Amendment to Amended and Restated Investors' Rights Agreement



 Exhibit 4.4 
  

AMENDMENT TO AMENDED AND RESTATED 
 INVESTORS’ RIGHTS AGREEMENT 
  
 This AMENDMENT TO AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (the
“Amendment”), which amends the Amended and Restated Investors’ Rights Agreement, dated as of March 14, 2007 (the “Rights Agreement”), by and among Data Domain, Inc., a Delaware corporation
(the “Company”), and the investors listed on Schedule A thereto, is entered into this 12th day of November, 2007 by and
among the Company and holders of a majority of the Registrable Securities (as defined in the Rights Agreement), listed on the signature pages hereto, on behalf of all of the parties to the Rights Agreement. 
  
 RECITALS 
  
 WHEREAS, Section 3.7 of the Rights Agreement provides that any term of the Rights Agreement (other than Sections
2.1, 2.2 and 2.3) may be amended, and the observance of any provision therein waived, with the written consent of the Company and the holders of a majority of the Registrable Securities (as such term is defined in the Rights Agreement); 

 
 WHEREAS, Section 1.3 of the Rights Agreement sets forth the
terms and conditions regarding the Company’s obligation to register under the Securities Act of 1933, as amended, Registrable Securities in connection with the Company’s registration and public offering of its securities; 
  
 WHEREAS, with respect to the Company’s proposed public offering
of its common stock pursuant to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 1, 2007, Registration No. 333-147092, as amended, the Company and the holders of a majority
of the Registrable Securities agree that such public offering should proceed with a different allocation of shares than would be prescribed under such Section 1.3 of the Rights Agreement; and 
  
 WHEREAS, the Company and holders of a majority of the Registrable
Securities (as holders of a majority of the Registrable Securities of the Company) hereby desire to amend Section 1.3 of the Rights Agreement. 
  
 NOW, THEREFORE, in consideration of the foregoing recitals, mutual promises, and all other terms and conditions contained herein, the parties
hereto hereby agree as follows: 
  
 AGREEMENT 
  
 1. Amendment of Section 1.3(a) of the Rights Agreement. The
following clause shall replace Section 1.3(a) of the Rights Agreement in its entirety: 
  
 “(a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of such securities (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or
transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement 








 
covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion
of debt securities that are also being registered), the Company shall, at such time, promptly give each Holder written notice of such registration. Upon the written request of each Holder given within twenty (20) days after mailing of such
notice by the Company in accordance with Section 3.5, the Company shall, subject to the provisions of Sections 1.3(c) and 1.3(d), use all commercially reasonable efforts to cause to be registered under the Act all of the Registrable
Securities that each such Holder requests to be registered; provided, however, that in connection with the Initial Offering the New Investor shall be required to request registration of its Registrable Securities no later than five (5) days
after the mailing of any such notice by the Company.” 
  
 2. Amendment of Section 1.3 of the Rights Agreement. The following clause shall be inserted as a new Section 1.3(d) of the Rights Agreement: 
  
 “(d) 2007 Piggyback Registration. Notwithstanding anything to the contrary in this Agreement, in connection with
the public offering of shares of the Company’s common stock pursuant to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 1, 2007, Registration No. 333-147092, as
amended (the “Follow-on Offering”), the allocation of Registrable Securities, together with the common stock held by certain other stockholders of the Company (and their affiliates) to be included in the Follow-on Offering
shall be as follows: 
  
 (i) With respect to the firm portion of
the Follow-on Offering in which the Company will issue and sell 4,000,000 shares of its common stock and certain stockholders of the Company (the “Selling Stockholders”) will offer and sell 4,500,000 shares of the
Company’s common stock, the shares to be sold by the Selling Stockholders shall be allocated as follows: 
  

			
	 Selling Stockholder
	  	Maximum
Number Of Shares
To Be Sold
	 Greylock XI Limited Partnership
	  	1,262,712
	 Greylock XI Principals LLC
	  	144,210
	 Greylock XI-A Limited Partnership
	  	35,178
	 New Enterprise Associates 10, L.P.
	  	1,370,224
	 NEA Ventures 2002, L.P.
	  	5,381
	 Sutter Hill Ventures
	  	465,621
	 Ronald D. Bernal and Pamela M. Bernal as Trustees of the Bernal Family Trust U/D/T 11/3/95
	  	20,251
	 Kai Li
	  	180,000
	 Frank Slootman
	  	73,301
	 Frank Slootman and Brenda L. Slootman, as Community Property
	  	250,000
	 Michael P. Scarpelli
	  	48,900
	 Daniel R. McGee
	  	52,082
	 David Schneider and Barbara Plechner Schneider
	  	73,341
	 Neil Ater
	  	100,000
	 Brian Biles
	  	120,000
	 Tench Coxe and Simone Otus Coxe, Co-Trustees of the Coxe Revocable Trust U/A/D 4/23/98
	  	8,678
	 Wells Fargo Bank, Trustee SHV Profit Sharing Plan FBO Tench Coxe
	  	27,616
	 Rooster Partners, LP
	  	9,371
	 Katya Falakshashi
	  	6,377
	 Patterson Family Trust 2000
	  	65,000
	 David Sangster
	  	31,887
	 Beth White
	  	42,516
	 Ming Benjamin Zhu
	  	107,354
	 Total
	  	4,500,000

  
  

 2 








 In the event that any of the Selling Stockholders are required to sell less than the number of shares listed in the table
above or are excluded from participating in the Follow-on Offering because they are unable to provide the required documentation to enable participation in the Follow-on Offering or otherwise, the Chief Executive Officer and Chief Financial Officer
of the Company may reallocate such shares to the other Selling Stockholders in their sole discretion such that the total amount sold shall continue to equal 4,500,000 shares. 
  
 (ii) With respect to the over-allotment portion (the “Over-Allotment Portion”) of the Follow-on
Offering in which the Company will issue and sell 600,000 shares of its common stock and the Selling Stockholders will offer and sell 675,000 shares of the Company’s common stock, the shares to be sold by the Selling Stockholders shall be
allocated as follows : 
  

			
	 Selling Stockholder
	  	Maximum
Number Of Shares
To Be Sold
	 Greylock XI Limited Partnership
	  	196,906
	 Greylock XI Principals LLC
	  	21,631
	 Greylock XI-A Limited Partnership
	  	5,277
	 New Enterprise Associates 10, L.P.
	  	213,034
	 NEA Ventures 2002, L.P.
	  	807
	 Sutter Hill Ventures
	  	69,843
	 Ronald D. Bernal and Pamela M. Bernal as Trustees of the Bernal Family Trust U/D/T 11/3/95
	  	3,038
	 Kai Li
	  	27,000
	 Frank Slootman
	  	48,495
	 Michael P. Scarpelli
	  	7,335
	 Daniel R. McGee
	  	7,813
	 David Schneider and Barbara Plechner Schneider
	  	11,001
	 Brian Biles
	  	18,000
	 Tench Coxe and Simone Otus Coxe, Co-Trustees of the Coxe Revocable Trust U/A/D 4/23/98
	  	1,301
	 Wells Fargo Bank, Trustee SHV Profit Sharing Plan FBO Tench Coxe
	  	4,143
	 Rooster Partners, LP
	  	1,405
	 Katya Falakshashi
	  	957
	 Patterson Family Trust 2000
	  	9,750
	 David Sangster
	  	4,783
	 Beth White
	  	6,378
	 Ming Benjamin Zhu
	  	16,103
	 Total
	  	675,000

  
  

 3 








 In the event that any of the Selling Stockholders listed in the table above are required to sell less than the number of
shares listed in the table above or are excluded from participating in the Follow-on Offering because they are unable to provide the required documentation to enable participation in the Follow-on Offering or otherwise, the Chief Executive Officer
and Chief Financial Officer of the Company may reallocate such shares to the other Selling Stockholders in their sole discretion such that the total amount sold shall continue to equal 675,000 shares 
  
 (iii) In the event that in connection with the Follow-on Offering, the
underwriters do not fully exercise their over-allotment option such that less than an aggregate of 1,275,000 shares of the Company’s common stock are sold by the Company and the Selling Stockholders in the Over-Allotment Portion, the shares of
Registrable Securities to be sold in the Over-Allotment Portion shall be reduced on a pro rata basis based upon the allocation of shares to the Company and the selling stockholders set forth in Section 1(c)(ii) above. 
  
 3. Waiver of
Registration Rights. Except as specifically described in Sections 1 and 2 above, with respect to the Follow-on Offering, the Company and holders of a majority of the Registrable Securities hereby waive on behalf of all holders of
Registrable Securities any and all rights to notice and registration rights maintained by any holder of Registrable Securities pursuant to the Rights Agreement. In addition, the Company and holders of a majority of the Registrable Securities hereby
waive on behalf of all holders of Registrable Securities any and all rights of any holders of Registrable Securities to request the registration of Registrable Securities pursuant to Section 1.2 of the Rights Agreement from the period
commencing on the date of this Amendment and ending on the 91st day after the date of the final prospectus relating to the Follow-on Offering.

  

 4 








 4. Rights Agreement. Except as expressly amended hereby, the Rights Agreement shall continue in
full force and effect. In the event of any inconsistency or conflict between this Amendment and the Rights Agreement, the terms, conditions and provisions of this Amendment shall govern and control. 
  
 5. Entire Agreement. This Amendment and the Rights Agreement embody
the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

  
 6. Governing Law. This Amendment shall be governed by
and construed under the laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California. 
  

 7. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. 
  
 REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK 
  
  

 5 








 IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

  

			
	DATA DOMAIN, INC.
		
	 By:
	 	 /s/ Michael P. Scarpelli

		 	 Michael P. Scarpelli
 Chief Financial Officer

		
	 Address:
	 	 2300 Central Expressway
 Santa Clara, CA 95050

	
	 INVESTORS:
  
 NEW ENTERPRISE ASSOCIATES 10, L.P.

		
	 By:
	 	 NEA Partners 10, L.P.
 Its General Partner

		
	 By:
	 	 /s/ Scott D. Sandell

		
	 Name:
	 	 Scott D. Sandell

		
	 Title:
	 	 General Partner

		
	 Address:
	 	 1119 St. Paul St.
 Baltimore, MD 21202



  
 [Signature Page
to Amendment to Data Domain, Inc. 
 Amended and Restated Investors’ Rights Agreement] 







 IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

  

			
	 INVESTORS:
  
 GREYLOCK XI LIMITED PARTNERSHIP

		
	 By:
	 	 Greylock XI GP Limited Partnership,
 its General Partner

		
	 By:
	 	 /s/ Donald A. Sullivan

		 	 Donald A. Sullivan

		
	 Title:
	 	 Administrative Partner

		
	 Address:
	 	 880 Winter Street
 Waltham, MA 02451

	
	GREYLOCK XI-A LIMITED PARTNERSHIP
		
	 By:
	 	 Greylock XI GP Limited Partnership,
 its General Partner

		
	 By:
	 	 /s/ Donald A. Sullivan

		 	 Donald A. Sullivan

		
	 Title:
	 	 Administrative Partner

		
	 Address:
	 	 880 Winter Street
 Waltham, MA 02451

	
	GREYLOCK XI PRINCIPALS LLC
		
	 By:
	 	 Greylock Management Corporation,
 Sole Member

		
	 By:
	 	 /s/ Donald A. Sullivan

		 	 Donald A. Sullivan

		
	 Title:
	 	 Treasurer

		
	 Address:
	 	 880 Winter Street
 Waltham, MA 02451



  
 [Signature Page
to Amendment to Data Domain, Inc. 
 Amended and Restated Investors’ Rights Agreement]