Filed by NetApp, Inc. Pursuant to Rule 425
Under the Securities Act of 1933
And Deemed Filed Pursuant to Rule 14a-12
Under the Securities Exchange Act of 1934
Subject Company: Data Domain, Inc.
Commission File No.: 333-159722
The statements below were made to various media outlets in relation to the proposed acquisition of
Data Domain, Inc. (“Data Domain”) by NetApp, Inc. (“NetApp”) pursuant to the terms of an Agreement
and Plan of Merger, by and among NetApp, Kentucky Merger Sub One Corporation, Derby Merger Sub Two
LLC, and Data Domain, dated as of May 20, 2009, as amended on June 3, 2009.
Excerpts from an Interview with NetApp, Inc. Chief Marketing Officer Jay Kidd in The Boston
Globe on June 16, 2009
NetApp’s chief marketing officer Jay Kidd said that his company’s plan to pay for Data Domain with
cash and stock is better than EMC’s all-cash proposal.
“The stock component is what sets it apart,” said Kidd. He said that Data Domain shareholders would
have to pay tax immediately on any cash they received, but could hold NetApp shares and defer tax
payments until they were sold.* In addition, Kidd said that the shareholders would benefit from any
subsequent increase in the value of NetApp stock.
Kidd also said that federal regulators would probably subject EMC’s bid to strict antitrust
scrutiny, delaying a deal by months.
Excerpts from an Interview with NetApp, Inc. Chairman & Chief Executive Officer Daniel
Warmenhoven in The Wall Street Journal on June 16 2009
“The next player in the drama here is the FTC,” said Dan Warmenhoven, NetApp’s chief executive
officer. “We’re going to lobby the FTC to help them understand how we see the structure of the
market.”
He added that Sunnyvale, Calif.,-based NetApp would supply the FTC with customers who are concerned
about EMC’s bid for Data Domain.
* This
statement assumes that the merger qualifies as a tax-free
reorganization, in which case gain recognized by shareholders in the
transaction will be only be taxable up to the amount of the cash
received.
Forward-Looking Statements
In addition to historical information, this document contains certain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. The forward-looking statements contained
herein represent NetApp’s beliefs regarding future events, many of which are, by their nature,
inherently uncertain and outside NetApp’s control. Forward-looking statements include, but are not
limited to, statements regarding the benefits of NetApp’s acquisition of Data Domain, including
future financial and operating results; NetApp’s plans, objectives, expectations and intentions;
and other statements that are not historical facts.
NetApp cautions readers that the forward-looking statements contained herein are subject to risks
and uncertainties that could cause actual results to differ materially from the results anticipated
by such statements. Such risks and uncertainties include, but are not limited to, NetApp’s ability
to obtain regulatory approvals of the transaction on the proposed terms and schedule; the risk that
Data Domain’s stockholders will not approve the transaction; the risk that the businesses will not
be integrated successfully; the risk that the cost savings and other synergies from the transaction
will not be fully realized or may take longer to realize than expected; the possibility that there
may be disruptions from the transaction making it more difficult to maintain relationships with
customers, employees or suppliers; uncertainties regarding competition and its effect on pricing,
spending, third-party relationships and revenues; and the other risks affecting NetApp, Data Domain
or the combined entity described in (i) the Proxy Statement/Prospectus filed by NetApp with the
Securities and Exchange Commission (the “SEC”) on June 4, 2009 and (ii) other filings made by
NetApp and Data Domain with the SEC, including, but not limited to, Quarterly Reports on Form 10-Q
and Annual Reports on Form 10-K. NetApp disclaims any obligation to update and revise the
forward-looking statements contained in these materials based on new information or otherwise.
Additional Information and Where to Find It
As mentioned above, in connection with the proposed acquisition of Data Domain, on June 4, 2009,
NetApp filed with the SEC a Registration Statement on Form S-4 (Commission File Number 333-159722)
containing a Proxy Statement/Prospectus for Data Domain’s stockholders, and NetApp and Data Domain
each plan to file with the SEC other documents regarding the proposed transaction. The definitive
Proxy Statement/Prospectus will be mailed to the stockholders of Data Domain. BEFORE MAKING ANY
INVESTMENT OR VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF DATA DOMAIN ARE URGED TO READ THE
PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY
BECAUSE SUCH DOCUMENTS CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
Investors and security holders will be able to obtain free copies of the Registration Statement,
Proxy Statement/Prospectus and other documents filed with the SEC by NetApp and Data Domain through
the web site maintained by the SEC at www.sec.gov and by contacting NetApp Investor
Relations at (408) 822-7098 or Data Domain Investor Relations at (408) 980-4909. In addition,
investors and security holders will be able to obtain free copies of the documents filed with the
SEC on NetApp’s website at www.netapp.com and on Data Domain’s website at
www.datadomain.com.
Participants in the Solicitation of Proxies
NetApp, Data Domain and their respective directors, executive officers and certain other members of
management and employees may be deemed to be participants in the solicitation of proxies in respect
of the proposed transaction. No additional consideration will be paid to any such participants as a
result of any such solicitations. Additional information regarding NetApp’s executive officers and
directors is included in NetApp’s definitive proxy statement on Schedule 14A, as filed with the SEC
on July 14, 2008, and additional information regarding Data Domain’s executive officers and
directors is included in the Proxy Statement/Prospectus referenced above, as well as in Data
Domain’s Annual Report on Form 10-K and Form 10-K/A, as filed with the SEC on March 13, 2009 and
April 30, 2009, respectively. You can obtain free copies of these documents from NetApp or Data
Domain using the contact information above.