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EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
August 29, 2000
Network Appliance, Inc.
495 East Java Drive
Sunnyvale, CA 94089
Re: Network Appliance, Inc. - Registration Statement for
Offering of an Aggregate of 355,769 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 Post-Effective Amendment No.
1 to Form S-8 (the "Registration Statement") under the Securities Act of 1933,
as amended, of (a) 60,146 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") and (b) 295,623 shares of the Company's
common stock reserved for issuance under the special option grants made by Orca
Systems, Inc. pursuant to written compensation agreements with Messrs. Beaman,
Bein, Bolinger, DeBergalis, Dominijanni, Gillono, Grier, Lent, Melendez, Natale,
Sears, Talpey, Thorpe, and Trimbee which were also assumed by the Company in
connection with its acquisition of Orca Systems, Inc. (the "Individual
Options").
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 assumption of the Orca
Plan and the options outstanding thereunder in connection with the Company's
acquisition of Orca Systems, Inc. and (b) the assumption of the Individual
Options in connection with such acquisition. 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 the provisions of
the option agreements for the outstanding options assumed under the Orca Plan
and the Individual Options 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
Orca Plan, the Individual Options or the shares of the Company's common stock
issuable under such plan or arrangements.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
