exv4w3






Exhibit 4.3




Execution Copy




AMENDED AND RESTATED STOCKHOLDERS AGREEMENT




     This Amended and Restated Stockholders Agreement dated as of September 27, 2007 (the
“Agreement”) by and among Eloqua Limited, a Delaware corporation (the “Company”),
Eloqua Corporation, a corporation organized under the laws of the Province of Ontario and
subsidiary of the Company (the “Subsidiary”), Gowlings Canada Inc. (the “Voting
Trustee”), the purchasers (the “Purchasers”) listed on Schedule I attached
hereto, Mark Organ, Harvey Organ, Abe Wagner and Steven Woods (the “Major Holders”), those
other existing holders of Subsidiary Exchangeable Shares and securities in the Subsidiary or the
Company (the “Subsidiary Holders”) listed on Schedule I attached hereto and any
other parties who execute an Instrument of Adherence to this Agreement:



W I T N E S S E T H:




     WHEREAS, on August 25, 2006 the Company, the Subsidiary, the Voting Trustee, the Purchasers,
the Major Holders, and certain other parties entered into a Stockholders Agreement (the “Prior
Agreement”);



     WHEREAS, the Company is issuing shares of its Series C Preferred Stock, $0.0001 par value per
share (the “Series C Preferred Stock”), to the Purchasers pursuant to the Series C
Convertible Preferred Stock Purchase Agreement dated as of the date hereof by and among the
Company, the Subsidiary and the Purchasers (the “Purchase Agreement”); and



     WHEREAS, one of the conditions to the obligations of the Purchasers under the Purchase
Agreement is the execution of this Agreement and the termination of the Prior Agreement, and
pursuant to Section 7.5 of the Prior Agreement, the Company, the Security Holders holding at least
a majority in interest of the then-outstanding shares of Common Stock and Special Voting Stock, and
the Purchasers holding at least sixty percent (60%) of the then-outstanding shares of Preferred
Stock, voting together as a single class and on an as-converted basis, wish to provide for certain
amendments to the Prior Agreement.



     NOW, THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the parties agree as follows:



ARTICLE I




DEFINITIONS



     1.1 Certain Defined Terms. As used in this Agreement, the following terms shall have
the following respective meanings:



          “Bay Partners” means Bay Partners X, L.P. and Bay Partners X Entrepreneurs Fund, L.P.
and any Permitted Transferees thereof.




          “Bessemer Venture Partners” shall mean Bessemer Venture Partners VII L.P. and Bessemer
Venture Partners VII Institutional L.P. and any Permitted Transferees thereof.





 









 








          “Business Day” shall mean any day other than Saturday, Sunday and any statutory
holiday in the State of Delaware.




          “Callable Shares” shall mean (i) for Call Events triggered under Section 5.1(a)-(e),
all Shares in the Company except Shares issuable pursuant to the exercise of warrants of the
Company, owned or held by the Existing Stockholders listed on Schedule I; and (ii) for Call
Events triggered under Section 5.1(f), all Shares in the Company.




          “Competitor” shall mean any competitor of the Company or the Subsidiary, as determined
by the Board of Directors of the Company acting in good faith.




          “Conversion Shares” shall mean outstanding shares of Common Stock issued by converting
shares of Preferred Stock.




          “Existing Stockholders” shall mean the Major Holders, the Subsidiary Holders and any
other parties who execute an Instrument of Adherence to this Agreement.




          “JMI” means JMI Equity Fund IV L.P., JMI Equity Fund IV(AI) L.P. and any Permitted
Transferees thereof.




          “Offeree” shall mean (i) Bay Partners for so long as Bay Partners holds at least
7,051,373 shares of Preferred Stock, (ii) JMI, for as long as JMI holds at least 7,051,373 shares
of Preferred Stock, (iii) Bessemer Venture Partners, for so long as Bessemer Venture Partners holds
at least 7,051,373 shares of Preferred Stock and (iii) Mark Organ, Harvey Organ, Steven Woods and
Abe Wagner.




          “Preferred Stock” shall mean the Company’s Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock.




          “Security Holders” shall mean the Existing Stockholders and the Purchasers.




          “Shares” shall mean and include (i) all shares of capital stock of the Company,
including, without limitation, the Company’s Common Stock (the “Common Stock”), the
Preferred Stock, the Special Voting Stock, and all other securities of the Company which may be
issued upon conversion or exercise of, in exchange for, or in respect of, shares of Common Stock,
Preferred Stock, Special Voting Stock or other capital stock of the Company (whether by way of
stock split, stock dividend, combination, reclassification, reorganization, or any other means),
now owned or hereafter acquired, (ii) any Subsidiary Exchangeable Shares and (iii) any other
securities (of the Subsidiary or otherwise) convertible or exchangeable, with or without
consideration, into or for any Subsidiary Exchangeable Share or Common Stock or other security of
the Subsidiary or Company (including any option or warrant to purchase such a convertible or
exchangeable security). For purposes of this Agreement, all of the securities of the Company or
Subsidiary that a Security Holder has a right to acquire from the Company or Subsidiary upon the
conversion, exercise or exchange of any of the securities, including options to purchase Common
Stock or Subsidiary Exchangeable Shares, warrants exercisable for Common Stock or




Stockholders Agreement — Page 2



 









 




Subsidiary Exchangeable Shares and convertible debentures that are convertible into Common
Stock or Subsidiary Exchangeable Shares, of the Company or Subsidiary then owned by such Security
Holder shall be deemed to be Shares then owned by such Security Holder.




          “Special Voting Stock” shall mean the Special Common Voting Stock, $0.0001 par value
per share of the Company.




          “Subsidiary Exchangeable Shares” shall mean the Exchangeable Common Shares of the
Subsidiary.




          “Subsidiary Shareholders Agreement” shall mean the Third Amended and Restated
Shareholders Agreement by and between the Subsidiary Holders, the Subsidiary and Eloqua Investors
LLC.




          “Voting Trust Agreement” shall mean that certain Voting Trust Agreement dated as of
August 25, 2006 by and between the Company, the Subsidiary, and the Voting Trustee.




ARTICLE II




THE BOARD OF DIRECTORS; ELECTIONS



     2.1 Number of Directors. Subject to the provisions of the certificate of
incorporation, as amended from time to time (the “Certificate of Incorporation”), the number of
directors constituting the entire Board of Directors of the Company shall be no more than five (5).
Provided that there are issued and outstanding at least 7,051,373 shares of Preferred Stock, the
number of directors of the Company shall not be changed without the consent of the holders of (a)
at least a majority in interest (as determined by the aggregate number of votes held directly and
through the Voting Trustee in accordance with the Voting Trust Agreement) of the issued and
outstanding shares of Common Stock and Special Voting Stock and (b) at least a majority of the
issued and outstanding shares of Preferred Stock, voting together as a single class and on an
as-converted basis.



     2.2 Election of Directors. Subject to the rights of the holders of Preferred Stock to
elect a majority of the directors of the Company’s Board of Directors in certain circumstances as
set forth in the Company’s Certificate of Incorporation, at any time at which stockholders of the
Company will have the right to, or will vote for or consent in writing to, the election of
directors of the Company, then, and in each such event, the Existing Stockholders (including any
holder of options and/or warrants who is a party hereto who, subsequent to the date hereof,
exercises any such options and/or warrants) and the Purchasers shall vote (or, if applicable,
consent with respect to), or direct the Voting Trustee to vote or consent in accordance with the
terms of the Voting Trust Agreement, as applicable, all Shares in the Company or other voting
securities of the Company presently owned or hereafter acquired by them (whether owned of record or
over which any such person exercises voting control) in favor of the following actions:



          (a) to cause the election to, and maintain as a member of, the Board of Directors one (1)
person designated by JMI or its affiliates, who shall be the one (1) director




Stockholders Agreement — Page 3





 









 







elected by the holders of a majority of the issued and outstanding shares of Series A
Preferred Stock, voting as a separate class (the “Series A Preferred Director”), and who
shall initially be Brad Woloson;




          (b) to cause the election to, and maintain as a member of, the Board of Directors one (1)
person designated by Bay or its affiliates, who shall be the one (1) director elected by the
holders of a majority of the issued and outstanding shares of Series B Preferred Stock, voting as a
separate class (the “Series B Preferred Director”), and who shall initially be Neal
Dempsey;




          (c) to cause the election to, and maintain as a member of, the Board of Directors one (1)
person designated by Bessemer Venture Partners or its affiliates, who shall be the one (1) director
elected by the holders of a majority of the issued and outstanding shares of Series C Preferred
Stock, voting as a separate class (the “Series C Preferred Director” and together with the
Series A Preferred Director and Series B Preferred Director, the “Preferred Directors”),
and who shall initially be Byron Deeter;




          (d) to cause the election to, and maintain as a member of, the Board of Directors one (1)
person who shall be the then current Chief Executive Officer of the Company (“CEO”) as
appointed from time to time by the Company’s Board of Directors, who shall be the one (1) director
elected by the holders of a majority in interest (as determined by the aggregate number of votes
held directly and through the Voting Trustee in accordance with the Voting Trust Agreement) of the
issued and outstanding shares of Common Stock and Special Voting Stock (but excluding for the
purposes of determining such majority during the period that there are at least 7,051,373
outstanding shares of Preferred Stock, any Conversion Shares) (the “Common Director”), and
who shall initially be Joseph Payne; and




          (e) to cause the election to, and maintain as a member of, the Board of Directors one (1)
person not otherwise affiliated with the Company or any Purchaser designated by (i) a majority of
the Board of Directors and (ii) the holders of a majority in interest (as determined by the
aggregate number of votes held directly and through the Voting Trustee in accordance with the
Voting Trust Agreement) of the issued and outstanding shares of Preferred Stock, Common Stock and
Special Voting Stock, voting together as a single class and on an as-converted basis, who is
elected by the holders of a majority in interest (as determined by the aggregate number of votes
held directly and through the Voting Trustee in accordance with the Voting Trust Agreement) of the
issued and outstanding shares of Preferred Stock, Common Stock and Special Voting Stock, voting
together as a single class and on an as-converted basis (the “Outside Director”),
provided, however, that until an unaffiliated director is elected such seat shall be filled
by Steven Woods.




     2.3 Vacancies and Removal. Each Existing Stockholder (including any holder of options
and/or warrants who is a party hereto who, subsequent to the date hereof, exercises any such
options and/or warrants) and the Purchasers shall vote (or, if applicable, consent with respect
to), or direct the Voting Trustee to vote or consent in accordance with the terms of the Voting
Trust Agreement, as applicable, all Shares in the Company or other voting securities of the Company
presently owned or hereafter acquired by them (whether owned of record or over
which any such person exercises voting control) in accordance with the provisions of this
Section 2.3.



Stockholders Agreement — Page 4





 









 








          (a) Series A Preferred Director. The Series A Preferred Director shall serve until his
successor is elected and qualified or until his earlier resignation or removal. The Series A
Preferred Director may be removed during his term of office, with or without cause, only at the
direction of JMI. Any vacancy in the office of the Series A Preferred Director may be filled at the
direction of JMI in accordance with Section 2.2(a) hereto.




          (b) Series B Preferred Director. The Series B Preferred Director shall serve until his
successor is elected and qualified or until his earlier resignation or removal. The Series B
Preferred Director may be removed during his term of office, with or without cause, only at the
direction of Bay. Any vacancy in the office of the Series B Preferred Director may be filled at the
direction of Bay in accordance with Section 2.2(b) hereto.




          (c) Series C Preferred Director. The Series C Preferred Director shall serve until his
successor is elected and qualified or until his earlier resignation or removal. The Series C
Preferred Director may be removed during his term of office, with or without cause, only at the
direction of Bessemer Venture Partners. Any vacancy in the office of the Series C Preferred
Director may be filled at the direction of Bessemer Venture Partners in accordance with Section
2.2(c) hereto.




          (d) Common Director. The Common Director shall serve until his successor is elected
and qualified or until his earlier resignation or removal. The Common Director may be removed
during his term of office, with or without cause, only upon his or her resignation or removal from
the position of CEO. Any vacancy in the seat elected pursuant to Section 2.2(d) above shall be
filled by the individual then serving as the CEO; provided that if the CEO position is
vacant, the holders of at least a majority in interest (as determined by the aggregate number of
votes held directly and through the Voting Trustee in accordance with the Voting Trust Agreement)
of the issued and outstanding shares of Common Stock and Special Voting Stock (but excluding for
the purposes of determining such majority during the period that there are outstanding at least
7,051,373 shares of Preferred Stock, any Conversion Shares), voting as a separate class, or by the
written consent of holders of at least a majority in interest (as determined by the aggregate
number of votes held directly and through the Voting Trustee in accordance with the Voting Trust
Agreement) of the issued and outstanding Common Stock and Special Voting Stock shall elect an
individual to fill such seat provided that a condition to the appointment of such non-CEO candidate
(and of any obligation to vote for such candidate) shall be that such individual agree in writing
to resign upon the appointment of a CEO of the Company.




          (e) Outside Director. The Outside Director shall serve until his successor is elected
and qualified or until his earlier resignation or removal. The Outside Director may be removed
during his term of office, with or without cause, only at the direction of (i) a majority of the
Board of Directors and (ii) the holders of at least a majority in interest (as determined by the
aggregate number of votes held directly and through the Voting Trustee in accordance with the
Voting Trust Agreement) of the issued and outstanding shares of Preferred Stock, Special Voting




Stockholders Agreement — Page 5



 









 




Stock and Common Stock, voting together as a single class and on an as-converted basis, or by
written consent of the holders of at least a majority in interest (as determined by the aggregate
number of votes held directly and through the Voting Trustee in accordance with the Voting
Trust) of the issued and outstanding Preferred Stock, Special Voting Stock and Common Stock.
Any vacancy in the office of the Outside Director may be filled at the direction of (i) and
(ii) above in accordance with Section 2.2(e) hereto.




     2.4 Attendance at Meetings. Each of the Existing Stockholders and the Purchasers shall
attend, or cause the Voting Trustee to attend, in person or by proxy to the extent reasonably
practicable, and vote its Shares in the Company in accordance with this Agreement at, each annual
meeting of the stockholders of the Company and each special meeting of the stockholders of the
Company involving the election of directors of the Company.



     2.5 Committees of the Board of Directors. The Board of Directors of the Company shall
establish (a) a Compensation Committee (which shall be charged with the authority over granting of
stock options and compensation), (b) an Audit Committee (which shall be charged with reviewing the
Company’s financial statements and accounting practices), and (c) such other committees as the
Board of Directors shall deem necessary or convenient from time to time. Except to the extent
otherwise required by applicable law or regulation, each committee shall include at least one of
the Preferred Directors.



ARTICLE III




TRANSFERS



     3.1 Subsidiary Exchangeable Shareholder. All holders of Subsidiary Exchangeable Shares
agree that they shall deliver to the Company an accurately completed and executed certificate in
the form set forth in Schedule III attached hereto as a condition of the transfer or
exchange (in accordance with the Subsidiary’s Exchangeable Share provisions) of Subsidiary
Exchangeable Shares for Common Stock in the Company.



     3.2 Prohibited Transfers. No Existing Stockholder shall sell, assign, transfer,
pledge, hypothecate, mortgage or otherwise encumber or dispose of (collectively, a
“Transfer”) any or all of such Existing Stockholder’s Shares in the Company except (i)
pursuant to a bona fide written offer from a person or entity (the “Proposed Transferee”)
for consideration consisting solely of cash and (ii) otherwise in full compliance with such
Existing Stockholder’s obligations under this Article III. The Company shall not record the
Transfer on its books of any Shares in the Company that are subject to this Agreement, unless the
provisions hereof have been complied with in full. Any purported Transfer by an Existing
Stockholder of Shares in the Company without full compliance with the provisions of this Agreement
shall be null and void.



     3.3 Right of First Refusal on Dispositions of Existing Stockholder’s Shares.



          (a) Offer. If at any time any Existing Stockholder desires to Transfer all or any
portion of such Existing Stockholder’s Shares in the Company pursuant to a written bona fide offer
from the Proposed Transferee, such transferring Existing Stockholder shall, within five




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(5)
Business Days after the Proposed Transferee has delivered the offer to such transferring Existing
Stockholder, submit a written offer (the “Offer”) to sell such Shares (the “Offered
Shares”) to the Company and the Offerees on terms and conditions (including price) not
less favorable to the Company and the Offerees than those on which the transferring Existing
Stockholder proposes to sell such Offered Shares to the Proposed Transferee. The Offer shall
disclose in reasonable detail the identity of the Proposed Transferee and the relationship between
the Proposed Transferee and the Existing Stockholder, if any, the number and type of Offered Shares
proposed to be sold, the total number of Shares in the Company owned by the Existing Stockholder,
the terms and conditions (including price) of the proposed sale, and any other material facts
relating to the proposed sale, and shall be accompanied by a copy of the Proposed Transferee’s
written offer. The Offer shall further state that the Company and the Offerees may acquire, in
accordance with the provisions of this Agreement, all or any portion of the Offered Shares for the
price and upon the other terms and conditions, including deferred payment (if applicable), set
forth therein.




          (b) Company Notice of Intent to Purchase. If the Company desires to purchase all or
any part of the Offered Shares, the Company shall communicate in writing its election to purchase
to the transferring Existing Stockholder and each Offeree, which communication shall state the
number of Offered Shares the Company desires to purchase and shall be delivered in person or mailed
to the transferring Existing Stockholder and each Offeree within 30 days of the date of the Offer.
Such communication shall, when taken in conjunction with the Offer, be deemed to constitute a
valid, binding and enforceable agreement for the sale and purchase of the Offered Shares.



          (c) Offerees’ Right of First Refusal. If, within 30 days of its receipt of the Offer,
the Company fails to deliver written notice to the transferring Existing Stockholder and each
Offeree of its intention to purchase all of the Offered Shares or if the Company elects to purchase
only a portion of the Offered Shares (the Offered Shares which the Company does not elect to
purchase being referred to as the “Refused Shares”), each Offeree shall have the absolute
right to purchase that number of Refused Shares as shall be equal to the number of Refused Shares
multiplied by a fraction, the numerator of which shall be the number of Shares in the Company
(calculated on an as-converted to Common Stock basis) then owned by such Offeree and the
denominator of which shall be the aggregate number of Shares in the Company (calculated on an
as-converted to Common Stock basis) then owned by all Offerees. The amount of Refused Shares that
each Offeree is entitled to purchase under this Section 3.3 shall be referred to as its “Pro
Rata Fraction.”



          (d) Oversubscription Rights. The Offerees shall have a right of oversubscription such
that if any Offeree declines to purchase its Pro Rata Fraction, the other Offerees shall, among
them, have the right to purchase up to the balance of the Refused Shares not so purchased. Such
right of oversubscription may be exercised by an Offeree by accepting the offer of the Refused
Shares as to more than its Pro Rata Fraction. If, as a result thereof, such oversubscriptions
exceed the total number of Refused Shares available in respect of such oversubscription privilege,
the oversubscribing Offerees shall be reduced with respect to their oversubscriptions on a
pro rata basis in accordance with their respective Pro Rata Fractions or as they
may otherwise agree among themselves.



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          (e) Offeree Notice of Intent to Purchase. If an Offeree desires to purchase all or any
part of the Refused Shares, such Offeree shall communicate in writing its election to
purchase to the transferring Existing Stockholder, which communication shall state the number
of Refused Shares the Offeree desires to purchase and shall be delivered in person or mailed to the
transferring Existing Stockholder within 60 days of the date of the Offer. Such communication
shall, when taken in conjunction with the Offer, be deemed to constitute a valid, binding and
enforceable agreement for the sale and purchase of such Refused Shares (subject to the aforesaid
limitations as to an Offeree’s right to purchase more than its Pro Rata Fraction).




          (f) Closing. Sales of the Offered Shares to be sold to the Company or Refused Shares
to be sold to the participating Offerees pursuant to this Section 3.3 shall be made at the offices
of the Company within 75 days of the date of the Offer. Such sales shall be effected by the
transferring Existing Stockholder’s delivery to the Company or participating Offeree of a
certificate or certificates evidencing the Offered Shares or Refused Shares, as the case may be, to
be purchased by the Company or participating Offeree, duly endorsed for transfer to the Company or
participating Offeree, as the case may be, against payment to the transferring Existing Stockholder
of the purchase price therefor by the Company or said participating Offeree, as the case may be.




          (g) Sale to Third Party. If the Company and the Offerees do not purchase all of the
Offered Shares or Refused Shares within the time frame specified in this Section 3.3, the Offered
Shares or the Refused Shares not so purchased may be sold by the transferring Existing Stockholder
at any time within 90 days after the date the Offer was made to the Company and the Offerees,
subject to full compliance with the other provisions of this Article III. Any such sale shall be to
the Proposed Transferee, at not less than the price and upon other terms and conditions, if any,
not more favorable to the Proposed Transferee than those specified in the Offer. Any Offered Shares
or Refused Shares not sold within such 90-day period shall continue to be subject to the
requirements of a prior offer pursuant to this Section 3.3. If Offered Shares or Refused Shares are
sold pursuant to this Section 3.3 to an Offeree or affiliate thereof, in such case only, the
Offered Shares or Refused Shares so sold to such Offeree shall only be subject to the restrictions
imposed by this Agreement to the extent that other Shares in the Company owned by such Offeree are
subject to the restrictions imposed by this Agreement.




          (h) Sale to Company Excluded. The Offerees’ right of refusal provided in this Section
3.3 shall not apply with respect to sales of Shares in the Company to the Company.




          (i) Instrument of Adherence. Except as otherwise provided herein, no Existing
Stockholder shall Transfer any Shares in the Company to any person (other than the Offerees or an
affiliate thereof) who does not first execute the Instrument of Adherence. If any Transfer of
Shares in the Company is attempted contrary to the provisions of this Agreement, the Company and
the Offerees shall have the right to (i) purchase such Shares from the transferring Existing
Stockholder or the purported transferee; (ii) obtain a temporary and/or permanent injunction
restraining such Transfer (no bond or other security shall be required in connection with such
action); or (iii) refuse to recognize any purported transferee as an Existing Stockholder and may
continue to treat the transferor as an Existing Stockholder for all purposes, including, without
limitation, for purposes of dividend and voting rights, until all applicable provisions of




Stockholders Agreement — Page 8



 









 




this
Agreement have been complied with. The remedies provided herein are cumulative and not exclusive of
any other remedies provided by law.




          (j) Sale to an Affiliate of the Company. The Company may cause, in its sole
discretion, an affiliate to exercise its rights under this Section 3.3.




          (k) Public Offering. The provisions set forth in this Section 3.3 shall cease to apply
to an Existing Stockholder upon the closing of the sale to the public of Common Stock of the
Company pursuant to an effective registration statement filed under the Securities Act.




     3.4 Right of Participation in Sales.



          (a) Co-Sale Right of Offerees. If at any time an Existing Stockholder proposes to
Transfer any Shares in the Company (the “Co-Sale Shares”) to a Proposed Transferee other
than the Company (a “Buyer”), each of the Offerees shall have the right to sell to the
Buyer, as a condition to such sale by such Existing Stockholder, at the same price per share and on
the same terms and conditions as involved in such sale by such Existing Stockholder (as stated in
the offer provided under Section 3.3(a) herein), such number of shares equal to the Co-Sale Shares
multiplied by a fraction, the numerator of which is the aggregate number of Shares in the Company
(calculated on an as-converted to Common Stock basis) owned by the particular Offeree desiring to
sell Shares in the Company to a Buyer, and the denominator of which is the sum of the Shares in the
Company (calculated on an as-converted to Common Stock basis) owned by the transferring Existing
Stockholder and all of the Offerees. If not all of the Offerees elect to sell their share of the
Co-Sale Shares, then the transferring Existing Stockholder shall promptly notify in writing the
Offerees who so elect (the “Fully Participating Selling Offerees”) and shall offer the
Fully Participating Selling Offerees the right to participate in the sale of such unsubscribed
Co-Sale Shares on the same percentage basis as set forth above in this Section 3.4(a), provided
that only Shares in the Company held by the Fully Participating Selling Offerees shall be included
in the denominator. The Fully Participating Selling Offerees shall have five (5) days after receipt
of such notice to notify the transferring Existing Stockholder in writing of its election to sell
all or a portion of the unsubscribed Co-Sale Shares.




          (b) Notice of Intent to Participate. Each Offeree wishing to participate in any
Transfer under this Section 3.4 shall notify in writing the Existing Stockholder transferring
hereunder of such intention as soon as practicable after such Offeree’s receipt of the Offer made
pursuant to Section 3.3(a), and in any event within 60 days after the date such Offer was made or
five (5) days after receipt of notice in the case of the unsubscribed Co-Sale Shares.




          (c) Sale to a Proposed Transferee. The Existing Stockholder selling hereunder and each
participating Offeree shall sell to the Buyer all, or at the option of the Buyer, any part of the
shares proposed to be sold by them at not less than the price and upon such other terms and
conditions, if any, not more favorable to the Buyer than those in the Offer provided by such
Existing Stockholder under Section 3.3(a); provided, however, that any purchase of less
than all of such shares by the Buyer shall be deducted from the number of shares offered to be sold
by such Existing Stockholder and each participating Offeree pro rata based upon the applicable




Stockholders Agreement — Page 9



 









 




number of Co-Sale Shares desired to be sold by the Existing Stockholder and the number of shares
that each participating Offeree is entitled to sell pursuant to Section 3.4(a).




          (d) Lapse of Restrictions. Subject to the other provisions of this Agreement, any
shares sold by any participating Offeree to any Buyer pursuant to this Section 3.4 shall no longer
be subject to the restrictions imposed or entitled to any of the benefits conferred by this
Agreement.




          (e) Public Offering. The provisions set forth in this Section 3.4 shall cease to apply
to an Existing Stockholder upon the closing of the sale to the public of Common Stock of the
Company pursuant to an effective registration statement filed under the Securities Act.




     3.5 Statutory Votes. Subject to Section 3.6 below, whenever any Existing Stockholder
shall be entitled pursuant to the provisions of the Business Corporations Act (Ontario), as the
same may be amended from time to time (the “OBCA”) or other applicable law, to vote (in
person, by proxy or by resolution in writing, as applicable) Subsidiary Exchangeable Shares, then
each Existing Stockholder agrees to vote all Subsidiary Exchangeable Shares now owned or hereafter
acquired by such party in such manner as may be designated by holders of a majority in interest (as
determined by the aggregate number of votes held directly and through the Voting Trustee in
accordance with the Voting Trust Agreement) of the voting stock of the Company (including the
Preferred Stock, Common Stock and Special Voting Stock, voting together as a single class and on an
as-converted basis). Notwithstanding the foregoing, the provisions of this Section 3.5 shall not
apply to any special resolution required under Section 170(1)(c) of the OBCA to add to, remove or
change the rights, privileges, restrictions or conditions attached to the Subsidiary Exchangeable
Shares, if such addition, removal or change would materially and adversely affect the holders of
such Subsidiary Exchangeable Shares and not so affect the other Shares.



     3.6 Drag-Along Rights.



          (a) If at any time (i) the holders of Preferred Stock holding at least a majority of the then
outstanding Preferred Stock, acting as a single class and on an as-converted basis (the
“Initiating Preferred Purchasers”), and (ii) holders of Exchange Common Stock (as
hereinafter defined) and Special Voting Stock holding at least fifteen percent (15%) (as determined
by the aggregate number of votes held directly and through the Voting Trustee in accordance with
the Voting Trust Agreement) of the then outstanding Exchange Common Stock and Special Voting Stock, acting as a single class (the “Initiating Common Purchasers,” and together with the
Initiating Preferred Purchasers, the “Initiating Purchasers”) propose to effect (or to
cause the Company to effect) a Sale Event (as defined below) and the Board of Directors approves of
or consents to such Sale Event, the Initiating Purchasers may deliver a notice (a “Sale Event
Notice”) to all of the other Security Holders stating that the Initiating Purchasers propose to
effect (or to cause the Company to effect) such transaction (the “Sale Event Notice
Transaction”), and specifying the name and address of the proposed parties to such transaction
and the consideration payable in connection therewith. Upon receipt of a Sale Event Notice other
than an Asset Sale Transaction, each Security Holder shall be obligated to Transfer all Shares in
the Company owned by it in the Sale Event (or, in the case of a Sale Event involving a sale of less
than all of the outstanding Shares in the Company, a percentage of the Shares in the




Stockholders Agreement — Page 10



 









 




Company owned
by it equal to the percentage of the Initiating Purchasers’ Shares in the Company being sold by the
Initiating Purchasers), for a price and on other terms and conditions not less favorable to the
Security Holder than to the Initiating Purchasers; provided, however,
that the price may be different for Common Stock and any series or class of Preferred Stock to
the extent that such difference is consistent with the liquidation preferences of the Common Stock
and such series or class of Preferred Stock, as the case may be, set forth in the Company’s
Certificate of Incorporation; and provided further, however, that, with
respect to any Shares in the Company for which a Security Holder holds unexercised stock options or
warrants, the price per such Share shall be reduced by the exercise price of such options or
warrants, or if required pursuant to the terms of such options or warrants, such Security Holder
shall pay the exercise price therefor prior to the closing of the Sale Event Notice Transaction,
and shall transfer shares of Common Stock in the Sale Event Notice Transaction. In addition to
selling its Shares in the Company and in the case of an Asset Sale Transaction, each Security
Holder shall take all other necessary or desirable action (and direct the Voting Trustee to take
all necessary or desirable action) to cause the Company to consummate the proposed Sale Event,
including (1) voting all their Shares in the Company (or causing the Voting Trustee to vote their
interest in the Special Voting Shares in accordance with the terms of the Voting Trust Agreement)
in favor of such transaction and (2) voting all their Shares in the Company (or causing the Voting
Trustee to vote their interest in the Special Voting Shares in accordance with the terms of the
Voting Trust Agreement) in favor of any resolution or special resolution in favor of any
continuance, reorganization, recapitalization or amendment to the articles of incorporation of the
Subsidiary which requires the approval of the stockholders pursuant to applicable law including,
without limitation, the OBCA. “Sale Event” means a Deemed Liquidation Event as that term is
defined in Article IV, Paragraph A, Section 2(c) of the Company’s Certificate of Incorporation.
“Exchange Common Stock” means Common Stock issued in exchange for those Subsidiary
Exchangeable Shares outstanding as of August 25, 2006 in accordance with the Subsidiary’s
Exchangeable Share provisions.




          (b) The closing of any Sale Event for which the Initiating Purchasers have delivered a Sale
Event Notice pursuant to this Section 3.6 shall be held at such time and place as the Initiating
Purchasers shall reasonably specify. At such closing, the Security Holders shall deliver
certificates representing the Shares in the Company to be sold, duly endorsed for transfer and
accompanied by all requisite stock transfer taxes, if any, and the Shares in the Company to be
transferred shall be free and clear of any liens, claims or encumbrances (other than restrictions
imposed by this Agreement) and each of the Security Holders shall so represent and warrant. Each of
the Security Holders shall further represent and warrant that it is the record and beneficial owner
of such Shares free and clear of all liens, charges, security interests, encumbrances or other
rights of third parties and join in such additional representations, warranties and related
indemnities and other obligations relating to its ownership of the Shares in the Company as shall
be customary in transactions of a similar nature (including without limitation any withholding
obligations and escrow arrangements).




          (c) In the event that the consideration to be paid in exchange for the Shares in the Company
pursuant to this Section 3.6 includes any securities and due receipt thereof by any Security Holder
would require under applicable law (i) the registration or qualification of such securities or of
any person as a broker or dealer or agent with respect to such securities or (ii) the provision to
any Security Holder of any information other than such information as a prudent




Stockholders Agreement — Page 11



 









 




issuer would
generally furnish in an offering made solely to “accredited investors” as defined in Regulation D
promulgated under the United States Securities Act of 1933, as amended (the “Securities
Act”), the other Security Holders may cause to be paid to such Security Holder in
lieu thereof, against surrender of the Shares in the Company which would have otherwise been
sold by such Security Holder, an amount in cash equal to the fair value (as determined in good
faith by the Initiating Purchasers) of the securities which such Security Holder would otherwise
receive as of the date of the issuance of such securities in exchange for the Shares in the
Company.




          (d) Each Security Holder, whether in its capacity as an Initiating Purchaser, Security Holder,
officer or director of the Company, or otherwise, shall to the fullest extent permitted by law take
or cause to be taken all such actions as may reasonably be requested by the Initiating Purchasers
in order expeditiously to consummate each Sale Event and any related transactions, including,
without limitation, executing, acknowledging and delivering consents, assignments, waivers and
other documents or instruments, furnishing information and copies of documents, filing
applications, reports, returns, filings and other documents or instruments with governmental
authorities, and otherwise cooperating with the Company and the Initiating Purchasers. Without
limiting the generality of the foregoing, each Security Holder shall execute and deliver such
agreements and instruments as may be reasonably specified by the Initiating Purchasers.




          (e) Each Security Holder hereby grants to the Initiating Purchasers (i) an irrevocable proxy,
coupled with an interest, to vote all Shares in the Company owned by such Security Holder, and (ii)
an irrevocable power of attorney, which is coupled with an interest, to take such other actions, in
each case to the extent necessary to carry out the provisions of this Section 3.6 in the event of
any breach by such Security Holder of its obligations hereunder.




          (f) Notwithstanding any provision of this Agreement, the purchase and sale of Shares in the
Company pursuant to this Section 3.6 shall not be subject to the provisions of Sections 3.3 and 3.4
hereof.




     3.7 Failure to Deliver Shares.



          (a) If any Existing Stockholder (or his legal representative) who has become obligated to sell
Shares in the Company hereunder shall fail to deliver such Shares to the Company in accordance with
the terms of this Agreement, the Company may, at its option, in addition to all other remedies it
may have, send to such Existing Stockholder by registered mail, return receipt requested, the
purchase price for such Shares as is herein specified. Thereupon, the Company: (i) shall cancel on
its books the certificate or certificates representing such Shares to be sold; and (ii) shall
issue, in lieu thereof, a new certificate or certificates in the name of the Company representing
such Shares, and thereupon all of such Existing Stockholder’s rights in and to such Shares shall
terminate.




          (b) In the event of any sale, transfer, assignment or other disposition of any Shares in the
Company by an Existing Stockholder in violation of any provision of Section 3.4, each Offeree shall
have the right to elect to cause such Existing Stockholder to purchase, and such Existing
Stockholder shall be obligated to purchase, from such Offeree, at the same price




Stockholders Agreement — Page 12



 









 




per share and on
the same terms and conditions as involved in such sale by the Existing Stockholder, such number of
Shares in the Company (calculated on an as-converted to Common Stock basis) equal to the number of
Shares in the Company sold by such Existing Stockholder multiplied by a fraction, the numerator of which is the aggregate number of Shares in the
Company (calculated on an as-converted to Common Stock basis) owned by the particular Offeree and
the denominator of which is the sum of the Shares in the Company (calculated on an as-converted to
Common Stock basis) owned by the transferring Existing Stockholder and all of the Offerees.




     3.8 Benefit. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, personal representatives, successors and
permitted assigns and shall be binding upon any person, firm, company or other entity to whom any
Shares in the Company are transferred (even if in violation of the provisions of this Agreement)
and the heirs, executors, personal representatives, successors and assigns of such person, firm,
company or other entity. No provision of this Agreement shall be construed to provide a benefit to
any party hereto who no longer owns any Shares in the Company, other than a right to receive a
required payment with respect thereto.



     3.9 Permitted Transfers. Notwithstanding anything to the contrary in this Agreement,
without complying with any other provisions of this Agreement, a Security Holder may Transfer any
or all of such Security Holder’s Shares in the Company:



          (i) by way of gift for estate planning purposes to any member of such Security Holder’s
family;




          (ii) by will or the laws of descent and distribution (in which event each such transferee
shall be bound by all of the provisions of this Agreement to the same extent as if such transferee
were the transferring Security Holder);




          (iii) to a trust (a) in respect of which such Security Holder serves as trustee, provided that
the trust instrument governing such trust shall provide that Security Holder as trustee, shall
retain sole and exclusive control over the voting and disposition of such Shares until the
termination of this Agreement and (b) which is for the benefit of any member or members of such
Security Holder’s family;




          (iv) to any of such Security Holder’s partners if the Security Holder is a partnership,
members of the Security Holder if the Security Holder is a limited liability company, shareholders
of the Security Holder if the Security Holder is a corporation or entities or funds affiliated with
the Security Holder if the Security Holder is a venture capital fund (each such transferee as
described in clauses (i) through (iv), a “Permitted Transferee”); provided that any such
Transfer shall not require the registration of any Shares in the Company under the Securities Act
of 1933, as amended (the “Securities Act”), or other applicable legislation.




          No Transfer of Shares in the Company by an Existing Stockholder to a Permitted Transferee
shall be effective if the purpose of such Transfer shall have been to circumvent the provisions of
this Agreement. Any Transfer of Shares in the Company by an Existing




Stockholders Agreement — Page 13



 









 




Stockholder to a Permitted
Transferee pursuant to this Section 3.9 shall be expressly conditioned upon the transferee of such
Shares becoming a party to this Agreement by executing an Instrument of Adherence substantially in
the form attached hereto as Annex I (an “Instrument of
Adherence”), in which event each such transferee shall be bound by all of the
provisions of this Agreement to the same extent as if such transferee were the transferor, and all
Shares in the Company transferred shall at all times remain subject to the terms of this Agreement
in the hands of the transferee. As used herein, the word “family” shall include any spouse,
lineal ancestor or descendant, brother, sister, or legally adopted child of any such person.




ARTICLE IV




RESIGNATION OF OFFICE



     Upon any Existing Stockholder ceasing to be a holder of Shares of the Company for any reason
whatsoever, it shall immediately resign or cause its nominee to resign as director and officer of
the Company, as the case may be.



ARTICLE V




COMPANY’S CALL RIGHT UPON CERTAIN EVENTS



     5.1 Call Events. Each of the following events shall be referred to as a
Call Event:



          (a) any Existing Stockholder or shareholder of an Existing Stockholder has been adjudged
bankrupt, or has made an assignment in bankruptcy, or takes the benefit of any legislation now or
hereinafter in force for the relief of the bankrupt or insolvent debtors, or files any proposal or
makes an assignment for the benefit of creditors, or if a receiver is appointed for all or a
portion of an Existing Stockholder’s or Existing Stockholder’s shareholder, as the case may be,
property, or if any order shall be made for the winding up of an Existing Stockholder, as
applicable;




          (b) any Existing Stockholder or shareholder of an Existing Stockholder has had its Shares in
the Company seized in execution or such shareholder’s shares of the Existing Stockholder are seized
in execution;




          (c) there is a change in control of any Existing Stockholder except if such change in control
is a transfer from one member of the family to another member of the family; or




          (d) the Shares in the Company held by an Existing Stockholder are, directly or indirectly, the
subject matter of a judicial equalization order pursuant to the Family Law Act (Ontario) and/or
similar legislation in another jurisdiction that requires the transfer of such Shares to someone
other than the Existing Stockholder;




          (e) in the case of an Existing Stockholder who is an employee or consultant of the Company
(other than Mark Organ, Steven Woods and Abe Wagner), the termination
or cessation of the
employment or consulting relationship of such employee or consultant for any reason whatsoever; or




Stockholders Agreement — Page 14



 









 






          (f) in the case of any person who is or was an employee or consultant of the Company
(including Mark Organ, Steven Woods and Abe Wagner), such employee becomes employed or retained by,
renders services for, or in any way becomes affiliated with a Competitor.




     5.2 Right of the Company to Call Shares. The Company shall have the right (the
“Call Right”) to require an Existing Stockholder which is subject to a Call Event (the
“Callee”) to sell, assign and transfer to the Company all of the Callable Shares owned or
held by the Callee. The Call Right may be exercised by the Company within 90 days following the
date the Company receives actual knowledge of such Call Event (the “Call Period”). The Call
Right shall be exercised by the Company giving the Callee written notice (the “Call
Notice”) on or before the last day of the Call Period of its intention to exercise the Call
Right. The Company shall, concurrently with the sending of the Call Notice to the Callee, send a
copy of the Call Notice to each of the Purchasers. If any Callable Shares are not purchased under
this Call Right, the Callee and its successor in interest, if any, will hold any such Callable
Shares subject to all the provisions of this Agreement.



     5.3 Determination of the Purchase Price. The purchase price for the Callable Shares
shall be the aggregate fair market value of the Callable Shares determined in accordance with
Section 5.5 hereof.



     5.4 Payment and Closing. Sales to the Company of the Callable Shares shall be made at
the offices of the Company at the time and date set by the Company. Such sales shall be effected by
the Callee’s delivery to the Company of a certificate or certificates evidencing the Callable
Shares to be purchased by it, duly endorsed for transfer to the Company against payment to the
Callee of the purchase price therefor by the Company.



     5.5 Determination of Fair Market Value. The fair market value of the Callable Shares
shall be, for purposes of this Section 5, determined by the Board of Directors in its sole
discretion as of the date of the Call Event. Should Callee disagree with the Board of Director’s
determination of the fair market value (the “Board Determination”), Callee shall notify the
Board of Directors in writing (the “Dispute Notification”) that Callee wishes to dispute
the determination. If the dispute is not resolved between the Board of Directors and the Callee
within 15 days of receipt of the Dispute Notification, then the Board of Directors shall appoint a
third-party expert in valuing companies that are comparable to the Company to conduct a
determination of the fair market value (the “Third Party Determination”). The Third Party
Determination shall be conclusive and binding upon the Board of Directors and the Callee. If the
Third Party Determination is within ten percent (10%) of the Board Determination, then the Callee
shall bear the costs incurred in obtaining the Third Party Determination. Should the Third Party
Determination differ from the Board Determination by ten percent (10%) or more, the Company shall
bear such costs.



Stockholders Agreement — Page 15



 









 





ARTICLE VI




NON-COMPETITION AND CONFIDENTIALITY



     6.1 Non-Competition with the Company or Subsidiary. No Existing Stockholder shall:



          (a) endeavour, for his or her own purposes or for any other person or persons, partnership,
firm, association, syndicate, company or corporation engaged in or concerned with or interested in
a similar or competitive business to that conducted by the Company or the Subsidiary from time to
time;




               (i) entice away or solicit the services of any employee of the Company or of the Subsidiary;
or



               (ii) entice away or solicit any persons, firms or corporations that are customers of the
Company or the Subsidiary from time to time; and



          (b) either individually or in partnership or jointly or in conjunction with any person, firm
or corporation as principal, agent, shareholder, director, employee or in any other manner
whatsoever carry on or be interested in or lend money to or guarantee the debts or obligations of a
Competitor.




     6.2 Confidentiality. The Existing Stockholders acknowledge and agree that all
information relating to the Company and the Subsidiary and their businesses is confidential and
will only be disclosed by the Existing Stockholders for the purposes of carrying on the businesses
of the Company or the Subsidiary or invoking any of the provisions of this Agreement.



ARTICLE VII




MISCELLANEOUS



     7.1 Notices. All notices, requests, consents and other communications to be given or
otherwise made to any party to this Agreement shall be deemed to be sufficient if contained in a
written instrument, delivered by hand in person, by express overnight courier service, or by
electronic mail or facsimile transmission (with a confirming copy sent by U.S. mail, first class,
postage prepaid mail), or by registered or certified mail, return receipt requested, postage
prepaid, addressed to such party at the address set forth in Schedule I to the Purchase Agreement
or in the Company’s records or at such other address as may hereafter be designated in writing by
the addressee, with a copy to the respective party’s counsel listed therein, if any. All notices
shall be considered to be delivered three (3) days after dispatch in the event of first class or
registered mail, and on the next succeeding business day in the event of electronic mail or
facsimile transmission (with confirmation of receipt) or overnight courier service.



Stockholders Agreement — Page 16



 









 





     7.2 Termination.



          (a) This Agreement shall terminate immediately prior to but upon the earliest to occur of:
(i) immediately prior to the closing of the sale to the public of the Common Stock pursuant to an
effective registration statement filed under the Securities Act with net proceeds to the Company of
at least $25,000,000 at a per share price of at least $3.50 (subject to appropriate adjustment to
reflect any stock split, subdivision, or combination of Common Stock); or (ii) immediately prior to
the consummation of the merger, consolidation or amalgamation of the Company with or into another
entity in which the stockholders of the Company receive in exchange for their shares of capital
stock of the Company cash, securities of the acquiring corporation which may be immediately sold to
the public without registration under the Securities Act, or a combination thereof.




          (b) Upon the termination of this Agreement under this Section 7.2, except as otherwise set
forth herein, the restrictions and obligations set forth herein shall terminate and be of no
further effect, except that such termination shall not affect rights perfected or obligations
incurred under this Agreement prior to such termination, and the Company, upon the request of any
Purchaser or Existing Stockholder, shall issue to such requesting Purchaser or Existing Stockholder
certificate(s) representing such holder’s shares without the legend required by Section 7.3 herein
upon the surrender of the certificate(s) representing such shares to the Company.




     7.3 Lock-Up Agreement. If requested in writing by the managing underwriters in
connection with an initial public offering of securities of the Company, each of the Existing
Stockholders hereby agrees in connection with such offering, not to sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose of, any Shares in the Company held
immediately prior to the effectiveness of a registration statement for such offering without the
consent of the managing underwriter for a period not to exceed 180 days (or such longer period, not
to exceed eighteen (18) days after the expiration of the 180-day period, as such underwriters shall
request in order to facilitate compliance with NASD Rule 2711) following the effective date of the
registration statement or prospectus relating to such offering, and at such underwriter’s request,
shall sign a lock-up agreement to such effect. Notwithstanding Section 7.2(b) above, the
obligations of the Existing Stockholders in this Section 7.3 shall survive the termination of this
Agreement.



     7.4 Restrictive Legend. During the term of this Agreement the certificate(s)
evidencing the Shares in the Company held by the Existing Stockholders subject to this Agreement
shall be inscribed by the Company with the following legend, or one substantially similar thereto:




          THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND MAY NOT BE SOLD, EXCHANGED, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH AND SUBJECT TO ALL THE TERMS AND
CONDITIONS OF A STOCKHOLDERS AGREEMENT, AS AMENDED FROM TIME TO TIME, A
COPY OF WHICH THE COMPANY WILL FURNISH TO THE HOLDER OF THIS CERTIFICATE UPON
REQUEST AND WITHOUT CHARGE.



Stockholders Agreement — Page 17



 









 





     7.5 Entire Agreement; Amendment; Waivers. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof. No provision of this Agreement
may be amended except by an instrument in writing executed by (a) the Company, (b) the Security
Holders holding at least a majority in interest (as determined by the aggregate number of votes
held directly and through the Voting Trustee in accordance with the Voting Trust) of the
then-outstanding shares of Common Stock and Special Voting Stock (but excluding for the purposes of
determining such majority during the period that there are outstanding at least 7,051,373 shares of
Preferred Stock, any Conversion Shares), and (c) the Purchasers holding at least a majority of the
then-outstanding shares of Preferred Stock, voting together as a single class and on an
as-converted basis. Any of the provisions of this Agreement may be waived by an instrument in
writing executed and delivered by Purchasers holding at least a majority of the then-outstanding
shares of Preferred Stock, voting together as a single class and on an as-converted basis. Any
waiver by any party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of that provision or of any other provision hereof.



     7.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to the principles of the conflicts of
laws thereof.



     7.7 Additional Parties. The Company shall take all necessary action to ensure that
each person who shall after the date hereof acquires any issued and outstanding Shares in the
Company or securities of the Company exercisable or convertible into Shares in the Company,
including without limitation, upon exchange of the Subsidiary Exchangeable Shares or upon exercise
of any option or warrant to purchase Shares in the Company, shall become a party to this Agreement
by executing and delivering to the Company an Instrument of Adherence, and such additional party
shall thereafter be added to Annex I hereto and be deemed an Existing Stockholder for all
purposes of this Agreement without the requirement of consent of the other parties hereto.



     7.8 Severability. If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.



     7.9 Captions. Captions are for convenience only and are not deemed to be part of this
Agreement.



     7.10 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures delivered by facsimile transmission shall be deemed to be originals
notwithstanding the failure subsequently to deliver a hard copy thereof.



Stockholders Agreement — Page 18



 









 





     7.11 Aggregation of Stock. All Shares in the Company held or acquired by affiliates of
the Existing Stockholders shall be aggregated together for purposes of determining the availability
or discharge of any rights under this Agreement.



     7.12 Assignment. The rights of the Purchasers hereunder are assignable by each
Purchaser (i) to any other Purchaser, (ii) to a constituent, partner, member, shareholder or
affiliate of such Purchaser, or to an entity or entities controlled by, or under common control
with, or otherwise affiliated with, such Purchaser, or (iii) to an assignee or transferee who
acquires any of the Shares in the Company purchased by a Purchaser (as adjusted for any stock
combination, stock split, stock dividend, recapitalization or other similar transaction); provided
that the rights of such transferring Purchaser are being assigned with the Shares in the Company.



     7.13 Gender and Number. In this Agreement wherever the singular and masculine are used
they shall be construed as if the plural or the feminine or the neuter had been used, where the
context and the party or parties so require, and the rest of the sentence shall be construed as if
the grammatical and terminological changes thereby rendered necessary had been made.



     7.14 Independent Legal Advice. Each Existing Stockholder hereby acknowledges that he
has been advised to obtain independent legal advice with regard to this Agreement and either has
done so or has waived his right to do so.



     7.15 Further Assurances. Each of the Existing Stockholders hereto agrees to sign such
further agreements, assurances, papers and documents, attend such meetings, enact such by-laws,
pass such consents and resolutions and exercise such votes and generally do and perform or cause to
be done and performed such further and other acts and things that may be necessary or desirable
from time to time in order to give full effect to this Agreement and every part thereof.



     7.16 No Partnership. Nothing in this Agreement shall be deemed in any way or for any
purpose to constitute any party a partner of any other party to this Agreement in the conduct of
any business or otherwise or a member of a joint venture or joint enterprise with any other party
to this Agreement.



Stockholders Agreement — Page 19



 









 





     7.17 Section 240 of the OBCA. Each of the parties acknowledge having been
advised by legal counsel of the provisions of Section 240 of the OBCA dealing with rights of
shareholders against, inter alia, oppressive or unfairly prejudicial actions. The parties agree
that all of the terms and conditions of this Agreement are fair, reasonable and equitable and have
been agreed to willingly and with full comprehension and therefore each of the parties further
agrees that it shall not exercise any of the rights contained in the said Section 240 to oppose,
circumvent or thwart any actions which may be taken or any results which may flow therefrom
pursuant to the terms of this Agreement.



     7.18 Time. Time shall be and remain of the essence of this Agreement and every part
hereof.



     7.19 Currency. All references to “$” or “dollars” shall refer to United Stated dollars
unless otherwise explicitly stated.



     7.20 Termination of Prior Agreement. The Prior Agreement shall be of no further force
and effect, and shall be amended and restated in its entirety by this Agreement.



[remainder of page intentionally left blank]




Stockholders Agreement — Page 20



 









 






     IN WITNESS WHEREOF, the undersigned parties have duly executed this Stockholders Agreement as
of the date first above written.



	 	 	 	 	 
	 	COMPANY:



ELOQUA LIMITED

 	 
	 	By:  	/s/ Joseph P. Payne	 
	 	  	Name: Joseph P. Payne	 
	 	 	Title:
President & CEO	 
	 
	 	PURCHASERS:



JMI EQUITY FUND IV, L.P.

 	 
	 	By:  JMI Associates IV, L.L.C., its General 
Partner 	 
	 
	 	By:  	/s/ Brad Woloson	 
	 	  	Name: Brad Woloson	 
	 	 	Title: Managing Member	 
	 
	 	JMI EQUITY FUND IV(AI), L.P.

 	 
	 	By:  JMI Associates IV, L.L.C., its General 
Partner
 	 
	 
	 	By:  	/s/ Brad Woloson	 
	 	  	Name: Brad Woloson	 
	 	 	Title: Managing Member	 
	 



Stockholders Agreement — Page 21



 









 





COUNTERPART SIGNATURE PAGE TO

STOCKHOLDERS AGREEMENT



	 	 	 	 	 
	 	PURCHASERS:



BAY PARTNERS X, L.P.

 	 
	 	By:  Bay Management Company X, LLC, 
General Partner 	 
	 
	 	By:  	/s/ Neal Dempsey	 
	 	  	Name: Neal Dempsey	 
	 	 	Title: Manager	 
	 
	 	BAY PARTNERS X ENTREPRENEURS FUND, L.P.

 	 
	 	By:  Bay Management Company X, LLC, General 
Partner
 	 
	 
	 	By:  	/s/ Neal Dempsey	 
	 	  	Name: Neal Dempsey	 
	 	 	Title: Manager	 
	 



Stockholders Agreement — Page 22



 









 





COUNTERPART SIGNATURE PAGE TO

STOCKHOLDERS AGREEMENT




	 	 	 	 	 
	 	PURCHASERS:

 	 
	 	BESSEMER VENTURE PARTNERS VII L.P.
 	 
	 	 	 	 
	 	BESSEMER VENTURE PARTNERS VII INSTITUTIONAL L.P. 	 
	 
	 	By:   Deer VII & Co. L.P., their General Partner
 	 
	 	 	 	 
	 	By:  Deer VII & Co. Ltd., its General Partner 	 
	 	 	 
	 	By:  	/s/ Scott Ring	 
	 	 	Scott Ring, General Counsel 	 
	 



Stockholders Agreement — Page 23



 









 






COUNTERPART SIGNATURE PAGE TO

STOCKHOLDERS AGREEMENT




	 	 	 	 	 
	 	MAJOR HOLDERS:

 	 
	 	/s/
Mark Organ	 
	 	Mark Organ 	 
	 
	 	 
 	 
	 	Harvey Organ 	 
	 	 	 
	 	/s/
Steve Woods	 
	 	Steve Woods 	 
	 	 	 	 
	 	/s/ Abe Wagner	 
	 	Abe Wagner 	 
	 



Stockholders Agreement — Page 24



 









 






COUNTERPART SIGNATURE PAGE TO

STOCKHOLDERS AGREEMENT



	 	 	 	 	 
	 	ELOQUA CANADA:



ELOQUA CORPORATION

 	 
	 	By:  	/s/ Joseph P. Payne
 	 
	 	 	Name:  	Joseph P. Payne 	 
	 	 	Title:  	President 	 
	 
	 	VOTING TRUSTEE:



GOWLINGS CANADA INC.

 	 
	 	By:  	/s/ Sharon Mitchell
 	 
	 	 	Name:  	Sharon Mitchell 	 
	 	 	Title:  	Secretary 	 



 








 





ANNEX I




ELOQUA LIMITED



Instrument of Adherence




          The undersigned, _____________________, in order to become the owner or holder of ________
shares of the capital stock of ELOQUA LIMITED, a Delaware corporation (the “Company”),
hereby agrees to become a party to that certain Amended and Restated Stockholders Agreement (the
“Agreement”) dated as of ________, 2007, among the Company and the other parties thereto,
and to be bound by all provisions thereof. The undersigned agrees to become an Existing Stockholder
(as defined in the Agreement) under the terms of the Agreement. This Instrument of Adherence shall
take effect and shall become a part of said Agreement immediately upon execution by the undersigned
hereto and acceptance thereof by the Company.



     EXECUTED as a contract under seal as of the date set forth below:



	 	 	 	 	 
	 	 	 
	 	Signature: 	 	 
	 
	 	Name:
	 	 
	 
	 	By:  
	 	 
	 
	 	Address:  
	 
	 
	 	 	 


	 	 	 	 	 
	 	 	 
	 	 	 
	 	Social Security
No.:  

	 
	 	Date:

	 
	 
	 	Accepted:  	 
	 
	 	ELOQUA LIMITED  
	 
	 	By:  	 	 
	 	  	Name:	 
	 	  	Title: 	 
	 	  	Date:
 
	 
	 



Stockholders Agreement — Page 26



 









 






Schedule I



Purchasers:




JMI Equity Fund IV L.P.

c/o JMI Management, Inc.

2 Hamill Road

Suite 272

Baltimore, Maryland 21210




JMI Equity Fund IV (AI) L.P.

c/o JMI Management, Inc.

2 Hamill Road

Suite 272

Baltimore, Maryland 21210




Bay Partners X, L.P.

10600 N. De Anza Blvd.

Suite #100

Cupertino, CA 95014




Bay Partners X Entrepreneurs Fund, L.P.

10600 N. De Anza Blvd.

Suite #100

Cupertino, CA 95014




Bessemer Venture Partners VII L.P.

1865 Palmer Avenue, Suite 104

Larchmont, NY 10538




Bessemer Venture Partners VII Institutional L.P.

1865 Palmer Avenue, Suite 104

Larchmont, NY 10538



Existing Holders:




	 	 	 	 	 
	 	 	Name	 	 
	1.

	 	Gowlings Canada Inc.
	 	 
	 
	 	 	 	 
	2.

	 	Mark Organ
	 	 

	 
	 	 	 	 
	3.

	 	Harvey Organ
	 	 





 Stockholders Agreement — Page 27



 









 







	 	 	 	 
	 	 	Name	 
	4.

	 	Steve Woods
	 
	 
	 	 	 
	5.

	 	Abe Wagner
	 
	 
	 	 	 
	6.

	 	Adriano Basso
	 
	 
	 	 	 
	7.

	 	Rex Bishop and Peter Howard
Cass for “Cass & Bishop”
	 
	 
	 	 	 
	8.

	 	R. Benjamin Carnovale
	 
	 
	 	 	 
	9.

	 	Jason Chan
	 
	 
	 	 	 
	10.

	 	Mark Collins
	 
	 
	 	 	 
	11.

	 	Andrea Corey
	 
	 
	 	 	 
	12.

	 	Mike Couch
	 
	 
	 	 	 
	13.

	 	Stuart Currie
	 
	 
	 	 	 
	14.

	 	Corinne B. Dahman
	 
	 
	 	 	 
	15.

	 	Linda David
	 
	 
	 	 	 
	16.

	 	Patil Demerji
	 
	 
	 	 	 
	17.

	 	Bernard Foster
	 
	 
	 	 	 
	18.

	 	Michael Hanna
	 
	 
	 	 	 
	19.

	 	Ethan Henry
	 
	 
	 	 	 
	20.

	 	Scott Hill
	 





Stockholders Agreement — Page 28




 









 







	 	 	 	 
	 	 	Name	 
	21.

	 	Jeffrey Kadanoff
	 
	 
	 	 	 
	22.

	 	Juanita Koo
	 
	 
	 	 	 
	23.

	 	Gigi Lau
	 
	 
	 	 	 
	24.

	 	Daniel Leibu
	 
	 
	 	 	 
	25.

	 	Peter Leung
	 
	 
	 	 	 
	26.

	 	Greg Lui
	 
	 
	 	 	 
	27.

	 	Greg Mortimer
	 
	 
	 	 	 
	28.

	 	Sumit Oberai
	 
	 
	 	 	 
	29.

	 	Gordon Organ
	 
	 
	 	 	 
	30.

	 	Stephan Organ
	 
	 
	 	 	 
	31.

	 	Ruby Osten
	 
	 
	 	 	 
	32.

	 	Jim Pappas
	 
	 
	 	 	 
	33.

	 	Chris Petko
	 
	 
	 	 	 
	34.

	 	W. David Petras
	 
	 
	 	 	 
	35.

	 	Jeff Porter
	 
	 
	 	 	 
	36.

	 	Eva Riekers
	 
	 
	 	 	 
	37.

	 	Ralf Riekers
	 
	 
	 	 	 
	38.

	 	Aaron Riley
	 





Stockholders Agreement — Page 29




 









 







	 	 	 	 
	 	 	Name	 
	39.

	 	Walter Spracklin for
“Sampo Investments” aka
“SNP Funds”
	 
	 
	 	 	 
	40.

	 	Vince Schiralli
	 
	 
	 	 	 
	41.

	 	Eric Schouten
	 
	 
	 	 	 
	42.

	 	Manjula Selvarajah
	 
	 
	 	 	 
	43.

	 	Sharon Shin
	 
	 
	 	 	 
	44.

	 	Tim Snelgrove
	 
	 
	 	 	 
	45.

	 	Anusha Srijeyanathan
	 
	 
	 	 	 
	46.

	 	Catherine Stafford
	 
	 
	 	 	 
	47.

	 	Joan Stafford
	 
	 
	 	 	 
	48.

	 	Kevin Stafford
	 
	 
	 	 	 
	49.

	 	Ron Stafford
	 
	 
	 	 	 
	50.

	 	Michael Stefan
	 
	 
	 	 	 
	51.

	 	Andrew Stok
	 
	 
	 	 	 
	52.

	 	Jordana Strigberger
	 
	 
	 	 	 
	53.

	 	Khurram Syed
	 
	 
	 	 	 
	54.

	 	Paul Teshima
	 
	 
	 	 	 
	55.

	 	Barbara Teskey
	 
	 
	 	 	 
	56.

	 	Ben Wagner
	 
	 
	 	 	 
	57.

	 	Mitchell Walker
	 





Stockholders Agreement — Page 30




 









 







	 	 	 	 
	 	 	Name	 
	58.

	 	Stuart Wheldon
	 
	 
	 	 	 
	59.

	 	Josephine Woods
	 
	 
	 	 	 
	60.

	 	Mark Woods
	 
	 
	 	 	 
	61.

	 	Mike Zaranyik
	 
	 
	 	 	 
	62.

	 	Valerie Frasier
	 
	 
	 	 	 
	63.

	 	Eric Diggins
	 
	 
	 	 	 
	64.

	 	Larry Augustin
	 
	 
	 	 	 
	65.

	 	Michele Perry
	 
	 
	 	 	 
	66.

	 	Anurag Srivastava
	 
	 
	 	 	 
	67.

	 	Harry Weller
	 





Stockholders Agreement — Page 31




 









 






SCHEDULE III




Eloqua Limited



CERTIFICATE


TO: Eloqua Limited, a Delaware corporation (“US Co.”)




The undersigned hereby represents and warrants to US Co:

(Please check the applicable box)




	 	 	 	 	 
	A.

	 	o
	 	The undersigned is not a U.S. Person (as defined below) and will not hold the shares of Standard Common Stock
of US Co. issued in exchange for the undersigned’s shares in the capital stock of Eloqua Corporation, a
corporation organized under the laws of the Province of Ontario and subsidiary of the US Co., for the account
of a U.S. Person, is a resident of one of the Provinces of Alberta, Manitoba, British Columbia, Newfoundland
and Laborador, Ontario, Nova Scotia, Prince Edward Island, Quebec or Saskatchewan or the Northwest Territories
or Nunavut and is an “accredited investor” within the meaning of National Instrument 45-106, as amended from
time to time; or
	 
	B.

	 	o
	 	The undersigned is not a U.S. Person (as defined below) and will not hold the shares of Standard Common Stock
of US Co. issued in exchange for the undersigned’s shares in the capital stock of Eloqua Corporation for the
account or benefit of a U.S. Person and is an employee of US Co., Eloqua Corporation or an affiliate thereof;
or
	 
	C.

	 	o
	 	The undersigned is a U.S. Person and is an “Accredited Investor” as defined in Rule 501 under the Securities
Act (as defined below); or
	 
	D.

	 	o
	 	The undersigned is a U.S. Person but is not an “Accredited Investor”; or
	 
	E.

	 	o
	 	The undersigned is not a U.S. Person but is not a person set out in A or B above.





The undersigned shareholder of Eloqua Corporation (a “Eloqua Shareholder”) covenants, represents
and warrants that (i) the undersigned is the owner of the Exchangeable Common Shares in the capital
of US Co. being exchanged, (ii) such shares are owned by the undersigned free and clear of all
mortgages, liens, charges, encumbrances, security interests and adverse claims, and (iii) the
undersigned has full power and authority to execute and deliver this Certificate and all
information inserted into this Certificate by the undersigned is accurate.



The undersigned Eloqua Shareholder acknowledges that the Exchangeable Common Shares in the capital
of Eloqua Corporation and Standard Common Stock of US Co. have




Stockholders Agreement — Page 32



 









 




not been registered under the United States Securities Act of 1933, as amended (the “Securities
Act”), and therefore, cannot be resold unless they are registered under the Securities Act or
unless an exemption from registration is available.



The undersigned Eloqua Shareholder covenants, represents and warrants that it shall not resell any
Standard Common Stock of US Co issued in exchange for its Exchangeable Common Shares unless such
sale is in accordance with the provisions of Regulation S under the Securities Act, pursuant to
registration under the Securities Act, or pursuant to an available exemption from registration; or
engage in hedging transactions with regard to such securities unless in compliance with the
Securities Act.



For the purposes of the certifications herein, “U.S. Person” means: (i) any natural person
resident in the United States; (ii) any partnership or corporation organized or incorporated under
the laws of the United States; (iii) any estate of which any executor or administrator is a U.S.
Person; (iv) any trust of which any trustee is a U.S. Person; (v) any agency or branch of a foreign
entity located in the United States; (vi) any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
Person; (vii) any discretionary account or similar account (other than an estate or trust) held by
a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United
States; and (viii) any partnership or corporation if: (A) organized or incorporated under the laws
of any foreign jurisdiction; and (B) formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule 501(a) under the Securities
Act) who are not natural persons, estates or trusts; provided, however, the following are
not “U.S. Persons”: (i) any discretionary account or similar account (other than an estate
or trust) held for the benefit or account of a non-U.S. Person by a dealer or other professional
fiduciary organized, incorporated, or (if an individual) resident in the United States; (ii) any
estate of which any provisional fiduciary acting as executor or administrator in a U.S. Person if:
(A) an executor or administrator of the estate who is not a U.S. Person has sole or shared
investment discretion with respect to the assets of the estate; and (B) the estate is governed by
foreign law; (iii) any trust of which any professional fiduciary acting as trustee is a U.S.
Person, if a trustee who is not a U.S. Person has sole and shared investment discretion with
respect to the trust assets, and no beneficiary of the trust (and no settler if the trust is
revocable) is a U.S. Person; (iv) an employee benefit plan established and administered in
accordance with the law of a country other than the United States and customary practices and
documentation of such country; (v) any agency or branch of a U.S. Person located outside the United
States if: (A) the agency or branch operates for valid business reasons; and (B) the agency or
branch is engaged in the business of insurance or banking and is subject to substantive insurance
or banking regulation, respectively, in the jurisdiction where located; and (vi) the International
Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American
Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, and
their agencies, affiliates and pension plans, and any other similar international organizations,
their agencies, affiliates and pension plans.




Stockholders Agreement — Page 33



 









 





For the purposes of the certifications herein, “Accredited Investor” shall mean any person who
comes within any of the following categories:





	1.	 	Any bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the Securities Act
whether acting in its individual or fiduciary capacity; any broker or dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934; any insurance company as
defined in Section 2(a)(13) of the Securities Act; any investment company registered under the
Investment Company Act of 1940 or a business development company as defined in Section
2(a)(48) of that Act; any Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business Investment Act of
1958; any plan established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of $5,000,000; any employee benefit plan
within the meaning of the Employee Retirement Income Security Act of 1974 if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either
a bank, savings and loan association, insurance company, or registered investment adviser, or
if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed
plan, with investment decisions made solely by persons that are accredited investors;
	 
	2.	 	Any private business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940;
	 
	3.	 	Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or partnership, not formed for the specific purpose
of acquiring the securities offered, with total assets in excess of $5,000,000;
	 
	4.	 	Any director, executive officer, or general partner of the issuer of the securities being
offered or sold, or any director, executive officer, or general partner of a general partner
of that issuer;
	 
	5.	 	Any natural person whose individual net worth, or joint net worth with that person’s spouse,
at the time of his purchase exceeds $1,000,000;
	 
	6.	 	Any natural person who had an individual income in excess of $200,000 in each of the two most
recent years or joint income with that person’s spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the same income level in the current year;




Stockholders Agreement — Page 34



 









 







	7.	 	Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii); or
	 
	8.	 	Any entity in which all of the equity owners are accredited investors.





     The covenants, representations and warranties of the undersigned herein contained shall
survive the exchange of the Exchangeable Common Shares of the undersigned.



DATED:                                         , 200  .




	 	 	 	 	 
	 	  	
 	 
	 	 	(Signature of Shareholder or authorized representative) 	 
	 
	 	  	
 	 
	 	 	(Signature of any joint holder) 	 
	 
	 	  	
 	 
	 	 	(Name of Shareholder) (please print) 	 
	 
	 	 	
 	 
	 	 	(Name of authorized representative) (please print) 	 
	 	 	 	 
	 




Stockholders Agreement — Page 35




 











 






AMENDMENT TO AMENDED AND RESTATED




STOCKHOLDERS AGREEMENT




     This AMENDMENT TO THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT is entered into as of July
27, 2011 by and among Eloqua Limited, a Delaware corporation (the “Company”), Eloqua
Corporation, a corporation organized under the laws of the Province of Ontario and subsidiary of
the Company (the “Subsidiary”), Gowlings Canada Inc. (the “Voting Trustee”), the
purchasers (the “Purchasers”) listed on the signature pages attached hereto, and Abe Wagner
and Steven Woods (the “Major Holders”) and certain other holders of Common Stock of the
Company or Subsidiary Exchangeable Shares representing a Security Holder Majority (as defined
below). All capitalized terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Stockholders Agreement (as defined below).



Recitals



WHEREAS, the Company, the Subsidiary, the Voting Trustee, the Purchasers, the Major Holders and
certain other parties are parties to that certain Amended and Restated Stockholders Agreement dated
as of September 27, 2007 (the “Stockholders Agreement”); and



WHEREAS, pursuant to Section 7.5 of the Stockholders Agreement, (i) the Company, (ii) the Security
Holders holding at least a majority in interest (as determined by the aggregate number of votes
held directly and through the Voting Trustee in accordance with the Voting Trust) of the
then-outstanding shares of Common Stock and Special Voting Stock (but excluding for the purposes of
determining such majority during the period that there are outstanding at least 7,051,373 shares of
Preferred Stock, any Conversion Shares) (a “Security Holder Majority”), and (iii) the
Purchasers holding at least a majority of the then-outstanding shares of Preferred Stock, voting
together as a single class and on an as-converted basis, desire to amend the Stockholders Agreement
as set forth herein.



NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms,
provisions and conditions set forth in this Amendment to the Stockholders Agreement and other good
and valuable consideration, the parties hereby agree:




     1. Section 2.1 of the Stockholders Agreement is hereby amended by deleting the reference to
“five (5)” in the first sentence of Section 2.1 and replacing such reference with “seven (7)”, such
that the number of directors shall be no more than seven (7).



     2. A new section 2.2 (f) shall be added immediately following the existing Section 2.2(e), as
follows:



     “(e) to cause the election to, and maintain as a member of, the Board of Directors two (2)
persons designated by the holders of a majority in interest (as determined by the aggregate number
of votes held directly and through the Voting Trustee in accordance with the Voting Trust
Agreement) of the issued and outstanding shares of Preferred Stock, Common Stock and Special Voting
Stock, voting together as a single class and on an as-converted basis, who is elected by the
holders of a majority in interest (as determined by the aggregate number of votes



 









 




held directly and through the Voting Trustee in accordance with the Voting Trust Agreement) of the
issued and outstanding shares of Preferred Stock, Common Stock and Special Voting Stock, voting
together as a single class and on an as-converted basis (the “Additional Directors”).”




     3. A new section 2.3(f) shall be added immediately following the existing Section 2.3(e),
as follows:



     “(f) Additional Directors. Each Additional Director shall serve until his successor
is elected and qualified or until his earlier resignation or removal. Each Additional Director may
be removed during his term of office, with or without cause, only at the direction of the holders
of at least a majority in interest (as determined by the aggregate number of votes held directly
and through the Voting Trustee in accordance with the Voting Trust Agreement) of the issued and outstanding shares of Preferred
Stock, Special Voting Stock and Common Stock, voting together as a single class and on an
as-converted basis, or by written consent of the holders of at least a majority in interest (as
determined by the aggregate number of votes held directly and through the Voting Trustee in
accordance with the Voting Trust) of the issued and outstanding Preferred Stock, Special Voting
Stock and Common Stock. Any vacancy in the office of an Additional Director may be filled at the
direction of the parties in the preceding sentence in accordance with Section 2.2(f) hereto.”



     5. Except as expressly modified herein, the Stockholders Agreement shall remain in full force
and effect.



     6. This Amendment to the Stockholders Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which when
taken together shall constitute one and the same agreement.



[Remainder of page intentionally left blank]




2









 








     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Stockholders
Agreement to be duly executed and delivered by their proper and duly authorized representatives as
of the day and year first written above.



	 	 	 	 	 
	 	COMPANY:



ELOQUA LIMITED

 	 
	 	By:  	/s/ Joseph P. Payne
 	 
	 	 	Name:  	Joseph P. Payne 	 
	 	 	Title:  	President 	 



3









 






	 	 	 	 	 



	 	 	 	 	 	 	 

	 	 	PURCHASERS:
	 
	 	 	 	 	 	 
	 	 	JMI EQUITY FUND IV, L.P.
	 
	 	 	 	 	 	 
	 	 	By: JMI Associates IV, L.L.C., its General Partner  
	 
	 	 	 	 	 	 
	 

	 	By:  
	/s/ Brad Woloson	 	 
	 

	 	 	 	 	 
	 

	 	 	Name: 	Brad Woloson	 	 
	 

	 	 	Title:	Managing Member	 	 
	 
	 
	 
	 	 	 	 	 	 
	 	 	JMI EQUITY FUND IV(AI), L.P.
	 
	 	 	 	 	 	 
	 	 	By: JMI Associates IV, L.L.C., its General Partner
	 
	 	 	 	 	 	 
	 

	 	By:  
	/s/ Brad Woloson	 	 
	 

	 	 	 	 	 
	 

	 	 	Name: 	Brad Woloson	 	 
	 

	 	 	Title:	Managing Member	 	 






4









 







	 	 	 	 	 
	 	PURCHASERS:



BAY PARTNERS X, L.P.

 	 
	 	By:  	Bay Management Company X, LLC, General Partner
 	 
	 
	 	By:  	/s/ Neal Dempsey
 	 
	 	 	Name:  	Neal Dempsey 	 
	 	 	Title:  	Manager 	 
	 
	 	BAY PARTNERS X ENTREPRENEURS FUND, L.P.

 	 
	 	By:  	Bay Management Company X, LLC, General Partner
 	 
	 
	 	By:  	/s/ Neal Dempsey
 	 
	 	 	Name:  	Neal Dempsey 	 
	 	 	Title:  	Manager 	 



5









 







	 	 	 	 	 	 	 

	 	 	PURCHASERS:
	 
	 	 	 	 	 	 
	 	 	BESSEMER VENTURE PARTNERS VII L.P. 

BESSEMER VENTURE PARTNERS VII 

INSTITUTIONAL L.P.
	 
	 	 	 	 	 	 
	 	 	By: Deer VII & Co. L.P., their General Partner
	 
	 	 	By: Deer VII & Co. Ltd., its General Partner
	 
	 	 	 	 	 	 
	 

	 	By:  
	/s/ J. Edmund Colloton	 	 
	 

	 	
	 

Name: J. Edmund Colloton
	 	 
	 

	 	
	Title: Director 	 	 






6









 






	 	 	 	 	 

	 

	 	MAJOR HOLDERS:
	 	 
	 
	 	 	 	 
	 

	 	/s/ Steve Woods	 	 
	 

	 	 	 	 
	 

	 	Steve Woods	 	 
	 
	 	 	 	 
	 

	 	/s/ Abe Wagner	 	 
	 

	 	Abe Wagner	 	 






7









 






	 	 	 	 	 

	 

	 	EXISTING STOCKHOLDERS
	 	 
	 
	 	 	 	 
	 

	 	/s/ Gregory Lui
 

Gregory Lui
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	/s/ Andrea Corey 

Andrea Corey
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	/s/ Ralf Riekers 

Ralf Riekers
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	

	 	/s/ Paul Teshima 

Paul Teshima
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	/s/ Stuart Weldon 

Stuart Weldon
	 	 






8









 






	 	 	 	 	 
	 	ELOQUA CORPORATION

 	 
	 	By:  	/s/ Joseph P. Payne
 	 
	 	 	Name:  	Joseph P. Payne  	 
	 	 	Title:  	President 	 



9









 






	 	 	 	 	 



	 	 	 	 	 
	 	VOTING TRUSTEE



GOWLINGS CANADA INC.

 	 
	 	By:  	/s/ Sharon Mitchell
 	 
	 	 	Name:  	SHARON MITCHELL 	 
	 	 	Title:  	SECRETARY 	 



	 	 	 

	 

	 	The Voting Trustee executes this Amendment, having received instructions from the Major Holders and
Existing Stockholders with respect to the Exchangeable Common Shares held by each such party.







10