exv10w10






Exhibit 10.10




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”) dated as of February 15, 2008 by and
between Eloqua Limited, a Delaware corporation (the “Company”), and Donald Clarke (the
“Executive”):



WITNESSETH:




     WHEREAS, the Company desires to employ the Executive, and the Executive desires to be employed
by the Company, on the terms and subject to the conditions set forth in this Agreement;



     NOW, THEREFORE, in consideration of the premises and of the covenants and agreements set forth
in this Agreement, the parties hereto hereby agree as follows:



     1. Employment. The Company shall employ the Executive, and the Executive shall serve
the Company, upon the terms and conditions set forth in this Agreement during the period commencing
on the date on which the Executive’s employment pursuant to this Agreement actually commences (the
“Start Date”) and ending on the date on which the Executive’s employment pursuant to this
Agreement is terminated in accordance with Section 4 (the “Term”). The Start Date shall be
no later than March 10, 2008.



     2. Duties and Responsibilities.



          (a) During the Term, the Executive shall serve as the Chief Financial Officer of the Company
or in such other positions with the Company and its subsidiaries consistent with the titles noted
above as may be assigned to him from time to time by the Company’s Board of Directors (the
“Board”) or the Chief Executive Officer of the Company (the “CEO”). In addition,
it is anticipated that the Executive will be elected Treasurer and/or Secretary or Assistant
Secretary of the Company. During the Term, the Executive shall (i) be subject to, and comply with,
all of the Company’s policies, rules and regulations applicable to its executive officers, (ii)
report to, and be subject to the direction and control of, the CEO and (iii) shall perform such
duties commensurate with the Executive’s position as shall be assigned to the Executive from time
to time by the CEO or other authorized executive. The Executive shall devote his full working time
and efforts to the business and affairs of the Company and its subsidiaries. Notwithstanding the
foregoing, the Executive may serve on other boards of directors, with the prior written approval of
the Board, or engage in religious, charitable or other community activities, as long as such
services and activities are disclosed to the Board and do not interfere with the Executive’s
performance of his duties to the Company as provided in this Agreement. The Executive shall
perform and discharge faithfully, and to the best of his ability, such duties and responsibilities
on behalf of the Company and any of its subsidiaries as are consistent with his position. The
Company expects to secure office space in the Northern Virginia area to serve as the headquarters
location of the Company. The Executive will be assigned to the headquarters office.







 









 








Employment Agreement — Page 2




          (b) The Executive represents and warrants to the Company that the Executive is not a party to
or subject to any employment agreement or arrangement with any other person, firm, company,
corporation or other business or entity and the Executive is subject to no restraint, limitation or
restriction by virtue of any agreement or arrangement, or by virtue of any law or rule of law or
otherwise which would impair the Executive’s right or ability (i) to enter the employ of the
Company or (ii) to perform fully his duties and obligations pursuant to this Agreement.




     3. Compensation.



          (a) General. During the Term, for all services rendered by the Executive to the
Company, the Company shall pay or cause to be paid to the Executive, and the Executive shall
accept, the payments and benefits set forth in this Section 3. In addition to the payments and
benefits set forth in this Section 3, the Executive shall be entitled to receive such other
bonuses, options and other remuneration as the Board may from time to time approve, in its sole
discretion.




          (b) Salary. During the Term, the Company shall pay the Executive a base salary of
$18,750.00 per month (for an annual rate of $225,000) (the “Base Salary”). During the
Term, the Executive’s Base Salary shall be reviewed at least annually by the CEO and may be
increased. The term Base Salary as used in this Agreement shall refer to the Base Salary as so
increased from time to time. The Base Salary shall be payable in installments in accordance with
the Company’s regular practices, as such practices may be modified from time to time, but in no
event less often than monthly.




          (c) Bonus. During the Term, the Executive shall be eligible to earn a performance
bonus (the “Bonus”) of up to $100,000 for each fiscal year if the performance objectives
established by the CEO for such fiscal year are met, and the Executive may be awarded a performance
bonus in excess of the targeted Bonus amount in the event the performance objectives are exceeded.
The CEO shall establish the performance objectives at least annually and, if requested by the
Executive, shall deliver to the Executive a letter detailing the performance objectives. The
satisfaction of the performance objectives, and the award of any performance bonus in excess of the
targeted Bonus amount in the event the performance objectives are exceeded, shall be determined by
CEO. With respect to any partial year of employment, the Bonus shall be prorated to reflect the
period of employment during that year. The Bonus shall be payable when and as determined by the
CEO but in no event before first day, or after the seventy-fourth (74th) day, of the
fiscal year following the fiscal year to which such Bonus relates.




          (d) Vacation. During the Term, the Executive shall be entitled to three (3) weeks of
paid vacation per calendar year, which shall accrue on a month-to-month basis over the course of
the year and shall be taken at such times and intervals as shall be agreed to by the CEO and the
Executive. With respect to any partial year of employment, the Executive’s vacation shall be
prorated to reflect the period of employment during that year. Accrued but unused vacation time
shall not be carried over into the next calendar year and shall be subject to the Company’s
vacation policies, as such policies may be modified from time to time.






 









 








Employment Agreement — Page 3




          (e) Expenses. During the Term, the Executive shall be authorized to incur reasonable
expenses in the performance of Executive’s duties. The Company shall reimburse the Executive for
all such expenses promptly after the presentation by the Executive of itemized accounts of such
expenditures, all in accordance with the Company’s procedures and policies as adopted and in effect
from time to time.




          (f) Benefit Plans. During the Term, the Executive shall be eligible to participate on
the same general basis and subject to the same rules and regulations as other Company executive
employees in the standard health and welfare benefit plans of the Company, including qualified
retirement, group medical, dental, accident, disability, life and other health and welfare benefit
plans as may be provided by the Company from time to time to the Company’s executives of comparable
status, to the extent that the Executive is eligible under such benefit plans in accordance with
their respective terms. The Company may alter, add to, modify or terminate its benefit plans at
any time it determines in its sole judgment to be appropriate.




          (g) Options. Subject to the approval of the Board, the Executive shall be entitled to
be granted an option (the “Option”) to purchase 800,000 shares of common stock, par value
$0.0001 per share (the “Common Stock”), of the Company at a purchase price equal to the
fair market value of such shares as of the date the Option is granted. The Option shall be subject
to the terms and conditions of the Company’s 2006 Stock Option Plan (the “Plan”) and the
option agreement representing the Option between the Executive and the Company, which will be
provided to the Executive once the Option has been approved. The terms and conditions of the
Option will include but are not limited to terms relating to exercise price, vesting and conditions
on vesting, and treatment of options upon termination of employment. The Options shall vest at a
rate of 25 percent on the first anniversary of the vesting start date set forth in the option
agreement representing the Option and thereafter in equal monthly installments over the following
36 months. When granted by the Board, the vesting start date shall be the Executive’s Start Date.
In the event of a Transaction (as defined in the Plan), then all unvested portions of the Option
will vest immediately before consummation of the Transaction. The Employee must then exercise such
options within the time period required by the Plan upon termination of employment.




          (h) During the Term, the Company shall reimburse the Executive for the reasonable fees and
expenses of an accountant acceptable to the Company to assist the Executive in the preparation of
the Executive’s tax returns in the United States and Canada, including federal, state, provincial
and local tax returns. Such reimbursement shall be made promptly after the presentation by the
Executive of itemized accounts of such expenditures. If, as a result of required allocations of
the Executive’s compensation from the Company between the United States and Canada, the Executive’s
combined income and employment tax liability in the United States and Canada in a specified year is
greater than the amount of the Executive’s United States income and employment tax liability would
have been if all of the Executive’s compensation from the Company had been allocated to the United
States for such year (the difference between such amounts, the “Additional Tax Liability”),
the Company shall pay to the Executive a Gross-Up Payment. “Gross-Up Payment” means the
amount necessary so that the amount of the Gross-






 









 








Employment Agreement — Page 4



Up Payment retained by the Executive, after reduction for any United States and Canadian
federal, state, provincial and local income and employment taxes imposed on the Gross-Up Payment,
is an amount equal to the Additional Tax Liability. The amount of the Gross-Up Payment shall be
reasonably determined by the Company after consultation with its legal and tax advisors. The
Gross-Up Payment with respect to any year shall be paid when and as determined by the CEO but in no
event before first day, or after the seventy-fourth (74th) day, of the year following
the year to which the Additional Tax Liability relates. For purposes of determining the amount of
the Gross Up Payment, the Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal, state and local income tax in the calendar year in which the Gross Up
Payment is made (determined by reference to the Executive’s residence for such calendar year), net
of the maximum reduction in federal income taxes which could be obtained from deduction or
crediting of other taxes.




     4. Termination.



          (a) The Executive’s employment with the Company may be terminated by the Company at any time
as follows:




               (i) without Cause provided that (except as provided in Section 4(b)(ii)), the Company has
given at least fifteen (15) days’ prior written notice to the Executive;



               (ii) for Disability (as hereinafter defined) provided that the Company has given at
least fifteen (15) days’ prior written notice to the Executive; or



               (iii) for Cause (as hereinafter defined).



          (b) The Executive may terminate the Executive’s employment with the Company at any time as
follows:




               (i) for Good Reason (as defined below) provided that the Executive has given seven (7) days’
prior written notice of such termination to the Company, which notice shall not be given until
after the Company has failed to cure such Good Reason during the time period specified in Section
4(d); or



               (ii) without Good Reason provided that the Executive has given at least thirty (30) days’
prior written notice of such termination to the Company; provided, however, that, at any
time after receiving such notice, the Company may terminate the Executive’s employment on shorter
notice or with no prior notice (which termination shall not be deemed a termination without Cause
under this Agreement); provided further, however, that the Executive may terminate the
Executive’s employment with no prior notice to the Company if the Company shall have breached its
obligations under Sections 2(a), 3(b) or 3(c) (a “Material Breach”).



          (c) Executive’s employment with the Company shall automatically terminate upon Executive’s
death.







 









 








Employment Agreement — Page 5




          (d) For purposes of this Agreement, the following terms shall have the following respective
meanings:




          “Disability” means the Executive’s inability to perform the essential functions of the
Executive’s then existing position or positions under this Agreement with or without reasonable
accommodation for a period of 180 days (which need not be consecutive) in any 12-month period. If
any question shall arise as to whether during any period the Executive is disabled so as to be
unable to perform the essential functions of the Executive’s then existing position or positions
with or without reasonable accommodation, the Executive may, and at the request of the Company
shall, submit to the Company a certification in reasonable detail by a physician selected by the
Company to whom the Executive or the Executive’s guardian has no reasonable objection as to whether
the Executive is so disabled or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of the issue. The Executive
shall cooperate with any reasonable request of the physician in connection with such certification.
If such question shall arise and the Executive shall fail to submit such certification, the
Company’s determination of such issue shall be binding on the Executive.




          “Cause” means (i) the Executive’s conviction (including any plea of guilty or nolo
contendere) of any crime (whether or not involving the Company) which constitutes a felony, or a
misdemeanor involving moral turpitude, deceit, dishonesty or fraud, in the jurisdiction involved
(other than unintentional motor vehicle crimes); (ii) any action or omission that constitutes gross
negligence, willful misconduct, fraud, embezzlement, misappropriation of funds or breach of
fiduciary duty to the Company or any of its subsidiaries; (iii) the Executive’s continuing,
repeated and willful failure or refusal to perform his duties and services under this Agreement
(other than due to his incapacity due to illness or injury), provided that such failure or refusal
continues uncorrected for a period of thirty (30) after the Executive shall have received written
notice from the CEO stating the nature of such failure or refusal; (iv) the Executive’s material
violation or breach of this Agreement, the Employee Agreement or the Company’s policies and
procedures; (v) the Executive’s willful failure to cooperate with a bona fide internal
investigation or an investigation by regulatory or law enforcement authorities, after being
instructed by the Company to cooperate, or willful destruction or failure to preserve documents or
other materials known to be relevant to such investigation, or willful inducement of others to fail
to cooperate or to produce documents or other materials in connection with such investigation; or
(vi) the Executive’s material violation of Unites States federal or state securities laws or
applicable Canadian and/or provincial securities laws, except where the Executive has relied upon,
and acted in accordance with, the advice of the Employer’s legal counsel with respect to the matter
involved in such violation and believed he was acting in accordance with such laws.




          “Good Reason” means any of the following that occurs after the date on which the
Executive’s employment pursuant to this Agreement actually commences, if not cured by the Company
within 30 days of receiving written notice from the Executive of such occurrence (which shall be
specified in reasonable detail), unless the Executive shall have given his consent thereto:







 









 








Employment Agreement — Page 6




               (A) Failure to elect, reelect or otherwise maintain the Executive in the office of the Chief
Financial Officer of the Company;



               (B) A material adverse change in the nature or scope of the authorities, powers, functions,
responsibilities or duties of the Executive;



               (C) A reduction in Executive’s Base Salary or the targeted Bonus amount;



               (D) If the Company shall require the Executive to have the Executive’s principal location of
work changed to any location which is in excess of 30 miles from the Executive’s then existing
principal location of work; or



               (E) A Material Breach.



          “Change in Control” means the occurrence of any of the following events during the
Term:




               (A) The Company is merged or consolidated into or with another corporation or other legal
person, other than a consolidation or merger (i) to reincorporate the Company in a different
jurisdiction, or (ii) in which the stockholders of the Company immediately prior to such
consolidation or merger shall own more than 50% of the outstanding shares of capital stock or have
sufficient voting power (by virtue of number of votes and/or special voting rights) to elect a
majority of the members of the board of directors of the resulting or surviving corporation
immediately after such consolidation or merger;



               (B) The Company sells, exclusively licenses or otherwise transfers all or substantially all of
its assets to any other corporation or other legal person, other than a sale or transfer to a
corporation or legal person in which the stockholders of the Company immediately prior to such
consolidation or merger shall own more than 50% of the outstanding shares of capital stock (or
similar equity interests) or have sufficient voting power (by virtue of number of votes and/or
special voting rights) to elect a majority of the members of the board of directors (or similar
governing body); or



               (C) the sale or transfer by the Company’s stockholders of outstanding shares of capital stock
of the Company that have sufficient voting power (by virtue of number of votes and/or special
voting rights) to elect a majority of the members of the Board of Directors, in a single
transaction or series of related transactions, to a person, entity or “group” (as such term is used
in Section 13(d) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations promulgated thereunder).



          “Termination Date” means the last day of the Executive’s employment with the Company:







 









 








Employment Agreement — Page 7




     5. Obligations of the Company upon Termination.



          (a) If, during the Term, the Company shall terminate the Executive’s employment other than for
Cause or Disability or the Executive shall terminate the Executive’s employment pursuant to Section
4(b)(i) then, subject to Section 5(c):




               (i) the Company shall pay to the Executive in a lump sum cash payment within thirty (30) days
of the Termination Date the sum of the following amounts: (A) the Executive’s Base Salary then in
effect through the Termination Date to the extent not theretofore paid, (B) any accrued vacation
pay to the extent not theretofore paid and (C) any other amounts earned, accrued or owing but not
yet paid or reimbursed under Section 3 (other than Section 3(c)) of this Agreement (the sum of the
amounts described in this Section 5(a)(i) shall be hereinafter referred to as the “Accrued
Obligations”);



               (ii) the Company shall pay to the Executive in a lump sum cash payment within thirty (30) days
of the Termination Date an amount equal to the then current Base Salary for a six-month period; and



               (iii) if the Executive elects to receive continuation of health plan benefits to the extent
authorized by and consistent with the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“COBRA”) after the Termination Date, a continuation at the Company’s expense of
such continuation coverage on behalf of the Executive for six (6) months following the Termination
Date.



          (b) If the Executive’s employment is terminated (i) by the Company for Cause or Disability,
(ii) by the Executive pursuant to Section 4(b)(ii)), or (iii) by reason of Executive’s death, the
Company shall have no obligation under this Agreement to pay any amount to the Executive, other
than payment of the Accrued Obligations. The Accrued Obligations shall be paid to the Executive or
as otherwise provided pursuant to Section 8(a) in a lump sum in cash within thirty (30) days of the
Termination Date or sooner, to the extent required by law.




          (c) The Company’s obligations to pay any severance amount and provide benefits hereunder in
excess of Accrued Obligations is subject to and conditioned upon the Executive’s execution of a
Release in the form set forth as Exhibit A to this Agreement, which Release shall be
delivered to the Company within forty-five (45) days of the termination of the Executive’s
employment with the Company. Such release will provide for a seven-day revocation period if
required by applicable law (the “Revocation Period”). Notwithstanding the above, if any
severance payments would otherwise be paid on a date prior to the expiration of the Revocation
Period, such payment shall instead be paid on the business day immediately following the expiration
of the Revocation Period (provided that no revocation right has been exercised by the Executive).




     6. Section 409A.



     (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the
Executive’s separation from service within the meaning of Section 409A of the Code, the



 









 





Employment Agreement — Page 8



Company determines that the Executive is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes
entitled to under this Agreement would be considered deferred compensation subject to the 20
percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the
application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such
benefit shall not be provided until the date that is the earlier of (A) six months and one day
after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed
cash payment is otherwise payable on an installment basis, the first payment shall include a
catch-up payment covering amounts that would otherwise have been paid during the six-month period
but for the application of this provision, and the balance of the installments shall be payable in
accordance with their original schedule.




          (b) The parties intend that this Agreement will be administered in accordance with Section
409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its
compliance with Section 409A of the Code, the provision shall be read in such a manner so that all
payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may
be amended, as reasonably requested by either party, and as may be necessary to fully comply with
Section 409A of the Code and all related rules and regulations in order to preserve the payments
and benefits provided hereunder without additional cost to either party.




          (c) The determination of whether and when a separation from service has occurred shall be made
in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).




          (d) The Company makes no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or
the conditions of, such Section.




     7. Employee Agreement. Concurrently with the Executive’s execution and delivery of
this Agreement, the Executive shall execute and deliver to the Company a copy of the Employee
Confidential Information and Non-Disclosure, Developments, Non-Solicitation and Non Competition
Agreement in the form set forth as Exhibit A to this Agreement (the “Employee Agreement”).
The Non-Disclosure Agreement signed between the Executive and Eloqua Corporation on January 18,
2008 as a means to facilitate the due diligence process leading up to this Agreement shall apply
during the period from January 18, 2008 to the time the Employee Agreement is executed and
delivered by the Executive to the Company, and the Employee Agreement shall apply thereafter.



     8. Successors.



          (a) No rights or obligations of the Executive under this Agreement may be assigned or
transferred by the Executive other than Executive’s rights to payments or benefits hereunder, which
may be transferred only by will or the laws of descent and distribution. Upon the Executive’s
death, this Agreement and all rights of the Executive hereunder shall inure to the benefit of and
be enforceable by the Executive’s beneficiary or beneficiaries, personal or legal






 









 








Employment Agreement — Page 9



representatives, or estate, to the extent any such person succeeds to the Executive’s
interests under this Agreement.




          (b) The Company shall have the right to assign this Agreement to any successor of
substantially all of its business or assets, and any such successor shall be bound by all of the
provisions hereof; provided, however, that such assignment shall not preclude the exercise
of the Executive’s rights, if any, pursuant to Section 4(b)(i).




     9. Indemnification. If the Executive is made a party or threatened to be made a party
to any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“Proceeding”), by reason of the fact that the Executive is or was a trustee, director or
officer of the Company or any subsidiary or is or was serving at the request of the Company or any
subsidiary as a trustee, director, officer, member, employee or agent of another corporation or a
partnership, joint venture, trust or other enterprise, the Executive shall be indemnified and held
harmless by the Company to the fullest extent authorized by Delaware law, and the Company’s
certificate of incorporation and by-laws as the same exist or may hereafter be amended, against all
expenses (including, without limitation, attorney fees), judgments, fines, penalties and amounts
paid in settlement or incurred in connection with the investigation, preparation to defend or
defense of such action, suit, proceeding or claim incurred or suffered by Executive in connection
therewith, and such indemnification shall continue as to Executive even if Executive has ceased to
be an officer, director, trustee or agent, or is no longer employed by the Company and shall inure
to the benefit of Executive’s heirs, executors and administrators. In addition, the Company shall,
if requested by Executive and to the extent permitted by and subject to any terms and conditions
contained in, Delaware law and the Company’s certificate of incorporation and by-laws, advance to
Executive sufficient amounts necessary to pay any expenses, including fees of counsel, incurred by
Executive in connection with such proceeding. Notwithstanding the foregoing, the Company shall not
be required to indemnify or advance expenses to the Executive in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of the Executive.



     10. Miscellaneous.



          (a) This Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia (other than its rules of conflicts of laws to the extent that the
application of the laws of another jurisdiction would be required thereby).




          (b) Any notice required or permitted to be given pursuant to this Agreement shall be in
writing and shall be given to the other party in person, by registered or certified mail, return
receipt requested, postage prepaid, by reputable overnight courier, overnight delivery requested,
by telecopier (provided that confirmation of transmission is retained by the party giving notice)
or by electronic mail addressed as follows:







 









 








Employment Agreement — Page 10



If to the Executive:



11599 Cedar Chase Road

Herndon, VA 20170

Telecopier: 703-654-1398



If to the Company:



553 Richmond Street West

Toronto, ON M5V 1Y6

Canada

Attention: Chief Executive Officer

Telecopier: 416-864-1881



with a copy to:



Goodwin Procter LLP

Exchange Place

53 State Street

Boston, MA 02109

Attention: Mark H. Burnett

Telecopier: (617) 523-1231



or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when delivered in person by telecopier or
by electronic mail, three business days after being sent by mail, or the next business day after
being sent by overnight courier.




          (c) This Agreement may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Company. The provisions of this Agreement
may be waived only by an instrument in writing signed by the party against whom enforcement of any
waiver is sought.




          (d) The Company may, from time to time apply for and take out, in its own name and at its own
expense, life, health, accident, disability or other insurance upon the Executive in any sum or
sums that it may deem necessary to protect its interests, and the Executive agrees to aid and
cooperate in all reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical examinations, and by
filling out, executing and delivering such applications and other instruments in writing as may be
reasonably required by an insurance company or companies to which an application or applications
for such insurance may be made by or for the Company.




          (e) If any provision of this Agreement is invalid, illegal or unenforceable, that provision
will, to the extent possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties hereto as expressed herein. If such a
modification is not possible, the parties hereto shall negotiate in good faith a modification






 









 








Employment Agreement — Page 11



of such provision that reflects as closely as possible the economic purpose of the invalid, illegal
or unenforceable provision. If no agreement with respect to such modification is reached, the
invalid, illegal or unenforceable provision will be severed from this Agreement. In any case, the
validity, legality and enforceability of the remaining provisions of this Agreement will not in any
way be affected or impaired thereby for so long as the economic or legal substance of the
transactions contemplated hereby is not effected in any manner materially adverse to any party.




          (f) The Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.




          (g) The Executive and the Company acknowledge that this Agreement, together with the executed
and delivered Employee Agreement, constitute the entire agreement of the parties hereto with
respect to the Executive’s employment by the Company and supercede any and all prior understandings
or agreements, whether oral or written, express or implied. If there is a conflict between the
provisions of this Agreement and the Employee Agreement, the provisions of this Agreement shall
govern.




          (h) All descriptive headings of the Sections of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.




          (i) This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original and all of which together shall constitute one instrument. This Agreement may be
executed and transmitted by facsimile, which signature shall be binding upon the parties as if they
were original signatures. Upon such execution such party will deliver an original signature to the
other party concurrently by Federal Express or similar generally recognized overnight carrier.




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Employment Agreement — Signature Page




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed instrument of
the date first above written.



	 	 	 	 	 	 	 

	 	 	ELOQUA LIMITED
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Joe Payne	 	 
	 

	 	 	 	 

Joe Payne
	 	 
	 

	 	 	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	2/15/08	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE
	 
	 	 	 	 	 	 
	
	 	/s/ Don Clarke
	 	 	   	 	 
	 	 	Donald Clarke
	 
	 	 	 	 	 	 
	 

	 	Date:	 	2/15/08	 	 











 









 








Exhibit A




RELEASE




     In consideration of the covenants and agreements set forth in this Release (the
“Release”), and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Eloqua Limited, a Delaware corporation, and Donald Clarke (the
“Executive”) hereby agree as follows:



     1. The Executive acknowledges that the Executive’s employment with Eloqua Limited and its
subsidiaries (collectively, the “Company”) ended on ____________________, 20__ (the
“Termination Date”). Pursuant to the Employment Agreement the Executive entered into with
the Company dated as of February 15, 2008 (the “Agreement”), and subject to the terms and
conditions set forth therein, the Company has agreed to pay the Executive certain severance
payments described in Section 5(a) of the Agreement in exchange for, among other things, the
Executive’s agreement to this Release.



     2. The Executive acknowledges that the Company has paid me all Accrued Obligations (as defined
in the Agreement).



     3. The Executive hereby releases and discharges the Company, its successors and assigns, its
affiliates, all other entities related to the Company, and the current and former directors,
officers, employees and agents of each of them (any and all of which are referred to below as the
“Releasees”) of and from all debts, actions, causes of action, suits, accounts, covenants,
contracts, agreements, damages, and any and all claims, demands and liabilities whatsoever of every
name and nature, known or unknown (all referred to below as “Claims”) that the Executive
has, claims to have, ever had, or ever claimed to have had against the Releasees. The Claims that
the Executive releases include, without implication of limitation, all Claims relating to the
Executive’s employment with the Company or the termination of the Executive’s employment with the
Company; all Claims of alleged wrongful or bad faith termination of employment; all Claims of any
form of alleged unlawful employment discrimination, including all Claims based upon the Age
Discrimination Employment Act, 29 U.S.C. § 621 et seq., Title VII of the Civil
Rights Act of 1964, 42 U.S.C.§ 2000e et seq., or the [Note: Insert applicable state
laws at time of execution]; all Claims of breach of either express or implied contract; all Claims
that the Company engaged in any tortious conduct; all Claims for salary, wages, vacation pay,
separation pay (except as provided in the Agreement), expense reimbursement (except as provided in
the Agreement), or any other form of compensation; all Claims for attorney’s fees; and all Claims
for reinstatement of employment with the Company. Notwithstanding the foregoing, this paragraph
does not affect any rights the Executive may have under the Agreement and [Note: Reference other
agreements that will survive this release].



     4. The Executive acknowledges that the Executive has been advised to consult with an attorney
before signing this Release. The Executive further understands that the Executive may consider this
Release for up to twenty-one (21) days before deciding whether to sign it. If the Executive signed
this Release before the expiration of that twenty-one (21) day period, the Executive acknowledges
that such decision was entirely voluntary. The Executive understands that if the Executive does not
sign and return this Release to the Company within forty-five (45) days of the termination of the
Executive’s employment with the Company, the Executive will not receive the severance payments
described in Section 5(a) of the Agreement. The Executive



 









 





Release — Page 2



understands that for a period of seven (7) days after the Executive executes this Release, the
Executive has the right to revoke it by a written notice to be received by the Company by the end
of that seven (7) day period. The Executive also understands that this Release shall not be
effective or enforceable until the expiration of that period. The Executive further represents and
agrees that the Executive has carefully read and fully understands all of the provisions of this
Release and that the Executive is voluntarily agreeing to those provisions. The Executive
acknowledges that the Executive has not been induced to sign this Release by any representations of
the Company other than those set forth in the Agreement.




     5. The Executive represents that, to the best of the Executive’s knowledge, the Executive has
returned to the Company any and all Company property that has been in the Executive’s possession.
If the Executive subsequently discovers that the Executive has any Company property in the
Executive’s possession, the Executive shall promptly return any and all such property to the
Company. The Executive understands that the Company property includes, without limitation, all
copies of proprietary documents or software of the Company.



     6. The Company hereby releases and discharges the Executive of and from all debts, actions,
causes of action, suits, accounts, covenants, contracts, agreements, damages, and any and all
claims, demands and liabilities whatsoever of every name and nature, known or unknown (all referred
to below as “Claims”) that the Company has, claims to have, ever had, or ever claimed to
have had against the Executive. The Claims that the Company releases include, without implication
of limitation, all Claims relating to the Executive’s employment with the Company or the
termination of the Executive’s employment with the Company; all Claims of breach of either express
or implied contract; all Claims that the Executive engaged in any tortious conduct; and all Claims
for attorney’s fees. Notwithstanding the foregoing, this paragraph does not affect any rights the
Company may have under the Agreement, the Employee Agreement and [Note: Reference other agreements
that will survive this release].



     7. The parties acknowledge that nothing in this Release affects the obligations that they
continue to have under the Agreement, the Employee Agreement and [Note: Reference other agreements
that will survive this release].



     8. THE EXECUTIVE HAS READ THIS RELEASE THOROUGHLY, UNDERSTANDS ITS TERMS AND HAS SIGNED IT
KNOWINGLY AND VOLUNTARILY. THE EXECUTIVE UNDERSTANDS THAT THIS RELEASE IS A LEGAL DOCUMENT.



	 	 	 	 	 	 	 

	 	 	Donald Clarke	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	Signed before me this      
               
day of               
               
            , 20   
                 .	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Notary Public
	 	 






 









 






Release — Page 3




	 	 	 	 	 	 	 

	 	 	ELOQUA LIMITED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Joe Payne
	 	 
	 

	 	 	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	Signed before me this       
              
day of               
               
            , 20     
                 .	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Notary Public
	 	 







 











 







AMENDMENT TO

EMPLOYMENT AGREEMENT




     This AMENDMENT to the EMPLOYMENT AGREEMENT dated December 24, 2008 is by and between ELOQUA
LIMITED, a Delaware corporation (the “Company”), and Donald Clarke (the “Executive”).



     WHEREAS, the Company and the Executive entered into the Employment Agreement as of February
15, 2008 (the “Agreement”); and



     WHEREAS, the parties desire to amend the Agreement to comply with and meet the requirements of
the provisions of Section 409A of the Internal Revenue Code of 1986, as amended.



     NOW, THEREFORE, the Company and the Executive, each intending to be legally bound hereby, do
mutually covenant and agree as follows:



     1. Section 5(c) of the Agreement is hereby amended by deleting the phrase “forty-five (45)” in
its entirety and replacing it with the following:



          “thirty (30)”



     2. Section 6 of the Agreement is hereby amended by adding a new Section 6(e) immediately after
Section 6(d) thereof as follows:



          “All in-kind benefits provided and expenses eligible for reimbursement under this Agreement
shall be provided by the Company or incurred by the Executive during the time periods set forth in
this agreement. All reimbursements shall be paid as soon as administratively practicable, but in
no event shall any reimbursement be paid after the last day of the taxable year following the
taxable year in which the expense was incurred. The amount of in-kind benefits provided or
reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be
provided or the expenses eligible for reimbursement in any other taxable year. Such right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.”




     3. The Agreement otherwise remains in full force and effect as to all other provisions under
said Agreement.



[Remainder of page intentionally left blank.]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Employment Agreement as
of the date first above written.



	 	 	 	 	 	 	 

	 	 	ELOQUA LIMITED
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joseph P. Payne
 

Joseph P. Payne
	 	 
	 

	 	Title:
	 	CEO	 	 






	 	 	 	 	 

	 

	 	/s/ Donald Clarke
 

Donald Clarke
	 	 







 












 





SECOND AMENDMENT

TO

EMPLOYMENT AGREEMENT




     This Second Amendment to Employment Agreement (this “Amendment”) dated as of July 12,
2012 is made and entered into by and between Eloqua, Inc. (the “Company”), and Donald Clarke (the
“Executive”).



     WHEREAS, the Company and the Executive are parties to an Employment Agreement, dated as of
February 15, 2008, as amended December 24, 2008 (the “Agreement”); and



     WHEREAS, capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and the
Executive agree as follows:



     1. Section 5(a) of the Agreement is hereby amended by adding the following as a new subsection
(iv) thereto:




“ (iv) If such termination occurs within the 12 month period
following a Sale Event (as defined in the Company’s 2012
Stock Option and Incentive Plan), then, in addition to the
payments and benefits described above, (x) the Company will
pay the Executive a lump-sum payment in an amount equal to
six months of the Executive’s target annual bonus for the
year of termination, payable on the date the payment
described in Section 5(a)(iii) above is paid, provided the
Release described in Section 5(c) below is effective as of
such date, and (y) any unvested and/or unexercisable Company
equity awards then held by the Executive, whether in the
form of options, restricted stock, restricted stock units or
other form, shall be immediately vested and/or exercisable
as of the Termination Date.”



     2. Section 5 of the Agreement is hereby amended by adding the following as a new subsection
(d) thereto:




“(d) Additional Limitation.




     (i) Anything in this Agreement to the contrary
notwithstanding, in the event that



 









 







the amount of any compensation, acceleration, payment
or distribution by the Company to or for the benefit of the
Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise, calculated in a manner consistent with Section
280G of the Code and the applicable regulations thereunder
(the ‘Severance Payments’), would be subject to the
excise tax imposed by Section 4999 of the Code, the
following provisions will apply:




     (A) If the Severance Payments, reduced by the
sum of (1) the Excise Tax and (2) the total of the
Federal, state, and local income and employment
taxes payable by the Executive on the amount of the
Severance Payments which are in excess of the
Threshold Amount, are greater than or equal to the
Threshold Amount, the Executive will be entitled to
the full benefits payable under this Agreement.




     (B) If the Threshold Amount is less than (x)
the Severance Payments, but greater than (y) the
Severance Payments reduced by the sum of (1) the
Excise Tax and (2) the total of the Federal, state,
and local income and employment taxes on the amount
of the Severance Payments which are in excess of
the Threshold Amount, then the Severance Payments
will be reduced (but not below zero) to the extent
necessary so that the sum of all Severance Payments
will not exceed the Threshold Amount. In such
event, the Severance Payments will be reduced in
the following order: (1) cash payments not subject
to Section 409A of the Code; (2) cash payments
subject to Section 409A of the Code; (3)
equity-based payments and acceleration; and (4)
non-cash forms of benefits. To the extent any
payment is to be made over



2









 







time (e.g., in installments, etc.), then the
payments will be reduced in reverse chronological
order.




     (ii) For the purposes of this Section 5(b),
‘Threshold Amount’ means three times the Executive’s
‘base amount’ within the meaning of Section 280G(b)(3) of
the Code and the regulations promulgated thereunder less one
dollar ($1.00); and ‘Excise Tax’ means the excise
tax imposed by Section 4999 of the Code, and any interest or
penalties incurred by the Executive with respect to such
excise tax.




     (iii) The determination as to which of the alternative
provisions of Section 5(d)(i) will apply to the Executive
will be made by an accounting firm selected by the Company
(the ‘Accounting Firm’), which will provide detailed
supporting calculations both to the Company and the
Executive within 10 business days of the Termination Date,
if applicable, or at such earlier time as is reasonably
requested by the Company or the Executive. For purposes of
determining which of the alternative provisions of Section
5(d)(i) will apply, the Executive will be deemed to pay
federal income taxes at the highest marginal rate of federal
income taxation applicable to individuals for the calendar
year in which the determination is to be made, and state and
local income taxes at the highest marginal rates of
individual taxation in the state and locality of the
Executive’s residence on the Termination Date, net of the
maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes. Any
determination by the Accounting Firm will be binding upon
the Company and the Executive.”



     3. Section 6 of Agreement is hereby amended by adding the following subsections to the end
thereof:




“ (e) To the extent that any payment or benefit described in
this Agreement constitutes ‘non-qualified deferred
compensation’ under Section 409A of the



3









 







Code, and to the extent that such payment or benefit is
payable upon the Executive’s termination of employment, then
such payments or benefits shall be payable only upon the
Executive’s ‘separation from service.’”



     4. All other provisions of the Agreement shall remain in full force and effect according to
their respective terms, and nothing contained herein shall be deemed a waiver of any right or
abrogation of any obligation otherwise existing under the Agreement except to the extent
specifically provided for herein.



     5. This Amendment may be executed in several counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the same instrument.



4









 





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





	 	 	 	 	 

	 

	 	ELOQUA, INC.
	 	 
	 
	 	 	 	 
	 

	 	/s/ Joseph Payne	 	 
	 

	 	 	 	 
	 

	 	Joseph Payne	 	 
	 

	 	CEO	 	 
	 
	 	 	 	 
	 

	 	EXECUTIVE	 	 
	 
	 	 	 	 
	 

	 	/s/ Donald Clarke	 	 
	 

	 	 	 	 
	 

	 	Donald Clarke	 	 
	 
	 	 	 	 
	 

	 	July 12, 2012	 	 
	 

	 	 	 	 
	 

	 	Date	 	 






5