exv4w5





Exhibit 4.5



THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT
TO THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN
THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.




WARRANT TO PURCHASE STOCK




	 	 	 

	Company: Eloqua Limited, a Delaware corporation
	Number of Shares: 93,750, subject to adjustment
	Class of Stock: Series C Preferred Stock, $0.0001 par value per share
	Warrant Price: $1.20, subject to adjustment
	Issue Date: December 28, 2010
	Expiration Date: December 28, 2017
	Credit Facility: 

	 	This Warrant is issued in connection with that certain
First Loan Modification Agreement, of even date
herewith, to that certain Loan and Security Agreement
dated June 15, 2009, among Silicon Valley Bank, the
Company and Eloqua Corporation (as further modified
and/or amended and in effect from time to time, the
“Loan Agreement”).






     THIS WARRANT CERTIFIES THAT, for good and valuable consideration, SILICON VALLEY BANK (Silicon
Valley Bank, together with any successor or permitted assignee or transferee of this Warrant or of
any shares issued upon exercise hereof, is referred to hereinafter as “Holder”) is entitled to
purchase the number of fully paid and non-assessable shares (the “Shares”) of the above-stated
Class of Stock (the “Class”) of the above-named company (the “Company”) at the above-stated Warrant
Price per Share, all as set forth above and as adjusted pursuant to Article 2 of 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 the original
of this Warrant together with a duly executed Notice of Exercise in substantially the form attached
as Appendix 1 to the principal office of the Company. Unless Holder is exercising the conversion
right set forth in Article 1.2, Holder shall also deliver to the Company a certified or bank check,
wire transfer (to an account designated by the Company), or other form of payment acceptable to the
Company for the aggregate Warrant Price for the Shares being purchased.


          1.2 Conversion Right. In lieu of exercising this Warrant as specified in Article 1.1,
Holder may from time to time convert this Warrant, in whole or in part, into a number of Shares
determined by dividing (a) the aggregate fair market value of the number of Shares or other
securities in respect of which this Warrant is being converted, minus the aggregate Warrant Price
of such Shares by (b) the fair market value of one Share. The fair market value of the Shares
shall be determined pursuant to Article 1.3.



 









 







          1.3 Fair Market Value. If the Company’s common stock is traded in a public market and
the Shares are common stock, the fair market value of a Share shall be the closing price of a share
of common stock reported for the business day immediately before Holder delivers this Warrant
together with its Notice of Exercise to the Company (or in the instance where the Warrant is
exercised immediately prior to the effectiveness of the Company’s initial public offering (“IPO”),
the initial “price to public” per share price specified in the final prospectus relating to such
offering). If the Company’s common stock is traded in a public market and the Shares are preferred
stock, the fair market value of a Share shall be the closing price of a share of the Company’s
common stock reported for the business day immediately before Holder delivers this Warrant together
with its Notice of Exercise to the Company (or, in the instance where the Warrant is exercised
immediately prior to the effectiveness of the IPO, the initial “price to public” per share price
specified in the final prospectus relating to such offering), in both cases, multiplied by the
number of shares of the Company’s common stock into which a Share is convertible. If the Company’s
common stock is not traded in a public market, the Board of Directors of the Company shall
determine fair market value in its reasonable good faith judgment.


          1.4 Delivery of Certificate and New Warrant. Promptly after Holder exercises or
converts this Warrant and, if applicable, the Company receives payment of the aggregate Warrant
Price, the Company shall deliver to Holder a certificate for the Shares acquired and, if this
Warrant has not been fully exercised or converted and has not expired, a new warrant of like tenor
representing the Shares not so acquired.


          1.5 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, 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 shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.


          1.6 Treatment of Warrant Upon Acquisition of Company.



               1.6.1 “Acquisition”. For the purpose of this Warrant, “Acquisition” means any sale,
assignment, transfer or other disposition of all or substantially all of the assets of the Company,
or any reorganization, consolidation, merger, or sale of outstanding equity securities of the
Company by the holders thereof, where the holders of the Company’s outstanding voting equity
securities as of immediately before the transaction beneficially own less than a majority of the
outstanding voting equity securities of the surviving or successor entity as of immediately after
the transaction.



               1.6.2 Treatment of Warrant at Acquisition.



A) Holder agrees that, in the event of an Acquisition in which the sole consideration is cash
and/or Marketable Securities, this Warrant shall terminate on and as of the closing of such
Acquisition to the extent not previously exercised. The Company shall provide Holder with written
notice of any proposed Acquisition not later than ten (10) days prior to the closing thereof
setting forth the material terms and conditions thereof, and shall provide Holder with copies of
the draft transaction agreements and other documents in connection therewith and with such other information respecting such proposed
Acquisition as may reasonably be requested by Holder. Holder  agrees
to hold and treat all such agreements, documents and information in
accordance with the provision of Section 12.9 to the Loan Agreement.





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B) Upon the closing of any Acquisition other than as particularly described in subsection (A)
above, the surviving or successor entity shall assume this Warrant and the obligations of the
Company hereunder, and this Warrant shall, from and after such closing, be exercisable for the same
class, number and kind of securities, cash and other property as would have been paid for or in
respect of the Shares issuable (as of immediately prior to such closing) upon exercise in full
hereof as if such Shares had been issued and outstanding on and as of such closing, at an aggregate
Warrant Price equal to the aggregate Warrant Price in effect as of immediately prior to such
closing; and subject to further adjustment thereafter from time to time in accordance with the
provisions of this Warrant.




C) As used in this Article 1.6, “Marketable Securities” means securities meeting all of the
following requirements: (i) the issuer thereof is then subject to the reporting requirements of
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and is then current in its filing of all required reports and other information under the
Act and the Exchange Act; (ii) the class and series of shares or other security of the issuer that
would be received by Holder in connection with the Acquisition were Holder to exercise or convert
this Warrant on or prior to the closing thereof is then traded on a national securities exchange or
over-the-counter market, and (iii) Holder would not be restricted by contract or by applicable
federal and state securities laws from publicly re-selling, within six (6) months and one day
following the closing of such Acquisition, all of the issuer’s shares and/or other securities that
would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant in
full on or prior to the closing of such Acquisition.




ARTICLE 2. ADJUSTMENTS TO THE SHARES.



          2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on the
outstanding shares of the Class payable in common stock or other securities, 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 occurred. If the Company subdivides the outstanding shares
of the Class by reclassification or otherwise into a greater number of shares, the number of Shares
purchasable hereunder shall be proportionately increased and the Warrant Price shall be
proportionately decreased. If the outstanding shares of the Class are combined or consolidated, by
reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be
proportionately increased and the number of Shares shall be proportionately decreased.


          2.2 Reclassification, Exchange, Combinations or Substitution. Upon any
reclassification, exchange, substitution, or similar event affecting the outstanding shares of the
Class, 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 similar
event. Such an event shall include, without limitation, 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



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the terms of the Company’s Certificate of Incorporation. The Company or its successor shall
promptly issue to Holder a certificate pursuant to Article 2.6 hereof setting forth the number,
class and series or other designation of such new securities or other property issuable upon
exercise or conversion of this Warrant as a result of such reclassification, exchange, substitution
or other event. The provisions of this Article 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other events.



          2.3 Adjustments for Diluting Issuances. The number of shares of common stock
issuable upon conversion of the Shares shall be subject to adjustment, from time to time in the
manner set forth in the Company’s Certificate of Incorporation as if the Shares were issued and
outstanding on and as of the date of any such required adjustment (and subject to the waiver by
the required holders of the outstanding shares of the Class in accordance with the Certificate of
Incorporation, provided that any such waiver complies with the last sentence of this Article 2.3).
The provisions set forth for the Class in the Company’s Certificate of Incorporation relating to
the above in effect as of the Issue Date may not be amended, modified or waived, without the prior
written consent of Holder unless such amendment, modification or waiver affects the rights
associated with the Shares in the same manner as such amendment, modification or waiver affects
the rights associated with all other shares of the Class.


          2.4 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 of 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 against impairment.


          2.5 Fractional Shares. No fractional Shares shall be issuable upon exercise or
conversion 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 or conversion of the
Warrant, the Company shall eliminate such fractional share interest by paying Holder the amount
computed by multiplying the fractional interest by the fair market value of a full Share.


          2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant Price, Class
and/or number of Shares, the Company shall promptly notify Holder in writing, and, at the Company’s
expense, promptly compute such adjustment, and furnish Holder with a certificate of 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, Class and number of Shares in effect upon the date thereof and the series of adjustments
leading to such Warrant Price, Class and number of Shares.



ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.



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



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               (a) The initial Warrant Price first set forth above is not greater than the price per share at
which shares of the Class were last issued in an arms-length transaction in which at least $500,000
of such shares were sold.



               (b) 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 non-assessable, and free of any liens and
encumbrances except for restrictions on transfer provided for herein or under applicable federal
and state securities laws.



               (c) The Company’s capitalization table attached hereto as Schedule 1 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 the outstanding shares of the Class, whether in cash, property,
stock, or other securities and whether or not a regular cash dividend; (b) to offer for
subscription or sale pro rata to the holders of the outstanding shares of the Class any additional
shares of any class or series of the Company’s stock (other than pursuant to contractual
pre-emptive or similar rights); (c) to effect any reclassification, reorganization or
recapitalization of the shares of the Class; (d) to effect an Acquisition or to liquidate, dissolve
or wind up; or (e) offer holders of registration rights the opportunity to participate in an
underwritten public offering of the Company’s securities for cash, then, in connection with each
such event, the Company shall give Holder: (1) at least 10 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 shares of the Class will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in (c) and (d) above; (2)
in the case of the matters referred to in (c) and (d) above at least 10 days prior written notice
of the date when the same will take place (and specifying the date on which the holders of shares
of the Class will be entitled to exchange their shares for the securities or other property
deliverable upon the occurrence of such event); and (3) in the case of the matter referred to in
(e) above, the same notice as is given to the holders of such registration rights.


          3.3 Registration Rights The Company agrees that the Shares or, if the Shares are
convertible into common stock of the Company, such common stock, shall have certain incidental, or
“Piggyback,” registration rights pursuant to and as set forth in the Company’s Investor Rights
Agreement or similar agreement. The provisions set forth in the Company’s Investor Rights
Agreement or similar agreement relating to the above in effect as of the Issue Date may not be
amended, modified or waived without the prior written consent of Holder unless such amendment,
modification or waiver affects the rights associated with the Shares in the same manner as such
amendment, modification, or waiver affects the rights associated with all other shares of the Class
whose holders are parties thereto.


          3.4 No Shareholder Rights. Except as provided in this Warrant, Holder will not have
any rights as a shareholder of the Company until the exercise of this Warrant.


          3.5 Certain Information. At all times prior to the IPO, the Company agrees to provide
Holder at any time and from time to time with such information as



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Holder may reasonably request for purposes of Holder’s compliance with regulatory, accounting and
reporting requirements applicable to Holder. Holder agrees to hold and treat all such information
in accordance with the provisions of Section 12.9 of the Loan Agreement.




ARTICLE 4. REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder represents and warrants
to the Company as follows:



          4.1 Purchase for Own Account. This Warrant and the securities to be acquired upon
exercise of this Warrant by Holder will be acquired for investment for Holder’s account, not as a
nominee or agent, and not with a view to the public resale or distribution within the meaning of
the Act. Holder also represents that it has not been formed for the specific purpose of acquiring
this Warrant or the Shares.


          4.2 Disclosure of Information. Holder has received or has had full access to all the
information it considers necessary or appropriate to make an informed investment decision with
respect to the acquisition of this Warrant and its underlying securities. Holder further has had
an opportunity to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of this Warrant and its underlying securities and to obtain additional
information (to the extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to Holder or to which
Holder has access.


          4.3 Investment Experience. Holder understands that the purchase of this Warrant and
its underlying securities involves substantial risk. Holder has experience as an investor in
securities of companies in the development stage and acknowledges that Holder can bear the economic
risk of such Holder’s investment in this Warrant and its underlying securities and has such
knowledge and experience in financial or business matters that Holder is capable of evaluating the
merits and risks of its investment in this Warrant and its underlying securities and/or has a
preexisting personal or business relationship with the Company and certain of its officers,
directors or controlling persons of a nature and duration that enables Holder to be aware of the
character, business acumen and financial circumstances of such persons.


          4.4 Accredited Investor Status. Holder is an “accredited investor” within the meaning
of Regulation D promulgated under the Act.


          4.5 The Act. Holder understands that this Warrant and the Shares issuable upon
exercise or conversion hereof have not been registered under the Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona fide nature of
Holder’s investment intent as expressed herein. Holder understands that this Warrant and the
Shares issued upon any exercise or conversion hereof must be held indefinitely unless subsequently
registered under the Act and qualified under applicable state securities laws, or unless exemption
from such registration and qualification are otherwise available.



ARTICLE 5. MISCELLANEOUS.



          5.1 Term: This Warrant is exercisable in whole or in part at any time and from time
to time on or before the Expiration Date.



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               5.2 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 WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE
SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF
ARTICLE 5 OF THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE COMPANY
TO SILICON VALLEY BANK DATED AS OF DECEMBER __, 2010, MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE
OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS EXEMPT FROM REGISTRATION.


               5.3 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, as reasonably requested by the Company). The Company shall not
require Holder to provide an opinion of counsel if the transfer is to SVB Financial Group (Silicon
Valley Bank’s parent company) or any other affiliate of Holder, provided that any such transferee
is an “accredited investor” as defined in Regulation D promulgated under the Act.


               5.4 Transfer Procedure. After receipt by Silicon Valley Bank (“Bank”) of
the executed Warrant, Bank will transfer all of this Warrant to SVB Financial Group, Holder’s
parent company. Subject to the provisions of Article 5.3 and upon providing the Company with
written notice, SVB Financial Group and any subsequent 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) to any transferee, provided, however, in
connection with any such transfer, SVB Financial Group or any subsequent Holder will give the
Company notice of the portion of the Warrant being transferred with the name, address and taxpayer
identification number of the transferee and Holder will surrender this Warrant to the Company for
reissuance to the transferee(s) (and Holder if applicable). The Company may refuse to transfer
this Warrant or the Shares to any person who directly competes with the Company, unless, in either
case, the stock of the Company is publicly traded.


               5.5 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 (or on the first business day after transmission by
facsimile), at such address as may have been furnished to the Company or Holder, as the case may
be, in writing by the Company or



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such holder from time to time. All notices to Holder shall be addressed as follows until the
Company receives notice of a change of address in connection with a transfer or otherwise:



SVB Financial Group

Attn: Treasury Department

3003 Tasman Drive, HA 200

Santa Clara, CA 95054

Telephone: 408-654-7400

Facsimile: 408-496-2405



     Notice to the Company shall be addressed as follows until Holder receives notice of a change
in address:


Eloqua Limited

Attn: Chief Financial Officer

1921 Gallows Road

Vienna, VA 22182

Telephone: 703-584-2822

Facsimile: 703-584-2751


          5.6 Waiver. 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.


          5.7 Attorney’s 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 reasonable costs incurred in such dispute, including reasonable
attorneys’ fees.


          5.8 Automatic Conversion upon Expiration. In the event that, upon the Expiration
Date, the fair market value of one Share (or other security issuable upon the exercise hereof) as
determined in accordance with Article 1.3 above is greater than the Warrant Price in effect on such
date, then this Warrant shall automatically be deemed on and as of such date to be converted
pursuant to Article 1.2 above as to all Shares (or such other securities) for which it shall not
previously have been exercised or converted, and the Company shall promptly deliver a certificate
representing the Shares (or such other securities) issued upon such conversion to Holder.


          5.9 Counterparts. This Warrant may be executed in counterparts, all of which together
shall constitute one and the same agreement.



[Remainder of page left blank intentionally; signature page follows]




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



	 	 	 	 	 
	ELOQUA LIMITED

 	 
	By:  	/s/ Donald E. Clarke
 	 
	 	Name:  	Donald E. Clarke  	 
	 	Title:  	Chief Financial Officer/Secretary/Treasurer 	 
	 
	“HOLDER”



SILICON VALLEY BANK

 	 
	By:  	/s/ Patrice Pratt
 	 
	 	Name:  	Patrice Pratt 	 
	 	Title:  	Relationship Manager 	 
	 




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APPENDIX 1




NOTICE OF EXERCISE




     1. Holder elects to purchase ___________ shares of the Common/Series ______ Preferred [strike
one] Stock of __________________ pursuant to the terms of the attached Warrant, and tenders payment
of the purchase price of the shares in full.


          [or]



     1. Holder elects to convert the attached Warrant into Shares/cash [strike one] in the manner
specified in the Warrant. This conversion is exercised for _____________________ of the Shares
covered by the Warrant.



     [Strike paragraph that does not apply.]



     2. Please issue a certificate or certificates representing the Shares in the name specified
below:




________________________________________



          Holders Name




________________________________________






________________________________________



          (Address)




     3. By its execution below and for the benefit of the Company, Holder hereby restates each of
the representations and warranties in Article 4 of the Warrant as of the date hereof.



	 	 	 	 	 
	 	HOLDER:
 	 
	 	
 	 
	 
	 	By:  	 	 
	 	  	Name: 
	 
	 	 	Title:  
	 
	 		(Date):  
 	 



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