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EXHIBIT 99.3
EXECUTION COPY
VOTING AGREEMENT
AGREEMENT, dated as of January 16, 2001 between NetIQ Corporation, a
Delaware corporation ("BUYER"), and Elijahu Shapira, W. Glen Boyd (each, a
"FOUNDER") and Michael Burmeister-Brown ("BROWN"). Each of the Founders and
Brown 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
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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) Brown 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-Fa Hwang
------------------------------------
Name: Ching-Fa Hwang
Title: Chief Executive Officer
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ELIJAHU SHAPIRA
/s/ Elijahu Shapira
----------------------------------------
<TABLE>
<CAPTION>
Class of Shares
Stock Owned
-------- --------
<S> <C>
Common 3,680,500
</TABLE>
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W. GLEN BOYD
/s/ W. Glen Boyd
----------------------------------------
<TABLE>
<CAPTION>
Class of Shares
Stock Owned
-------- --------
<S> <C>
Common 3,680,500
</TABLE>
<PAGE> 9
MICHAEL BURMEISTER-BROWN
/s/ Michael Burmeister-Brown
----------------------------------------
<TABLE>
<CAPTION>
Class of Shares
Stock Owned
-------- --------
<S> <C>
Common 536,054
</TABLE>
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CROSS-REFERENCE TARGET LIST
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE
TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only, is not a part of this
document and may be discarded.)
<TABLE>
<CAPTION>
ARTICLE/SECTION TARGET NAME
--------------- -----------
<S> <C>
1....................................................................grant.proxy
1.01..................................................................voting.agt
1.02...............................................................irrevoc.proxy
?.....................................................................agt.tender
2................................................................rep.war.stkhldr
2.01...................................................................autho.stk
2.02..................................................................stk.noncon
2.03.................................................................own.shr.stk
2.04............................................................stk.total.shares
2.05................................................................stk.find.fee
3....................................................................rep.war.buy
3.01...................................................................buy.autho
4....................................................................cov.stkhldr
4.01..............................................................stk.no.proxies
?...............................................................stk.other.offers
4.02................................................................stk.appr.rts
5.......................................................................misc.art
?....................................................................furth.assur
5.02..................................................................amend.term
?.......................................................................expenses
5.03................................................................succ.assigns
5.04.....................................................................gov.law
5.05..............................................................counter.effect
5.06................................................................severability
5.07...............................................................specific.perf
5.08...................................................................cap.terms
</TABLE>
