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OMB Number: 3235-0145
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
(CUSIP Number)
Omniture,
Inc.
550 East Timpanogos Circle, Orem Utah 84097
Attention: Shawn J. Lindquist, Chief Legal Officer
(801) 722-7000
Copies to:
Wilson Sonsini Goodrich & Rosati Professional Corporation
Attention: Robert G. O'Connor
Spear Street Tower
One Market, Suite 3300
San Francisco, CA 94105-1126
(415) 947-2000
(Name, Address and
Telephone Number of Person Authorized to Receive Notices and Communications)
(Date of Event Which Requires Filing of this Statement)
If the filing person has
previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box.
o
SCHEDULE 13D
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1
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NAME OF REPORTING PERSONS:
Omniture, Inc.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): 87-0619936
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
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(a)
o
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(b)
þ
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3
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SEC USE ONLY:
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS):
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OO
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION:
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Delaware
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7
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SOLE VOTING POWER:
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NUMBER OF
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None
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SHARES
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8
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SHARED VOTING POWER:
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BENEFICIALLY
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OWNED BY
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2,709,568
1
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EACH
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9
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SOLE DISPOSITIVE POWER:
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REPORTING
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PERSON
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None
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WITH
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10
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SHARED DISPOSITIVE POWER:
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None
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
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2,709,568
1
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
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11.9%
1
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14
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TYPE OF REPORTING PERSON
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CO
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1
As a
result of the Voting Agreements and irrevocable proxies described in
this Statement, Omniture may be deemed to have beneficial ownership of
the above referenced shares
of Visual Sciences common stock. Such number of shares includes
options and warrants to purchase 1,815,937 shares of Visual Sciences
common stock held by the Subject Stockholders (as defined in this
Statement). Such numbers are based on information provided to
Omniture by Visual Sciences.
Based
on the number of
shares of Visual Sciences common stock outstanding as of October 25,
2007 (as represented by Visual Sciences in the Reorganization Agreement (as described in this Statement)) Omniture may be deemed to have beneficial ownership of approximately
11.9%
of the outstanding shares of Visual Sciences common stock. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Omniture that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
2
SCHEDULE 13D
Item 1. Security and Issuer.
This statement on Schedule 13D (this Statement) relates to the common stock, par value
$0.001 per share of Visual Sciences, Inc., a Delaware Corporation (Visual Sciences). Visual
Sciences principal executive offices are located at 10182 Telesis Court, 6th Floor, San Diego, CA
92121.
Item 2. Identity and Background.
(a)-(c) This Statement is being filed by Omniture, Inc., a Delaware corporation (Omniture).
Omniture has its principal office at 550 East Timpanogos Circle, Orem, Utah 84097. The principal
business of Omniture is to provide online business optimization software. The name, business
address and present principal occupation or employment of each executive officer, director and
controlling person of Omniture, and the name, principal place of business and address of any
corporation or other organization in which such employment is conducted, are set forth on Schedule
I hereto and incorporated herein by reference.
(d)-(e) During the last five years, neither Omniture nor, to Omnitures knowledge, any person
named in Schedule I hereto, has been: (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation with respect to
such laws.
(f) The citizenship of each executive officer, director and controlling person of Omniture is
set forth on Schedule I.
Item 3. Source and Amount of Funds or Other Consideration.
The shares of Visual Sciences common stock to which this Statement relates have not been
purchased by Omniture, and thus no funds were used for such purpose. As an inducement for Omniture
to enter into the Reorganization Agreement (as defined in Item 4 below) and in consideration
thereof, the executive officers and directors of Visual Sciences
identified in Schedule II (the Subject Stockholders) entered into Voting Agreements,
dated as of October 25, 2007 (the Voting Agreements) with, and granted irrevocable proxies to,
Omniture with respect to the Covered Shares as described in Item 4. Omniture did not pay
consideration to the Subject Stockholders in connection with the execution and delivery of the
Voting Agreements. For a description of the Voting Agreements, see Item 4 below, which description
is incorporated herein by reference in response to this Item 3.
Item 4. Purpose of Transaction.
(a), (b), (d), (g), (h) and (i) As an inducement for Omniture to enter into the Reorganization
Agreement (as defined below), the Subject Stockholders entered into the Voting Agreements. The
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purpose of the Voting Agreements is to facilitate the consummation of the transactions contemplated
by the Reorganization Agreement.
Reorganization Agreement
On October 25, 2007, Omniture, Inc., a Delaware corporation (Omniture), entered into an
Agreement and Plan of Reorganization (the Reorganization Agreement) by and among Omniture, Visual
Sciences, Inc., a Delaware corporation (Visual Sciences), and Voyager Merger Corp, a Delaware
corporation (Merger Sub). Pursuant to the terms and subject to the conditions set forth in the
Reorganization Agreement, Omniture will acquire Visual Sciences by means of a merger of Merger Sub
with and into Visual Sciences (the Merger), with Visual Sciences continuing as the surviving
corporation and wholly-owned subsidiary of Omniture after the Merger. As a result of the Merger,
each issued and outstanding share of common stock of Visual Sciences,
other than dissenting shares, will be cancelled and
automatically converted into the right to receive 0.49 of a share of Omniture common stock and
$2.39 in cash. In connection with the Merger, options to purchase Visual Sciences common stock outstanding at the
time of the Merger will be assumed by Omniture and converted into options to purchase Omniture
common stock based on an option exchange ratio. After the closing of the Merger, Omniture intends to terminate the listing of
Visual Sciences shares on the Nasdaq Global Market and terminate Visual Sciences registration
pursuant to the Exchange Act.
The Merger is subject to customary closing conditions, including obtaining the approval of
Omnitures and Visual Sciences stockholders and termination or expiration of the applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act.
Each of Visual Sciences and Omniture has agreed, unless the Reorganization Agreement is
terminated earlier, to cause a stockholders meeting to be held, for the purpose of considering
approval of the Merger and the Reorganization Agreement, with respect to Visual Sciences
stockholders and for the purpose of considering approval of the issuance of Omnitures common stock
as provided in the Reorganization Agreement, with respect to Omnitures stockholders.
Voting Agreements
In connection with the Reorganization Agreement, Omniture entered into a voting
agreement with Visual Sciences and each of the Subject Stockholders (the Voting
Agreement).
Pursuant to the Voting Agreements, the Subject Stockholders agreed to vote any shares of
Visual Sciences common stock held by them at the time of the Visual Sciences stockholders meeting
(the Covered 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
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substantial assets, reorganization or
recapitalization of Visual Sciences or any subsidiary of Visual Sciences with any party, (B) any
sale, lease or transfer of any substantial part of the assets of Visual Sciences or any subsidiary
of Visual Sciences, (C) any reorganization, recapitalization, dissolution, liquidation or winding
up of Visual Sciences or any subsidiary of Visual Sciences, (D) any material change in the
capitalization of Visual Sciences or any subsidiary of Visual Sciences or corporate structure of
Visual Sciences or any subsidiary of Visual Sciences, 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 Visual Sciences
or any subsidiary of Visual Sciences, any reclassification or recapitalization of the capital stock
of Visual Sciences or any subsidiary of Visual Sciences, any sale of assets, change of control or
acquisition of Visual Sciences or any subsidiary of Visual Sciences by any other person, or any
consolidation or merger of Visual Sciences or any subsidiary of Visual Sciences with or into any
other person, and (v) in favor of any adjournment or postponement recommended by Visual Sciences
with respect to any stockholder meeting with respect to the Reorganization Agreement and the
Merger.
In furtherance of the Subject Stockholders covenants under the Voting Agreements, pursuant to
the irrevocable proxies delivered pursuant to the Voting Agreements the Subject Stockholders
designated certain officers of Omniture, as agent, proxy and attorney-in-fact to vote the Covered
Shares in the manner described above.
The Voting Agreements do not contain any restrictions on the transfer of the shares of Visual
Sciences common stock held by the Subject Stockholders.
The Voting Agreements will terminate upon the earliest to occur of (i) such date as shall be
mutually agreed upon in writing by the Visual Sciences, Omniture and the Subject 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.
Except as set forth in this Statement, the Voting Agreements and the Reorganization Agreement,
neither Omniture nor Merger Sub has any present plans or proposals which relate to or would result
in any of the actions specified in clauses (c), (e), (f) or (j) of Item 4 of Schedule 13D.
References to and descriptions of the Voting Agreements and the Reorganization Agreement in
this Item 4 and throughout this Statement are qualified in their entirety by reference to the full text of such agreements.
The Reorganization Agreement and the Form of Voting Agreement are filed as Exhibit 1 and Exhibit 2, respectively, and are incorporated herein by
reference.
Item 5. Interest in Securities of the Issuer.
(a) As a result of the Voting Agreements and irrevocable proxies described in this Statement,
Omniture may be deemed to have beneficial ownership of shares of Visual Sciences common stock as
described in this Statement. Based on the number of shares of Visual Sciences common stock
outstanding as of October 25, 2007 (as represented by Visual Sciences, Inc., in the Reorganization
5
Agreement)
Omniture may be deemed to have beneficial ownership of approximately
11.9% of the
outstanding Visual Sciences common stock. Neither the filing of this Statement on Schedule 13D nor
any of its contents shall be deemed to constitute an admission by Omniture that it is the
beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the
Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. To
Omnitures knowledge, no shares of Common Stock of Visual Sciences are beneficially owned by any of
the persons listed on Schedule I.
(b)
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Pursuant to the Voting Agreements, Omniture may be deemed to
have shared power to vote 2,709,568 shares of Common Stock of Visual
Sciences held by the Subject Stockholders (including options and warrants to purchase 1,815,937 shares of Visual Sciences common stock held
by the Subject Stockholders). Such numbers are based on information provided to
Omniture by Visual Sciences.
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(c)
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To the knowledge of Omniture, no transactions in the common stock of Visual Sciences were
effected during the past 60 days or since the most recent filing of Schedule 13D, whichever is
less, by the persons named in response to Item 5(a).
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(d)
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To the knowledge of Omniture, no other person has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the securities of Visual
Sciences.
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(e)
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Not applicable.
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Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the
Issuer.
Other than as described in Items 3, 4 and 5, to Omnitures knowledge there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between any of the persons named
in Item 2 or Schedule I and any person with respect to any securities of Visual Sciences,
including, without limitation, the transfer or voting of any of the securities, finders fees,
joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of
profits or losses, or the giving or withholding of proxies or any pledge or contingency, the
occurrence of which would give another person voting or investment power over the securities of
Visual Sciences.
Item 7. Material to be Filed as Exhibits.
See exhibit index.
6
SIGNATURE
After reasonable inquiry and to best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
Dated: November 5, 2007
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Omniture, Inc.
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BY:
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/s/ Michael S. Herring
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Name:
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Michael S. Herring
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Title:
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Chief Financial Officer and
Executive Vice President
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- 7 -
EXHIBIT INDEX
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Exhibit
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Number
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Exhibit Name
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1.
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Agreement and Plan of Reorganization, dated as of
October 25, 2007, by and among Omniture, Inc., Visual
Sciences Inc., and Voyager Merger Corp. (incorporated
by reference from Exhibit 2.1 to Omnitures Current
Report on Form 8-K filed with the Securities and
Exchange Commission on October 31, 2007).
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2.
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Form of Company Voting Agreement, dated as of October
25, 2007, by and among Omniture, Inc., Visual Sciences,
Inc., and certain stockholders of Visual Sciences, Inc.
(incorporated by reference from Exhibit 10.2 to
Omnitures Current Report on Form 8-K filed with the
Securities and Exchange Commission on October 31,
2007).
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SCHEDULE I
This Schedule I sets forth a list of the directors and executive officers of Omniture, the
business address and present principal occupation or employment of each such director or executive
officer, and the name and address of any corporation or organization in which such employment is
conducted. To Omnitures knowledge, all directors and officers listed below are citizens of the
United States. Unless otherwise indicated below, the business address of each person listed below is c/o Omniture,
Inc., 550 East Timpanogos Circle, Orem Utah 84097. The principal business of Omniture is to
provide online business optimization software.
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Present Principal Occupation or Employment and
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Name
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Name and Principal Business of Employer
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Joshua G. James
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Chief Executive Officer and co-founder
Omniture, Inc.
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John Pestana
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Chairman of the Board, co-founder
and
Executive Vice President, Customer Service
Omniture, Inc.
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Fraser Bullock
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Managing Director, Sorenson Capital
(Private equity investment partnership)
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Gregory S. Butterfield
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Group President, Altiris Business
Group,
Symantec Corp (Internet Security)
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Dana Evan
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Director, Omniture, Inc.
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Mark Gorenberg
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Managing Director,
Hummer Winblad Venture Partners (Venture Capital Group)
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Rory ODriscoll
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Managing Director, Scale Venture
Partners (Venture Capital Group)
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Brett Error
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Chief Technology Officer and
Executive Vice President
Omniture, Inc.
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Christopher C. Harrington
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President, Worldwide Sales and Client Services
Omniture, Inc.
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Michael S. Herring
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Chief Financial Officer and
Executive Vice President
Omniture, Inc.
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SCHEDULE
II
Ownership by Subject Stockholders
Set forth below are the number of shares of Visual Sciences common stock beneficially owned by
the Subject Stockholders as of October 25, 2007. Such number includes options and warrants to purchase 1,815,937 shares
of Visual Sciences common stock. Such numbers are based on
information provided to Omniture by Visual Sciences.
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Subject Stockholder
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Number of Shares Beneficially Owned
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Jim
MacIntyre (including shares held by Valerie MacIntyre)
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974,844
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Claire Long
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143,000
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Dru Greenhalgh
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93,000
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David Rosenthal
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139,501
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Brian Sullivan
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89,302
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Aaron Bird
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89,991
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Ray Rauch
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94,142
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Sheryl Roland
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109,881
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Jeff Lunsford
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519,350
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Anil Arora
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40,750
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Bill Harris
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245,450
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James Mahan III
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56,607
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Kurt Jaggers
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35,000
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C.J. Fitzgerald
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35,000
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Doug Lindroth
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43,750
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