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NetApp Clears Hurdle in Data Domain Buy

Even as rival bidder EMC sweetens its bid, NetApp moves closer to clinching its acquisition, NetworkWorld reports

By Jon Brodkin

NetApp has cleared a regulatory hurdle in its attempt to acquire storage vendor Data Domain, but rival EMC is still pursuing an acquisition of the same company with a new offer of $2.1 billion.

EMC and NetApp have been locked in a bidding war for Data Domain, a de-duplication and backup vendor, for more than a month. NetApp and Data Domain appear to be heading toward a $1.9 billion acquisition, with NetApp announcing Monday that it has received "all regulatory clearances to proceed with [the] Data Domain acquisition" and that a Data Domain stockholder vote is scheduled for Aug.14.

Specifically, NetApp said the Federal Trade Commission granted the merger an early clearance, meaning "the FTC will not conduct any further reviews related to the merger." The Securities and Exchange Commission also reviewed NetApp's registration statement for the proposed acquisition and is letting the transaction move on to a stockholder vote, according to NetApp.

"We are pleased to have passed these important milestones, which we believe set us on course for a clear and timely path to close," NetApp CEO Dan Warmenhoven said in a press release. "We look forward to the upcoming Data Domain stockholder vote on August 14 and a quick close of our transaction."

But also on Monday, EMC struck back with a new offer of $2.1 billion, which it submitted to Data Domain's board of directors. EMC said it has also received a clearance from the FTC that removes regulatory hurdles, and claims its offer is superior because it is all cash, whereas NetApp plans a cash and stock acquisition of Data Domain.

Data Domain previously rejected a $1.8 billion offer from EMC. At the time, Data Domain faulted EMC for not engaging in direct negotiation, and attaching conditions that would allow EMC to terminate its offer at any time. Data Domain also said that it would have to pay NetApp a $57 million termination fee if it agrees to a merger with EMC and terminates the merger agreement with NetApp.

EMC's new offer expires on July 17. EMC criticized Data Domain's decision to agree to deal protection provisions, which require payment of the termination fee, and said its own offer removes any such deal protection provisions.

"EMC is prepared to close the transaction within two weeks, which is almost a month faster than the NetApp proposal," EMC said.

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