exv10w2



 





EXHIBIT
10.2




EXECUTION COPY




EXHIBIT A-2




FORM OF COMPANY VOTING AGREEMENT




     THIS VOTING AGREEMENT (this “Agreement”) is made and entered into as of October 25, 2007 by
and among Omniture, Inc., a Delaware corporation (“Parent”), Visual Sciences, Inc., a Delaware
corporation (the “Company”), and the undersigned stockholder (“Stockholder”) of the Company.



RECITALS




     A. Concurrently with the execution of this Agreement, Parent, Voyager Merger Corp., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger Sub”) and the Company have entered
into an Agreement and Plan of Reorganization (the “Reorganization Agreement”), which provides for,
among other things, the merger (the “Merger”) of Merger Sub with and into the Company.



     B. Pursuant to the Merger, all of the issued and outstanding shares of capital stock of the
Company will be converted into the right to receive the consideration set forth in the
Reorganization Agreement, all upon the terms and subject to the conditions set forth in the
Reorganization Agreement.



     C. As of the date of this Agreement, the Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the number of shares of
outstanding capital stock of the Company and other securities convertible into, or exercisable or
exchangeable for, shares of capital stock of the Company, all as set forth on the signature page of
this Agreement.



     D. In consideration of the execution of the Reorganization Agreement by Parent, Stockholder
desires to vote the Shares (defined below) so as to facilitate the consummation of the Merger.



     NOW, THEREFORE, the parties hereto hereby agree as follows:



     1. Agreement to Vote Shares. Until the Expiration Date (defined below), at every
annual or special meeting of stockholders of the Company called with respect to any of the
following, and at every adjournment or postponement thereof, and on every action or approval by
written consent of stockholders of the Company with respect to any of the following (each such
annual, special, adjourned or postponed meeting and written consent, each, a “Stockholder Vote”),
Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy (as
defined in Section 2), all shares of capital stock of the Company as to which Stockholder holds
beneficial ownership at the time of such Stockholder Vote (collectively, the “Shares”):



 









 





          (i) in favor of the adoption of the Reorganization Agreement and in favor of any other actions
contemplated by the Reorganization Agreement and any action required in furtherance thereof;



          (ii) against approval of any proposal made in opposition to, or in competition with,
consummation of the Merger and the transactions contemplated by the Reorganization Agreement;



          (iii) against any of the following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Reorganization Agreement): (A) any Acquisition Proposal
(as defined in the Reorganization Agreement) or any other merger agreement, merger (other than the
Reorganization Agreement and Merger), consolidation, business combination, sale of substantial
assets, reorganization or recapitalization of the Company or any subsidiary of the Company with any
party, (B) any sale, lease or transfer of any substantial part of the assets of the Company or any
subsidiary of the Company, (C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company or corporate structure of the
Company or any subsidiary of the Company; or (E) any other action that would reasonably be expected
to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any other
transactions contemplated by the Reorganization Agreement;



          (iv) in favor of waiving any notice that may have been or may be required relating to any
reorganization of the Company or any subsidiary of the Company, any reclassification or
recapitalization of the capital stock of the Company or any subsidiary of the Company, any sale of
assets, change of control or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of the Company with
or into any other person; and



          (v) in favor of any adjournment or postponement recommended by the Company with respect to any
stockholder meeting with respect to the Reorganization Agreement and the Merger.



     As used herein, the term “Expiration Date” shall mean the earliest to occur of (i) such date
as shall be mutually agreed upon in writing by the Company, Parent and Stockholder, (ii) such date
and time as the Merger shall become effective in accordance with the terms and provisions of the
Reorganization Agreement or (iii) the termination of the Reorganization Agreement in accordance
with the terms thereof.



     2. Irrevocable Proxy. Concurrently with the execution of this Agreement, Stockholder
agrees to deliver to Parent an irrevocable proxy in the form attached hereto as Exhibit A (the
“Proxy”), which shall be irrevocable to the fullest extent permitted by applicable law, covering
the total number of Shares as to which Stockholder holds beneficial ownership at the time of the
applicable Stockholder Vote.



     3. No Inconsistent Agreement. Stockholder hereby covenants and agrees (i) not to
enter into any agreement that would restrict or interfere with the performance of Stockholder’s



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obligations hereunder and (ii) not to knowingly take any action that would reasonably be
expected to make any of Stockholder’s representations or warranties contained herein untrue or
incorrect or have the effect of preventing Stockholder from performing his, her or its obligations
under this Agreement; provided, however, nothing in this Agreement shall limit the
ability of Stockholder to sell, transfer or assign the shares of Company capital stock held by the
Stockholder from time to time, including, without limitation, distributing any such shares to
limited partners, if applicable.



     4. Representations, Warranties and Covenants of Stockholder. As of the date hereof,
Stockholder represents and warrants to Parent as follows:



          (i) Stockholder is the beneficial owner of the shares of Company capital stock set forth on
the signature page hereto (the “Currently Owned Shares”), with full power to vote or direct the
voting of the Currently Owned Shares for and on behalf of any and all beneficial owners of the
Currently Owned Shares.



          (ii) The Currently Owned Shares are free and clear of any rights of first refusal, co-sale
rights, security interests, liens, pledges, claims, options, charges or other encumbrances of any
kind or nature, in each case that would impair the right of the Stockholder to vote such shares.



          (iii) Stockholder does not beneficially own any shares of capital stock of the Company, or any
securities convertible into, or exchangeable or exercisable for, shares of capital stock of the
Company, other than the Currently Owned Shares.



          (iv) Stockholder has all necessary power, authority and legal capacity to make, enter into and
carry out the terms of this Agreement and the Proxy, and no other proceedings or actions on the
part of the Stockholder are necessary to authorize the execution, delivery or performance of this
Agreement or the Proxy.



     5. Additional Documents. Stockholder hereby covenants and agrees to execute and
deliver any additional documents reasonably necessary or desirable to carry out the terms of this
Agreement.



     6. Consents and Waivers. Stockholder hereby gives any consents or waivers that are
reasonably required for the consummation of the Merger under the terms of any agreement to which
Stockholder is a party or pursuant to any rights Stockholder may have.



     7. Termination. The term of this Agreement and the Proxy delivered in connection
herewith shall commence on the date hereof and shall terminate and shall have no further force or
effect as of the Expiration Date.



     8. Amendment of Merger Agreement. The obligations of Stockholders under this
Agreement shall terminate if the Reorganization Agreement is amended after the date hereof without
the prior written consent of Stockholder in a manner that changes the form of consideration or
reduces the amount of cash or number of shares to be delivered with regard to



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shares of capital stock of the Company, in each case as set forth in the Reorganization
Agreement.



     9. No Survival of Representations and Warranties. The representations and warranties
of the parties contained herein shall expire, and shall be terminated and extinguished, upon the
Expiration Date.



     10. No Limitation. Nothing in this Agreement shall be construed to prohibit
Stockholder from taking any action solely in his or her capacity as an officer or member of the
Board of Directors of the Company, if applicable.



     11. Miscellaneous.



          (a) Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement will continue in full force and effect and
the application of such provision to other persons, entities or circumstances will be interpreted
so as reasonably to effect the intent of the parties hereto. The parties further agree to replace
such illegal, void or unenforceable provision of this Agreement with a legal, valid and enforceable
provision that will achieve, to the greatest extent possible, the economic, business and other
purposes of such illegal, void or unenforceable provision.



          (b) Binding Effect and Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors by operation of law, but, except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of Stockholder hereunder may be assigned
to any other person without the prior written consent of Parent.



          (c) Amendments and Modification. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement executed by each of
the parties hereto.



          (d) Waiver. No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing.



          (e) Specific Performance; Injunctive Relief. The parties acknowledge that Parent will
be irreparably harmed and that there will be no adequate remedy at law for a violation of any of
the covenants or agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific performance, injunctive
relief or by any other means available to Parent at law or in equity.



          (f) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of
confirmation of receipt (or, the first business day following such receipt if the date is not a
business day) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or,
the first business day following such receipt if the date is not a business day) if delivered by



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a nationally recognized courier service. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in writing by the party to
receive such notice:


if to Parent, to:



Omniture, Inc.

550 East Timpanogos Circle

Orem, Utah 84097

Attention: Chief Legal Officer

Telephone No.: 801.722.7000

Facsimile No.: 801.722.7005



with copies to:



Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, California 94304-1050

Attention: Martin W. Korman

Attention: Robert G. O’Connor
Telephone No.: (650) 493-9300

Facsimile No.: (650) 493-6811




if to the Company, to:



Visual Sciences, Inc.

10182 Telesis Court, 6th Floor

San Diego, California 92121

Attention: Dru Greenhalgh

Telephone No.: (858) 754-2710

Facsimile No.: (858) 546-0695



with copies to:


Latham & Watkins LLP

12636 High Bluff Drive, Suite 400

San Diego, California 92130

Attention: Barry M. Clarkson

Telephone No.: (858)523-5406

Facsimile No.: (858) 523-5450




          (iii) If to Stockholder: To the address for notice set forth on the signature page
hereof.



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               (g) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof.



               (h) Entire Agreement. This Agreement and the Proxy contain the entire understanding
of the parties in respect of the subject matter hereof, and supersede all prior negotiations and
understandings between the parties with respect to such subject matter.



               (i) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.



               (j) No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon
execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with
respect to Currently Owned Shares or the Shares, except as otherwise provided herein or in the
Reorganization Agreement. All rights, ownership and economic benefits of and relating to the
Currently Owned Shares and the Shares shall remain vested in and belong to Stockholder, and Parent
shall have no authority, as a result of this Agreement, to manage direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of the Company or exercise any
power or authority to direct Stockholder in the voting of any of the Currently Owned Shares or the
Shares, as applicable, in each case, except as otherwise provided herein or in the Reorganization
Agreement.



               (k) Effect of Headings. The section headings herein are for convenience only and
shall not affect the construction or interpretation of this Agreement.



[Remainder of Page Intentionally Left Blank]




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EXHIBIT 4



EXECUTION COPY



     IN WITNESS
WHEREOF, the undersigned have executed this Company Voting Agreement on the date
first above written.





	 
	OMNITURE, INC.

	 

	By:   
                    
                   
          

	Name:

	Title:

	 

	 

	VISUAL
SCIENCES, INC.

 


	 

	By:     
                      
                     
    

	Name:

	Title:










	 
	STOCKHOLDER:

	 

	 

	Signature

	 

	 

	Print Name

	 


	 

	 

	Address

	 

	Company Capital Stock:

	 

	Common Stock:   
           
              
            

	Company Options:   
           
              
       












[SIGNATURE PAGE TO VOTING AGREEMENT]




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EXHIBIT A




IRREVOCABLE PROXY




     The undersigned stockholder (“Stockholder”) of Visual Sciences, Inc., a Delaware corporation
(the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints Joshua G.
James, Michael S. Herring and Shawn J. Lindquist of Omniture, Inc., a Delaware corporation
(“Parent”), and each of them, as the sole and exclusive attorneys-in-fact and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and exercise all voting
and related rights (to the full extent that the undersigned is entitled to do so) with respect to
all of the shares of capital stock of the Company that are beneficially owned by the undersigned at
the time of each Stockholder Vote (defined below) (the “Shares”) in accordance with the terms of
this Proxy until the Expiration Date (as defined in the Voting Agreement (as defined below)). The
Shares beneficially owned by the undersigned stockholder of the Company as of the date of this
Proxy are listed on the final page of this Proxy. Upon the undersigned’s execution of this Proxy,
any and all prior proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned hereby agrees not to grant any subsequent proxies with respect to the shares
held by such Stockholder until after the Expiration Date.



     This Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an
interest and is granted pursuant to that certain Voting Agreement, dated as of October 25, 2007, by
and among Parent, the Company and Stockholder (the “Voting Agreement”), and is granted in
consideration of Parent entering into that certain Agreement and Plan of Reorganization, dated as
of October 25, 2007 (the “Reorganization Agreement”), by and among Parent, Voyager Merger Corp., a
Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”) and the Company. The
Reorganization Agreement provides for the merger of Merger Sub with and into the Company in
accordance with its terms (the “Merger”).



     The attorneys-in-fact and proxies named above are hereby authorized and empowered by the
undersigned, at any time prior to the Expiration Date (as defined in the Voting Agreement), at
every annual, special, adjourned or postponed meeting of stockholders of the Company and in every
written consent in lieu of such meeting (each such annual, special, adjourned or postponed meeting
and/or written consent, each, a “Stockholder Vote”), to act as the undersigned’s attorney-in-fact
and proxy to vote the Shares that are beneficially owned by the undersigned at the time of a
Stockholder Vote, and to exercise all voting, consent and similar rights of the undersigned with
respect to such Shares (including, without limitation, the power to execute and deliver written
consents) as follows:



     (i) in favor of the adoption of the Reorganization Agreement and in favor of any other actions
contemplated by the Reorganization Agreement and this Proxy and any action required in furtherance
thereof;



 









 





     (ii) against approval of any proposal made in opposition to, or in competition with,
consummation of the Merger and the transactions contemplated by the Reorganization Agreement;



     (iii) against any of the following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Reorganization Agreement): (A) any Acquisition Proposal
(as defined in the Reorganization Agreement) or any other merger agreement, merger (other than the
Reorganization Agreement and Merger), consolidation, business combination, sale of substantial
assets, reorganization or recapitalization of the Company or any subsidiary of the Company with any
party, (B) any sale, lease or transfer of any substantial part of the assets of the Company or any
subsidiary of the Company, (C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company or corporate structure of the
Company or any subsidiary of the Company; or (E) any other action that would reasonably be expected
to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any other
transactions contemplated by the Reorganization Agreement;



     (iv) in favor of waiving any notice that may have been or may be required relating to any
reorganization of the Company or any subsidiary of the Company, any reclassification or
recapitalization of the capital stock of the Company or any subsidiary of the Company, any sale of
assets, change of control or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of the Company with
or into any other person; and



     (v) in favor of any adjournment or postponement recommended by the Company with respect to any
stockholder meeting with respect to the Reorganization Agreement and the Merger.



     The attorneys-in-fact and proxies named above may not exercise this Proxy on any other matter
except as provided in clauses (i), (ii), (iii), (iv) or (v) above. Stockholder may vote the Shares
on all other matters.



     Any obligation of the undersigned hereunder shall be binding upon the successors by operation
of law of the undersigned.



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     This Proxy shall terminate, and be of no further force and effect, automatically upon the
Expiration Date (as defined in the Voting Agreement).



Dated: October __, 2007




	 	 	 	 	 
	 	Signature 	 
	 	 	 
	 	 	 
	 
	 	Print Name
	 	 	 
	 	 
	 	 	 
	 	Address
	 	 	 
	 	 	 
	 	Shares:
	 	 	 
	 	Company Common Stock:                                        


	 	 	 
	 	Company Options:                                                    

 



[SIGNATURE PAGE TO PROXY]