THIS VOTING
AGREEMENT (this “ Agreement ”) is made and
entered into as of May 20, 2009 by and between NetApp, Inc., a
Delaware corporation ( “ Parent ”
), and the undersigned Stockholder (the “
Stockholder ”) of Data Domain, Inc., a Delaware
corporation (the “ Company ”).
WHEREAS, Parent,
Kentucky Merger Sub One Corporation, a Delaware corporation and
wholly-owned subsidiary of Parent (“ Merger Sub One
”), Derby Merger Sub Two LLC, a Delaware limited liability
company and wholly-owned subsidiary of Parent (“ Merger
Sub Two ”), and the Company have entered into an
Agreement and Plan of Merger of even date herewith (the “
Merger Agreement ”), which provides for, among other
things, the merger of Merger Sub One with and into the Company (the
“ First Step Merger ” or the “
Merger ”), pursuant to which all outstanding shares of
capital stock of the Company will be converted into the right to
receive the consideration set forth in the Merger Agreement. If the
opinions described in Section 6.18 of the Merger
Agreement are delivered, as soon as practicable following the First
Step Merger and as a single integrated transaction, Parent will
cause the Company to merge with and into Merger Sub Two with Merger
Sub Two continuing as the surviving entity (the “ Second
Step Merger ” ; provided that, if the Second Step Merger
does occurs, the Second Step Merger shall be included in the
meaning of the term, the “ Merger ”).
WHEREAS, the
Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”)) of that number of shares of the
outstanding capital stock of the Company, and the holder of options
to purchase such number of shares of capital stock of the Company,
in each case, as set forth on the signature page of this
Agreement.
WHEREAS, as a
condition and inducement to the willingness of Parent, Merger Sub
One and Merger Sub Two to enter into the Merger Agreement, the
Stockholder (in the Stockholder’s capacity as such) has
agreed to enter into this Agreement.
NOW, THEREFORE,
intending to be legally bound, the parties hereto agree as
follows:
1.
Certain Definitions . All capitalized terms that are used
but not defined herein shall have the respective meanings ascribed
to them in the Merger Agreement. For all purposes of and under this
Agreement, the following terms shall have the following respective
meanings:
(a)
“ Expiration Date ” shall mean the earlier to
occur of (i) such date and time as the Merger Agreement shall
have been validly terminated pursuant to Article VIII
thereof, or (ii) such date and time as the Requisite Merger
Approval has been obtained or (iii) the written agreement of
the parties hereto to terminate this Agreement.
(b)
“ Person ” shall mean any individual,
corporation, limited liability company, general or limited
partnership, trust, unincorporated association or other entity of
any kind or nature, or any governmental authority.
(c)
“ Shares ” shall mean (i) all equity
securities of the Company (including all shares of Company Common
Stock, Company Preferred Stock and all Company Stock Awards and any
other rights to acquire shares of Company capital stock) owned by
the Stockholder as of the date hereof, and (ii) all additional
equity securities of the Company (including all additional shares
of Company Common Stock, Company Preferred Stock and all additional
Company Stock Awards, warrants and other rights to acquire shares
of Company capital stock) of which the Stockholder acquires
beneficial ownership during the period from the date of this
Agreement through the Expiration Date (including by way of stock
dividend or distribution, split-up, recapitalization, combination,
exchange of shares and the like).
(d)
“ Transfer ” A Person shall be deemed to have
effected a “ Transfer ” of a Share if such
person directly or indirectly (i) sells, pledges, encumbers,
assigns, grants an option with respect to, transfers, tenders or
disposes of such Share or any interest in such Share, or
(ii) enters into an agreement to effect any of the
foregoing.
(a)
Transfer Restrictions . The Stockholder shall not
Transfer (or cause or permit the Transfer of ) any of the Shares,
or enter into any agreement relating thereto, except (i) by
selling already-owned Shares either to pay the exercise price upon
the exercise of a Company Option or to satisfy the
Stockholder’s tax withholding obligation upon the exercise of
a Company Option, in each case as permitted by any Company Option
Plan, or (ii) by selling already-owned Shares pursuant to
10b5-1 trading plans existing as of the date hereof or
(iii) transferring Shares to Affiliates, immediate family
members, a trust established for the benefit of Stockholder and/or
for the benefit of one or more members of the Stockholder’s
immediate family or upon the death of the Stockholder or charitable
organizations or in connection with, or solely for the purpose of,
personal tax-planning, provided that, as a condition to such
Transfer, the recipient agrees to be bound by this Agreement and
delivers a Proxy (as defined below) in the form attached hereto as
Exhibit A . Any Transfer, or purported Transfer, of
Shares in breach or violation of this Agreement shall be void and
of no force or effect.
(b)
Transfer of Voting Rights . The Stockholder shall not
deposit (or cause or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or
similar agreement in contravention of the obligations of the
Stockholder under this Agreement with respect to any of the
Shares.
3.
Agreement to Vote Shares .
(a) At
every meeting of the stockholders of the Company, and at every
adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of Company, the
Stockholder (in the Stockholder’s capacity as such), to the
extent not voted by the Person(s) appointed under the Proxy, shall,
or shall cause the holder of record on any applicable record date
to, vote the Shares:
(i) in
favor of the adoption of the Merger Agreement, and in favor of each
of the other actions contemplated by the Merger Agreement and any
action required in furtherance thereof;
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(ii) against
approval of any proposal made in opposition to, in competition
with, or would result in a breach of, the Merger Agreement or the
Merger or any other transactions contemplated by the Merger
Agreement; and
(iii) against
any of the following actions (other than those actions that relate
to the Merger and any other transactions contemplated by the Merger
Agreement): (A) any merger, consolidation, business
combination, sale of assets, reorganization or recapitalization of
or involving the Company or any of its Subsidiaries, (B) any
sale, lease or transfer of any significant part of the assets of
the Company or any of its Subsidiaries, (C) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any of its Subsidiaries, (D) any
material change in the capitalization of the Company or any of its
Subsidiaries, or the corporate structure of the Company or any of
its Subsidiaries, or (E) any other action that is intended, or
could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any other
transactions contemplated by the Merger Agreement.
(b) In
the event that a meeting of the Stockholders of the Company is
held, the Stockholder shall, or shall cause the holder of record on
any applicable record date to, appear at such meeting or otherwise
cause the Shares to be counted as present thereat for purposes of
establishing a quorum.
(c) The
Stockholder shall not enter into any agreement or understanding
with any Person to vote or give instructions in any manner
inconsistent with the terms of this Section 3
.
4.
Agreement Not to Exercise Appraisal Rights . The Stockholder
shall not exercise, and hereby irrevocably and unconditionally
waives, any statutory rights (including, without limitation, under
Section 262 of the DGCL) to demand appraisal of any Shares
that may arise in connection with the Merger.
5.
Directors and Officers . Notwithstanding any provision of
this Agreement to the contrary, nothing in this Agreement shall
limit or restrict a Stockholder who is a director or officer of the
Company from acting in such capacity or voting, in his capacity as
a director or officer of the Company, in the Stockholder’s
sole discretion on any matter (it being understood that this
Agreement shall apply to the Stockholder solely in the
Stockholder’s capacity as a Stockholder of the Company). In
this regard, the Stockholder shall not be deemed to make any
agreement or understanding in this Agreement in Stockholder’s
capacity as a director or officer of the Company.
6.
Irrevocable Proxy . Concurrently with the execution of this
Agreement, the Stockholder shall deliver to Parent a proxy in the
form attached hereto as Exhibit A (the “
Proxy ”), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
7.
Representations and Warranties of the Stockholder
.
(a)
Power; Binding Agreement . The Stockholder has full
power and authority to execute and deliver this Agreement and the
Proxy, to perform the Stockholder’s obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Stockholder, and,
assuming this Agreement constitutes a valid and
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binding
obligation of Parent, Merger Sub One and Merger Sub Two,
constitutes a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its
terms.
(b)
No Conflicts . None of the execution and delivery by
the Stockholder of this Agreement, the performance by the
Stockholder of its obligations hereunder or the consummation by the
Stockholder of the transactions contemplated hereby will
(i) result in a violation or breach of any agreement to which
the Stockholder is a party or by which the Stockholder may be
bound, including any voting agreement or voting trust, or
(ii) violate any order, writ, injunction, decree, judgment,
order, statute, rule, or regulation applicable to the
Stockholder.
(c)
Ownership of Shares . The Stockholder (i) is the
sole beneficial owner of the shares of Company Common Stock set
forth on the signature page of this Agreement, all of which are
free and clear of any liens, security interests, pledges or
options, proxies or any other rights or encumbrances whatsoever
(“ Encumbrances ”) (other than pursuant to the
terms of restricted stock agreements as in effect on the date
hereof and except any Encumbrances arising under securities laws or
arising hereunder), (ii) is the sole holder of Company Options
that are exercisable for the number of shares of Company Common
Stock set forth on the signature page of this Agreement, all of
which Company Options and shares of Company Common Stock issuable
upon the exercise of such Company Options are, or in the case of
Company Common Stock received upon exercise of an option after the
date hereof will be, free and clear of any Encumbrances (except any
Encumbrances arising under securities laws or arising hereunder),
and (iii) except as set forth on
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