AGREEMENT AND PLAN OF
MERGER
This Amendment
No. 1 (this “ Amendment ”) to that certain
Agreement and Plan of Merger (the “ Merger Agreement
”) by and among NetApp, Inc., a Delaware corporation (“
Paren t”), Kentucky Merger Sub One Corporation, a
Delaware corporation and a direct, wholly-owned subsidiary of
Parent (“ Merger Sub One ”), Derby Merger Sub
Two LLC, a Delaware limited liability company and a direct,
wholly-owned subsidiary of Parent (“ Merger Sub
Two ” and together with Merger Sub One, the “
Merger Subs ”), and Data Domain, Inc., a Delaware
corporation (the “ Company ”) is made and
entered into as of June 3, 2009 by and among Parent, Merger
Sub One, Merger Sub Two and the Company. All capitalized terms that
are used in this Amendment but not defined in this Amendment shall
have the respective meanings ascribed thereto in the Merger
Agreement.
WHEREAS, on
June 1, 2009, the Company received an unsolicited acquisition
proposal from EMC Corporation and EMC Corporation commenced a
tender offer to acquire all outstanding shares of Company Common
Stock;
WHEREAS, on
June 2, 2009, Parent offered to amend the Merger Agreement on
the terms set forth herein;
WHEREAS, each of
the respective Board of Directors of Parent, the Merger Subs and
the Company has approved this Amendment and the transactions
contemplated hereby, and deems it advisable and in the best
interests of their respective stockholders to enter into this
Amendment and consummate the transactions contemplated hereby
pursuant to which, among other things, and as a single integrated
transaction, Merger Sub One will be merged with and into the
Company (the “ First Step Merger ” or the
“ Merger ”) in accordance with the applicable
provisions of the General Corporation Law of the State of Delaware
(the “ DGCL ”), the Company will continue as the
surviving corporation of the First Step Merger and each share of
the Company Common Stock outstanding immediately prior to the
Effective Time will be cancelled and converted into the right to
receive the consideration set forth herein, all upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and the representations,
warranties, covenants and agreements set forth herein, as well as
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and accepted, and intending to be
legally bound hereby, Parent, the Merger Subs and the Company
hereby agree as follows:
1.
Amendments to Section 1.1(cc) . Section 1.1(cc) of
the Merger Agreement is hereby amended and restated in its entirety
and replaced with the following:
“(cc)
“ Exchange Ratio ” shall mean, subject to
adjustment pursuant to Section 2.7(b)(i) and
Section 2.7(b)(ii) :
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(i) 0.7783 shares
of Parent Common Stock if the Closing Average is less than
$17.41;
(ii) 0.6370 shares
of Parent Common Stock if the Closing Average is greater than
$21.27; and
(iii) that
fraction of shares of Parent Common Stock (rounded to the nearest
ten thousandth) equal to the quotient obtained by dividing $13.55
by the Closing Average, if the Closing Average is (A) less
than or equal to $21.27 and (B) greater than or equal to
$17.41.
2.
Amendment to Section 2.7(b)(i) . Section 2.7(b)(i)
of the Merger Agreement is hereby amended and restated in its
entirety and replace with the following:
“(i) Each
share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (other than any Dissenting Company
Shares), including any Company Restricted Stock that shall have
ceased, as a result of or immediately prior to the Effective Time,
to be unvested or subject to a repurchase option, risk of
forfeiture or other condition pursuant to the terms of such Company
Stock Award or other agreement governing such Company Restricted
Stock (which shall include any vesting as a result of any
termination of employment or transaction contemplated by employee
agreements and any resignation delivered pursuant to
Section 6.13 ) shall be canceled and extinguished and
automatically converted into the right to receive a combination of
(A) $16.45 in cash, without interest (such per share cash amount
being referred to herein as the “ Cash Consideration
”) plus (B) a number of validly issued, fully paid and
nonassessable shares of Parent Common Stock equal to the Exchange
Ratio (such per share amount being referred to herein as the
“ Stock Consideration ”) upon the surrender of
the certificate representing such share of Company Common Stock (or
the receipt of an agent’s message in the case of Book-Entry
Shares) in the manner set forth in Section 2.9 (or in
the case of a lost, stolen or destroyed certificate, upon delivery
of an affidavit (and bond, if required) in the manner set forth in
Section 2.11 ). Notwithstanding the foregoing sentence,
if the Exchange Ratio is (A) greater than or equal to 0.7006,
and (B) less than 0.7783, then Parent, in its sole discretion
and subject to the following sentence, may reduce the Stock
Consideration by such amount as Parent may determine. If Parent
elects to reduce the amount of the Stock Consideration pursuant to
the preceding sentence, then the Cash Consideration shall be
increased by an amount equal to the product of (A) the amount
of such reduction in the Stock Consideration pursuant to the
preceding sentence multiplied by (B) the Closing Average. For
all purposes of and under this Agreement, the term “Merger
Consideration” shall mean the Cash Consideration plus the
Stock Consideration, each as adjusted by this
Section 2.7(b)(i) and Section 2.7(b)(ii)
together with any cash payable under Section 2.7(b)(iv
) with respect to each share of Company Common Stock in lieu of a
fractional share of Parent Common Stock otherwise issuable pursuant
hereto.”
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