exv10w3






Exhibit 10.3









July 8, 2009




NetApp, Inc.

495 East Java Drive

Sunnyvale, CA 94089

Attention: Daniel J. Warmenhoven, Chief Executive Officer and Chairman of the Board

Telecopy No.: (408) 822-4412





	 	Re:	 	Termination Notice under Agreement and Plan of Merger, dated May 20, 2009 (“Merger
 Agreement”)





Dear Dan:



Pursuant to Section 8.1(h) of the Merger Agreement, I am notifying you of the following:





	 	(a)	 	on Monday, July 6, 2009, by an email sent by Joseph M. Tucci to Aneel Bhusri, EMC
Corporation (“EMC”), made an unsolicited Acquisition Proposal (as defined in the Merger
Agreement) pursuant to Amendment No. 6 to the Tender Offer Statement on Schedule TO
originally filed on June 2, 2009, as amended on June 3, 2009, June 9, 2009, June 15, 2009,
June 17, 2009 and June 26, 2009 (the “Schedule TO”) by EMC and Envoy Merger Corporation, a
Delaware corporation and wholly owned subsidiary of EMC, to acquire all outstanding shares
of Data Domain, Inc. (“Data Domain”) common stock for $33.50 per share in cash (the
“Tender Offer”);
	 
	 	(b)	 	the Data Domain board of directors (the “Data Domain Board”) has determined in good
faith (after consultation with its financial advisor and outside legal counsel) that the
Tender Offer constitutes a Superior Proposal (as defined in the Merger Agreement);
	 
	 	(c)	 	the Data Domain Board has determined in good faith (after consultation with its
financial advisor and outside legal counsel) that, in light of the Superior Proposal, the
failure to terminate the Merger Agreement pursuant to Section 8.1(h) is reasonably likely
to be a breach of its fiduciary duties to the Data Domain stockholders under Delaware Law
(as defined in the Merger Agreement); and
	 
	 	(d)	 	the Data Domain Board gave NetApp, Inc. (“NetApp”) written notice on Tuesday, July 7,
2009:






	 	(i)	 	of the Tender Offer and (A) made available at the website listed
on Exhibit A the letter, dated July 6, 2009, from Joseph M. Tucci, the
Chairman, President and Chief Executive Officer of EMC, to Aneel Bhusri, the
Chairman of the Data Domain Board (the “Letter”), (B) made available at the
website listed on Exhibit B the proposed agreement and plan of merger to
be entered into between EMC and Data Domain (the “EMC Merger Agreement”) and (C)
made available at the website listed on Exhibit C the Schedule TO, which
constitute all related agreements, commitment letters and other material
documents provided or otherwise furnished by EMC,





 









 





	 	(ii)	 	that the Data Domain Board intends to terminate the Merger
Agreement pursuant to Section 8.1(h) of the Merger Agreement in response to the
Tender Offer, and
	 
	 	(iii)	 	of the opportunity to meet with the Data Domain Board and the
Company’s financial advisors and outside counsel at such times as NetApp may
reasonably request for the purpose of enabling NetApp and Data Domain to discuss
in good faith the Merger Agreement and the terms and conditions thereof, and any
modifications of the terms and conditions of the Merger Agreement that NetApp
may propose in response thereto.






	 	(e)	 	later on Tuesday, July 7, 2009, NetApp waived the requirement pursuant to Section
8.1(h)(iv) and Section 8.1(h)(v) of the Merger Agreement that the Data Domain Board must
give NetApp at least five (5) Business Days prior written notice of the information
contained in (d) above, prior to Data Domain terminating the Merger Agreement under Section
8.1(h) of the Merger Agreement;
	 
	 	(f)	 	following NetApp’s waiver of the five (5) Business Day period, (i) NetApp has not made
a proposal at least as favorable or more favorable to the Data Domain stockholders as the
Tender Offer and (ii) the Data Domain Board has determined in good faith (after
consultation with its financial advisor and its outside legal counsel) that (A) the Tender
Offer continues to constitute a Superior Proposal, and (B) in light of such Superior
Proposal, the failure to terminate the Merger Agreement pursuant to Section 8.1(h) of the
Merger Agreement is reasonably likely to be a breach of its fiduciary duties to the Data
Domain stockholders under Delaware Law;
	 
	 	(g)	 	the Data Domain Board has approved (i) the termination of the Merger Agreement and (ii)
the entry into the EMC Merger Agreement; and
	 
	 	(h)	 	concurrently with the termination of the Merger Agreement pursuant to Section 8.1(h) of
the Merger Agreement (and as a condition to the effectiveness of such termination), Data
Domain is, concurrently with the delivery of this notice, (i) entering into a definitive
agreement for the Superior Proposal (i.e., the EMC Merger Agreement) and (ii) wiring to a
NetApp bank account designated by Steve Gomo, a fee equal to Fifty Seven Million Dollars
($57,000,000) pursuant to Section 8.3(b)(iv) of the Merger Agreement.





[Remainder of Page Intentionally Left Bank]




 









 








	 	 	 	 	 
	 	Sincerely,

 	 
	 	/s/ Frank Slootman
 	 
	 	Frank Slootman 	 
	 	President and Chief Executive Officer 	 
	 



	 	 	 
	cc:

	 	Aneel Bhusri, Data Domain
	 

	 	Michael Scarpelli, Data Domain
	 

	 	Robert Specker, Data Domain
	 

	 	Gordon K. Davidson, Fenwick & West
	 

	 	Dennis R. DeBroeck, Fenwick & West
	 

	 	R. Gregory Roussel, Fenwick & West
	 

	 	Andrew Kryder, NetApp, Inc.
	 

	 	Steven E. Bochner, Wilson Sonsini Goodrich & Rosati
	 

	 	Nate Gallon, Wilson Sonsini Goodrich & Rosati
	 

	 	Michael S. Ringler, Wilson Sonsini Goodrich & Rosati







 









 








Exhibit A




Letter from EMC




http://sec.gov/Archives/edgar/data/790070/000119312509144078/dex99a1xvi.htm





 









 








Exhibit B




Draft Agreement and Plan of Merger proposed by EMC




http://sec.gov/Archives/edgar/data/790070/000119312509144078/dex99d1ii.htm





 









 








Exhibit C




Schedule TO




http://sec.gov/Archives/edgar/data/790070/000119312509144078/dsctota.htm