As filed with the
Securities and Exchange Commission on July 20,
2012
Registration
No. 333-176484
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
Amendment No. 9
to
FORM S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Eloqua, Inc.
(Exact name of registrant as
specified in its charter)
Delaware | 7372 | 98-0551177 | ||
(State or other jurisdiction
of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
Eloqua, Inc.
1921 Gallows Road,
Suite 250
Vienna, VA 22182
(703) 584-2750
(Address, including zip code,
and telephone number,
including area code, of
registrants principal executive offices)
Joseph P. Payne
President and Chief Executive
Officer
Eloqua, Inc.
1921 Gallows Road,
Suite 250
Vienna, VA 22182
(703) 584-2750
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
Christopher J. Austin, Esq. David V. Cappillo, Esq. Gregg L. Katz, Esq. Goodwin Procter LLP Exchange Place 53 State Street Boston, Massachusetts 02109 (617) 570-1000 |
Rachel W. Sheridan, Esq. Brandon J. Bortner, Esq. Latham & Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 |
Approximate date of commencement of proposed sale to the
public: as soon as practicable after this registration
statement becomes effective.
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box. o
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities
Act, check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
(Do not check if a smaller
reporting company)
CALCULATION OF
REGISTRATION FEE
Proposed Maximum | Proposed Maximum | Amount of | ||||||||||
Title of Each Class of | Amount to be | Offering Price | Aggregate | Registration | ||||||||
Securities to be Registered | Registered(1) | Per Share(2) | Offering Price(2) | Fee(3) | ||||||||
Common Stock par value $0.0001 per share
|
9,200,000 | $11.50 | $105,800,000.00 | $12,274.68 | ||||||||
(1) | Includes 1,200,000 shares which the underwriters have the option to purchase. | |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) under the Securities Act. | |
(3) | Of this amount, $11,610 was previously paid in connection with the initial filing of this Registration Statement on August 24, 2011. |
The Registrant hereby amends this Registration Statement
on such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
Explanatory
note
This Amendment No. 9 is being filed solely for the purpose of amending the calculation of the
registration fee set forth on the cover page of the Registration Statement and amending certain expenses
listed in Item 13 of Part II of the Registration Statement. No changes or additions are
being made hereby to the Prospectus constituting Part I of the Registration Statement (not included herein).
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
Item 13. | Other Expenses of Issuance and Distribution |
The following table sets forth the costs and expenses, other
than the underwriting discount, payable by us in connection with
the sale of common stock being registered. All amounts are
estimated except the SEC registration fee and the FINRA filing
fees.
SEC registration fee
|
$ | 12,275 | ||
FINRA filing fee
|
11,370 | |||
NASDAQ Global Market listing fee
|
150,000 | |||
Printing and engraving expenses
|
200,000 | |||
Legal fees and expenses
|
1,900,000 | |||
Accounting fees and expenses
|
500,000 | |||
Transfer agent and registrar fees and expenses
|
10,000 | |||
Miscellaneous
|
116,355 | |||
Total
|
$ | 2,900,000 | ||
Item 14. | Indemnification of Directors and Officers |
Section 145(a) of the Delaware General Corporation Law
provides, in general, that a corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), because he or she is or was a director, officer,
employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if he or she
acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law
provides, in general, that a corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor
because the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees)
actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made with
respect to any claim, issue or matter as to which he or she
shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or other
adjudicating court determines that, despite the adjudication of
liability but in view of
II-1
all of the circumstances of the case, he or she is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of the Delaware General Corporation Law
provides, in general, that a corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify
the person against such liability under Section 145 of the
Delaware General Corporation Law.
Article VII of our amended and restated certificate of
incorporation (the Charter), provides that no
director of our company shall be personally liable to us or our
stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (1) for any breach
of the directors duty of loyalty to us or our
stockholders, (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (3) in respect of unlawful dividend payments or
stock redemptions or repurchases, or (4) for any
transaction from which the director derived an improper personal
benefit. In addition, our Charter provides that if the Delaware
General Corporation Law is amended to authorize the further
elimination or limitation of the liability of directors, then
the liability of a director of our company shall be eliminated
or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Article VII of the Charter further provides that any repeal
or modification of such article by our stockholders or amendment
to the Delaware General Corporation Law will not adversely
affect any right or protection existing at the time of such
repeal or modification with respect to any acts or omissions
occurring before such repeal or modification of a director
serving at the time of such repeal or modification.
Article V of our amended and restated by-laws (the
By-Laws), provides that we will indemnify each of
our directors and officers and, in the discretion of our board
of directors, certain employees, to the fullest extent permitted
by the Delaware General Corporation Law as the same may be
amended (except that in the case of amendment, only to the
extent that the amendment permits us to provide broader
indemnification rights than the Delaware General Corporation Law
permitted us to provide prior to such the amendment) against any
and all expenses, judgments, penalties, fines and amounts
reasonably paid in settlement that are incurred by the director,
officer or such employee or on the directors,
officers or employees behalf in connection with any
threatened, pending or completed proceeding or any claim, issue
or matter therein, to which he or she is or is threatened to be
made a party because he or she is or was serving as a director,
officer or employee of our company, or at our request as a
director, partner, trustee, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, if he or she acted in good
faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of our company and, with
respect to any criminal proceeding, had no reasonable cause to
believe his or her conduct was unlawful. Article V of the
By-Laws further provides for the advancement of expenses to each
of our directors and, in the discretion of the board of
directors, to certain officers and employees.
In addition, Article V of the By-Laws provides that the
right of each of our directors and officers to indemnification
and advancement of expenses shall be a contract right and shall
not be exclusive of any other right now possessed or hereafter
acquired under any statute, provision of the Charter or By-Laws,
agreement, vote of stockholders or otherwise. Furthermore,
Article V of the By-Laws authorizes us to provide insurance
for our directors, officers and employees, against any
liability, whether or not
II-2
we would have the power to indemnify such person against such
liability under the Delaware General Corporation Law or the
provisions of Article V of the By-Laws.
In connection with the sale of common stock being registered
hereby, we have entered into indemnification agreements with
each of our directors and our executive officers. These
agreements will provide that we will indemnify each of our
directors and such officers to the fullest extent permitted by
law and the Charter and By-Laws.
We also maintain a general liability insurance policy which
covers certain liabilities of directors and officers of our
company arising out of claims based on acts or omissions in
their capacities as directors or officers.
In any underwriting agreement we enter into in connection with
the sale of common stock being registered hereby, the
underwriters will agree to indemnify, under certain conditions,
us, our directors, our officers and persons who control us
within the meaning of the Securities Act of 1933, as amended,
against certain liabilities.
Item 15. | Recent Sales of Unregistered Securities |
In the three years preceding the filing of this registration
statement, we have issued the following securities that were not
registered under the Securities Act:
Grants and
Exercises of Stock Options
Since January 1, 2009, we have granted stock options to
purchase an aggregate of 5,099,820 shares of our common
stock at exercise prices ranging from $1.20 to $9.03. Since
January 1, 2009, we have issued an aggregate of
1,144,368 shares of our common stock upon exercise of stock
options granted pursuant to our 2006 Stock Option Plan and our
2006 US Employee Stock Option Plan for aggregate consideration
of $1,503,093. In addition, concurrent with the sale of common
stock being registered hereby, we will issue an aggregate of
99,062 shares of our common stock upon the exercise of stock
options by one of our selling stockholders. The option grants
and the issuances of common stock upon exercise of the options
were exempt either pursuant to Rule 701, as a transaction
pursuant to a compensatory benefit plan, or pursuant to
Section 4(2), as a transaction by an issuer not involving a
public offering. The shares of common stock issued upon exercise
of options are deemed restricted securities for the purposes of
the Securities Act.
Grants and
Exercises of Warrants
In December 2010, we issued a warrant to purchase
93,750 shares of our Series C preferred stock to an
accredited investor at an exercise price of $1.20 per share.
Since January 1, 2009, we have issued an aggregate of
182,524 shares of our common stock upon exercise of common
stock warrants for aggregate consideration of $105,528. The
warrant issuance and the issuances of common stock upon exercise
of the warrants were exempt pursuant to Section 4(2), as a
transaction by an issuer not involving a public offering. The
shares of common stock issued upon exercise of warrants are
deemed restricted securities for the purposes of the Securities
Act.
Issuances of
Capital Stock
On December 14, 2011, we issued an aggregate of
50,118 shares of our common stock to two stockholders in
exchange for an equal number of exchangeable common shares of
our subsidiary Eloqua Corporation held by those stockholders.
The issuances of our common stock were exempt pursuant to
Section 4(2) of the Securities Act as a transaction by an
issuer not involving a public offering. The shares of common
stock are deemed restricted securities for the purposes of the
Securities Act.
II-3
Item 16. | Exhibits |
(a)
Number
|
Description | |||
1 | .1** |
Form of Underwriting Agreement
|
||
3 | .1** |
Second Amended and Restated Certificate of Incorporation of the
Registrant (as amended and currently in effect)
|
||
3 | .2** |
Form of Third Amended and Restated Certificate of Incorporation
of the Registrant (to be effective upon the completion of the
offering)
|
||
3 | .3** |
By-laws of the Registrant (as currently in effect)
|
||
3 | .4** |
Amended and Restated By-laws of the Registrant (to be effective
upon the completion of the offering)
|
||
4 | .1** |
Specimen Common Stock Certificate
|
||
4 | .2** |
Second Amended and Restated Investor Rights Agreement, dated
September 27, 2007
|
||
4 | .3** |
Amended and Restated Stockholders Agreement, dated
September 27, 2007, as amended
|
||
4 | .4** |
Warrant to Purchase Stock issued June 29, 2007 to Comerica
Bank
|
||
4 | .5** |
Warrant to Purchase Stock issued December 28, 2010 to
Silicon Valley Bank
|
||
4 | .6** |
Form of Common Stock Warrant
|
||
5 | .1** |
Opinion of Goodwin Procter LLP
|
||
10 | .1** |
2006 Stock Option Plan and forms of award agreements thereunder
|
||
10 | .2** |
2006 U.S. Employee Stock Plan and forms of award agreements
thereunder
|
||
10 | .3** |
2012 Employee Stock Purchase Plan, as amended
|
||
10 | .4** |
2012 Stock Option and Incentive Plan and forms of award
agreements thereunder
|
||
10 | .5** |
Form of Indemnification Agreement between the Registrant and
each of its Executive Officers and Directors
|
||
10 | .6** |
Loan and Security Agreement between Silicon Valley Bank and the
Registrant, dated June 15, 2009, as amended
|
||
10 | .7** |
Deed of Lease between Tysons International Plaza I &
II, L.P. and the Registrant, dated as of June 25, 2009, as
amended
|
||
10 | .8** |
Lease between 674951 Ontario Limited and Eloqua Corporation,
dated as of February 10, 2005, as amended
|
||
10 | .9** |
Employment Agreement, dated April 15, 2008 by and between
the Registrant and Joseph P. Payne, as amended
|
||
10 | .10** |
Employment Agreement, dated February 15, 2008 by and
between the Registrant and Don E. Clarke, as amended
|
||
10 | .11** |
General Employment Offer Letter, dated June 17, 2009, by
and between the Registrant and Alex P. Shootman, as amended
|
||
10 | .12** |
General Employment Offer Letter, dated July 19, 2008, by
and between the Registrant and Brian E. Kardon, as amended
December 28, 2008
|
||
10 | .13** |
Executive Agreement, dated July 12, 2012, by and between
the Registrant and Andre H.S. Yee
|
||
10 | .14** |
General Employment Offer Letter, dated April 30, 2012, by
and between the Registrant and Heidi M. Melin, as amended
|
||
10 | .15** |
Executive Agreement, dated July 12, 2012, by and between
the Registrant and Stephen E. Holsten
|
||
10 | .16** |
Senior Executive Incentive Bonus Plan
|
||
21 | .1** |
List of Subsidiaries of the Registrant
|
||
23 | .1** |
Consent of KPMG LLP
|
||
23 | .2** |
Consent of Goodwin Procter LLP (included in Exhibit 5.1)
|
||
23 | .3** |
Consent of Timan, LLC
|
||
24 | .1** |
Power of Attorney (included on signature page)
|
** | Previously filed |
(b) Financial Statement Schedules
See page F-45 for financial statement schedules included in the
Registration Statement, which are incorporated by reference
herein.
II-4
Item 17. | Undertakings |
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement certificates in such denominations and registered in
such names as required by the underwriter to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) If the registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made
in any such document immediately prior to such date of first use.
(4) For the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities:
(i) that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(A) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
II-5
(B) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(C) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(D) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant has duly caused this amendment
no. 9 to registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Vienna, Commonwealth of Virginia on the 20th day of
July, 2012.
ELOQUA, INC.
By: |
/s/ Joseph
P. Payne
|
Joseph P. Payne
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this amendment no. 9 to registration statement has
been signed by the following persons in the capacities indicated
on July 20, 2012:
Signature
|
Title(s)
|
|||
/s/ Joseph
P. Payne Joseph P. Payne |
Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) | |||
/s/ Don
E. Clarke Don E. Clarke |
Chief Financial Officer and Treasurer (Principal Financial and Principal Accounting Officer) |
|||
* Byron B. Deeter |
Director | |||
* Neal Dempsey |
Director | |||
* John J. McDonnell, Jr. |
Director | |||
* Thomas Reilly |
Director | |||
* Stephen M. Swad |
Director | |||
* Bradford D. Woloson |
Director | |||
*By: |
/s/ Joseph
P. Payne Joseph P. Payne Attorney-in-fact |
II-7
EXHIBIT INDEX
Number
|
Description | |||
1 | .1** |
Form of Underwriting Agreement
|
||
3 | .1** |
Second Amended and Restated Certificate of Incorporation of the
Registrant (as amended and currently in effect)
|
||
3 | .2** |
Form of Third Amended and Restated Certificate of Incorporation
of the Registrant (to be effective upon the completion of the
offering)
|
||
3 | .3** |
By-laws of the Registrant (as currently in effect)
|
||
3 | .4** |
Amended and Restated By-laws of the Registrant (to be effective
upon the completion of the offering)
|
||
4 | .1** |
Specimen Common Stock Certificate
|
||
4 | .2** |
Second Amended and Restated Investor Rights Agreement, dated
September 27, 2007
|
||
4 | .3** |
Amended and Restated Stockholders Agreement, dated
September 27, 2007, as amended
|
||
4 | .4** |
Warrant to Purchase Stock issued June 29, 2007 to Comerica
Bank
|
||
4 | .5** |
Warrant to Purchase Stock issued December 28, 2010 to
Silicon Valley Bank
|
||
4 | .6** |
Form of Common Stock Warrant
|
||
5 | .1** |
Opinion of Goodwin Procter LLP
|
||
10 | .1** |
2006 Stock Option Plan and forms of award agreements thereunder
|
||
10 | .2** |
2006 U.S. Employee Stock Plan and forms of award agreements
thereunder
|
||
10 | .3** |
2012 Employee Stock Purchase Plan, as amended
|
||
10 | .4** |
2012 Stock Option and Incentive Plan and forms of award
agreements thereunder
|
||
10 | .5** |
Form of Indemnification Agreement between the Registrant and
each of its Executive Officers and Directors
|
||
10 | .6** |
Loan and Security Agreement between Silicon Valley Bank and the
Registrant, dated June 15, 2009, as amended
|
||
10 | .7** |
Deed of Lease between Tysons International Plaza I &
II, L.P. and the Registrant, dated as of June 25, 2009, as
amended
|
||
10 | .8** |
Lease between 674951 Ontario Limited and Eloqua Corporation,
dated as of February 10, 2005, as amended
|
||
10 | .9** |
Employment Agreement, dated April 15, 2008 by and between
the Registrant and Joseph P. Payne, as amended
|
||
10 | .10** |
Employment Agreement, dated February 15, 2008 by and
between the Registrant and Don E. Clarke, as amended
|
||
10 | .11** |
General Employment Offer Letter, dated June 17, 2009, by and
between the Registrant and Alex P. Shootman, as amended
|
||
10 | .12** |
General Employment Offer Letter, dated July 19, 2008, by
and between the Registrant and Brian E. Kardon, as amended
December 28, 2008
|
||
10 | .13** |
Executive Agreement, dated July 12, 2012, by and between
the Registrant and Andre H.S. Yee
|
||
10 | .14** |
General Employment Offer Letter, dated April 30, 2012, by
and between the Registrant and Heidi M. Melin, as amended
|
||
10 | .15** |
Executive Agreement, dated July 12, 2012, by and between
the Registrant and Stephen E. Holsten
|
||
10 | .16** |
Senior Executive Incentive Bonus Plan
|
||
21 | .1** |
List of Subsidiaries of the Registrant
|
||
23 | .1** |
Consent of KPMG LLP
|
||
23 | .2** |
Consent of Goodwin Procter LLP (included in Exhibit 5.1)
|
||
23 | .3** |
Consent of Timan, LLC
|
||
24 | .1** |
Power of Attorney (included on signature page)
|
** | Previously filed |