EXHIBIT 99.03
EXECUTION COPY
VOTING AGREEMENT
AGREEMENT, dated as of January 16, 2001 between NetIQ Corporation, a
Delaware corporation ("Buyer"), and Xxxxxxx Xxxxxxx, W. Xxxx Xxxx (each, a
"Founder") and Xxxxxxx Xxxxxxxxxx-Xxxxx ("Xxxxx"). Each of the Founders and
Xxxxx are referred to individually herein as a "Shareholder" and together as
the "Shareholders".
WHEREAS, in order to induce Buyer and North Acquisition Corporation,
an Oregon corporation, to enter into an Agreement and Plan of Merger, dated as
of the date hereof (the "Merger Agreement"), with WebTrends Corporation, an
Oregon corporation (the "Company"), Buyer has requested Shareholders, and each
Shareholder has agreed, to enter into this Agreement with respect to all shares
of common stock, no par value per share, of the Company that Shareholder
beneficially now owns or may hereafter acquire prior to the termination of this
Agreement (the "Shares").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01. Voting Agreement. Each Shareholder hereby agrees to vote
all Shares that Shareholder is entitled to vote at the time of any vote to
approve and adopt the Merger Agreement, the Merger and all agreements related
to the Merger and any actions related thereto (the "Company Approval Matters")
at any meeting of the shareholders of the Company, and at any adjournment
thereof, at which such Merger Agreement and other related agreements (or any
amended version thereof), or such other actions, are submitted for the
consideration and vote of the shareholders of the Company. Each Shareholder
hereby agrees that it will vote any Shares in such manner as Buyer may direct
with respect to all other proposals submitted to the Company's Shareholders
that relates to the Company Approval Matters. Notwithstanding any provision of
this Agreement to the contrary, nothing in this Agreement shall limit or
restrict any Shareholder from acting in such Shareholder's capacity as a
director or officer of the Company (it being understood that this Agreement
shall apply to Shareholder solely in Shareholder's capacity as a Shareholder of
the Company) or voting in
such Shareholder's sole discretion on any matter other than those matters
referred to in this Section 1.01.
SECTION 1.02. Irrevocable Proxy. Each Shareholder hereby revokes any
and all previous proxies granted with respect to the Shares. By entering into
this Agreement, each Shareholder hereby grants a proxy appointing Buyer as the
Shareholder's attorney-in-fact and proxy, with full power of substitution, for
and in the Shareholder's name, to vote, express consent, or otherwise to
utilize such voting power with respect to the Shares, solely for the purposes
and in the circumstances described in the first two sentences of Section 1.01
above. The proxy granted by each Shareholder pursuant to this Article 1 is
irrevocable and is granted in consideration of Buyer entering into this
Agreement and the Merger Agreement and incurring certain related fees and
expenses, provided, however, that the proxy granted by this Article 1 shall be
automatically revoked to the extent necessary to comply with paragraph (f) of
Rule 144 under the Securities Act of 1933 or the rules of the Nasdaq Stock
Market in connection with Permitted Sales, as set forth below, but only with
respect to Shares sold in such Permitted Sales. The proxy granted by each
Shareholder shall be revoked upon termination of this Agreement in accordance
with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder severally represents and warrants to Buyer, solely
with respect to such Shareholder, that:
SECTION 2.01. Authorization. If a Shareholder is married and the
Shares set forth on the signature page hereto opposite such Shareholder's name
constitute community property under applicable laws, this Agreement has been
duly authorized, executed and delivered by, and constitutes the valid and
binding agreement of, such Shareholder's spouse. If this Agreement is being
executed in a representative or fiduciary capacity, the Person signing this
Agreement has full power and authority to enter into and perform this
Agreement.
SECTION 2.02. Non-Contravention. The execution, delivery and
performance by each Shareholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, (ii) require any
consent or other action by any Person under any agreement or other instrument
binding on Shareholder or (iii) result in the imposition of any Lien on the
shares beneficially owned by such Shareholder.
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SECTION 2.03. Ownership of Shares. Each Shareholder is the record and
beneficial owner of the Shares, free and clear of any Lien and any other
limitation or restriction (including any restriction on the right to vote or
otherwise dispose of the Shares). None of the Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares.
SECTION 2.04. Total Shares. Except for the Shares set forth on the
signature page hereto, each Shareholder does not beneficially own any (i)
shares of capital stock or voting securities of the Company, (ii) securities of
the Company convertible into or exchangeable for shares of capital stock or
voting securities of the Company or (iii) options or other rights to acquire
from the Company any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of the Company. The
shares of common stock of the Company owned or held of record as of the date
hereof by trusts or foundations created by Shareholder shall be deemed not
beneficially owned by Shareholder and may be excluded from the Shares set forth
on the signature page hereto.
SECTION 2.05. Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from Buyer or the Company
in respect of this Agreement based upon any arrangement or agreement made by or
on behalf of any Shareholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Shareholder:
SECTION 3.01. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the corporate powers of Buyer and
have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding Agreement of Buyer.
SECTION 3.02. Non-Contravention. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate any applicable law, rule,
regulation, judgment, injunction, order or decree or (ii) require any consent
or other action by any Person under any provision of any agreement or other
instrument binding on Buyer.
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ARTICLE 4
COVENANTS OF SHAREHOLDER
Shareholder hereby covenants and agrees that:
SECTION 4.01. No Proxies for or Encumbrances on Shares. Except
pursuant to the terms of this Agreement, each Shareholder shall not, without
the prior written consent of Buyer, directly or indirectly, (i) grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the voting of any Shares or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any Shares during the term of
this Agreement, provided, however, that from and after the date 48 hours after
the filing of the initial Registration Statement on Form S-4 to be filed by
Buyer in connection with the Merger through and until the closing of the
Merger, (i) each Founder may sell up to 300,000 Shares and (ii) Xxxxx may sell
up to 64,000 shares, provided further all sales made pursuant to the foregoing
proviso ("Permitted Sales") be made in compliance with and in reliance upon
Rule 144 under the Securities Act of 1933. Notwithstanding the foregoing,
Shares may be transferred (i) by a Shareholder to a family member or a trust
for the benefit of such Shareholder or such Shareholder's family member or (ii)
pursuant to such Shareholder's will or the laws of interstate succession,
provided the recipients of the Shares agree in writing with Buyer to be bound
by the terms and conditions of this Agreement.
SECTION 4.02. Appraisal Rights. Each Shareholder agrees not to
exercise any rights (including, without limitation, under Section 60.587 of
Oregon Law) to demand appraisal of any Shares which may arise with respect to
the Merger.
SECTION 4.03. Other Offers. Each Shareholder hereby agrees to be bound
by the restrictions set forth in Section 6.03 of the Merger Agreement.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Additional Documents. Buyer and each Shareholder will
each execute and deliver, or cause to be executed and delivered, all further
documents and instruments necessary, proper or advisable under applicable laws
and regulations, to carry out the intent of this Agreement.
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SECTION 5.02. Amendments; Termination. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement or in the case of a waiver, by the party against whom the waiver is
to be effective. This Agreement shall terminate upon the earlier of the
Effective Time and the termination of the Merger Agreement in accordance with
its terms.
SECTION 5.03. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto, except that Buyer
may transfer or assign its rights and obligations to any wholly-owned
subsidiary of Buyer. The Shareholders shall not be required to assign their
obligations hereunder to transferees in Permitted Sales (nor shall such
transferees be obligated to assume such obligations).
SECTION 5.04. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
SECTION 5.05. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
SECTION 5.06. Severability. If any term, provision or covenant of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 5.07. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 5.08. Capitalized Terms. Capitalized terms used but not
defined herein shall have the respective meanings set forth in the Merger
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
NETIQ CORPORATION
By: /s/ Ching-Xx Xxxxx
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Name: Ching-Xx Xxxxx
Title: President & Chief Executive
Officer
XXXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxxx
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Class of Shares
Stock Owned
-------- ------
Common 3,680,500
W. XXXX XXXX
/s/ W. Xxxx Xxxx
-----------------------------------
Class of Shares
Stock Owned
-------- ------
Common 3,680,500
XXXXXXX XXXXXXXXXX-XXXXX
/s/ Xxxxxxx Xxxxxxxxxx-Xxxxx
-----------------------------------
Class of Shares
Stock Owned
-------- ------
Common 536,054
