exv10w9






Exhibit 10.9




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”) dated as of April 15, 2008 by and between
Eloqua Limited, a Delaware corporation (the “Company”), and Joseph P. Payne (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;



     WHEREAS, the Company and the Executive desire to replace that certain Employment Agreement by
and between the Company and the Executive dated as of June 24, 2007 (the “Prior Employment
Agreement”) with 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 hereof and ending on the date on which the Executive’s employment pursuant to this
Agreement is terminated in accordance with Section 4 (the “Term”).



     2. Duties and Responsibilities.



          (a) During the Term, the Executive shall serve as the President and Chief Executive 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”). Executive shall also be a member of the Board for so long as Executive
serves as CEO. 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 Board 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 Board. 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.







 









 








          (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
$21,875 per month (for an annual rate of $262,500) (the “Base Salary”). During the Term,
the Executive’s Base Salary shall be reviewed at least annually by the Board 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 $150,000 for each fiscal year if the performance objectives
established by the Board 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 Board 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 Board. 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 Board 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. 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.






 









 








          (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. In addition, during the Term, the Company shall reimburse Executive in
amount of up to $2,200 per year for the cost of a life insurance policy on the life of Executive
with a face amount equal to $1 million, provided however that such reimbursement shall be
made on or before the seventy-fourth (74th) day of the year following the year to which
the reimbursement relates. 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) On January 16, 2007 and in accordance with the Prior Employment Agreement, Executive was
granted an option (the “January 16 Option”) to purchase 372,728 shares of common stock, par
value $0.0001 per share (the “Common Stock”), of the Company at a purchase price equal to
$0.40, which was the fair market value of such shares as of the date the January 16 Option was
granted. On July 1, 2007 and in accordance with the Prior Employment Agreement, Executive was
granted an option (the “July 1 Option”) to purchase 92,272 shares of Common Stock at a
purchase price equal to $0.40, which was the fair market value of such shares as of the date the
July 1 Option was granted. On July 19, 2007, and in accordance with the Prior Employment
Agreement, Executive was granted an option (the “July 19 Options”, and together with the
January 16 Option and July 1 Option, the “Options”) to purchase 3,568,427 shares of Common
Stock at a purchase price equal to $0.40, which was the fair market value of such shares as of the
date the July 19 Option was granted. Each of the Options is subject to the terms and conditions of
the Company’s 2006 Stock Option Plan (the “Plan”) and the applicable option agreements
between the Executive and the Company. The parties agree that the option agreements shall be
amended to provide that in the event of a Transaction (as defined in the Plan), then all unvested
portions of the Options will vest immediately before consummation of the Transaction.




          (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-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 Board 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.




                    (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 Board 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:



                    (A) Failure to elect, reelect or otherwise maintain the Executive in the office of the
President and Chief Executive 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.



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





 









 








     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 (including any Bonus under Section 3(c) that is earned and
accrued as of the Termination Date) 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 $187,500; 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 twelve (12) 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; Section 280G.




     (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
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.



          (e) In the event that the severance and other benefits provided for in this Agreement or
otherwise payable or provided to Executive (A) constitute “parachute payments” within the meaning
of Section 280G of the Code, and (B) would be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”), then Executive’s benefits shall be either:




                    (i) delivered in full, or



                    (ii) delivered as to such lesser extent which would result in no portion of such benefits
being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise Tax, results in the



 









 




receipt by Executive on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the
Code.




          (f) Unless the Company and Executive otherwise agree in writing, any determination required
under Section 6(e) and (f) shall be made in writing by the Company’s independent public accountants
(the “Accountants”), whose determination shall be conclusive and binding upon Executive and
the Company for all purposes. For purposes of making the calculations required by this Section,
the Accountants may make reasonable assumptions and approximations concerning applicable taxes and
may rely on reasonable, good faith interpretations concerning the application of Section 280G and
4999 of the Code. Executive and the Company shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a determination under Section
6(e) and (f). The Company shall bear all costs the Accountants may reasonably incur in connection
with any calculations contemplated by Section 6(e) and (f).





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”).



     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 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:



If to the Executive:



5916 Woodacres Drive

Bethesda, MD 20816



If to the Company:



5916 Gallows Drive

Suite 200

Vienna, VA 22182

Attention: Chief Financial Officer






 









 







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 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,





 









 







including without limitation the Prior Employment Agreement. If there is a conflict between
the provisions of this Agreement and the Employee Agreement, the provisions of this Agreement shall
govern.




          (h) Executive agrees not to disclose the terms of this Agreement or information regarding
Executive’s equity ownership in the Company to anyone, except Executive’s spouse, attorney and, as
necessary, tax/financial advisor or as otherwise required by law.




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




          (j) 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.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]







 









 








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



	 	 	 	 	 	 	 

	 	 	ELOQUA LIMITED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald Clarke
 

Donald Clarke
	 	 
	 

	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Date: 7/16/08	 	 






	 	 	 	 	 

	 

	 	EXECUTIVE	 	 
	 
	 	 	 	 
	 

	 	/s/ Joseph P. Payne
 

Joseph P. Payne
	 	 
	 
	 	 	 	 
	 

	 	Date: 7/16/08	 	 






 









 






AMENDMENT TO

EMPLOYMENT AGREEMENT




     This AMENDMENT to the EMPLOYMENT AGREEMENT dated December 29, 2008 is by and between ELOQUA
LIMITED, a Delaware corporation (the “Company”), and Joseph P. Payne (the “Executive”).



     WHEREAS, the Company and the Executive entered into the Employment Agreement as of April 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(e)(ii) of the Agreement is hereby amended by adding the following after the last
sentence thereof:



               “In such event, the severance and/or benefits shall 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.”



     3. Section 6 of the Agreement is hereby amended by adding a new Section 6(g) immediately after
Section 6(f) 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.”



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



 









 





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



	 	 	 	 	 	 	 

	 	 	ELOQUA LIMITED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald E. Clarke
 

	 	 
	 	 	Name: Donald E. Clarke	 	 
	 	 	Title: CFO	 	 






	 	 	 	 	 

	 

	 	/s/ Joseph P. Payne
 

Joseph P. Payne
	 	 







 












 





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 Joseph Payne (the
“Executive”).



     WHEREAS, the Company and the Executive are parties to an Employment Agreement, dated as of
April 15, 2008, as amended December 29, 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 deleting subsection (ii) in its entirety
and substituting the following therefor:




“(ii) the Company shall pay to the Executive in a lump-sum
cash payment, within thirty (30) days of the Termination
Date, equal to twelve (12) months of the Executive’s Base
Salary;”



     2. 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
the Executive’s target annual bonus for the year of
termination, payable on the date the payment described in
Section 5(a)(ii) 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.”



 









 





     3. Section 6(c) of Agreement is hereby amended by adding the following prior to the first
sentence thereof:




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



2









 





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








	 	 	 	 

	 	ELOQUA, INC.	 	 
	 	 	 	 
	 	/s/ Neal Dempsey 

Neal Dempsey
	 	 
	 	Managing Director	 	 
	 	 	 	 
	 	EXECUTIVE	 	 
	 	 	 	 
	 	/s/ Joseph Payne 

Joseph Payne
	 	 
	 	 	 	 
	 	July 12, 2012 

Date
	 	 






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