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EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
July 13, 2000
Network Appliance, Inc.
495 East Java Drive
Sunnyvale, CA 94089
Re: Network Appliance, Inc. - Registration Statement for Offering of an
Aggregate of 24,555,769 Shares of Common Stock
Dear Ladies and Gentlemen:
We have acted as counsel to Network Appliance, Inc., a California
corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
(a) an additional 2,600,000 shares of Company's common stock reserved for
issuance under the Company's Employee Stock Purchase Plan (the "Purchase Plan"),
(b) an additional 21,600,000 shares of the Company's common stock reserved for
issuance under the Company's 1995 Stock Incentive Plan (the "Incentive Plan"),
and (c) 355,769 shares of the Company's common stock reserved for issuance under
the Orca Systems, Inc. 1999 Stock Option/Stock Issuance Plan as assumed by the
Company (the "Orca Plan").
This opinion is being furnished in accordance with the requirements of Item
8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company with respect to: (a) the establishment and
amendment of the Purchase Plan and Incentive Plan and (b) the assumption of the
Orca Plan and the options outstanding thereunder in connection with the
Company's acquisition of Orca Systems, Inc. Based on such review, we are of the
opinion that if, as and when the shares of the Company's common stock are issued
and sold (and the consideration therefor received) pursuant to (i) the
provisions of option agreements or direct stock issuances duly authorized under
the Incentive Plan and in accordance with the Registration Statement, (ii) stock
purchases duly authorized under the Purchase Plan and in accordance with the
Registration Statement, and (iii) the provisions of option agreements for the
outstanding options assumed under the Orca Plan and in accordance with the
Registration Statement, such shares will be duly authorized, legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and we
disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Purchase Plan, the Incentive Plan, the Orca Plan or the shares of the Company's
common stock issuable under such plans.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
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BROBECK, PHLEGER & HARRISON LLP
