exv10w1



 





Exhibit 10.1




VISUAL SCIENCES, INC.




2004 EQUITY INCENTIVE AWARD PLAN




FORM OF RESTRICTED STOCK AWARD GRANT NOTICE AND

RESTRICTED STOCK AWARD AGREEMENT




     Visual Sciences, Inc., a Delaware corporation formerly known as WebSideStory, Inc. (the
“Company”), pursuant to its 2004 Equity Incentive Award Plan (the “Plan”), hereby grants to the
individual listed below (“Participant”), the right to purchase the number of shares of the
Company’s Stock set forth below (the “Shares”) at the purchase price set forth below. This
Restricted Stock award is subject to all of the terms and conditions as set forth herein and in the
Restricted Stock Award Agreement attached hereto as Exhibit A (the “Restricted Stock
Agreement”) and the Plan, which are incorporated herein by reference. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in this Grant Notice and
the Restricted Stock Agreement.



	 	 	 
	Participant:

	 	                                        [to be completed]
	 
	 	 
	Grant Date:

	 	                                         [to be completed]
	 
	 	 
	Purchase Price per Share:

	 	                                        [to be completed]
	 
	 	 
	Total Number of Shares of Restricted
Stock:

	 	                                        [to be completed]
	 
	 	 
	Vesting Schedule:

	 	                                        [to be completed]






     By his or her signature, Participant agrees to be bound by the terms and conditions of the
Plan, the Restricted Stock Agreement and this Grant Notice. Participant has reviewed the Restricted
Stock Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Grant Notice and fully understands all provisions of
this Grant Notice, the Restricted Stock Agreement and the Plan. Participant hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the Administrator of
the Plan upon any questions arising under the Plan, this Grant Notice or the Restricted Stock
Agreement. If Participant is married, his or her spouse has signed the Consent of Spouse attached
to this Grant Notice as Exhibit B.



	 	 	 	 	 	 	 
	VISUAL SCIENCES, INC.:	 	PARTICIPANT:
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Print Name:

	 	 	 	Print Name:	 	 
	 

	 	 
	 	 	 	 
	Title:
	 	 	 	 	 	 
	Address:	 	10182 Telesis Court, 6th Floor

San Diego, CA 92121	 	Address:
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





GRANT NOTICE PAGE 1






 









 








EXHIBIT A




TO RESTRICTED STOCK AWARD GRANT NOTICE




RESTRICTED STOCK AWARD AGREEMENT




     Pursuant to the Restricted Stock Award Grant Notice (“Grant Notice”) to which this Restricted
Stock Award Agreement (this “Agreement”) is attached, Visual Sciences, Inc., a Delaware corporation
formerly known as WebSideStory, Inc. (the “Company”), has granted to Participant the right to
purchase the number of shares of Restricted Stock under the Company’s 2004 Equity Incentive Award
Plan (the “Plan”) indicated in the Grant Notice.



ARTICLE I




GENERAL




     1.1 Defined Terms. Capitalized terms not specifically defined herein shall have the
meanings specified in the Plan and the Grant Notice.



     1.2 Incorporation of Terms of Plan. The Shares are subject to the terms and
conditions of the Plan which are incorporated herein by reference.



ARTICLE II




GRANT OF RESTRICTED STOCK




     2.1 Grant of Restricted Stock. In consideration of Participant’s past and/or
continued employment with or service to the Company or a Subsidiary and for other good and valuable
consideration, effective as of the Grant Date set forth in the Grant Notice (the “Grant Date”), the
Company irrevocably grants to Participant the right to purchase the number of shares of Stock set
forth in the Grant Notice (the “Shares”), upon the terms and conditions set forth in the Plan and
this Agreement.



     2.2 Purchase Price. The purchase price per Share (the “Purchase Price”) shall be as
set forth in the Grant Notice, without commission or other charge. The payment of the Purchase
Price shall be paid by cash or check.



     2.3 Issuance of Shares. The issuance of the Shares under this Agreement shall occur
at the principal office of the Company, upon payment of the Purchase Price by Participant,
simultaneously with the execution of this Agreement by the parties (the “Issuance Date”). Subject
to the provisions of Article IV below, on the Issuance Date, the Company shall issue the Shares
(which shall be issued in Participant’s name).



     2.4 Conditions to Issuance of Stock Certificates. The Shares, or any portion thereof,
may be either previously authorized but unissued shares or issued shares which have then been
reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall
not be required to issue or deliver any Shares prior to fulfillment of all of the following
conditions:



          (a) The admission of such Shares to listing on all stock exchanges on which such Stock is then
listed; and




RESTRICTED STOCK AGREEMENT PAGE 1




 









 





          (b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its absolute discretion, deem
necessary or advisable; and




          (c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its absolute discretion, determine to be necessary or
advisable; and




          (d) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state, local or foreign tax law, the Company (or other employer
corporation) is required to withhold upon issuance of such Shares; and




          (e) The lapse of such reasonable period of time following the Issuance Date as the
Administrator may from time to time establish for reasons of administrative convenience.




     2.5 Rights as Stockholder. Except as otherwise provided herein, upon delivery of the
Shares to the escrow holder pursuant to Article IV, Participant shall have all the rights of a
stockholder with respect to said Shares, subject to the restrictions herein, including the right to
vote the Shares and to receive all dividends or other distributions paid or made with respect to
the Shares; provided, however, that any and all cash dividends paid on such Shares and any and all
shares of Stock, capital stock or other securities received by or distributed to Participant with
respect to the Shares as a result of any stock dividend, stock split, reverse stock split,
recapitalization, combination, reclassification, or similar change in the capital structure of the
Company shall also be subject to the Repurchase Option (as defined in Section 3.1 below) and the
restrictions on transfer in Section 3.4 below until such restrictions on the underlying Shares
lapse or are removed pursuant to this Agreement.



     2.6 Consideration to the Company. In consideration of the issuance of the Shares by
the Company, Participant agrees to render faithful and efficient services to the Company or any
Subsidiary. Nothing in the Plan or this Agreement shall confer upon Participant any right to (a)
continue in the employ of the Company or any Subsidiary or shall interfere with or restrict in any
way the rights of the Company and its Subsidiaries, which are hereby expressly reserved, to
discharge Participant, if Participant is an Employee, at any time for any reason whatsoever, with
or without cause, except to the extent expressly provided otherwise in a written agreement between
the Company or a Subsidiary and Participant, or (b) continue to provide services to the Company or
any Subsidiary or shall interfere with or restrict in any way the rights of the Company or its
Subsidiaries, which are hereby expressly reserved, to terminate the services of Participant, if
Participant is a consultant, at any time for any reason whatsoever, with or without cause, except
to the extent expressly provided otherwise in a written agreement between the Company or a
Subsidiary and Participant, or (c) continue to serve as a member of the Board or shall interfere
with or restrict in any way the rights of the Company, which are hereby expressly reserved, to
discharge Participant in accordance with the Company’s Bylaws.



ARTICLE III




RESTRICTIONS ON SHARES




     3.1 Repurchase Option. Subject to the provisions of Section 3.2 below, if Participant
has a Termination of Service (as defined below) before all of the Shares are released from the
Company’s Repurchase Option (as defined below), the Company shall, upon the date of such
Termination of Service (as reasonably fixed and determined by the Company), have an irrevocable,
exclusive option, but not the obligation, for a period of ninety days after the date Participant
has a Termination of Service, to



RESTRICTED STOCK AGREEMENT PAGE 2




 









 




repurchase all or any portion of the Unreleased Shares (as defined below in Section 3.3) at
such time (the “Repurchase Option”) at the Purchase Price per Share (the “Repurchase Price”). The
Repurchase Option shall lapse and terminate ninety days after the Participant’s Termination of
Service. The Repurchase Option shall be exercisable by the Company by written notice to
Participant or Participant’s executor (with a copy to the escrow agent appointed pursuant to
Section 4.1 below) and, at the Company’s option, by delivery to Participant or Participant’s
executor with such notice of payment in cash or a check in the amount of the Repurchase Price times
the number of Shares to be repurchased (the “Aggregate Repurchase Price”). Upon delivery of such
notice and the payment of the Aggregate Repurchase Price, the Company shall become the legal and
beneficial owner of the Shares being repurchased and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its own name the number of
Shares being repurchased by the Company. In the event the Company repurchases any Shares under this
Section 3.1, any dividends or other distributions paid on such Shares and held by the escrow agent
pursuant to Section 4.1 and the Joint Escrow Instructions shall be promptly paid by the escrow
agent to the Company.




     3.2 Release of Shares from Repurchase Restriction. The Shares shall be released from
the Company’s Repurchase Option on such dates and in such amounts as the Shares become vested in
accordance with the vesting schedule set forth in the Grant Notice. Any of the Shares released from
the Company’s Repurchase Option shall thereupon be released from the restrictions on transfer under
Section 3.4. In the event any of the Shares are released from the Company’s Repurchase Option, any
dividends or other distributions paid on such Shares and held by the escrow agent pursuant to
Section 4.1 and the Joint Escrow Instructions shall be promptly paid by the escrow agent to
Participant.



     3.3 Unreleased Shares. Any of the Shares which, from time to time, have not yet been
released from the Company’s Repurchase Option are referred to herein as “Unreleased Shares.”



     3.4 Restrictions on Transfer.



          (a) Subject to repurchase by the Company pursuant to Section 3.1 and Section 3.4(b), no
Unreleased Shares or any dividends or other distributions thereon or any interest or right therein
or part thereof, shall be liable for the debts, contracts or engagements of Participant or his or
her successors in interest or shall be subject to sale or other disposition by Participant or his
or her successors in interest by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such sale or other disposition be voluntary or involuntary or
by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted sale or other disposition thereof shall be
null and void and of no effect.




          (b) Notwithstanding any other provision in this Agreement, with the consent of the
Administrator, the Unreleased Shares may be transferred to certain persons or entities related to
the Participant, including but not limited to members of the Participant’s family, charitable
institutes or trusts or other entities whose beneficiaries or beneficial owners are members of the
Participant’s family or to such other persons or entities as may be expressly approved by the
Committee (each a “Permitted Transferee”), pursuant to such conditions and procedures as the
Committee may require. Any permitted transfer will be subject to the condition that the Committee
receive evidence satisfactory to it that the transfer is being made for estate and/or tax planning
purposes (or to a “blind trust” in connection with the Participant’s Termination of Service with
the Company or a Subsidiary to assume a position with a governmental, charitable, educational or
similar non-profit institution) and on a basis consistent with the Company’s lawful issue of
securities.




     3.5 Definition of Termination of Service. For purposes of this Agreement,
“Termination of Service” means the time when the service relationship (whether as an Employee,
Director or a consultant)



RESTRICTED STOCK AGREEMENT PAGE 3





 









 







between Participant and the Company or any Subsidiary is terminated for any reason, with or
without cause, including, but not by way of limitation, a termination by resignation, discharge,
death or Disability; but excluding (i) a termination where there is a simultaneous reemployment or
continuing employment or consultancy of Participant by the Company or any Subsidiary or a “parent
corporation” of the Company (within the meaning of Section 424 of the Code), (ii) at the discretion
of the Committee, a termination which results in a temporary severance of the employee-employer
relationship, and (iii) at the discretion of the Committee, a termination which is followed by the
simultaneous establishment of a consulting relationship by the Company or a Subsidiary with a
former Employee. The Committee, in its absolute discretion, shall determine the effect of all
matters and questions relating to Termination of Service for the purposes of this Agreement, and
all questions of whether a particular leave of absence for a Participant who is an Employee of the
Company or any of its Subsidiaries constitutes a Termination of Service. Notwithstanding any other
provision of the Plan or this Agreement, the Company or any Subsidiary has an absolute and
unrestricted right to terminate Participant’s employment and/or consultancy at any time for any
reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a
written agreement between the Company or a Subsidiary and Participant.




ARTICLE IV




ESCROW OF SHARES




     4.1 Escrow of Shares. To ensure the availability for delivery of Participant’s
Unreleased Shares upon repurchase by the Company pursuant to the Repurchase Option under Section
3.1, Participant hereby appoints the Secretary of the Company, or any other person designated by
the Administrator as escrow agent, as his or her attorney-in-fact to assign and transfer unto the
Company, such Unreleased Shares, if any, repurchased by the Company pursuant to the Repurchase
Option pursuant to Section 3.1 and any dividends or other distributions thereon, and shall, upon
execution of this Agreement, deliver and deposit with the Secretary of the Company, or such other
person designated by the Administrator, any share certificates representing the Unreleased Shares,
together with the stock assignment duly endorsed in blank, attached as Exhibit C to the
Grant Notice. The Unreleased Shares and stock assignment shall be held by the Secretary of the
Company, or such other person designated by the Administrator, in escrow, pursuant to the Joint
Escrow Instructions of the Company and Participant attached as Exhibit D to the Grant
Notice, until the Company exercises its Repurchase Option as provided in Section 3.1, until such
Unreleased Shares are released from the Company’s Repurchase Option, or until such time as this
Agreement no longer is in effect. Upon release of the Unreleased Shares from the Company’s
Repurchase Option, the escrow agent shall deliver to Participant the certificate or certificates
representing such Shares in the escrow agent’s possession belonging to Participant in accordance
with the terms of the Joint Escrow Instructions attached as Exhibit D to the Grant Notice,
and the escrow agent shall be discharged of all further obligations hereunder. If the Shares are
held in book entry form, then such entry will reflect that the Shares are subject to the
restrictions of this Agreement. If any dividends or other distributions are paid on the Unreleased
Shares held by the escrow agent pursuant to this Section 4.1 and the Joint Escrow Instructions,
such dividends or other distributions shall also be subject to the restrictions set forth in this
Agreement and held in escrow pending release of the Unreleased Shares with respect to which such
dividends or other distributions were paid from the Company’s Repurchase Option.



     4.2 Transfer of Repurchased Shares. Participant hereby authorizes and directs the
Secretary of the Company, or such other person designated by the Administrator, to transfer the
Unreleased Shares as to which the Repurchase Option has been exercised from Participant to the
Company.



     4.3 No Liability for Actions in Connection with Escrow. The Company, or its designee,
shall not be liable for any act it may do or omit to do with respect to holding the Shares in
escrow and while acting in good faith and in the exercise of its judgment.



RESTRICTED STOCK AGREEMENT PAGE 4




 









 





ARTICLE V




OTHER PROVISIONS




     5.1 Adjustment for Stock Split. In the event of any stock dividend, stock split,
reverse stock split, recapitalization, combination, reclassification, or similar change in the
capital structure of the Company, the Committee shall make appropriate and equitable adjustments in
the Unreleased Shares subject to the Repurchase Option and the number of Shares, consistent with
any adjustment under Section 11.1 of the Plan. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to the Shares, to any and all shares of capital stock
or other securities or other property or cash which may be issued in respect of, in exchange for,
or in substitution of the Shares, and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, recapitalizations and the like occurring after the date
hereof.



     5.2 Taxes. Participant has reviewed with Participant’s own tax advisors the federal,
state, local and foreign tax consequences of this investment and the transactions contemplated by
the Grant Notice and this Agreement. Participant is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Participant understands that
Participant (and not the Company) shall be responsible for Participant’s tax liability that may
arise as a result of this investment or the transactions contemplated by this Agreement.
Participant understands that Participant will recognize ordinary income for federal income tax
purposes under Section 83 of the Code as and when the Repurchase Option lapses. Participant
understands that Participant may elect to be taxed for federal income tax purposes at the time the
Shares are purchased by Participant rather than as and when the Repurchase Option lapses by filing
an election under Section 83(b) of the Code with the Internal Revenue Service within thirty (30)
days from the date of purchase. A form of election under Section 83(b) of the Code is attached to
the Grant Notice as Exhibit E.



     PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
TIMELY FILE THE ELECTION UNDER SECTION 83(b), AND THE COMPANY AND ITS REPRESENTATIVES SHALL HAVE NO
OBLIGATION OR AUTHORITY TO MAKE THIS FILING ON PARTICIPANT’S BEHALF.



     5.3 Administration. The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
final and binding upon Participant, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, this Agreement or the Shares. In its absolute discretion, the Board
may at any time and from time to time exercise any and all rights and duties of the Committee under
the Plan and this Agreement.



     5.4 Restrictive Legends and Stop-Transfer Orders.



          (a) Any share certificate(s) evidencing the Shares issued hereunder shall be endorsed with the
following legend and any other legends that may be required by state or federal securities laws:





THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF REPURCHASE IN
FAVOR OF THE COMPANY AND MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF A RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE COMPANY



RESTRICTED STOCK AGREEMENT PAGE 5





 









 









AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.



          (b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.




          (c) The Company shall not be required: (i) to transfer on its books any Shares that have been
sold or otherwise transferred in violation of any of the provisions of this Agreement, or (ii) to
treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such shares shall have been so transferred.




     5.5 Notices. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of the Secretary of the Company at the address given
beneath the signature of an authorized officer of the Company on the Grant Notice, and any notice
to be given to Participant shall be addressed to Participant at the address given beneath
Participant’s signature on the Grant Notice. By a notice given pursuant to this Section 5.5,
either party may hereafter designate a different address for notices to be given to that party.
Any notice shall be deemed duly given when sent via email or when sent by certified mail (return
receipt requested) and deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.



     5.6 Titles. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.



     5.7 Construction. This Agreement shall be administered, interpreted and enforced
under the laws of the State of Delaware without regard to conflicts of laws thereof. Should any
provision of this Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain enforceable.



     5.8 Conformity to Securities Laws. Participant acknowledges that the Plan is intended
to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state securities laws and regulations. Notwithstanding anything herein to the
contrary, the Plan shall be administered, and the Shares are to be issued, only in such a manner as
to conform to such laws, rules and regulations. To the extent permitted by applicable law, the
Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws,
rules and regulations.



     5.9 Amendments. This Agreement may not be modified, amended or terminated except by
an instrument in writing, signed by Participant and by a duly authorized representative of the
Company.



     5.10 Successors and Assigns. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
this Agreement shall be binding upon Participant and his or her heirs, executors, administrators,
successors and assigns.



     5.11 Entire Agreement. The Plan and this Agreement (including all Exhibits hereto)
constitute the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Participant with respect to the subject matter
hereof.



RESTRICTED STOCK AGREEMENT PAGE 6






 









 








EXHIBIT B




TO RESTRICTED STOCK AWARD GRANT NOTICE




CONSENT OF SPOUSE




     I,                                         , spouse of , have read and approve the foregoing Restricted Stock
Grant Notice and Restricted Stock Award Agreement (the “Agreement”). In consideration of issuing
to my spouse the shares of the common stock of Visual Sciences, Inc., a Delaware corporation
formerly known as WebSideStory, Inc. (the “Company”), set forth in the Agreement, I hereby appoint
my spouse as my attorney-in-fact in respect to the exercise of any rights under the Agreement and
agree to be bound by the provisions of the Agreement insofar as I may have any rights in said
Agreement or any shares of the common stock of the Company issued pursuant thereto under the
community property laws or similar laws relating to marital property in effect in the state of our
residence as of the date of the signing of the foregoing Agreement.



	 	 	 
	Dated:                                         ,___

	 	                                                            
	 

	 	Signature of Spouse







 









 








EXHIBIT C




TO RESTRICTED STOCK AWARD GRANT NOTICE




STOCK ASSIGNMENT




     FOR VALUE RECEIVED, the undersigned, , hereby sells, assigns and transfers unto Visual
Sciences, Inc., a Delaware corporation formerly known as WebSideStory, Inc. (the “Company”),
                    shares of the common stock of the Company standing in its name on the books of said
corporation represented by Certificate No. ___herewith and do hereby irrevocably constitute and
appoint                      to transfer the said stock on the books of the within named
corporation with full power of substitution in the premises.



     This Stock Assignment may be used only in accordance with the Restricted Stock Award Agreement
between the Company and the undersigned dated                     .



	 	 	 
	Dated:                                         ,___

	 	                                                            
	 

	 	Name






     INSTRUCTIONS: Please do not fill in the blanks other than the signature line. The purpose of
this assignment is to enable the Company to exercise its “Repurchase Option,” as set forth in the
Restricted Stock Award Agreement, without requiring additional signatures on the part of
Participant.




 









 








EXHIBIT D




TO RESTRICTED STOCK AWARD GRANT NOTICE




JOINT ESCROW INSTRUCTIONS




[Insert Date]




Secretary

Visual Sciences, Inc.




Ladies and Gentlemen:




     As escrow agent (the “Escrow Agent”) for both Visual Sciences, Inc., a Delaware corporation
formerly known as WebSideStory, Inc. (the “Company”), and the undersigned recipient of shares of
common stock of the Company (the “Participant”), you are hereby authorized and directed to hold in
escrow the documents delivered to you pursuant to the terms of that certain Restricted Stock Award
Agreement (“Agreement”) between the Company and the undersigned (the “Escrow”), including the stock
certificate and the Stock Assignment, in accordance with the following instructions:



     1. In the event the Company and/or any assignee of the Company (referred to collectively for
convenience herein as the “Company”) exercises the Repurchase Option as defined in the Agreement),
the Company shall give to Participant and you a written notice specifying the number of shares of
stock to be purchased, the purchase price and the time for a closing hereunder at the principal
office of the Company. Participant and the Company hereby irrevocably authorize and direct you to
close the transaction contemplated by such notice in accordance with the terms of said notice.



     2. As of the date of closing of the repurchase indicated in such notice, you are directed (a)
to date the stock assignments necessary for the repurchase and transfer in question, (b) to fill in
the number of shares being repurchased and transferred, and (c) to deliver the same, together with
the certificate evidencing the shares of stock to be repurchased and transferred, to the Company or
its assignee.



     3. Participant irrevocably authorizes the Company to deposit with you any certificates
evidencing shares of stock to be held by you hereunder and any additions and substitutions to said
shares as defined in the Agreement. Participant does hereby irrevocably constitute and appoint you
as Participant’s attorney-in-fact and agent for the term of this escrow to execute with respect to
such securities all documents necessary or appropriate to make such securities negotiable and to
complete any transaction herein contemplated, including but not limited to the filing with any
applicable state blue sky authority of any required applications for consent to, or notice of
transfer of, the securities. Subject to the provisions of this paragraph and the Agreement,
Participant shall exercise all rights and privileges of a stockholder of the Company while the
stock is held by you.



     4. Upon written request of Participant, but no more than once per calendar month, unless the
Company’s Repurchase Option has been exercised, you will deliver to Participant a certificate or
certificates representing so many shares of stock as are not then subject to the Repurchase Option.
Within one hundred twenty days after the termination of the Company’s Repurchase Option in
accordance with the terms of the Agreement, you will deliver to Participant a certificate or
certificates representing the aggregate number of shares held or issued pursuant to the Agreement
and not repurchased pursuant to the Repurchase Option set forth in Section 3.1 of the Agreement.



JOINT ESCROW INSTRUCTIONS PAGE 1




 









 





     5. If at the time of termination of this escrow you should have in your possession any
documents, securities, or other property belonging to Participant, you shall deliver all of the
same to the Participant and shall be discharged of all further obligations hereunder.



     6. Your duties hereunder may be altered, amended, modified or revoked only by a writing signed
by all of the parties hereto.



     7. You shall be obligated only for the performance of such duties as are specifically set
forth herein and may rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have been signed or presented by the
proper party or parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Participant while acting in good faith, and
any act done or omitted by you pursuant to the advice of your own (or the Company’s) attorneys
shall be conclusive evidence of such good faith.



     8. You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or corporation, excepting only orders or process of courts of
law and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment or decree, you shall not be liable
to any of the parties hereto or to any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered without jurisdiction.



     9. You shall not be liable in any respect on account of the identity, authorities or rights of
the parties executing or delivering or purporting to execute or deliver the Agreement or any
documents or papers deposited or called for hereunder.



     10. You shall not be liable for the expiration of any rights under any applicable state,
federal or local statute of limitations or similar statute or regulation with respect to these
Joint Escrow Instructions or any documents deposited with you.



     11. You shall be entitled to employ such legal counsel and other experts as you may deem
necessary properly to advise you in connection with your obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation therefor. The Company will
reimburse you for any reasonable attorneys’ fees with respect thereto.



     12. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be
an officer or agent of the Company or if you shall resign by written notice to each party. In the
event of any such termination, the Company shall appoint a successor Escrow Agent.



     13. If you reasonably require other or further instruments in connection with these Joint
Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in
furnishing such instruments.



     14. It is understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the securities held by you hereunder, you are authorized
and directed to retain in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of competent jurisdiction
after the time for appeal has expired and no



JOINT ESCROW INSTRUCTIONS PAGE 2






 









 







appeal has been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.




     15. Any notice to be given under the terms of this Agreement to the Company shall be addressed
to the Company in care of the Secretary of the Company, and any notice to be given to the
Participant or you shall be addressed to the address given beneath Participant’s and your
signatures on the signature page to this Agreement. By a notice given pursuant to this Section 15,
any party may hereafter designate a different address for notices to be given to that party. Any
notice, which is required to be given to Participant, shall, if the Participant is then deceased,
be given to Participant’s designated beneficiary, if any, by written notice under this Section 15.
Any notice shall be deemed duly given when sent via email or when sent by certified mail (return
receipt requested) and deposited (with postage prepaid) in a post office or branch post office
regularly obtained by the United States Postal Service.



     16. By signing these Joint Escrow Instructions, you become a party hereto only for the purpose
of said Joint Escrow Instructions; you do not become a party to the Agreement.



     17. This instrument shall be binding upon and inure to the benefit of the parties hereto, and
their respective successors and permitted assigns.



     18. These Joint Escrow Instructions shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to conflicts of law thereof.



(Signature Page Follows)




JOINT ESCROW INSTRUCTIONS PAGE 3




 









 








     IN WITNESS WHEREOF, the parties have executed these Joint Escrow Instructions as of the date
first written above.



	 	 	 	 	 
	 	Very truly yours,



VISUAL SCIENCES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	10182 Telesis Court, 6th Floor

San Diego, CA 92121	 	 
	 
	 	 	 	 	 	 
	 

	 	PARTICIPANT:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	ESCROW AGENT:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Secretary, Visual Sciences, Inc.
	 	 







			
	Address:	 	10182 Telesis Court, 6th Floor

San Diego, CA 92121





 









 








EXHIBIT E




TO RESTRICTED STOCK AWARD GRANT NOTICE




FORM OF 83(B) ELECTION AND INSTRUCTIONS




     These instructions are provided to assist you if you choose to make an election under Section
83(b) of the Internal Revenue Code, as amended, with respect to the shares of common stock of
Visual Sciences, Inc. transferred to you. Please consult with your personal tax advisor as to
whether an election of this nature will be in your best interests in light of your personal tax
situation.



     The executed original of the Section 83(b) election must be filed with the Internal Revenue
Service not later than thirty days after the date the shares were transferred to you. PLEASE NOTE:
There is no remedy for failure to file on time. The steps outlined below should be followed to
ensure the election is mailed and filed correctly and in a timely manner. ALSO, PLEASE NOTE: If
you make the Section 83(b) election, the election is irrevocable.




	1.	 	Complete Section 83(b) election form (attached as Attachment 1) and make four copies
of the signed election form. (Your spouse, if any, should sign Section 83(b) election form as
well.)






	2.	 	Prepare the cover letter to the Internal Revenue Service (sample letter attached as
Attachment 2).






	3.	 	Send the cover letter with the originally executed Section 83(b) election form and one copy
via certified mail, return receipt requested to the Internal Revenue Service at the address of
the Internal Revenue Service where you file your personal tax returns. We suggest that you
have the package date-stamped at the post office. The post office will provide you with a
white certified receipt that includes a dated postmark. Enclose a self-addressed, stamped
envelope so that the Internal Revenue Service may return a date-stamped copy to you. However,
your postmarked receipt is your proof of having timely filed the Section 83(b) election if you
do not receive confirmation from the Internal Revenue Service.






	4.	 	One copy must be sent to Visual Sciences, Inc. for its records and one copy must be attached
to your federal income tax return for the applicable calendar year.





     5. Retain the Internal Revenue Service file stamped copy (when returned) for your records.



     Please consult your personal tax advisor for the address of the office of the Internal Revenue
Service to which you should mail your election form.




 









 








ATTACHMENT 1 TO EXHIBIT E




ELECTION UNDER INTERNAL REVENUE CODE SECTION 83(B)




     The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code
of 1986, as amended, to include in taxpayer’s gross income for the current taxable year the amount
of any compensation taxable to taxpayer in connection with taxpayer’s receipt of shares (the
“Shares”) of Common Stock of Visual Sciences, Inc., a Delaware corporation formerly known as
WebSideStory, Inc. (the “Company”).




	1.	 	The name, address and taxpayer identification number of the undersigned taxpayer are:
	 
	 	 	                                        
	 
	 	 	                                        
	 
	 	 	SSN:                                        
	 
	 	 	The name, address and taxpayer identification number of the Taxpayer’s spouse are (complete
if applicable):
	 
	 	 	                                        
	 
	 	 	                                        
	 
	 	 	                                        
	 
	 	 	SSN:                                         
	 
	2.	 	Description of the property with respect to which the election is being made:
	 
	 	 	                                        (___) shares of Common Stock of the Company.
	 
	3.	 	The date on which the property was transferred was                                         . The taxable year to which
this election relates is calendar year ___.
	 
	4.	 	Nature of restrictions to which the property is subject:
	 
	 	 	The Shares are subject to repurchase at their original purchase price if unvested as of the
date of termination of employment, directorship or consultancy with the Company.
	 
	5.	 	The fair market value at the time of transfer (determined without regard to any lapse
restrictions, as defined in Treasury Regulation Section 1.83-3(a)) of the Shares was
$                                         per Share.
	 
	6.	 	The amount paid by the taxpayer for the Shares was per share.
	 
	7.	 	A copy of this statement has been furnished to the Company.





Dated:                                         , ____           Taxpayer Signature                                         



The undersigned spouse of Taxpayer joins in this election. (Complete if applicable).




Dated:                                         , ____            Spouse’s Signature                                         




 









 








ATTACHMENT 2 TO EXHIBIT E




SAMPLE COVER LETTER TO INTERNAL REVENUE SERVICE




                                        , ___




VIA CERTIFIED MAIL

RETURN RECEIPT REQUESTED




Internal Revenue Service

[Address where taxpayer files returns]





			
	Re:	 	Election under Section 83(b) of the Internal Revenue Code of 1986





	 	 	 
	Taxpayer:
	 	 
	 

	 	 





	 	 	 
	Taxpayer’s Social Security Number:
	 	 
	 

	 	 





	 	 	 
	Taxpayer’s Spouse:
	 	 
	 

	 	 





	 	 	 
	Taxpayer’s Spouse’s Social Security Number:
	 	 
	 

	 	 





     Ladies and Gentlemen:



     Enclosed please find an original and one copy of an Election under Section 83(b) of the
Internal Revenue Code of 1986, as amended, being made by the taxpayer referenced above. Please
acknowledge receipt of the enclosed materials by stamping the enclosed copy of the Election and
returning it to me in the self-addressed stamped envelope provided herewith.



	 	 	 	 	 
	 	Very truly yours,

———————

 	 
	 	 	 
	 	 	 
	 	 	 
	 



Enclosures




cc:       Visual Sciences, Inc.