Magnetar Financial LLC Magnetar Investment Management LLC 1603 Orrington Ave. Evanston, IL 60201 Ladies and Gentlemen:
EXHIBIT 99.9
April 18, 2008
Ladies and Gentlemen:
In connection with your request to receive additional information about Kintera, Inc., a
Delaware corporation (the “Company”), the Company will furnish you with Confidential Information if
you agree by countersigning below that you will not during the term of this agreement, without the
prior written consent of the Company, divulge to any third party any Confidential Information,
including, without limitation, the fact that the Company has disclosed Confidential Information to
you. “Confidential Information” shall include all information or material, whether conveyed orally
or in written or electronic form, that will be furnished to you during the term of this agreement,
including without limitation, certain methods of doing business, business plans, financial
information, financial plans, contracts, records and other proprietary, confidential or other
non-public information relating to its business, the proprietary, confidential and non-public
nature of which information the Company desires to maintain. The Confidential Information, until
made public, may constitute material non-public information within the meaning of Regulation FD
promulgated by the Securities and Exchange Commission. In addition, you agree that you will use
the Confidential Information solely in connection with the evaluation of the Company; that you will
permit disclosure of the Confidential Information only to such of your officers, directors,
employees, counsel and agents as have actual need; that you will use your best efforts to prevent
any further disclosure of the Confidential Information; and that you will not trade in the
Company’s securities at any time when you are in possession of Confidential Information.
Confidential Information does not include information which (a) is or becomes public other than as
a result of disclosure by you, (b) the Company agrees in writing may be disclosed, (c) you are
required to disclose by applicable law, regulation or legal process, (d) was available to you on a
non-confidential basis prior to its disclosure by the Company, (e) becomes available to you on a
non-confidential basis from a person other than the Company who is not known to you to be otherwise
bound by a confidentiality agreement with the Company or (f) is developed by you separate and apart
from any disclosure by the Company.
If so requested by the Company, you will return to the Company or destroy (providing due proof
of such destruction) all Confidential Information obtained from the Company, except to the extent
that the destruction of Confidential Information is prohibited by applicable law, rule or
regulation.
In the event that you are requested or required (by oral questions, interrogatories, requests
for information or documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Confidential Information, you will provide the Company with
prompt notice of any such request or requirement so that the Company may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If,
in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you
are nonetheless, in the opinion of counsel, required to disclose Confidential Information, you may,
without liability hereunder, disclose only that portion of the Confidential Information which such
counsel advises you is required to be disclosed, provided that you attempt to preserve the
confidentiality of the Confidential Information, including, without limitation, by xxxxxxxxxxx with
the Company to obtain at the expense of the Company an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential Information.
Without prejudice to any rights and remedies otherwise available to the Company, the Company
will be entitled to equitable relief by way of injunction if you breach any provision of this
letter agreement. No failure or delay by the Company in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege hereunder.
No rights, obligations, representation or terms other than those expressly set forth herein
are to be implied from this letter agreement.
This letter agreement and the rights and obligations hereunder shall continue until, and at
such time shall terminate, on the earlier of (i) the filing with the U.S. Securities and Exchange
Commission by the Company of its Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 2008, and (ii) August 15, 2008, unless sooner terminated in writing by the Company.
This letter agreement sets forth the entire agreement between the parties, supersedes and
merges all prior written and oral agreements with respect to the subject matter hereof, may only be
amended in writing and will be governed by the laws of the State of California applicable to
agreements made and to be performed entirely within such State.
The Company covenants and agrees not to provide you with any material and non-public
information of a company other than the Company and its affiliates which has a class of securities
registered under the Securities Act of 1934. From and after the filing by the Company of its
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2008 with the U.S. Securities
and Exchange Commission, the Confidential Information disclosed to you hereunder will not be
material, nonpublic information
received from the Company or any of its agents or representatives that is not disclosed in
such filing or other filings with the U.S. Securities and Exchange Commission.
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Each of the parties represents and warrants that it is duly authorized to enter into this
letter agreement. This letter agreement shall be binding on successors and permitted assigns.
This letter agreement is personal to the parties and may not be assigned or transferred by either
party without the prior written consent of the other party.
This letter agreement may be executed in any number of counterparts, each such counterpart
when so executed and delivered shall be an original, but such counterparts shall constitute one and
the same instrument.
Please confirm your agreement with the foregoing by signing and returning this letter to the
undersigned.
| Very truly yours, KINTERA, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxxxx, III | |||
| Xxxxxx X. Xxxxxxxx, III | ||||
| Chairman | ||||
Accepted and Agreed as of the date
first above written:
first above written:
Magnetar Financial LLC
Magnetar Investment Management LLC
Magnetar Investment Management LLC
By:
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/s/ Xxxx Xxxxxxxx
|
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| Title: Counsel |
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