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Data Domain shareholders to judge beauty contest

EMC cash or NetApp stock?

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EMC has not raised its bid for Data Domain after NetApp's revised $1.9bn offer, saying the EMC all-cash proposal of $30/share is superior to NetApp's part-stock offer.

Joe Tucci, EMC's Chairman, President and CEO, said: "EMC's all-cash tender offer remains superior to NetApp's proposed part-stock merger transaction. We are proceeding with our superior cash tender offer, which is not subject to any financing or due diligence contingency. We do not believe that the Data Domain stockholders will approve the merger transaction with NetApp."

Yesterday EMC commenced its tender offer for all outstanding Data Domain common stock. The tender offer will expire in 26 days time, at midnight, New York City time, on Monday, June 29, 2009, unless extended. EMC has also filed a Notification and Report Form with respect to its tender offer with the Anti-trust Division of the Department of Justice and the Federal Trade Commission yesterday.

NetApp sources think this means EMC will not raise its bid and the implication is that this is going down to a decision by Data Domain shareholders between the two bidders, EMC or NetApp. The Data Domain board prefers that NetApp buy the company. It and NetApp have entered into a revised acquisition agreement based on NetApp's latest offer, under which NetApp would acquire all of the outstanding shares of Data Domain common stock for $30/share in cash and stock in a transaction valued at approximately $1.9bn, net of Data Domain’s cash.

Frank Slootman, president and CEO of Data Domain, said: “We are pleased with the revised terms of NetApp’s acquisition offer and feel it will provide great value to our shareholders and customers.”

The deal is anticipated to close in 60-110 days subject to customary closing conditions including regulatory approval. NetApp plans to file with the SEC a Registration Statement on Form S-4 in connection with the transaction, and Data Domain plans to file with the SEC, and mail to its stockholders, a Proxy Statement/Prospectus in connection with the transaction.

The timetable has now been set. EMC's tender offer expires on June 29th. If it has not gained a majority of shares at that point, its bid lapses. It may extend the tender period, revise its bid, or withdraw, leaving the field clear for NetApp.

For now, Data Domain shareholders are being asked to decide between an all cash $30/share offer from EMC with no support from Data Domain's board and a board-supported NetApp bid which gives them $16.45/share plus shares of NetApp common stock equal to an exchange ratio for each Data Domain share. Will they see a greater than $15.55 rise in the value of these NetApp shares within a reasonable time frame and so gain more than $30 or will they take EMC's $30/share cash, cut and run?

It's hearts and minds time. Their board wants them to vote one way and EMC is dangling cash in front of their eyes to tempt them to accept its tender offer. Who knows which way they will vote. ®

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