Amended And Restated Agreement And Plan of Merger

Exhibit 10.22.1

CONFORMED COMPOSITE AMENDED COPY


AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER

by and among GOOGLE INC.,

SNOWMASS HOLDINGS INC.,

YOUTUBE, INC.

and

Each of the other parties identified on the signature pages hereto

as Stockholder Parties

Dated as of November 3, 2006

Table of Contents

Page

ARTICLE 1 DEFINITIONS 2 1.1 Certain Definitions 2 1.2 General Interpretive Principles 10

ARTICLE 2 THE MERGER 11 2.1 The Merger 11 2.2 Effective Time 11 2.3 Effect of the Merger 11 2.4 Certificate of Incorporation; Bylaws 11 2.5 Directors and Officers 11 2.6 Conversion of Securities 11 2.7 Appraisal 15 2.8 Exchange of Certificates. 16 2.9 Escrow Account. 17 2.10 Adjustment Provisions. 19 2.11 Tax Consequences and Withholding. 20 2.12 Further Assurances 20

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE FOUNDERS 20 3.1 Organization. 21 3.2 Certificate of Incorporation and Bylaws 21 3.3 Capitalization. 21 3.4 Authorization and Enforceability 23 3.5 No Conflict; Required Filings and Consents. 24


i 3.6 Compliance 24 3.7 Financial Statements 25 3.8 Absence of Changes. 25 3.9 No Undisclosed Liabilities 27 3.10 Tax Matters. 27 3.11 Title to Assets; Leases. 28 3.12 Intellectual Property. 29 3.13 Privacy and Security. 30 3.14 Material Contracts. 30 3.15 Absence of Restrictions on Business Activities 32 3.16 Insurance 33 3.17 Absence of Action 33 3.18 Employment and Labor Matters. 33 3.19 Employee Benefit Plans and Agreements. 34 3.20 Environmental, Health and Safety Matters. 38 3.21 Export Control Laws. 38 3.22 No Restrictions on the Merger; Takeover Statutes 39 3.23 Certain Business Practices 39 3.24 Interested Party Transactions 39 3.25 Brokers or Finders 39 3.26 Disclaimer of Other Representations and Warranties 40

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER PARTIES 40 4.1 Authority; Enforceability 40 4.2 No Conflict; Required Filings and Consents. 40 4.3 Investment Representations. 41


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ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 41 5.1 Organization and Qualification 41 5.2 Authority; Enforceability 42 5.3 No Conflict; Required Filings and Consents. 42 5.4 Absence of Action 43 5.5 Merger Sub 43 5.6 Parent Common Stock 43 5.7 Parent SEC Filings 43 5.8 Disclaimer of Other Representations and Warranties 43

ARTICLE 6 COVENANTS 44 6.1 Operation of the Company Prior to Closing 44 6.2 No Solicitation of Other Proposals. 47 6.3 Stockholders Consents. 48 6.4 Filings; Efforts; Notices. 49 6.5 Access to Information. 50 6.6 Nondisclosure 51 6.7 Public Announcements 51 6.8 Takeover Statutes 51 6.9 Escrow Agreement 51 6.10 Equity Awards. 51 6.11 Indemnification. 52 6.12 Tax-Free Reorganization Treatment 54 6.13 Reservation and Listing of Parent Common Stock 54 6.14 Parent Information; Form S-4; Information Statement/Prospectus. 54 6.15 Company Expenses 56


iii 6.16 Company Corporate Records 56 6.17 FIRPTA Notice 56 6.18 Schedule of Total Outstanding Shares 56 6.19 Investor Rights Agreement 56 6.20 Legend on Share Certificates 56

ARTICLE 7 CLOSING CONDITIONS 57 7.1 Conditions Precedent to Obligations of Each Party 57 7.2 Conditions Precedent to Obligations of Parent and Merger Sub 58 7.3 Conditions Precedent to Obligation of the Company 59

ARTICLE 8 TERMINATION 60 8.1 Termination 60 8.2 Effect of Termination 61 ARTICLE 9 INDEMNIFICATION 61 9.1 Survival of Representations and Warranties 61 9.2 Indemnification by the Company Stockholders 61 9.3 Exclusive Remedy 62 9.4 Indemnification Claims. 62 9.5 Third Party Claim Procedures 64 9.6 Limitations on Indemnification 64 9.7 Adjustment to Purchase Price 65 9.8 Several Obligations 66 9.9 Stockholders Agent. 66

ARTICLE 10 MISCELLANEOUS 67 10.1 Entire Agreement 67 10.2 Successors 67


iv 10.3 Assignments 67 10.4 Notices 67 10.5 Submission to Jurisdiction 68 10.6 Resolution of Conflicts; Arbitration. 69 10.7 Release 70 10.8 Counterparts 70 10.9 Governing Law 70 10.10 Amendments and Waivers 70 10.11 Severability 71 10.12 Construction 71 10.13 Incorporation of Exhibits, Schedules and Disclosure Letters 71 10.14 Remedies 71


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Index of Defined Terms

Action 1.1

Adjusted Exchange Ratio 2.10(a)

Adjusted Total Outstanding Shares 2.10(a)

Affiliate 1.1

Aggregate Merger Consideration Value 9.6(c)

Aggregate Share Consideration 1.1

Agreement Preamble

Acquisition Proposal 6.2(a)

Assumed Company Options 2.6(c)

Assumed Company RSUs 2.6(e)

Assumed Warrants 2.6(d)(ii)

Approvals 3.1(a)

beneficial owner 1.1

beneficial ownership 1.1

Bridge Note 1.1

Business Day 1.1

California Law 2.7(a)

Certificate of Merger 2.2

Certificates 2.8(a)

Closing Date 1.1

COBRA 3.19(b)

Code Recitals

Commitment 1.1

Company Preamble

Company 401(k) Plans 6.10(c)

Company Balance Sheet 3.7

Company Common Stock 1.1

Company Disclosure Schedule 1.1

Company Employees 3.19(a)

Company Favorable Outcome 2.9(c)

Company Material Adverse Effect 1.1

Company Option Plan 1.1

Company Options 1.1

Company Preferred Stock 1.1

Company Registered IP 3.12(a)

Company Representatives 6.2(a)

Company RSUs 1.1

Company Series A Preferred Stock 1.1

Company Series B Preferred Stock 1.1

Company Stock 1.1

Company Stockholders 1.1

Company Transaction Expenses 1.1

Company Warrants 1.1

Confidentiality Agreement 6.6

Consent 1.1

Contract 1.1

Copyright Action 1.1

Court 1.1

D&O Insurance 6.11(b)

Damages 1.1

DGCL Recitals

Dissenting Share Payments 2.7(c)

Dissenting Shares 2.7(a)

Effective Date Recitals

Effective Time 2.2

Employee Plans 3.19(a)

Enforceable 1.1

Environmental, Health and Safety Requirements 1.1

Equity Interest 1.1

ERISA 1.1

ERISA Affiliate 3.19(a)

Escrow Account 2.9(a)

Escrow Agent 2.9(a)

Escrow Agreement 2.9(a)

Escrow Shares 2.9(a)

Exchange Act 1.1

Exchange Ratio 1.1

Export Approvals 3.21

Financial Statements 3.7

Forfeited Shares 2.10(a)

Form S-4 6.14(b)

Founders 1.1

Fundamental Representations 9.1

GAAP 3.7

Governmental Authority 1.1

HIPPA 3.19(b)

HSR Act 1.1

Indebtedness 1.1

Indemnification Claim 9.4(a)

Indemnified Copyright Action 1.1

Indemnifying Party 9.5

Infringe 3.12(b)

Initial Escrow Release Date 2.9(b)

Intellectual Property 1.1

IP Policies 3.2(d)

Knowledge 1.1

Law 1.1

Liability 1.1


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Lien 1.1

Material Contracts 3.14(a)

Maximum Annual Premium 6.11(b)

Merger Recitals

Merger Sub Preamble

Merger Sub Common Stock 1.1

Notice of Claim 9.4(a)

Order 1.1

Ordinary Course of Business 1.1

Organizational Documents 1.1

Original Agreement Recitals

Outstanding Claim 1.1

Outstanding Company Options 3.3(a)

Outstanding Stockholders Agent Expenses 9.9(b)

Parent Preamble

Parent Benefit Plans 6.10(c)

Parent Closing Price 1.1

Parent Common Stock 1.1

Parent Disclosure Letter 5

Parent Indemnification Notice 9.5(a)

Parent Indemnified Parties 9.2

Parent Material Adverse Effect 1.1

Parent RSUs 1.1

PBGC 3.19(i)

Permit 1.1

Permitted Lien 1.1

Person 1.1

Pro Rata Share 1.1

Purchase Price Adjustment Statement 2.10(a)

Real Property 3.11(b)

Registration Rights Agreement Recitals

Regulation 1.1

Regulation D 6.14(a)

Relevant Persons 10.7

Requisite Stockholder Vote 3.4

Resolved Claim Notice 9.4(b)

Restricted Shares 6.20

Restricted Stock 1.1

Retained Escrow Consideration 2.9(b)(i)

Retained Escrow Excess 2.9(c)

SEC 1.1

Second Step Merger 6.4(c)

Securities Act 1.1

Stock-Based Rights 3.3(c)

Stockholder Consents Recitals

Stockholder Parties Preamble

Stockholders Agent 9.9(a)

Subsidiary 1.1

Surviving Corporation 2.1

Support Agreements Recitals

Systems 1.1

Takeover Statutes 3.22

Tax Return 1.1

Taxes 1.1

Third-Party Claim 9.5

Threatened 1.1

Threshold 9.6(a)

Total Outstanding Shares 1.1

Transaction Agreements 1.1

280G Approval 6.3(d)

2006 Retention Cash Bonus Plan 1.1

Unilateral Resolved Claim Notice 9.4(b)

WARN 3.18(b)


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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER This AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of November 3, 2006 (the " Agreement" ) among Google Inc., a Delaware corporation (" Parent" ), Snowmass Holdings Inc., a Delaware corporation (" Merger Sub" ), YouTube, Inc., a Delaware corporation (the " Company" ), and each of the stockholders of the Company listed on the signature pages hereof (collectively, the " Stockholder Parties" ).

RECITALS: WHEREAS, the Board of Directors of Parent has determined that it is in the best interests of its stockholders for Parent to acquire the Company upon the terms and subject to the conditions set forth herein;

WHEREAS, Parent, Merger Sub and the Company have previously entered into an Agreement and Plan of Merger, dated as of October 9, 2006 (the " Effective Date" , and such agreement, the " Original Agreement" ), which they desire to amend and restate to effect certain changes with respect to the terms of such acquisition and their agreements with respect thereto, effective as of the date hereof;

WHEREAS, the Boards of Directors of Merger Sub and the Company have each approved the merger (the " Merger" ) of Merger Sub with and into the Company, in accordance with Section 251 of the Delaware General Corporation Law (the " DGCL" ) and subject to the conditions set forth herein, which Merger will result in, among other things, the Company becoming a wholly owned subsidiary of Parent;

WHEREAS, the Board of Directors of the Company has unanimously (i) approved and declared the Merger advisable upon the terms and subject to the conditions set forth in this Agreement and (ii) recommended the adoption of this Agreement and approval of the Merger by the stockholders of the Company;

WHEREAS, concurrently with execution and delivery of this Agreement and as a condition to the willingness of, and an inducement to, Parent and Merger Sub to enter into this Agreement, each of the Stockholder Parties has executed and delivered a voting agreement and proxy with respect to all shares of Common Stock and Preferred Stock owned by them or which they have the right to vote in favor of the adoption of this Agreement and approval of the Merger, substantially in the form of Exhibit A hereto (collectively, the " Support Agreements" );

WHEREAS, immediately following the execution and delivery of this Agreement, it is anticipated that each of the Stockholder Parties will execute and deliver to the Company, and the Company shall thereafter deliver to Parent, a true, correct and complete copy of an Action by Written Consent, in the form attached as an exhibit to the Support Agreements, providing for the adoption of this Agreement and approval of the Merger (the " Stockholder Consents" );

WHEREAS, concurrently with execution and delivery of the Original Agreement and as a condition to the willingness of, and an inducement to, the Company and the Stockholder

Parties to enter into this Agreement, Parent and the Company Stockholders have executed and delivered the Registration Rights Agreement, substantially in the form of Exhibit B hereto (the " Registration Rights Agreement" ), which shall be effective only at and as of the Effective Time;

WHEREAS, concurrently with execution and delivery of the Original Agreement and as a condition to the willingness of, and an inducement to, Parent and Merger Sub to enter into this Agreement, each of the Founders has executed and delivered a non-competition agreement, substantially in the form of Exhibit C hereto, each of which shall be effective only at and as of the Effective Time; and WHEREAS, for United States federal income tax purposes, the Merger is intended to qualify as a " reorganization" pursuant to the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the " Code" ), and the parties intend, by executing this Agreement, to adopt a " plan of reorganization" within the meaning of Treasury Regulation Section 1.368-2(g) and Proposed Treasury Regulation Section 1.368-3.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE 1

DEFINITIONS 1.1 Certain Definitions . The following are the definitions of certain defined terms used in this Agreement: " Action" means any claim, suit, action, arbitration, cause of action, complaint, criminal prosecution or proceeding, whether at law or at equity, before or by any Court or Governmental Authority, any arbitrator or other tribunal.

" Affiliate" means, with respect to a Person, another Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such first Person. For this definition, " control" (and its derivatives) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting Equity Interests, as trustee or executor, by Contract or credit arrangements or otherwise.

" Aggregate Share Consideration" means the quotient of (x) (i) $1,650,000,000 minus (ii) the aggregate amount of any principal and interest outstanding under any Bridge Note as of the Effective Time (but excluding any such principal amounts (and any interest relating thereto) that the Company and Parent mutually agree in writing prior to the loan or advancement of such principal amount shall be excluded) divided by (y) the Parent Closing Price.

" beneficial owner" (including the terms " beneficial ownership" and " to beneficially own" ) with respect to a Person' s ownership of any securities means such Person or any of such Person' s Affiliates or associates (as defined in Rule 12b-2 under the Exchange Act) who is deemed to beneficially own, directly or indirectly, such securities within the meaning of Rule 13d-3 under the Exchange Act.

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" Bridge Note" means any promissory note issued by the Company payable to Parent or Merger Sub with respect to amounts loaned or advanced by Parent or Merger Sub to the Company during the period on or after the Effective Date and prior to the Effective Time. " Business Day" means any day, other than a Saturday, Sunday or one on which banks are authorized by Law to be closed in either New York, New York or San Francisco, California.

" Closing Date" means the second Business Day after the satisfaction or waiver of the conditions set forth in ARTICLE 7 (excluding conditions that, by their terms, are to be satisfied on the Closing Date, but subject to the satisfaction or waiver of such conditions on the Closing Date), or such other date as the parties hereto agree in writing.

" Commitment" means (a) options, warrants, convertible securities, exchangeable securities, subscription rights, conversion rights, exchange rights, or other Contracts that could require a Person to issue any of its Equity Interests or to sell any Equity Interests it owns in another Person; (b) any other securities convertible into, exchangeable or exercisable for, or representing the right to subscribe for any Equity Interest of a Person or owned by a Person; (c) statutory pre-emptive rights or pre-emptive rights granted under a Person' s Organizational Documents or any Contract; and (d) stock appreciation rights, phantom stock, profit participation, or other similar rights with respect to a Person.

" Company Common Stock" means the common stock, $0.001 par value per share, of the Company.

" Company Disclosure Schedule" means a schedule as of the Effective Date delivered by the Company to Parent concurrently with the execution of the Original Agreement, which, among other things, will identify exceptions and other matters with respect to the representations, warranties and covenants of the Company contained in certain sections and subsections of this Agreement; provided, however , that the disclosure set forth in a specific section or subsection of the Company Disclosure Schedule shall also qualify the representations, warranties or covenants set forth in any other sections or subsections of this Agreement (whether or not a specific cross-reference is included therein) if and to the extent that it is reasonably apparent on the face of such disclosure that such disclosure applies to such other sections or subsections.

" Company Material Adverse Effect" means any event, change, condition or circumstance that has had, or would reasonably be expected to result in, individually or in the aggregate, a material adverse effect on the business, operations, properties, assets, rights, liabilities, condition (financial or otherwise) or results of operations of the Company; provided, however , that no event, change, condition or circumstance (by itself or when aggregated with any other events, changes, conditions or circumstances) to the extent resulting from any of the following shall be deemed to be or constitute a " Company Material Adverse Effect," and no event, change, condition or circumstance (by itself or when aggregated with any other such


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events, changes, conditions or circumstances) to the extent resulting from any of the following shall be taken into account when determining whether a " Company Material Adverse Effect" has occurred or may, would or could occur: (i) changes in applicable law, GAAP or international accounting standards; (ii) general economic (including financial, banking and/or securities markets), regulatory or political conditions to the extent that they that do not disproportionately affect the Company in any material respect relative to similarly situated participants in the industry in which the Company operates; (iii) compliance by the Company with the terms and conditions of this Agreement (other than actions taken in the Ordinary Course of Business), or changes resulting from the Company' s failure to take any action as a result of prohibitions and restrictions set forth in this Agreement; (iv) the announcement or pendency of the transactions contemplated by this Agreement; (v) acts of terrorism or war to the extent that they do not disproportionately affect the Company in any material respect relative to similarly situated participants in the industry in which the Company operates; (vi) any Action brought by any stockholders of the Company (other than the Stockholder Parties), on their own behalf or on behalf of the Company, arising out of or in connection with the transactions contemplated by this Agreement or (vii) the items set forth in Section 1.1(a) of the Company Disclosure Schedule. " Company Option Plan" means the YouTube, Inc. 2005 Stock Plan, as amended. " Company Options" means options to purchase shares of Company Common Stock. " Company Preferred Stock" means the Company Series A Preferred Stock and the Company Series B Preferred Stock. " Company RSUs" means restricted stock units for shares of Company Common Stock. " Company Series A Preferred Stock" means the Series A Preferred Stock, $0.001 par value per share, of the Company. " Company Series B Preferred Stock" means the Series B Preferred Stock, $0.001 par value per share, of the Company. " Company Stock" means the Company Common Stock and Company Preferred Stock. " Company Stockholders" means the holders of shares of Company Common Stock and Company Preferred Stock. " Company Transaction Expenses" means all costs, fees and expenses incurred (whether or not invoiced) by the Company in connection with all efforts to sell the Company or its business, whether to Parent or any other party, including preparation and due diligence, and in connection with this Agreement and the other Transaction Agreements and any other documents prepared or delivered in connection therewith, and the transactions contemplated hereby and thereby, including fees and expenses of advisors, investment bankers, lawyers and accountants arising out of, relating to or incidental to the discussion, evaluation, financing, negotiation and documentation of the transactions contemplated hereby and thereby.


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" Company Warrants" means warrants to purchase shares of Company Stock. " Consent" means any consent, approval, notification, registration, waiver or other similar action. " Contract" means any contract, agreement, arrangement, commitment, letter of intent, memorandum of understanding, license, lease, promise, instrument, or other similar understanding, whether written or oral, in each case that is legally binding as of the date in question.

" Copyright Action" means any Action filed or otherwise instituted in any Court against the Company, Parent or any of their respective Subsidiaries with respect to copyright infringement and related matters (including, for the avoidance of doubt, any similar or related claims made in connection with such copyright infringement Action) with respect to www.youtube.com (" Company Site" ). " Court" means any court or arbitration tribunal of the United States, any domestic state, or any foreign country, and any political subdivision or agency thereof.

" Damages" means all damages, losses, payments, amounts paid in settlement, obligations, fines, penalties and expenses and other costs (including reasonable and documented fees and expenses of attorneys, accountants and other professional advisors and including any such fees, costs and expenses incurred in connection with investigating, defending against or settling any action or proceeding).

" Enforceable" means, with respect to a Contract, that such Contract is the legal, valid, and binding obligation of the applicable Person, enforceable against such Person in accordance with its terms, except as such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium, or other similar Laws relating to or affecting the rights of creditors, and general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law. " Environmental, Health and Safety Requirements" means all Orders and Laws concerning or relating to worker/occupational health and safety, or pollution or protection of the environment, including those relating to the presence, use, manufacturing, refining, production, generation, handling, transportation, treatment, recycling, transfer, storage, disposal, distribution, importing, labeling, testing, processing, discharge, release, threatened release, control, or other action or failure to act involving cleanup of any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, or radiation, each as amended and as now in effect.

" Equity Interest" means (a) with respect to a corporation, any and all shares of capital stock and any Commitments with respect thereto, (b) with respect to a partnership, limited liability company, trust or similar Person, any and all units, interests or other partnership/limited liability company interests, and any Commitments with respect thereto, and (c) any other equity ownership or participation in a Person.

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" ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

" Exchange Act" means the Securities Exchange Act of 1934, as amended. " Exchange Ratio" means the quotient obtained by dividing (x) the Aggregate Share Consideration, by (y) Total Outstanding Shares.

" Founders" means Chad M. Hurley and Steve S. Chen. " Governmental Authority" means any legislature, agency, bureau, branch, department, division, commission, court, tribunal, magistrate, justice, multi-national organization, quasi-governmental body, or other similar recognized organization or body of any federal, state, county, municipal, local, provincial or foreign government. " HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

" Indebtedness" means (i) all indebtedness (whether or not contingent) for borrowed money, (ii) all obligations (contingent or otherwise) for the deferred purchase price of assets, property or services (other than current trade payables incurred in the Ordinary Course of Business), (iii) all obligations evidenced by notes, bonds, debentures or other similar instruments, (iv) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property, (v) all obligations, contingent or otherwise, as an account party under acceptance, letter of credit or similar facilities, (vi) all obligations under any currency, interest rate or other hedge agreement or any other hedging arrangement, (vii) all direct or indirect guarantee, support or keep well obligations in respect of obligations of the kind referred to in clauses (i) through (vi) above, and (viii) all obligations of the kind referred to in clauses (i) through (vii) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and Contract rights) owned by the Company, whether or not the Company has assumed or become liable for the payment of such obligation.

" Indemnified Copyright Action" has the meaning set forth in Section 1.1(b) of the Company Disclosure Schedule.

" Intellectual Property" means all U.S. and foreign intellectual property rights, arising under any of the following: (i) patents and patent applications; (ii) trade secret rights or corresponding rights and rights in information with respect to confidential technology, inventions, discoveries, processes, designs and know-how; (iii) copyrights, neighboring rights, moral rights, rights against bootlegging, and corresponding rights throughout the world; including in copyrightable works (including rights in Systems, Documentation and related items, graphics, audiovisual works, photography and advertising and promotional materials); (iv) rights in trademarks, trade names, service marks, brand names, corporate names, domain names, logos, trade dress and other source indicators; (v) rights of privacy and publicity; and (vi) all similar, corresponding or equivalent rights throughout the world.


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" Knowledge" or " knowledge" means the actual knowledge of, with respect to any of the representations and warranties set forth in ARTICLE 3, the Persons identified in Section 1.1(c) of the Company Disclosure Schedule.

" Law" means any law (statutory, common, or otherwise), constitution, treaty, convention, ordinance, equitable p ...