Item 1.01. Entry into a Material Definitive Agreement.
On December 19, 2012, Eloqua, Inc. (
Eloqua
), OC Acquisition LLC (
Parent
), Esperanza Acquisition
Corporation, a wholly-owned subsidiary of Parent (
Merger Sub
), and Oracle Corporation, the ultimate parent entity of Parent and Merger Sub (
Oracle
), entered into an Agreement and Plan of Merger (the
Merger Agreement
) pursuant to which, subject to satisfaction or waiver of the conditions therein, Merger Sub will merge with and into Eloqua (the
Merger
) with Eloqua surviving as a wholly-owned subsidiary of
Parent.
Subject to the terms of the Merger Agreement, which has been unanimously approved by the board of directors of
Eloqua, at the effective time of the Merger (the
Effective Time
), each share of Eloqua common stock issued and outstanding immediately prior to the Effective Time (other than shares owned by Oracle or any of its subsidiaries,
shares held by Eloqua as treasury stock, and shares held by stockholders who have perfected their statutory rights of appraisal under Section 262 of the Delaware General Corporation Law), will be converted into the right to receive $23.50 in
cash, without interest (the
Merger Consideration
).
At the Effective Time, (i) the vested portion of
each outstanding Eloqua stock option held by any person and (ii) the unvested portion of each outstanding Eloqua stock option held by a person who is not an employee of, or consultant to, Eloqua will be automatically canceled and converted into
the right to receive cash equal to the product of (x) the number of shares of Eloqua common stock issuable upon exercise of such option immediately prior to the Effective Time and (y) the Merger Consideration, less any per share exercise
price of such option. At the Effective Time, the unvested portion of each outstanding Eloqua stock option held by employees and consultants of Eloqua will be assumed by Oracle pursuant to the terms of the Merger Agreement.
The Merger Agreement contains customary representations, warranties and covenants of Eloqua, Parent and Merger Sub, including, among
others, covenants by Eloqua to conduct its business in the ordinary course during the interim period between execution of the Merger Agreement and consummation of the Merger and not to engage in certain kinds of transactions during such period.
Eloqua has also agreed, subject to certain exceptions, not to enter into discussions concerning, or provide confidential information in connection with, any alternative transaction. In addition, each of the parties has agreed to use its reasonable
best efforts to cause the Merger to be consummated. The board of directors of Eloqua has unanimously adopted resolutions recommending the adoption of the Merger Agreement by Eloquas stockholders, and has agreed to hold a stockholder meeting to
consider and vote upon the adoption of the Merger Agreement.
The Merger is conditioned upon, among other things, approval by
the stockholders of Eloqua, the expiration or early termination of the applicable pre-merger waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and other customary closing conditions.
The Merger Agreement contains certain termination rights for both Eloqua and Parent, and provides that, upon termination of the Merger
Agreement under specified circumstances, Eloqua may be required to pay Parent a termination fee of $31.5 million, including if it accepts a superior acquisition proposal, and under certain other limited circumstances Eloqua may be required to pay
Parent for up to $5 million of its out-of-pocket expenses in connection with the transaction.
Concurrently with entering into
the Merger Agreement, the directors, executive officers and certain large stockholders of Eloqua entered into voting agreements with Parent (collectively, the
Voting Agreements
) pursuant to which they agreed, among other things,
to vote their shares of Eloqua common stock for the adoption of the Merger Agreement and against any alternative proposal and against any action or agreement that would frustrate the purposes of, or prevent or delay the consummation of, the
transactions contemplated by the Merger Agreement. As of the date hereof, such directors, executive officers and stockholders owned in the aggregate approximately 57% of Eloquas outstanding common stock. The Voting Agreements terminate upon
the termination of the Merger Agreement in accordance with its terms, including if Eloqua accepts a superior acquisition proposal.
The foregoing descriptions of the Merger Agreement and the Voting Agreements do not purport
to be complete and are qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is hereby incorporated into this report by reference, and the form of Voting Agreement, which is included as
Exhibit A to the Merger Agreement filed as Exhibit 2.1 hereto and is hereby incorporated into this report by reference. The Merger Agreement, which has been included to provide investors with information regarding its terms and is not intended to
provide any other factual information about Eloqua or Parent, contains representations and warranties of each of Eloqua, Parent and Merger Sub. The assertions embodied in those representations and warranties were made for purposes of the Merger
Agreement and are subject to qualifications and limitations agreed to by the respective parties in connection with negotiating the terms of the Merger Agreement, including information contained in confidential disclosure schedules that the parties
exchanged in connection with signing the Merger Agreement. Accordingly, investors and security holders should not rely on such representations and warranties as characterizations of the actual state of facts or circumstances, since they were only
made as of a specific date and are modified in important part by the underlying disclosure schedules. In addition, certain representations and warranties may be subject to a contractual standard of materiality different from what might be viewed as
material to stockholders, or may have been used for purposes of allocating risk between the respective parties rather than establishing matters of fact. Moreover, information concerning the subject matter of such representations and warranties may
change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Eloquas or Oracles public disclosures.