock or other securities that entitle the holder to receive, directly
or indirectly, Common Stock.


 


“Company Counsel” means Morrison & Foerster LLP.


 


1





















 


“Company Deliverables” has the meaning set forth in
Section 2(b)(i).


 


“Disclosure Materials” has the meaning set forth in
Section 3(a)(viii).


 


“Effective Date” means the date that the Registration
Statement required by Section 2(a) of the Registration Rights Agreement is
first declared effective by the Commission.


 


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


 


“GAAP” means U.S. generally accepted accounting principles.


 


“Intellectual Property Rights” has the meaning set forth in
Section 3(a)(xiv).


 


“Investment Amount” means, with respect to each Investor, the
Investment Amount indicated on such Investor’s signature page to this
Agreement.


 


“Investor Deliverables” has the meaning set forth in
Section 2(b)(ii).


 


“Investor Party” has the meaning set forth in Section 4(g).


 


“Lien” means any lien, charge, encumbrance, security
interest, right of first refusal or other restrictions of any kind.


 


“Material Adverse Effect” means any of (i) a material
and adverse effect on the legality, validity or enforceability of any
Transaction Document, (ii) a material and adverse effect on the results of
operations, assets, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) an adverse
impairment to the Company’s ability to perform on a timely basis its
obligations under any Transaction Document.


 


“Per Share Purchase Price” equals $7.00.


 


“Person” means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or other entity of any kind.


 


“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.


 


“Registration Statement” means a registration statement
meeting the requirements set forth in the Registration Rights Agreement and
covering the resale by the Investors of the Shares.


 


“Registration Rights Agreement” means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company and the Investors,
in the form of Exhibit A hereto.


 


“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.


 


“SEC Reports” has the meaning set forth in Section 3(a)(viii).


 


“Securities” means the Shares.


 


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


 


2





















 


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


 


“Short Sales” include, without limitation, all “short sales”
as defined in Rule 3b-3 of the Exchange Act and include all types of
direct and indirect stock pledges, forward sale contracts, options, puts,
calls, short sales, swaps and similar arrangements (including on a total return
basis), and sales and other transactions through non-US broker dealers or
foreign regulated brokers.


 


“Subsidiary” means any “significant subsidiary” as defined in
Rule 1-02(w) of the Regulation S-X promulgated by the Commission under the
Exchange Act.


 


“Trading Day” means (i) a day on which the Common Stock
is traded on a Trading Market (other than the OTC Bulletin Board), or
(ii) if the Common Stock is not listed on a Trading Market (other than the
OTC Bulletin Board), a day on which the Common Stock is traded in the
over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if
the Common Stock is not quoted on any Trading Market, a day on which the Common
Stock is quoted in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or agency succeeding
to its functions of reporting prices); provided, that in the event that the
Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof,
then Trading Day shall mean a Business Day.


 


“Trading Market” means whichever of the New York Stock
Exchange, the American Stock Exchange, the NASDAQ National Market, the NASDAQ
SmallCap Market or OTC Bulletin Board on which the Common Stock is listed or quoted
for trading on the date in question.


 


“Transaction Documents” means this Agreement, the
Registration Rights Agreement, and any other documents or agreements executed
in connection with the transactions contemplated hereunder.


 


2.                                       Purchase
and Sale


 


(a)                                  Closings.  On or before December 6, 2004 (the “Final Closing Date”), subject to the terms and conditions
set forth in this Agreement, at each of the Closings the Company shall issue
and sell to the Investor(s) at such Closing, and each such Investor shall,
severally and not jointly, purchase from the Company, the Shares representing
such Investor’s Investment Amount.  Each Closing
shall take place at the offices of Morrison & Foerster, 3811 Valley Centre
Drive, Suite 500, San Diego, California 92130 on the Closing Date for such
Closing (which shall not be later than the Final Closing Date) or at such other
location or time as the parties to the Closing may agree.


 


(b)                                 Closing
Deliveries.


 


(i)                                     At
each Closing, the Company shall deliver or cause to be delivered to each
Investor at such Closing the following (the “Company
Deliverables”):


 


(1)                                  a
certificate evidencing a number of Shares equal to such Investor’s Investment
Amount divided by the Per Share Purchase Price, registered in the name of such
Investor;


 


(2)                                  the
legal opinion of Company Counsel, in agreed form, addressed to the Investors;
and


 


(3)                                  the
Registration Rights Agreement, duly executed by the Company.


 


(ii)                                  At
each Closing, each Investor at such Closing shall deliver or cause to be
delivered to the Company the following (the “Investor
Deliverables”):


 


(1)                                  its
Investment Amount, in United States dollars and in immediately available funds,
by wire transfer to an account designated in writing by the Company for such
purpose; and


 


3





















 


(2)                                  the
Registration Rights Agreement, duly executed by such Investor.


 


3.                                       Representations
and Warranties


 


(a)                                  Representations
and Warranties of the Company.  The
Company hereby makes the following representations and warranties to each
Investor:


 


(i)                                     Subsidiaries.  The Company has no direct or indirect
Subsidiaries other than as specified in the SEC Reports.  The Company owns, directly or indirectly, all
of the capital stock of each Subsidiary free and clear of any and all Liens,
and all the issued and outstanding shares of capital stock of each Subsidiary
are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights.  Neither the Company
nor any Subsidiary is party to any material joint venture, nor has any
ownership interest in any other entity that is material to the Company or as
disclosed in the SEC Reports.


 


(ii)                                  Organization
and Qualification.  The Company and
each Subsidiary are duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization (as applicable), with the requisite power and authority to own and
use its properties and assets and to carry on its business as currently
conducted.  Neither the Company nor any
Subsidiary is in violation of any of the material provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents.  The Company and each
Subsidiary are duly qualified to conduct its respective businesses and are in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not, individually or in the aggregate, have
or reasonably be expected to result in a Material Adverse Effect.


 


(iii)                               Authorization;
Enforcement.  The Company has the
requisite corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and otherwise to
carry out its obligations thereunder. 
The execution and delivery of each of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company in connection therewith.  Each Transaction Document has been (or upon
delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors’ rights and
remedies or by other equitable principles of general application.


 


(iv)                              No
Conflicts.  The execution, delivery
and performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated thereby do not and
will not (i) conflict with or violate any provision of the Company’s or
any Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both)
of, any agreement, credit facility, debt or other instrument (evidencing a
Company or Subsidiary debt or otherwise) to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary
is bound, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the case of each
of clauses (ii) and (iii), such as could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect.


 


(v)                                 Filings,
Consents and Approvals.  The Company
is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filing with the Commission of
one or more Registration Statements in accordance with the requirements of the Registration
Rights Agreement,


 


4





















 


(ii) filings required by state securities laws,
(iii) the filing of a Notice of Sale of Securities on Form D with the
Commission under Regulation D of the Securities Act, (iv) the filings
required in accordance with Section 4(e), (v) the filing of any requisite
notices with the Trading Market, (vi) such consents or waivers as may be
required under registration rights agreements entered into in connection with
business acquisitions effected prior to the date of this Agreement, and
(vii) those that have been made or obtained prior to the date of this
Agreement.


 


(vi)                              Issuance
of the Securities.  The Securities
have been duly authorized and, when issued and paid for in accordance with the
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens.  The Company has reserved from its duly
authorized capital stock the shares of Common Stock issuable pursuant to this
Agreement in order to issue the Shares.


 


(vii)                           Capitalization.  The number of shares and type of all
authorized, issued and outstanding capital stock of the Company, and all shares
of Common Stock reserved for issuance under the Company’s various option and
incentive plans as of September 30, 2004, is specified in the SEC
Reports.  Except as specified in the SEC
Reports, no securities of the Company are entitled to preemptive or similar
rights, and no Person has any right of first refusal, preemptive right, right
of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. 
Except as specified in the SEC Reports, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations
convertible into or exchangeable for, or giving any Person any right to
subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock,
or securities or rights convertible or exchangeable into shares of Common
Stock.  The issue and sale of the
Securities will not, immediately or with the passage of time, obligate the
Company to issue shares of Common Stock or other securities to any Person
(other than the Investors) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or reset price
under such securities.


 


(viii)                        SEC
Reports; Financial Statements.  The
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the twelve months preceding the date hereof (or such shorter
period as the Company was required by law to file such reports) (the foregoing
materials being collectively referred to herein as the “SEC Reports”
and, together with the Schedules to this Agreement (if any), the “Disclosure Materials”) on a timely basis or has timely filed
a valid extension of such time of filing and has filed any such SEC Reports
prior to the expiration of any such extension. 
As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. 
The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at
the time of filing.  Such financial
statements have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved, except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal year-end audit adjustments.


 


(ix)                                Material
Changes.  Since the date of the
latest audited financial statements included within the SEC Reports, except as
specifically disclosed in the SEC Reports, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables, accrued
expenses and other liabilities incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected
in the Company’s financial statements pursuant to GAAP or required to be
disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting or the identity of its auditors, (iv) the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock (other than in connection
with repurchases of unvested stock issued to employees of the Company),


 


5





















 


and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing
Company stock option plans.


 


(x)                                   Litigation.  There is no Action which (i) adversely
affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Securities or (ii) except as specifically
disclosed in the SEC Reports, could, if there were an unfavorable decision,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect.  Neither the
Company nor any Subsidiary, nor any director or officer thereof (in his or her
capacity as such), is or has been the subject of any Action involving a claim
of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty, except as specifically disclosed in the SEC
Reports.  There has not been, and to the
knowledge of the Company, there is not pending any investigation by the
Commission involving the Company or any current or former director or officer
of the Company (in his or her capacity as such).  The Commission has not issued any stop order
or other order suspending the effectiveness of any registration statement filed
by the Company or any Subsidiary under the Exchange Act or the Securities Act.


 


(xi)                                Compliance.  Neither the Company nor any Subsidiary
(i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in
a default by the Company or any Subsidiary under), nor has the Company or any
Subsidiary received notice of a claim that it is in default under or that it is
in violation of, any indenture, loan or credit agreement or any other agreement
or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is
in violation of, or in receipt of notice that it is in violation of, any order
of any court, arbitrator or governmental body, or (iii) is or has been in
violation of, or in receipt of notice that it is in violation of, any statute,
rule or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety, employment
and labor matters and, to its knowledge, privacy, except in each case as could
not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect. The Company is in compliance with all effective
requirements of the Sarbanes-Oxley Act of 2002, as amended, and the rules and
regulations thereunder, that are applicable to it, except where such
noncompliance could not have or reasonably be expected to result in a Material
Adverse Effect.


 


(xii)                             Regulatory
Permits.  The Company and the
Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary
to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such permits.


 


(xiii)                          Title
to Assets.  The Company and the
Subsidiaries have good and marketable title in fee simple to all real property
owned by them that is material to their respective businesses and good and
marketable title in all personal property owned by them that is material to
their respective businesses, in each case free and clear of all Liens, except
for Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries. Any real property and facilities held
under lease by the Company and the Subsidiaries are held by them under leases
valid, subsisting and enforceable against the Company and the Subsidiaries, and
the Company and the Subsidiaries are in compliance with such leases, except as
could not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.


 


(xiv)                         Patents
and Trademarks.  The Company and the
Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, copyrights,
licenses and other similar rights that are necessary or material for use in
connection with their respective businesses as described in the SEC Reports and
which the failure to so have could, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect (collectively,
the “Intellectual Property Rights”).  Neither the Company nor any Subsidiary has
received a written notice that the Intellectual Property Rights used by the
Company or any Subsidiary violates or infringes upon the rights of any Person,
and the Company has no knowledge of any such violation or infringement.  Except as set forth in the SEC Reports, to
the knowledge of the Company, all such Intellectual Property Rights are
enforceable.


 


6





















 


(xv)                            Insurance.  The Company and the Subsidiaries are insured
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary for enterprises of
similar size and stage of development in the businesses in which the Company
and the Subsidiaries are engaged.  The
Company has no reason to believe that it will not be able to renew its and the
Subsidiaries’ existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business on terms consistent with market for the Company’s and
such Subsidiaries’ respective lines of business.


 


(xvi)                         Transactions
With Affiliates and Employees. 
Except as set forth in the SEC Reports, none of the officers or
directors of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with the
Company or any Subsidiary required to be disclosed in the SEC Reports (other
than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.


 


(xvii)                      Internal
Accounting Controls.  The Company and
the Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.  The Company has
established disclosure controls and procedures (as defined in Exchange Act
rules 13a-14 and 15d-14) for the Company and designed such disclosure controls
and procedures to ensure that material information relating to the Company,
including its Subsidiaries, is made known to the certifying officers by others
within those entities.  The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls
and procedures in accordance with Item 307 of Regulation S-K under the
Exchange Act for the fiscal quarter ended September 30, 2004 (such date,
the “Evaluation Date”).  The Company presented in its most recently
filed Form 10-Q the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. 
Since the Evaluation Date, there have been no significant changes in the
Company’s internal controls (as such term is defined in Item 308(c) of
Regulation S-K under the Exchange Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal controls which
was required to be disclosed in the SEC Reports and was not so disclosed.


 


(xviii)                   Certain Fees.  SG Cowen & Co., LLC and Roth Capital
Partners will each receive brokerage or finder’s fees or commissions payable by
the Company with respect to the transactions contemplated by this
Agreement.  The Investors shall have no
obligation with respect to any fees or with respect to any claims (other than
such fees or commissions owed by an Investor pursuant to written agreements
executed by such Investor which fees or commissions shall be the sole
responsibility of such Investor) made by or on behalf of other Persons for fees
of a type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.


 


(xix)                           Investment
Company.  The Company is not, and is
not an Affiliate of, and immediately following the Closing will not have
become, an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.


 


(xx)                              Certain
Registration Matters.  Assuming the
accuracy of the Investors’ representations and warranties set forth in
Section 3(b)(ii)-(v), no registration under the Securities Act is required
for the offer and sale of the Shares by the Company to the Investors under the
Transaction Documents.  Except as
specified on Schedule 3(a)(xx) and pursuant to the Registration Rights
Agreement, the Company has not granted or agreed to grant to any Person any
rights (including “piggy-back” registration rights) to have any securities of
the Company registered with the Commission or any other governmental authority
that have not been satisfied.


 


7





















 


(xxi)                           Listing
and Maintenance Requirements.  Except
as specified in the SEC Reports, the Company has not, in the two years
preceding the date hereof, received notice from any Trading Market to the
effect that the Company is not in compliance with the listing or maintenance
requirements thereof.  The Company is,
and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with the listing and maintenance requirements for
continued listing of the Common Stock on the Trading Market on which the Common
Stock is currently listed or quoted.  The
issuance and sale of the Securities under the Transaction Documents does not
contravene the rules and regulations of the Trading Market on which the Common
Stock is currently listed or quoted, and no approval of the shareholders of the
Company thereunder is required for the Company to issue and deliver to the
Investors the Securities contemplated by Transaction Documents.


 


(xxii)                        Application
of Takeover Protections.  The Company
has taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under the Company’s Certificate of Incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to
the Investors as a result of the Investors and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents,
including without limitation the Company’s issuance of the Securities and the
Investors’ ownership of the Securities.


 


(xxiii)                     No
Additional Agreements.  The Company
does not have any agreement or understanding with any Investor with respect to
the transactions contemplated by the Transaction Documents other than as
specified in the Transaction Documents.


 


(xxiv)                    Disclosure.  The Company understands and confirms that the
Investors will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. 
All disclosure provided to the Investors regarding the Company, its
business and the transactions contemplated hereby, furnished by or on behalf of
the Company (including the Company’s representations and warranties set forth
in this Agreement) are true and correct and do not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under which
they were made, not misleading.


 


(b)                                 Representations
and Warranties of the Investors. 
Each Investor hereby, for itself and for no other Investor, represents
and warrants to the Company as follows:


 


(i)                                     Organization;
Authority.  Such Investor is an
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with the requisite corporate or
partnership power and authority to enter into and to consummate the
transactions contemplated by the applicable Transaction Documents and otherwise
to carry out its obligations thereunder. The execution, delivery and performance
by such Investor of the transactions contemplated by this Agreement has been
duly authorized by all necessary corporate or, if such Investor is not a
corporation, such partnership, limited liability company or other applicable
like action, on the part of such Investor. 
Each of this Agreement and the Registration Rights Agreement has been
duly executed by such Investor, and when delivered by such Investor in
accordance with terms hereof, will constitute the valid and legally binding
obligation of such Investor, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general application.


 


(ii)                                  Investment
Intent.  Such Investor is acquiring
the Securities as principal for its own account for investment purposes only
and not with a view to or for distributing or reselling such Securities or any
part thereof, without prejudice, however, to such Investor’s right at all times
to sell or otherwise dispose of all or any part of such Securities in
compliance with applicable federal and state securities laws.  Subject to the immediately preceding
sentence, nothing contained herein shall be deemed a representation or warranty
by such Investor to hold the Securities for any period of time.  Such Investor is acquiring the Securities
hereunder in the ordinary course of its business. Such Investor does not have
any agreement or understanding, directly or indirectly, with any Person to
distribute any of the Securities.


 


8





















 


(iii)                               Investor
Status.  Such Investor is, and at the
Closing will be, an “accredited investor” as defined in Rule 501(a) under
the Securities Act.  Such Investor is not
a registered broker-dealer under Section 15 of the Exchange Act.


 


(iv)                              General
Solicitation.  Such Investor is not
purchasing the Securities as a result of any advertisement, article, notice or
other communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at
any seminar or any other general solicitation or general advertisement.


 


(v)                                 Access
to Information.  Such Investor
acknowledges that it has reviewed the Disclosure Materials and has been
afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares and the
merits and risks of investing in the Securities; (ii) access to
information about the Company and the Subsidiaries and their respective
financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment; and
(iii) the opportunity to obtain such additional information that the
Company possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment.  Neither such inquiries nor
any other investigation conducted by or on behalf of such Investor or its
representatives or counsel shall modify, amend or affect such Investor’s right
to rely on the truth, accuracy and completeness of the Disclosure Materials and
the Company’s representations and warranties contained in the Transaction
Documents.


 


(vi)                              Certain
Trading Activities.  Such Investor
covenants that neither it nor any Person acting on its behalf or pursuant to
any understanding with it will engage in any transactions in the securities of
the Company (including Short Sales) prior to the time that the transactions
contemplated by this Agreement are publicly disclosed by the Company.  Such Investor has maintained, and covenants
that until such time as the transactions contemplated by this Agreement are
publicly disclosed by the Company such Investor will maintain, the confidentiality
of all disclosures made to it in connection with this transaction (including
the existence and terms of this transaction).


 


(vii)                           Limited
Ownership.  The purchase by such
Investor of the Securities issuable to it at the Closing will not result in
such Investor (individually or together with other Person with whom such
Investor has identified, or will have identified, itself as part of a “group”
in a public filing made with the Commission involving the Company’s securities)
acquiring, or obtaining the right to acquire, in excess of 19.999% of the
outstanding shares of Common Stock or the voting power of the Company on a post
transaction basis that assumes that the Closing shall have occurred.  Such Investor does not presently intend to,
alone or together with others, make a public filing with the Commission to
disclose that it has (or that it together with such other Persons have)
acquired, or obtained the right to acquire, as a result of the Closing (when
added to any other securities of the Company that it or they then own or have the
right to acquire), in excess of 19.999% of the outstanding shares of Common
Stock or the voting power of the Company on a post transaction basis that
assumes that the Closing shall have occurred.


 


(viii)                        Independent
Investment Decision.  Such Investor has
independently evaluated the merits of its decision to purchase Securities
pursuant to the Transaction Documents, and such Investor confirms that it has
not relied on the advice of any other Investor’s business and/or legal counsel
in making such decision.  Such Investor
has not relied on the business or legal advice of SG Cowen & Co., LLC or
Roth Capital Partners or any of their agents, counsels or Affiliates in making
its investment decision hereunder, and confirms that none of such Persons has
made any representations or warranties to such Investor in connection with the
transactions contemplated by the Transaction Documents.


 


The Company acknowledges and agrees that no
Investor has made or makes any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in
this Section 3(b).


 


4.                                       Other
Agreements of the Parties


 


(a)                                  Sale
of Securities.


 


9





















 


(i)                                     Compliance
with Laws.  Securities may only be disposed
of in compliance with state and federal securities laws.  In connection with any transfer of the
Securities other than pursuant to an effective registration statement, to the
Company, to an Affiliate of an Investor or in connection with a pledge as
contemplated in Section 4(a)(ii), the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act.


 


(ii)                                  Legends.  Certificates evidencing the Securities will
contain the following legend, until such time as they are not required under
Section 4(a)(iii):


 


THESE SHARES HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.  THESE SHARES MAY
BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH
SECURITIES.


 


The Company
acknowledges and agrees that an Investor may from time to time pledge, and/or
grant a security interest in some or all of the Securities pursuant to a bona
fide margin agreement in connection with a bona fide margin account and, if
required under the terms of such agreement or account, such Investor may
transfer pledged or secured Securities to the pledgees or secured parties.  Such a pledge or transfer would not be
subject to approval or consent of the Company and no legal opinion of legal
counsel to the pledgee, secured party or pledgor shall be required in
connection with the pledge, but such legal opinion may be required in
connection with a subsequent transfer following default by the Investor
transferee of the pledge.  No notice
shall be required of such pledge.  At the
appropriate Investor’s expense, the Company will execute and deliver such
reasonable documentation as a pledgee or secured party of Securities may
reasonably request in connection with a pledge or transfer of the Securities
including the preparation and filing of any required prospectus supplement
under Rule 424(b)(3) of the Securities Act or other applicable provision of the
Securities Act to appropriately amend the list of Selling Stockholders
thereunder.


 


(iii)                               Sales/Transfers
Pursuant to Registration Statement or Rule 144.  Certificates evidencing the Shares shall not
contain any legend (including the legend set forth in Section 4(a)(ii)):
(i) following a sale or transfer of such Securities pursuant to an
effective registration statement (including the Registration Statement), or
(ii) following a sale or transfer of such Shares pursuant to Rule
144 (assuming the transferor is not an Affiliate of the Company), or (iii) while
such Shares are eligible for sale under Rule 144(k).  The Company may not make any notation on its
records or give instructions to any transfer agent of the Company that enlarge
the restrictions on transfer set forth in this Section.


 


(b)                                 Furnishing
of Information.  As long as any
Investor owns the Securities, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to
the Exchange Act.  As long as any
Investor owns Securities, if the Company is not required to file reports
pursuant to such laws, it will prepare and furnish to the Investors and make
publicly available in accordance with Rule 144(c) such information as is
required for the Investors to sell the Shares under Rule 144. The Company
further covenants that it will take such further action as any holder of
Securities may reasonably request, all to the extent required from time to time
to enable such Person to sell the Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144.


 


10





















 


(c)                                  Integration.  The Company shall not, and shall use its best
efforts to ensure that no Affiliate of the Company shall, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Securities in a manner that would require the registration
under the Securities Act of the sale of the Securities to the Investors, or
that would be integrated with the offer or sale of the Securities for purposes
of the rules and regulations of any Trading Market in a manner that would
require stockholder approval of the sale of the securities to the Investors.


 


(d)                                 Subsequent
Registrations.  Other than pursuant
to the Registration Rights Agreement, prior to the Effective Date, the Company
may not file any registration statement (other than on Form S-8) with the
Commission with respect to any securities of the Company.


 


(e)                                  Securities
Laws Disclosure; Publicity.  By 9:00
a.m. (New York time) on the Trading Day following the execution of this
Agreement, and by 9:00 a.m. (New York time) on the Final Closing Date, the
Company shall issue press releases disclosing the transactions contemplated
hereby and the Closing.  On the Trading
Day following the execution of this Agreement, the Company will file a Current
Report on Form 8-K disclosing the material terms of the Transaction Documents
(and attach as exhibits thereto the Transaction Documents), and on the Final Closing
Date the Company will file an additional Current Report on Form 8-K to disclose
the Closing.  In addition, the Company
will make such other filings and notices in the manner and time required by the
Commission and the Trading Market on which the Common Stock is listed.  Notwithstanding the foregoing, the Company
shall not publicly disclose the name of any Investor, or include the name of
any Investor in any filing with the Commission (other than the Registration
Statement and any exhibits to filings made in respect of this transaction in
accordance with periodic filing requirements under the Exchange Act) or any
regulatory agency or Trading Market, without the prior written consent of such
Investor, except to the extent such disclosure is required by law or Trading
Market regulations.


 


(f)                                    Limitation
on Issuance of Future Priced Securities. 
During the six months following the Final Closing Date, the Company
shall not issue any “Future Priced Securities” as such term is described by
NASD IM-4350-1.


 


(g)                                 Indemnification
of Investors.  In addition to the
indemnity provided in the Registration Rights Agreement, the Company will
indemnify and hold the Investors and their directors, officers, shareholders,
partners, employees, affiliates and agents (each, an “Investor
Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation (collectively, “Losses”) that
any such Investor Party may suffer or incur as a result of or relating to any
misrepresentation, breach or inaccuracy of any representation, warranty,
covenant or agreement made by the Company in any Transaction Document.  In addition to the indemnity contained
herein, the Company will reimburse each Investor Party for its reasonable legal
and other expenses (including the cost of any investigation, preparation and
travel in connection therewith) incurred in connection therewith, as such
expenses are incurred.


 


(h)                                 Non-Public
Information.  The Company covenants
and agrees that neither it nor any other Person acting on its behalf will
provide any Investor or its agents or counsel with any information that the
Company believes constitutes material non-public information, unless prior
thereto such Investor shall have executed a written agreement regarding the
confidentiality and use of such information. 
The Company understands and confirms that each Investor shall be relying
on the foregoing representations in effecting transactions in securities of the
Company.


 


(i)                                     Listing
of Securities.  The Company agrees,
(i) if the Company applies to have the Common Stock traded on any other Trading
Market, it will include in such application the Shares, and will take such
other action as is necessary or desirable to cause the Shares to be listed on
such other Trading Market as promptly as possible, and (ii) it will take all
action reasonably necessary to continue the listing and trading of its Common
Stock on a Trading Market and will comply in all material respects with the
Company’s reporting, filing and other obligations under the bylaws or rules of
the Trading Market.


 


(j)                                     Use
of Proceeds.  The Company will use
the net proceeds from the sale of the Securities hereunder for general
corporate purposes.


 


11





















 


5.                                       Conditions
Precedent to Closing


 


(a)                                  Conditions
Precedent to the Obligations of the Investors to Purchase Securities.  The obligation of each Investor to acquire
Securities at a Closing is subject to the satisfaction or waiver by such
Investor, at or before such Closing, of each of the following conditions:


 


(i)                                     Representations
and Warranties.  The representations
and warranties of the Company contained herein shall be true and correct in all
material respects as of the date when made and as of such Closing as though
made on and as of such date, except that representations and warranties that
are qualified by materiality shall be true and correct as of the date when made
and as of such Closing as though made on and as of such date;


 


(ii)                                  Performance.  The Company shall have performed, satisfied
and complied in all material respects with all covenants, agreements and
conditions required by the Transaction Documents to be performed, satisfied or
complied with by it at or prior to such Closing;


 


(iii)                               No
Injunction.  No statute, rule,
regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits the consummation of any of
the transactions contemplated by the Transaction Documents;


 


(iv)                              Adverse
Changes.  Since the date of execution
of this Agreement, no event or series of events shall have occurred that
reasonably could have or result in a Material Adverse Effect;


 


(v)                                 No
Suspensions of Trading in Common Stock; Listing.  Trading in the Common Stock shall not have
been suspended by the Commission or any Trading Market (except for any
suspensions of trading of not more than one Trading Day solely to permit
dissemination of material information regarding the Company) at any time since
the date of execution of this Agreement, and the Common Stock shall have been
at all times since such date listed for trading on a Trading Market; and


 


(vi)                              Company
Deliverables.  The Company shall have
delivered the Company Deliverables in accordance with Section 2(b)(i).


 


(b)                                 Conditions
Precedent to the Obligations of the Company to Sell Securities.  The obligation of the Company to sell
Securities at a Closing is subject to the satisfaction or waiver by the
Company, at or before such Closing, of each of the following conditions:


 


(i)                                     Representations
and Warranties.  The representations
and warranties of each Investor at the Closing contained herein shall be true
and correct in all material respects as of the date when made and as of such Closing
as though made on and as of such date;


 


(ii)                                  Performance.  Each Investor at the Closing shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by such Investor at or prior to such Closing;


 


(iii)                               No
Injunction.  No statute, rule,
regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits the consummation of any of
the transactions contemplated by the Transaction Documents; and


 


(iv)                              Investors
Deliverables.  Each Investor at the
Closing shall have delivered its Investors Deliverables in accordance with Section 2(b)(ii).


 


12





















 


6.                                       Miscellaneous


 


(a)                                  Fees
and Expenses.  Each party shall pay
the fees and expenses of its advisers, counsel, accountants and other experts,
if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of the
Transaction Documents.  The Company shall
pay all stamp and other taxes and duties levied in connection with the sale of
the Shares.


 


(b)                                 Entire
Agreement.  The Transaction
Documents, together with the Exhibits and Schedules thereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements, understandings, discussions and
representations, oral or written, with respect to such matters, which the
parties acknowledge have been merged into such documents, exhibits and
schedules.


 


(c)                                  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 email,
(b) 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, (c) 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, (d) the
Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (e) 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


Facsimile No.:


Telephone No.: (858) 795-3000


Attention: Chief Financial Officer


 


With a copy to:                                                             Morrison
& Foerster


3811 Valley Centre Drive, Suite 500


San Diego, CA 92130


Facsimile No.:  (858) 720-5125


Attention:  Scott Stanton, Esq.


 


If to an Investor:                                                       To
the address set forth under such Investor’s name on the signature pages hereof;


 


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


 


(d)                                 Amendments;
Waivers; No Additional Consideration. 
No provision of this Agreement may be waived or amended except in a
written instrument signed by the Company and the Investors holding a majority
of the Shares.  No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof,
nor shall any delay or omission of either party to exercise any right hereunder
in any manner impair the exercise of any such right.  No consideration shall be offered or paid to
any Investor to amend or consent to a waiver or modification of any provision
of any Transaction Document unless the same consideration is also offered to all
Investors who then hold Shares.


 


(e)                                  Construction.  The headings herein are for convenience only,
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.  The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of


 


13





















 


strict construction will be applied against any
party.  This Agreement shall be construed
as if drafted jointly by the parties, and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of
any provisions of this Agreement or any of the Transaction Documents.


 


(f)                                    Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
permitted assigns.  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 this Agreement or any rights or obligations hereunder
without the prior written consent of the Investors. Any Investor may assign any
or all of its rights under this Agreement to any Person to whom such Investor
assigns or transfers any Securities, provided such transferee agrees in writing
to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the “Investors.”


 


(g)                                 No
Third-Party Beneficiaries.  This
Agreement is intended for the benefit of the parties hereto and their
respective successors and permitted assigns and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person, except as otherwise
set forth in Section 4(g) (as to each Investor Party).


 


(h)                                 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 and any other Transaction Documents
(whether brought against a party hereto or its respective Affiliates, employees
or agents) shall be commenced exclusively 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 (including with respect to the
enforcement of the any of the Transaction Documents), 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 such 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 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 legal 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 a Transaction Document, then the prevailing party
in such Proceeding shall be reimbursed by the other party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.


 


(i)                                     Survival.  The agreements and covenants contained herein
shall survive the Closing and the delivery of the Shares.  The representations and warranties shall
survive until the second anniversary of the Closing.


 


(j)                                     Execution.  This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. 
In the event that any signature is delivered by facsimile transmission,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile signature page were an original thereof.


 


(k)                                  Severability.  If any provision of this Agreement is held to
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.


 


14





















 


(l)                                     Rescission
and Withdrawal Right. 
Notwithstanding anything to the contrary contained in (and without
limiting any similar provisions of) the Transaction Documents, whenever any
Investor exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within
the periods therein provided, then such Investor may rescind or withdraw, in
its sole discretion from time to time upon written notice to the Company, any
relevant notice, demand or election in whole or in part without prejudice to
its future actions and rights.


 


(m)                               Replacement
of Securities.  If any certificate or
instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for
and upon cancellation thereof, or in lieu of and substitution therefor, a new
certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary
and reasonable indemnity, if requested. 
The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with
the issuance of such replacement Securities. 
If a replacement certificate or instrument evidencing any Securities is
requested due to a mutilation thereof, the Company may require delivery of such
mutilated certificate or instrument as a condition precedent to any issuance of
a replacement.


 


(n)                                 Remedies.  In addition to being entitled to exercise all
rights provided herein or granted by law, including recovery of damages, each
of the Investors and the Company will be entitled to specific performance under
the Transaction Documents.  The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be adequate.


 


(o)                                 Payment
Set Aside.  To the extent that the
Company makes a payment or payments to any Investor pursuant to any Transaction
Document or an Investor enforces or exercises its rights thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Company, a trustee, receiver or
any other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to
the extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.


 


(p)                                 Independent
Nature of Investors’ Obligations and Rights.  The obligations of each Investor under any
Transaction Document are several and not joint with the obligations of any
other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Transaction
Document.  The decision of each Investor
to purchase Securities pursuant to the Transaction Documents has been made by
such Investor independently of any other Investor.  Each Investor’s obligations hereunder are
expressly not conditioned on the purchase by any or all of the other Investors
of the Shares they have agreed to purchase from the Company.  Nothing contained herein or in any
Transaction Document, 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 the Transaction Documents.  Each Investor acknowledges that no other
Investor has acted as agent for such Investor in connection with making its
investment hereunder and that no Investor will be acting as agent of such
Investor in connection with monitoring its investment in the Securities or
enforcing its rights under the Transaction Documents.  Each Investor shall be entitled to
independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement or out of the other Transaction Documents,
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 Transaction Documents for the purpose
of closing a transaction with multiple Investors and not because it was
required or requested to do so by any Investor. 
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.


 


15





















 


(q)                                 Limitation
of Liability.  Notwithstanding
anything herein to the contrary, the Company acknowledges and agrees that the
liability of an Investor arising directly or indirectly, under any Transaction
Document of any and every nature whatsoever shall be satisfied solely out of
the assets of such Investor, and that no trustee, officer, other investment
vehicle or any other Affiliate of such Investor or any investor, shareholder or
holder of shares of beneficial interest of such a Investor shall be personally
liable for any liabilities of such Investor.


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 

SIGNATURE PAGES FOLLOW]


 


16





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Securities Purchase Agreement to
be duly executed by their respective authorized signatories as of the date
first indicated above.


 


	
   

  	
  KINTERA,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES FOR INVESTORS FOLLOW]


 





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Securities Purchase Agreement to
be duly executed by their respective authorized signatories as of the date
first indicated above.


 


	
   

  	
  NAME OF
  INVESTOR

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AUTHORIZED
  SIGNATORY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Investment
  Amount: $

  	
   

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  
	
   

  	
   

  
	
   

  	
  ADDRESS
  FOR NOTICE

  
	
   

  	
   

  
	
   

  	
  c/o:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Street:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  City/State/Zip:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tel:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Email:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DELIVERY
  INSTRUCTIONS

  
	
   

  	
  (if different
  from above)

  
	
   

  	
   

  
	
   

  	
  c/o:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Street:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  City/State/Zip:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tel: