exv4w4




Exhibit 4.4


THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO RULE 144 OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.




WARRANT TO PURCHASE STOCK




	 	 	 	 	 
	 

	 	Corporation:
	 	ELOQUA LIMITED, a Delaware corporation
	 
	 	 	 	 
	 

	 	Number of Shares:
	 	The quotient derived by dividing $90,000 by the

applicable Initial Exercise Price
	 
	 	 	 	 
	 

	 	Class of Stock:
	 	Series C Preferred Stock; provided, however, if such
stock is not issued and sold by the Company on or
before June 29, 2008, the class of stock issuable upon
exercise of this Warrant shall be Series B Preferred
Stock
	 
	 	 	 	 
	 

	 	Initial Exercise Price:
	 	The price per share at which the Series C Preferred
Stock is sold; provided, however, that if such stock is
not issued and sold by the Company on or before June
29, 2008, the initial exercise price shall be $1.46 per
Share
	 
	 	 	 	 
	 

	 	Issue Date:
	 	June 29, 2007
	 
	 	 	 	 
	 

	 	Expiration Date:
	 	June 29, 2014 (Subject to Section 4.1)






     THIS WARRANT TO PURCHASE STOCK (“WARRANT”) CERTIFIES THAT, for good and valuable
consideration, the receipt of which is hereby acknowledged, COMERICA BANK, a Michigan banking
corporation, or its assignee (“Holder”), is entitled to purchase the number of fully paid and
nonassessable shares of the class of securities (the “Shares”) of ELOQUA LIMITED, a Delaware
corporation (the “Company”) at the initial exercise price per Share (the “Warrant Price”) all as
set forth above and as adjusted pursuant to this Warrant, subject to the provisions and upon the
terms and conditions set forth in this Warrant.



ARTICLE 1

EXERCISE




     1.1 Method of Exercise. Holder may exercise this Warrant by delivering this Warrant
and a duly executed Notice of Exercise in substantially the form attached as Appendix 1 to the
principal office of the Company. Holder shall also deliver to the Company a check or wire for the
aggregate Warrant Price for the Shares being purchased.



     1.2 Delivery of Certificate and New Warrant. Within 45 days after Holder exercises
this Warrant, the Company shall deliver to Holder certificates for the Shares acquired and, if this
Warrant has not been fully exercised and has not expired, a new warrant representing the Shares not
so acquired.



 









 





     1.3 Replacement of Warrants. In the case of loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the
Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company
at its expense shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.



     1.4 Acquisition of the Company.




     1.4.1 “Acquisition.” For the purpose of this Warrant, “Acquisition”
means (a) any sale, license, or other disposition of all or substantially all of the assets
(including intellectual property) of the Company, or (b) any reorganization, consolidation,
merger or sale of the voting securities of the Company or any other transaction where the
holders of the Company’s securities before the transaction beneficially own less than 50% of
the outstanding voting securities of the surviving entity after the transaction.




     1.4.2 Treatment of Warrant in the Event of an Acquisition. The Company shall
give Holder written notice at least 20 days prior to the closing of any proposed Acquisition.
The Company will use its best efforts to cause the acquirer of the Company under the
Acquisition (the “Acquirer”) to assume this Warrant as a part of the Acquisition.




     (A) If the Acquirer assumes this Warrant, then this Warrant shall be exercisable
for the same securities, cash, and property as would be payable for the Shares issuable
upon exercise of the unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent closing. The Warrant
Price shall be adjusted accordingly, and the Warrant Price and number and class of
Shares shall continue to be subject to adjustment from time to time in accordance with
the provisions hereof.




     (B) If the Acquirer refuses to assume this Warrant in connection with the
Acquisition, the Company shall give Holder an additional written notice at least 5 days
prior to the closing of the Acquisition of such fact. In such event, notwithstanding
any other provision of this Warrant to the contrary, Holder may immediately exercise
this Warrant in the manner specified in this Warrant with such exercise
effective immediately prior to closing of the Acquisition. If Holder elects not to
exercise this Warrant, then this Warrant will terminate immediately prior to the
closing of the Acquisition; provided, however, that if the consideration payable to
the Company and/or its shareholders, as applicable, under the Acquisition (the
“Acquisition Consideration”) is to consist of privately traded securities, then
Holder shall have the option, effective prior to the closing of the Acquisition, to
put this Warrant to the Company as follows:




     (i) Holder shall provide written notice of the put to the Company prior to the closing of the Acquisition;




     (ii) prior to or simultaneously with the closing of the Acquisition,
the Company shall pay Holder an amount equal to:




     (1) the value of one Share determined by dividing: (i)
the total Acquisition Consideration, by (ii) the number of fully
diluted shares of the Company determined immediately prior to the closing
of the Acquisition; multiplied by



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     (2) the number of Shares exercisable under this Warrant; minus




     (3) the Warrant Price, multiplied by the number of Shares for which this Warrant is exercisable; and




     (iii) upon payment to Holder of the above amount, this Warrant
shall be deemed canceled.



ARTICLE 2

ADJUSTMENTS TO THE SHARES




     2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on its
common stock payable in common stock, or other securities, or subdivides the outstanding common
stock into a greater amount of common stock, then upon exercise of this Warrant, for each Share
acquired, Holder shall receive, without cost to Holder, the total number and kind of securities
to which Holder would have been entitled had Holder owned the Shares of record as of the date the
dividend or subdivision occurred.



     2.2 Reclassification, Exchange or Substitution. Upon any reclassification, exchange,
substitution, or other event that results in a change of the number and/or class of the securities
issuable upon exercise or conversion of this Warrant, Holder shall be entitled to receive, upon
exercise or conversion of this Warrant, the number and kind of securities and property that Holder
would have received for the Shares if this Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Such an event shall include any automatic
conversion of the outstanding or issuable securities of the Company of the same class or series as
the Shares to common stock pursuant to the terms of the Company’s Certificate of Incorporation upon
the closing of a registered public offering of the Company’s common stock. The Company or its
successor shall promptly issue to Holder a new warrant for such new securities or other property.
The new warrant shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property issuable upon exercise
of the new warrant. The provisions of this Section 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other events.



     2.3
Adjustments for Combinations, Etc. If the outstanding Shares are combined or
consolidated, by reclassification, reverse split or otherwise, into a lesser Number of Shares, the
Warrant Price shall be proportionately increased. If the outstanding Shares are split or
multiplied, by reclassification or otherwise, into a greater Number of Shares, the Warrant Price
shall be proportionately decreased.



     2.4 Adjustments for Diluting Issuances. The Warrant Price and the Number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment, from time to time, in the
manner set forth on Exhibit A, if attached, in the event of Diluting Issuances (as defined on
Exhibit A).



     2.5 No Impairment. The Company shall not, by amendment of its Certificate of
Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution,
issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this Warrant by the Company,
but shall at all times in good faith assist in carrying out all the provisions of this Article 2
and in taking all such action as may be necessary or appropriate to protect Holder’s rights under
this Article 2 against impairment.



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     2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant Price, the
Company at its expense shall promptly compute such adjustment, and furnish Holder with a
certificate signed by its Chief Financial Officer setting forth such adjustment and the facts upon
which such adjustment is based. The Company shall, upon written request, furnish Holder a
certificate setting forth the Warrant Price in effect upon the date thereof and the series of
adjustments leading to such Warrant Price.



     2.7 Fractional Shares. No fractional Shares shall be issuable upon exercise of this
Warrant and the Number of Shares to be issued shall be rounded down to the nearest whole Share.
If a fractional share interest arises upon any exercise of the Warrant, the Company shall
eliminate such fractional share interest by paying Holder an amount computed by multiplying the
fractional interest by the fair market value, as determined by the Company’s Board of Directors,
of a full Share.



ARTICLE 3

REPRESENTATIONS AND COVENANTS OF THE COMPANY




     3.1 Representations and Warranties. The Company hereby represents and warrants to, and
agrees with, the Holder as follows:




     3.1.1 Intentionally Omitted.




     3.1.2 All Shares which may be issued upon the exercise of the purchase right
represented by this Warrant, and all securities, if any, issuable upon conversion of the
Shares, shall, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free of any liens and encumbrances except for restrictions on transfer
provided for herein or under applicable federal and state securities laws.




     3.1.3 The Company’s capitalization table attached to this Warrant is true and complete
as of the Issue Date.



     3.2 Notice of Certain Events. If the Company proposes at any time (a) to declare any
dividend or distribution upon its stock, whether in cash, property, stock, or other securities, and
whether or not a regular cash dividend; (b) to offer for subscription pro rata to the holders
of any class or series of its stock any additional shares of stock of any class or series or other
rights; (c) to effect any reclassification or recapitalization of stock; or (d) to merge or
consolidate with or into any other corporation, or sell, lease, license, or convey all or
substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with
each such event, the Company shall give Holder (1) at least 20 days prior written notice of
the date on which a record will be taken for such dividend, distribution, or subscription rights
(and specifying the date on which the holders of stock will be entitled thereto) or for determining
rights to vote, if any, in respect of the matters referred to in (a) and (b) above; and (2) in the
case of the matters referred to in (c) and (d) above at least 20 days prior written notice of the
date when the same will take place (and specifying the date on which the holders of stock will be
entitled to exchange their stock for securities or other property deliverable upon the occurrence
of such event).



     3.3 Information Rights. After the termination of the Loan Agreement, made as of June
29, 2007, by and among the Company, Eloqua Limited and Comerica Bank (as amended from time to
time, the “Loan Agreement”) and so long as the Holder holds this Warrant and/or any of the Shares,
the Company shall deliver to the Holder (a) promptly after mailing, copies of all communiqués to
the shareholders of the Company, (b) within ninety (90) days after the end of each fiscal year of
the Company, the annual audited financial statements of the Company certified by independent public
accountants of recognized standing and (c) within forty-five (45) days after the end of each of the
first



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three quarters of each fiscal year, the Company’s quarterly, unaudited financial statements.



     3.4 Registration Under Securities Act of 1933, as amended. The Company agrees that
the Shares or, if the Shares are convertible into common stock of the Company, such common
stock, shall be subject to the registration rights set forth on Exhibit B.



ARTICLE 4

MISCELLANEOUS




     4.1 Term; Exercise Upon Expiration. This Warrant is exercisable in whole or in
part, at any time and from time to time on or before the Expiration
Date set forth above;
provided, however, that if the Company completes its initial public offering within the
three-year period immediately prior to the Expiration Date, the Expiration Date shall
automatically be extended until the third anniversary of the effective date of the Company’s
initial public offering. The Company shall give Holder written notice of Holder’s right to
exercise this Warrant not less than 90 days before the Expiration Date. If the notice is not so given,
the Expiration Date shall automatically be extended until 90 days after the date the Company delivers such notice to Holder.



     4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in
substantially the following form:




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO RULE 144 OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.



     4.3 Compliance with Securities Laws on Transfer. This Warrant and the Shares issuable
upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion
of the Shares, if any) may not be transferred or assigned in whole or in part without compliance
with applicable federal and state securities laws by the transferor and the transferee (including,
without limitation, the delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company). The Company shall not require Holder to provide an opinion of counsel
if the transfer is to an affiliate of Holder or if there is no material question as to the
availability of current information as referenced in Rule 144(c) under the Securities Act of 1933,
as amended (the “Securities Act”), Holder represents that it has complied with Rule 144(d) and (e)
under the Securities Act in reasonable detail, the selling broker represents that it has complied
with Rule 144(f) under the Securities Act, and the Company is provided with a copy of
Holder’s notice of proposed sale.



     4.4 Transfer Procedure. Subject to the provisions of Section 4.3, Holder may transfer
all or part of this Warrant or the Shares issuable upon exercise of this Warrant (or the securities
issuable, directly or indirectly, upon conversion of the Shares, if any) by giving the Company
notice of the portion of this Warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this Warrant to the Company for
reissuance to the transferee(s) (and Holder, if applicable); provided, however, that Holder may
transfer all or part of this Warrant to its affiliates, including, without limitation, Comerica
Incorporated, at any time without notice or the delivery of any other instrument to the
Company, and such affiliate shall then be entitled to all the rights of Holder



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under this Warrant and any related agreements, and the Company shall cooperate fully in ensuring
that any stock issued upon exercise of this Warrant is issued in the name of the affiliate that
exercises this Warrant. The terms and conditions of this Warrant shall inure to the benefit of, and
be binding upon, the Company and the holders hereof and their respective permitted successors and
assigns. Unless the Company is filing financial information with the SEC pursuant to the Securities
Exchange Act of 1934, the Company shall have the right to refuse to transfer any portion of this
Warrant to any person who directly competes with the Company.




     4.5 Notices. All notices and other communications from the Company to the Holder, or
vice versa, shall be deemed delivered and effective when given personally or mailed by first-class
registered or certified mail, postage prepaid, at such address as may have been furnished to the
Company or the Holder, as the case may be, in writing by the Company or such Holder from time to
time. All notices to the Holder shall be addressed as follows:


Comerica Bank c/o Comerica Incorporated

Attn: Warrant Administrator

500 Woodward Avenue, 32nd Floor, MC 3379

Detroit, MI 48226



All notices to the Company shall be addressed as follows:



Eloqua Limited

Attn: President

553 Richmond Street West,

Suite 214, Toronto, Ontario, M5V 1Y6




     4.6 Amendments. This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.



     4.7 Attorneys’ Fees. In the event of any dispute between the parties concerning the
terms and provisions of this Warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.



     4.8 Governing Law. This Warrant shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to its principles regarding conflicts of
law.



     4.9 Accredited Investor. Holder represents and warrants to the Company that it is
an “accredited investor” within the meaning of Rule 501 under the Securities Act.



     4.10 No Rights as Stockholder. This Warrant does not entitle the Holder to any voting right or
other rights as a stockholder of the Company prior to the exercise of this Warrant.



[SIGNATURE PAGE FOLLOWS]




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Holder has caused this Warrant to be executed as of the date and year first above written.




	 	 	 	 	 
	 	ELOQUA LIMITED

 	 
	 	By:  	/s/ David Harris Kolada	 
	 	 	Name:  	David Harris Kolada 	 
	 	 	Title:  	CFO 	 
	 



[signature page to Warrant (Eloqua Limited)]






 









 








APPENDIX 1


NOTICE OF EXERCISE





     1. The undersigned hereby elects to purchase _______ shares of
the _______ stock of ELOQUA LIMITED pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of
such shares in full.



     2. Please issue a certificate or certificates representing said shares in the name of the
undersigned or in such other name as is specified below:


Comerica Bank

Attn: Warrant Administrator

500 Woodward Avenue, 32nd Floor, MC 3379

Detroit, MI 48226




     3. The undersigned represents it is acquiring the shares solely for its own account and not as
a nominee for any other party and not with a view toward the resale or distribution thereof except
in compliance with applicable securities laws.



     4. The undersigned agrees to be bound to that certain Amended and Restated Investor Rights
Agreement dated August 25, 2006 as amended from time to time, between the Company and certain of
its stockholders, as an “Investor” solely for the purpose of the registration rights contained
therein.



	 	 	 	 	 
	COMERICA BANK or Assignee

 	 
	 	 
	(Signature) 	 
	 
	 	 
	(Name and Title)

	 
	 	 
	
(Date) 






 









 








EXHIBIT A




Anti-Dilution Provisions




     In the event of the issuance by the Company, after the Issue Date of this Warrant, of
securities at a price per share less than the Warrant Price (a “Diluting Issuance”), then the
number of shares of common stock issuable upon conversion of the Shares shall be adjusted in
accordance with those provisions (the “Provisions”) of the Company’s Certificate of Incorporation
which apply to Diluting Issuances in the same manner, if any, as the conversion rate of outstanding
shares of the same class and series of securities of the Company is adjusted.



     Under no circumstances shall the aggregate Warrant Price payable by the Holder upon exercise
of the Warrant increase as a result of any adjustment arising from a Diluting Issuance.



 









 





EXHIBIT B




Registration Rights



     The Shares (if common stock), or the common stock issuable upon conversion of the Shares,
shall be deemed “registrable securities” or otherwise entitled to “piggy back” registration rights
in accordance with the terms of the following agreement (the “Agreement”) between the Company and
its investors:




Amended
and Restated Investor Rights Agreement dated August 25, 2006 by and among
Company, Eloqua Corporation and the investors party thereto, as amended from time to
time.



     The Company agrees that no amendments will be made to the Agreement which would have an
adverse impact on Holder’s registration rights thereunder without the consent of Holder unless such
amendment affects all other holders of shares with equivalent registration rights in the same
manner. By acceptance of the Warrant to which this Exhibit B is attached, Holder shall be deemed to
be a party to the Agreement as an “Investor” solely for the purpose of the above-mentioned
registration rights.