exv10w53



 





Exhibit 10.53









December 6, 2006




Network Appliance, Inc.

495 East Java Drive

Sunnyvale, California 94089

Telephone (408) 822-6000




Ladies and Gentlemen:




     This master confirmation (“Master Confirmation”) dated as of December 6, 2006, is intended to
supplement the terms and provisions of certain transactions (each, a “Transaction”) entered into
from time to time between J.P. Morgan Securities Inc., as agent for JPMorgan Chase Bank, National
Association, London Branch (“Seller”) and Network Appliance, Inc., a Delaware corporation
(“Purchaser”). This Master Confirmation, taken alone, is neither a commitment by either party to
enter into any Transaction nor evidence of a Transaction. The terms of any particular Transaction
shall be set forth in a Supplemental Confirmation in the form of Exhibit A hereto, which references
this Master Confirmation (the “Supplemental Confirmation”). This Master Confirmation and each
Supplemental Confirmation together shall constitute a “Master Confirmation” as referred to in the
Agreement specified below.



     This Master Confirmation and each Supplemental Confirmation evidence a complete binding
agreement between the Purchaser and Seller as to the subject matter and terms of each Transaction
to which this Master Confirmation and the related Supplemental Confirmation relate and shall
supersede all prior or contemporaneous written or oral communications with respect thereto.



     This Master Confirmation shall supplement, form a part of, and be subject to an agreement in
the form of the 2002 ISDA Master Agreement (the “Agreement”) as if the Seller and the Purchaser had
executed an agreement in such form (but without any Schedule except for the election of the laws of
the State of New York as the governing law) on the Execution Date set forth on any Supplemental
Confirmation. The parties hereby agree that no Transaction other than the Transaction to which this
Master Confirmation relates shall be governed by the Agreement.



     All provisions contained or incorporated by reference in the Agreement shall govern this
Master Confirmation and each Supplemental Confirmation relating to a Transaction except as
expressly modified herein or in the related Supplemental Confirmation. If, in relation to any
Transaction to which this Master Confirmation and related Supplemental Confirmation relate, there
is any inconsistency between the Agreement, this Master Confirmation and any Supplemental
Confirmation, the following will prevail for purposes of such Transaction in the order of
precedence indicated: (i) such Supplemental Confirmation; (ii) this Master Confirmation; and (iii)
the Agreement.



JPMorgan Chase Bank, National Association

Organised under the laws of the United States as a National Banking Association.

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271

Registered as a branch in England & Wales branch No. BR000746. Registered

Branch Office 125 London Wall, London EC2Y 5AJ

Authorised and regulated by the Financial Services Authority




 









 








ARTICLE 1

Definitions




     Section 1.01 Definitions. As used in this Master Confirmation, the following terms shall have
the following meanings:



     “10b-18 VWAP” means, (A) for any Trading Day described in clause (x) of the definition of
Trading Day hereunder, the volume-weighted average price at which the Common Stock trades as
reported in the composite transactions for the principal United States securities exchange on which
such Common Stock is then listed (or, if applicable, the Successor Exchange on which the Common
Stock has been listed in accordance with Section 7.01(c)), on such Trading Day, excluding (i)
trades that do not settle regular way, (ii) opening (regular way) reported trades in the
consolidated system on such Trading Day, (iii) trades that occur in the last ten minutes before the
scheduled close of trading on the Exchange on such Trading Day and ten minutes before the scheduled
close of the primary trading in the market where the trade is effected, and (iv) trades on such
Trading Day that do not satisfy the requirements of Rule 10b-18(b)(3), as determined in good faith
by the Calculation Agent, or (B) for any Trading Day that is described in clause (y) of the
definition of Trading Day hereunder, an amount determined in good faith by the Calculation Agent as
10b-18 VWAP. The Purchaser acknowledges that the Seller may refer to the Bloomberg Page “NTAP UQ
<Equity> AQR SEC” (or any successor thereto), in its reasonable judgment, for such Trading
Day to determine the 10b-18 VWAP.



     “Additional Termination Event” has the meaning set forth in Section 7.01(a).



     “Agreement” has the meaning set forth in the third paragraph of this Master Confirmation.



     “Affected Party” has the meaning set forth in Section 14 of the Agreement.



     “Affected Transaction” has the meaning set forth in Section 14 of the Agreement.



     “Affiliated Purchaser” means any “affiliated purchaser” (as such term is defined in Rule
10b-18) of the Purchaser.



     “Alternative Termination Delivery Unit” means (i) in the case of a Termination Event (other
than a Merger Event or Nationalization) or Event of Default (as defined in the Agreement), one
share of Common Stock and (ii) in the case of a Merger Event or Nationalization, a unit consisting
of the number or amount of each type of property received by a holder of one share of Common Stock
in such Merger Event or Nationalization; provided that if such Merger Event involves a choice of
consideration to be received by holders of the Common Stock, an Alternative Termination Delivery
Unit shall be deemed to include the amount of cash received by a holder who had elected to receive
the maximum possible amount of cash as consideration for his shares.



     “Averaging Period” means the period of consecutive Trading Days from and including the first
Trading Day following the Hedging Completion Date to and including the Valuation Completion Date.



     “Bankruptcy Code” has the meaning set forth in Section 9.07.



     “Business Day” means any day on which the Exchange is open for trading.



     “Calculation Agent” means JPMorgan Chase Bank, National Association.



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     “Common Stock” has the meaning set forth in Section 2.01.



     “Communications Procedures” has the meaning set forth in Annex A hereto.



     “Contract Period” means the period commencing on and including the Execution Date and ending
on and including the date all payments or deliveries of shares of Common Stock pursuant to Article
3 or Section 7.03 have been made.



     “Default Notice Day” has the meaning set forth in Section 7.02(a).



     “De-Listing” has the meaning set forth in Section 7.01(c).



     “Disrupted Day” means a Scheduled Trading Day during the Contract Period that, as a result of
the definition of Trading Day (whether because of a suspension of transactions pursuant to Section
4.02 of this Master Confirmation or otherwise), is not a Trading Day.



     “Early Termination Date” has the meaning set forth in Section 14 of the Agreement.



     “Event of Default” has the meaning set forth in Section 14 of the Agreement.



     “Exchange” means the NASDAQ National Market.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Execution Date” has the meaning set forth in Section 2.01.



     “Expiration Date” means the first Scheduled Trading Day following the number of days following
the Hedging Period as set forth on the applicable Supplemental Confirmation under the heading
“Number of Days in Averaging Period” (the “Scheduled Expiration Date”); provided, however, if any
Scheduled Trading Day during the Contract Period is a Disrupted Day, then the Expiration Date shall
be extended by one Scheduled Trading Day for each such Disrupted Day; provided, further, if more
than eight Scheduled Trading Days during the Contract Period are Disrupted Days, then on the eighth
Scheduled Trading Day following the Scheduled Expiration Date, if a Valuation Completion Date has
not yet occurred, an Additional Termination Event shall occur in respect of which the Purchaser is
the sole Affected Party and a Transaction is the sole Affected Transaction.



     “Extraordinary Cash Dividend” means the per share cash dividend or distribution, or a portion
thereof, declared by the Purchaser on shares of Common Stock that is classified by the board of
directors of the Purchaser as an “extraordinary” dividend.



     “Hedging Completion Date” means the Trading Day on which the Seller completes the
establishment of its initial hedge position with respect to a Transaction.



     “Hedging Price” means the volume weighted average of the per share prices at which the Seller
(or an affiliate of the Seller) purchases shares of Common Stock during the Hedging Period to
establish Seller’s initial hedge position with respect to a Transaction.



     “Hedging Period” has the meaning set forth in Section 2.04(a).



     “Indemnified Person” has the meaning set forth in Section 9.02.



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     “Indemnifying Party” has the meaning set forth in Section 9.02.



     “Initial Payment Date” means the first Business Day immediately following the Execution Date.



     “Master Confirmation” has the meaning set forth in the first paragraph of this letter
agreement.



     “Merger Event” has the meaning set forth in Section 7.01(d).



     “Minimum Delivery Number” means the number of shares of Common Stock, rounded down to the
nearest integer, equal to (A) the Purchase Price divided by (B) the Upside Threshold.



     “Nationalization” has the meaning set forth in Section 7.01(e).



     “Obligations” has the meaning set forth in Section 9.02.



     “Purchase Price” has the meaning set forth in Section 2.01.



     “Purchaser” has the meaning set forth in the first paragraph of this Master Confirmation.



     “Regulation M” means Regulation M under the Exchange Act.



     “Rule 10b-18” means Rule 10b-18 promulgated under the Exchange Act (or any successor rule
thereto).



     “Scheduled Trading Day” means any day on which each national securities exchange on
which any securities of the Purchaser are traded is scheduled to be open for trading for their
respective regular trading sessions.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Seller” has the meaning set forth in the first paragraph hereto.



     “Seller Termination Share Purchase Period” has the meaning set forth in Section 7.03.



     “Share De-listing Event” has the meaning set forth in Section 7.01(c).



     “Successor Exchange” has the meaning set forth in Section 7.01(c).



     “Supplemental Confirmation” has the meaning set forth in the first paragraph of this Master
Agreement.



     “Termination Amount” has the meaning set forth in Section 7.02(a).



     “Termination Event” has the meaning set forth in Section 14 of the Agreement.



     “Termination Price” means the value of an Alternative Termination Delivery Unit to the Seller,
as determined by the Calculation Agent.



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     “Trading Day” means (x) any Scheduled Trading Day (i) during which trading of any securities
of the Purchaser on any national securities exchange has not been suspended, (ii) during which
there has not been, in the Seller’s reasonable judgment, a material limitation in the trading of
Common Stock or any options contract or futures contract related to the Common Stock, and (iii)
during which there has been no suspension pursuant to Section 4.02 of this Master Confirmation, or
(y) any day that, notwithstanding the occurrence of events contemplated in clauses (i), (ii) and
(iii) of this definition, the Calculation Agent determines to be a Trading Day.



     “Transaction” has the meaning set forth in the first paragraph of this Master Confirmation.



     “Upside Threshold” means, subject to the proviso contained in Section 2.04(b), such percent of
the Hedging Price as set forth in the applicable Supplemental Confirmation under the heading
“Upside Threshold Percent.”



     “Upside Threshold Percent” shall mean the percent set forth in the applicable Supplemental
Confirmation under the heading “Upside Threshold Percent.”



     “Valuation Completion Date” means the Trading Day, during the period commencing on the tenth
(10th) Business Day following the Hedging Completion Date and ending on and including
the Expiration Date, specified as such by the Seller, in its sole judgment, by delivering a notice
designating such Trading Day as a Valuation Completion Date by the close of business on the
Business Day immediately following such Business Day; provided, however, that if the Seller fails
to validly designate the Valuation Completion Date prior to the Expiration Date, the Valuation
Completion Date shall be the Expiration Date.



     “Valuation Number” has the meaning set forth in Section 3.01(b) of this Master Confirmation.



     “Valuation Price Adjustment Amount” shall mean the dollar amount set forth on the applicable
Supplemental Confirmation representing the discount from the average of the 10b-18 VWAPs for all
Trading Days in the Averaging Period.



     “VWAP Termination Price” shall be the price per share set forth on the applicable Supplemental
Confirmation under the heading “VWAP Termination Price.”



ARTICLE 2

purchase of the stock




     Section 2.01 Purchase of the Stock. Subject to the terms and conditions of this Master
Confirmation, the Purchaser agrees to purchase from the Seller, and the Seller agrees to sell to
the Purchaser, on such date as set forth on the applicable Supplemental Confirmation under the
heading “Execution Date” or on such other Business Day as the Purchaser and the Seller shall
otherwise agree (the “Execution Date”), a number of shares of the Purchaser’s common stock, par
value $0.001 per share (“Common Stock”), for an aggregate purchase price equal to such dollar
amount as set forth on the applicable Supplemental Confirmation under the heading “Purchase Price”
(the “Purchase Price”). The number of shares of Common Stock purchased by the Purchaser hereunder
shall be determined in accordance with the terms of this Master Confirmation.



     Section 2.02 Initial Payments. On the Initial Payment Date, the Purchaser shall pay an amount
equal to the Purchase Price to the Seller.



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     Section 2.03 Conditions to Seller’s Obligations. The Seller’s obligations under this
Agreement are subject to the conditions that (a) the representations and warranties made by the
Purchaser in this Agreement shall be true and correct as of the date hereof and the Initial Payment
and (b) the Seller shall have received an opinion of the counsel for the Purchaser, as of the date
of this Master Confirmation, substantially to the effect set forth in Exhibit D.



     Section 2.04 Hedging Period. (a) On each Trading Day beginning on the first Trading Day
immediately following the Initial Payment Date and ending on the Hedging Completion Date, an
affiliate of the Seller shall effect, for the account of the Seller, purchases of shares of Common
Stock to establish Seller’s initial position to hedge the Seller’s price and market risk in
connection with a Transaction (the period of consecutive Trading Days on which such purchases for a
Transaction are effected being collectively referred to as the “Hedging Period” for a Transaction).



          (b) At the conclusion of the Hedging Period, based on the amounts and prices at which an
affiliate of the Seller effects purchases of shares of Common Stock during the Hedging Period to
establish Seller’s initial hedge position in connection with a Transaction, the Calculation Agent
shall determine the Hedging Price, the Upside Threshold and the Minimum Delivery Number for a
Transaction.




          (c) On the first Business Day following the Hedging Completion Date, in addition to satisfying
its obligations under Section 3.01(a), the Seller shall deliver to the Purchaser a pricing
supplement to the applicable Supplemental Confirmation, substantially in the form of Exhibit B
attached hereto, setting forth the Hedging Price, the Upside Threshold, the Minimum Delivery Number
and the first day of the Averaging Period for such Transaction.




ARTICLE 3

Share Deliveries




     Section 3.01 Delivery of Shares. (a) On the first Business Day immediately following the
Hedging Completion Date, the Seller shall deliver to the Purchaser the number of shares of Common
Stock equal to the Minimum Delivery Number.



          (b) On the third Business Day immediately following the Valuation Completion Date, the Seller
shall deliver to the Purchaser the number of shares of Common Stock equal to (i) the number of
shares of Common Stock, rounded down to the nearest integer, equal to (x) the Purchase Price
divided by (y) the average of the 10b-18 VWAPs for all Trading Days in the Averaging Period minus
the dollar amount set forth on the applicable Supplemental Confirmation under the heading
“Valuation Price Adjustment Amount.” (collectively, the “Valuation Number”), minus (ii) the Minimum
Delivery Number; provided, however, that if the Valuation Number is less than the Minimum Delivery
Number, the Valuation Number shall be equal to such Minimum Delivery Number.




          (c) Delivery pursuant to this Article 3 shall be effected in accordance with the Seller’s
customary procedures.




ARTICLE 4

Market Transactions




     Section 4.01 Transactions by the Seller. (a) The parties agree and acknowledge that:



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               (i) During the Hedging Period, the Averaging Period and any Seller Termination Share
Purchase Period, the Seller (or its agent or affiliate) may effect transactions in shares of
Common Stock in connection with this Master Confirmation. The timing of such transactions by
the Seller, the price paid or received per share of Common Stock pursuant to such transactions
and the manner in which such transactions are made, including without limitation whether such
transactions are made on any securities exchange or privately, shall be within the sole judgment
of the Seller; provided that the Seller shall use good faith efforts to make all purchases of
Common Stock in a manner that would comply with the limitations set forth in clauses (b)(2),
(b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases.




               (ii) The Purchaser shall, at least one day prior to the first day of the Hedging Period,
the Averaging Period or the Seller Termination Share Purchase Period, notify the Seller of the
total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to
the once-a-week block exception set forth in Rule 10b-18(b)(4) by or for the Purchaser or any of
its Affiliated Purchasers during each of the four calendar weeks preceding such day and during
the calendar week in which such day occurs (“Rule 10b-18 purchase” and “blocks” each being used
as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Exhibit
C hereto.



          (b) The Purchaser acknowledges and agrees that (i) all transactions effected pursuant to
Section 4.01 hereunder shall be made in the Seller’s sole judgment and for the Seller’s own account
and (ii) the Purchaser does not have, and shall not attempt to exercise, any influence over how,
when or whether to effect such transactions, including, without limitation, the price paid or
received per share of Common Stock pursuant to such transactions whether such transactions are made
on any securities exchange or privately. It is the intent of the Seller and the Purchaser that all
Transactions comply with the requirements of Rule 10b5-1(c) of the Exchange Act and that this
Master Confirmation and any Supplemental Confirmation shall be interpreted to comply with the
requirements of Rule 10b5-1(c) (1)(i)(B) and the Seller shall take no action that results in the
Transaction not so complying with such requirements.




          (c) Notwithstanding anything to the contrary in this Master Confirmation or any Supplemental
Confirmation, the Purchaser acknowledges and agrees that, on any day, the Seller shall not be
obligated to deliver or receive any shares of Common Stock to or from the Purchaser and the
Purchaser shall not be entitled to receive any shares of Common Stock from the Seller on such day,
to the extent (but only to the extent) that after such transactions the Seller’s ultimate parent
entity would directly or indirectly beneficially own (as such term is defined for purposes of
Section 13(d) of the Exchange Act) at any time on such day in excess of 4.99% of the outstanding
shares of Common Stock. Any purported receipt or delivery of shares of Common Stock shall be void
and have no effect to the extent (but only to the extent) that after any receipt or delivery of
such shares of Common Stock the Seller’s ultimate parent entity would directly or indirectly so
beneficially own in excess of 4.99% of the outstanding shares of Common Stock. If, on any day, any
delivery or receipt of shares of Common Stock by the Seller is not effected, in whole or in part,
as a result of this provision, the Seller’s and Purchaser’s respective obligations to make or
accept such receipt or delivery shall not be extinguished and such receipt or delivery shall be
effected over time as promptly as the Seller determines, in the reasonable determination of the
Seller, that after such receipt or delivery its ultimate parent entity would not directly or
indirectly beneficially own in excess of 4.99% of the outstanding shares of Common Stock.




     Section 4.02 Suspension of Transactions in Common Stock. (a) If the Seller, in its sole
judgment, reasonably determines that it is appropriate with regard to any legal, regulatory or self
-regulatory requirements or related policies and procedures (whether or not such requirements,
policies or procedures are imposed by law or have been voluntarily adopted by the Seller) for the
Seller to refrain



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from effecting transactions in Common Stock on any Business Day during the Contract Period or
to effect such transactions on such Business Day at a volume lower than that otherwise effected by
the Seller hereunder, the Seller (or its agent or affiliate) shall not effect transactions in
shares of Common Stock with respect to any Transaction on such day or effect such transactions at a
volume reasonably determined by the Seller in its sole judgment; provided that if the Seller
decides to effect any transaction hereunder at such lower volume, the Calculation Agent shall be
entitled to make appropriate adjustments to the term of such Transaction under Section 8.02 to
reflect the effect of such diminished volume. The Seller shall notify the Purchaser of the
exercise of the Seller’s rights pursuant to this Section 4.02(a) upon such exercise and shall
subsequently notify the Purchaser on the day the Seller believes that the Seller may resume
purchasing or selling or purchasing at the volume level anticipated at the outset of such
Transaction, as applicable, Common Stock. The Seller shall not be obligated to communicate to the
Purchaser the reason for the Seller’s exercise of its rights pursuant to this Section 4.02(a).



          (b) The Purchaser agrees that, during the Contract Period, neither the Purchaser nor any of
its affiliates or agents shall make any distribution (as defined in Regulation M) of Common Stock,
or any security for which the Common Stock is a reference security (as defined in Regulation M) or
take any other action that would, in the view of the Seller, preclude purchases by the Seller of
the Common Stock or cause the Seller to violate any law, rule or regulation with respect to such
purchases.




     Section 4.03 Purchases of Common Stock by the Purchaser. Without the prior written consent of
the Seller, the Purchaser shall not, and shall cause its affiliates and affiliated purchasers (each
as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means
of a derivative instrument) purchase, offer to purchase, place any bid or limit order that would
effect a purchase of, or commence any tender offer relating to, any shares of Common Stock (or
equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a
depository share) or any security convertible into or exchangeable for shares of Common Stock
during the Contract Period.



ARTICLE 5

Representations, Warranties And Agreements




     Section 5.01 Repeated Representations, Warranties and Agreements of the Purchaser. The
Purchaser represents and warrants to, and agrees with, the Seller, (i) on the date hereof, (ii) on
any Execution Date and (iii) on any date on which the Purchaser elects to receive any delivery or
payment pursuant to this Master Confirmation or any Supplemental Confirmation, that:



          (a) Disclosure; Compliance with Laws. The reports and other documents filed by the Purchaser
with the SEC pursuant to the Exchange Act when considered as a whole (with the more recent such
reports and documents deemed to amend inconsistent statements contained in any earlier such reports
and documents), do not contain any untrue statement of a material fact or any omission of a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading. The Purchaser is not in
possession of any material nonpublic information regarding the Purchaser or the Common Stock.




          (b) Rule 10b5-1. The Purchaser acknowledges that (i) the Purchaser does not have, and shall
not attempt to exercise, any influence over how, when or whether to effect purchases of Common
Stock by the Seller (or its agent or affiliate) in connection with this Master Confirmation or any
Supplemental Confirmation and (ii) the Purchaser is entering into the Agreement, this Master
Confirmation and any Supplemental Confirmation in good faith and not as part of a plan or scheme to
evade compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated
under the Exchange Act. The Purchaser also acknowledges and agrees that any amendment,
modification,

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waiver or termination of this Master Confirmation or any Supplemental Confirmation must be
effected in accordance with the requirements for the amendment or termination of a “plan” as
defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the
foregoing, any such amendment, modification, waiver or termination shall be made in good faith and
not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and
no amendment, modification or waiver shall be made at any time at which the Purchaser or any
officer or director of the Purchaser is aware of any material nonpublic information regarding the
Purchaser or the Common Stock.




          (c) No Facilitation of Distribution. The Purchaser is not entering into this Master
Confirmation or any Supplemental Confirmation to facilitate a distribution of the Common Stock (or
any security convertible into or exchangeable for Common Stock) or in connection with a future
issuance of securities.




          (d) No Manipulation. The Purchaser is not entering into this Master Confirmation or any
Supplemental Confirmation to create actual or apparent trading activity in the Common Stock (or any
security convertible into or exchangeable for Common Stock) or to manipulate the price of the
Common Stock (or any security convertible into or exchangeable for Common Stock).




          (e) Regulation M. The Purchaser is not engaged in a distribution, as such term is used in
Regulation M, that would preclude purchases by the Purchaser or the Seller of the Common Stock or
cause the Seller to violate any law, rule or regulation with respect to such purchases.




          (f) Board Authorization. The Purchaser is entering into this Master Confirmation and any
Supplemental Confirmation in connection with its share repurchase program, which was approved by
its board of directors and publicly disclosed, solely for the purposes stated in such board
resolution and public disclosure. There is no internal policy of the Purchaser, whether written or
oral, that would prohibit the Purchaser from entering into any aspect of the Transactions
contemplated hereby or thereby, including, but not limited to, the purchases of shares of Common
Stock to be made pursuant hereto or thereto.




          (g) Due Authorization and Good Standing. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware. This Master
Confirmation has been duly authorized, executed and delivered by the Purchaser and (assuming due
authorization, execution and delivery thereof by the Seller) constitutes a valid and legally
binding obligation of the Purchaser. The Purchaser has all corporate power to enter into this
Master Confirmation and any Supplemental Confirmation and to consummate the transactions
contemplated hereby and thereby and to purchase the Common Stock in accordance with the terms
hereof and thereof.




          (h) Certain Transactions. There has not been any public announcement (as defined in Rule
165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a
recapitalization relating to the Purchaser that would fall within the scope of Rule
10b-18(a)(13)(iv).




          (i) Solvency. The assets of the Purchaser at their fair valuation exceed the liabilities of
the Purchaser, including contingent liabilities; the capital of the Purchaser is adequate to
conduct the business of the Purchaser and the Purchaser has the ability to pay its debts and
obligations as such debts mature and does not intend to, or does not believe that it will, incur
debt beyond its ability to pay as such debts mature.




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          (j) Required Filings. The Purchaser has made, and will use its best efforts to make, all
filings required to be made by it with the SEC, any securities exchange or any other regulatory
body with respect to the Transactions contemplated hereby.




          (k) No Conflict. The execution and delivery by the Purchaser of, and the performance by the
Purchaser of its obligations under, this Master Confirmation and any Supplemental Confirmation, as
applicable, and the consummation of the transactions herein or therein contemplated do not conflict
with or violate (i) any provision of the certificate of incorporation, by-laws or other
constitutive documents of the Purchaser, (ii) any statute or order, rule, regulation or judgment of
any court or governmental agency or body having jurisdiction over the Purchaser or any of its
subsidiaries or any of their respective assets or (iii) any contractual restriction binding on or
affecting the Purchaser or any of its subsidiaries or any of its assets.




          (l) Consents. All governmental and other consents that are required to have been obtained by
the Purchaser with respect to performance, execution and delivery of this Master Confirmation or
any Supplemental Confirmation, as applicable, have been obtained and are in full force and effect
and all conditions of any such consents have been complied with.




          (m) Investment Company Act. The Purchaser is not and, after giving effect to the transactions
contemplated in this Master Confirmation or any Supplemental Confirmation, as applicable, will not
be required to register as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.




          (n) Commodity Exchange Act. The Purchaser is an “eligible contract participant,” as such term
is defined in Section 1(a)(12) of the Commodity Exchange Act, as amended.




     Section 5.02 Additional Representations, Warranties and Agreements. The Purchaser and the
Seller represent and warrant to, and agree with, each other that:



          (a) Exempt Transaction. Each party acknowledges that all Transactions pursuant to this Master
Confirmation or any Supplemental Confirmation are intended to be exempt from registration under the
Securities, by virtue of Section 4(2) thereof and the provisions of Regulation D promulgated
thereunder (“Regulation D”). Accordingly, each party represents and warrants to the other that (i)
it has the financial ability to bear the economic risk of its investment in each Transaction and is
able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is
defined under Regulation D, (iii) it will purchase each Transaction for investment and not with a
view to the distribution or resale thereof in a manner that would violate the Securities Act, and
(iv) the disposition of each Transaction is restricted under this Master Confirmation, the
Securities Act and state securities laws.




          (b) Agency. Each party acknowledges that J.P. Morgan Securities Inc., an affiliate of the
Seller (“JPMSI”) has acted solely as agent on behalf of the Seller in effecting this Master
Confirmation and any Supplemental Confirmation. Each party acknowledges that JPMSI shall have no
liability to either party under this Master Confirmation or any Supplemental Confirmation. JPMSI is
authorized to act as agent for the Seller.




          (c) Non-Reliance. Each party has entered into this Master Confirmation solely in reliance on
its own judgment. Neither party has any fiduciary obligation to the other party relating to this
Master Confirmation nor any Transactions contemplated hereby. In addition, neither party has held
itself out as advising, or has held out any of its employees or agents as having the authority to
advise, the other party as to whether or not the other party should enter into this Master
Confirmation nor any Transactions

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contemplated hereby, any subsequent actions relating to this Master Confirmation or any other
matters relating to this Master Confirmation. Neither party shall have any responsibility or
liability whatsoever in respect of any advice of this nature given, or views expressed, by it or
any such persons to the other party relating to Master Confirmation nor any Transactions
contemplated hereby, whether or not such advice is given or such views are expressed at the request
of the other party. The Purchaser has conducted its own analysis of the legal, accounting, tax and
other implications of this Master Confirmation and the Transactions contemplated hereby and
consulted such advisors, accountants and counsel as it has deemed necessary.




     Section 5.03 Representations and Warranties of the Seller. The Seller represents and warrants
to the Purchaser that:



          (a) Due Authorization. This Master Confirmation has been duly authorized, executed and
delivered by the Seller and (assuming due authorization, execution and delivery thereof by the
Purchaser) constitutes a valid and legally binding obligation of the Seller. The Seller has all
corporate power to enter into this Master Confirmation and any Supplemental Confirmation, as
applicable, and to consummate the transactions contemplated hereby and to deliver the Common Stock
in accordance with the terms hereof or thereof.




          (b) Right to Transfer. The Seller will, on the first Business Day immediately following the
Hedging Completion Date, have the free and unqualified right to transfer the Number of Shares of
Common Stock to be delivered by the Seller pursuant to Section 2.01(a) hereof, free and clear of
any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.




ARTICLE 6

Additional Covenants




     Section 6.01 Purchaser’s Further Assurances. The Purchaser hereby agrees with the Seller that
the Purchaser shall cooperate with the Seller, and execute and deliver, or use its best efforts to
cause to be executed and delivered, all such other instruments, and to obtain all consents,
approvals or authorizations of any person, and take all such other actions as the Seller may
reasonably request from time to time, consistent with the terms of this Master Confirmation, in
order to effectuate the purposes of this Master Confirmation and the Transactions contemplated
hereby.



     Section 6.02 Purchaser’s Hedging Transactions. The Purchaser hereby agrees with the Seller
that the Purchaser shall not, during the Contract Period, enter into or alter any corresponding or
hedging transaction or position with respect to the Common Stock (including, without limitation,
with respect to any securities convertible or exchangeable into the Common Stock) and agrees not to
alter or deviate from the terms of this Master Confirmation.



     Section 6.03 No Communications. The Purchaser hereby agrees with the Seller that the Purchaser
shall not, directly or indirectly, communicate any information relating to the Common Stock or a
Transaction (including any notices required by Section 6.04) to any employee of the Seller or J.P.
Morgan Securities Inc., other than as set forth in the Communications Procedures attached as Annex
A hereto.



     Section 6.04 Notice of Certain Transactions. If at any time during the Contract Period, the
Purchaser makes, or expects to be made, or has made, any public announcement (as defined in Rule
165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a
recapitalization relating to the Purchaser (other than any such transaction in which the
consideration



11









 







consists solely of cash and there is no valuation period, or as to which the completion of
such transaction or the completion of the vote by target shareholders has occurred), then the
Purchaser shall (i) notify the Seller prior to the opening of trading in the Common Stock on any
day on which the Purchaser makes, or expects to be made, or has made any such public announcement,
(ii) notify the Seller promptly following any such announcement (or, if later, prior to the opening
of trading in the Common Stock on the first day of any Seller Termination Share Payment Period)
that such announcement has been made and (iii) promptly deliver to the Seller following the making
of any such announcement (or, if later, prior to the opening of trading in the Common Stock on the
first day of any Seller Termination Share Payment Period), a certificate indicating (A) the
Purchaser’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full
calendar months preceding the date of such announcement and (B) the Purchaser’s block purchases (as
defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full
calendar months preceding the date of such announcement. In addition, the Purchaser shall promptly
notify the Seller of the earlier to occur of the completion of such transaction and the completion
of the vote by target shareholders. Accordingly, the Company acknowledges that its actions in
relation to any such announcement or transaction must comply with the standards set forth in
Section 6.03.



ARTICLE 7

Termination




     Section 7.01 Additional Termination Events. (a) An Additional Termination Event shall occur
in respect of which the Purchaser is the sole Affected Party and a Transaction is the sole Affected
Transaction if, on any day, the Seller reasonably determines, in its sole judgment, that it is
unable to establish, re-establish or maintain in an economically efficient manner any hedging
transactions reasonably necessary in the normal course of such party’s business of hedging the
price and market risk of entering into and performing under a Transaction, due to market
illiquidity, illegality, lack of availability of hedging transaction market participants or any
other factor.



          (b) An Additional Termination Event shall occur in respect of which the Purchaser is the sole
Affected Party and a Transaction is the sole Affected Transaction if (i) a Share De-listing Event
occurs; (ii) a Merger Event occurs; (iii) a Nationalization occurs, (iv) any event described in
Section 8.02 occurs with respect to which, the Calculation Agent determines in its sole judgment,
that it is impracticable to effect any adjustment contemplated by Section 8.02 in order to preserve
the fair value of the Transaction to the Seller, (v) the 10b-18 VWAP on any Trading Day following
the Execution Date shall have been less than such dollar amount set forth on the applicable
Supplemental Confirmation under the heading “VWAP Termination Price” (subject to adjustment under
Section 8.02) or (vi) an event described in paragraph III of Annex A occurs.




          (c) A “Share De-listing Event” means that at any time during the Contract Period, the Common
Stock ceases to be listed, traded or publicly quoted on the Exchange for any reason (other than a
Merger Event, a “De-Listing”) and are not immediately re-listed, traded or quoted as of the date of
such de-listing, on another U.S. national securities exchange or a U.S. automated interdealer
quotation system (a “Successor Exchange”), provided that it shall not constitute an Additional
Termination Event if the Common Stock is immediately re-listed on a Successor Exchange upon its
De-Listing from the Exchange, and the Successor Exchange shall be deemed to be the Exchange for all
purposes. In addition, in such event, the Seller shall make any commercially reasonable adjustments
it deems necessary to the terms of the Transaction.




          (d) A “Merger Event” means the public announcement, including any public announcement as
defined in Rule 165(f) of the Securities Act (by the Purchaser or otherwise) at any time




12









 







during the Contract Period of any (i) planned recapitalization, reclassification or change of
the Common Stock that will, if consummated, result in a transfer of more than 20% of the
outstanding shares of Common Stock, (ii) planned consolidation, amalgamation, merger or similar
transaction of the Purchaser with or into another entity (other than a consolidation, amalgamation
or merger in which the Purchaser will be the continuing entity and which does not result in any
such recapitalization, reclassification or change of more than 20% of such shares outstanding),
(iii) other takeover offer for the shares of Common Stock that is aimed at resulting in a transfer
of more than 20% of such shares of Common Stock (other than such shares owned or controlled by the
offeror) or (iv) irrevocable commitment to any of the foregoing.




          (e) A “Nationalization” means that all or substantially all of the outstanding shares of
Common Stock or assets of the Purchaser are nationalized, expropriated or are otherwise required to
be transferred to any governmental agency, authority or entity.




     Section 7.02 Consequences of Additional Termination Events. (a) In the event of the occurrence
or effective designation of an Early Termination Date under the Agreement, in lieu of payment of
the amount payable in respect of a Transaction pursuant to Sections 6(d) and 6(e) of the Agreement
(the “Termination Amount”), the Seller shall be obligated to deliver to the Purchaser the
Alternative Termination Delivery Units pursuant to Section 7.03, unless the Purchaser elects cash
settlement (which election shall be binding), as set forth in Section 7.02(b), and notifies the
Seller of such election by delivery of written notice to the Seller on the Business Day immediately
following the Purchaser’s receipt of a notice (as required by Section 6(d) of the Agreement
following the designation of an Early Termination Date in respect of such Transaction or in respect
of all transactions under the Agreement) setting forth the amounts payable by the Seller with
respect to such Early Termination Date (the date of such delivery, the “Default Notice Day”);
provided that the Purchaser’s election to receive the Alternative Termination Delivery Units
pursuant to Section 7.03 shall not be valid and cash settlement shall apply if the representations
and warranties made by the Purchaser to the Seller in Section 5.01 are not true and correct as of
the date the Seller makes such election, as if made on such date.



          (b) If cash settlement applies in respect of an Early Termination Date, Section 6 of the
Agreement shall apply.




     Section 7.03 Alternative Termination Settlement. Subject to Section 7.02(a), unless the
Purchaser elects cash settlement pursuant to Section 7.02(b), (i) the Seller shall, beginning on
the first Trading Day following the Default Notice Day and ending when the Seller shall have
satisfied its obligations under this clause (the “Seller Termination Share Purchase Period”),
purchase (subject to the provisions of Section 4.01 and Section 4.02 hereof) a number of
Alternative Termination Delivery Units equal to (A) the Termination Amount divided by (B) the
Termination Price; and (ii) the Seller shall deliver such Alternative Termination Delivery Units to
the Purchaser on the settlement dates relating to such purchases.



     Section 7.04 Notice of Default. If an Event of Default occurs in respect of the Purchaser, the
Purchaser will, promptly upon becoming aware of it, notify the Seller specifying the nature of such
Event of Default.



ARTICLE 8

Adjustments




     Section 8.01 Cash Dividends. If the Purchaser declares any Extraordinary Cash Dividend that
has a record date during the Contract Period, then prior to or on the date on which such
Extraordinary



13









 




Cash Dividend is paid by the Purchaser to holders of record, the Purchaser shall pay to the
Seller an amount in cash equal to the product of (i) the amount of such Extraordinary Cash Dividend
and (ii) the theoretical short delta number of shares, as determined by the Calculation Agent,
required for the Seller to hedge its exposure to a Transaction.




     Section 8.02 Dilution Adjustments. If (x) any corporate event occurs involving the Purchaser
or the Common Stock (other than an Extraordinary Cash Dividend but including, without limitation,
other cash dividends, a spin-off, a stock split, stock or other dividend or distribution,
reorganization, rights offering or recapitalization or any other event having a dilutive or
concentrative effect on the Common Stock), or (y) as a result of the definition of Trading Day
(whether because of a suspension of transactions pursuant to Section 4.02 or otherwise), any day
that would otherwise be a Trading Day during the Contract Period is not a Trading Day or on such
Trading Day, pursuant to Section 4.02, the Seller effects transactions with respect to shares of
Common Stock at a volume lower than originally anticipated with respect to a Transaction or (z) as
a result of market conditions, the Seller incurs additional costs in connection with maintaining
its hedge position with respect to a Transaction (including, without limitation, the insufficient
availability of stock lenders willing and able to lend shares of Common Stock with a borrow cost
not significantly greater than the cost as of the date hereof and otherwise on terms consistent
with those as of the date hereof), then in any such case, the Calculation Agent shall make
corresponding adjustments with respect to any one or more of the Upside Threshold, the Minimum
Delivery Number and any other variable or term relevant to the terms of the Transaction, as the
Calculation Agent determines appropriate to preserve the fair value of the Transaction to the
Seller, and shall determine the effective date of such adjustment.



ARTICLE 9

miscellaneous




     Section 9.01 Successors and Assigns. All covenants and agreements in this Master Confirmation
or any Supplemental Confirmation made by or on behalf of either of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the parties hereto whether so
expressed or not.



     Section 9.02 Purchaser Indemnification. The Purchaser (the “Indemnifying Party”) agrees to
indemnify and hold harmless the Seller and its officers, directors, employees, affiliates,
advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and
all losses, claims, damages and liabilities, joint or several (collectively, “Obligations”), to
which an Indemnified Person may become subject arising out of or in connection with this Master
Confirmation or any Supplemental Confirmation or any claim, litigation, investigation or proceeding
relating thereto, regardless of whether any of such Indemnified Person is a party thereto, and to
reimburse, within 30 days, upon written request, each such Indemnified Person for any reasonable
legal or other expenses incurred in connection with investigating, preparation for, providing
evidence for or defending any of the foregoing, provided, however, that the Indemnifying Party
shall not have any liability to any Indemnified Person to the extent that such Obligations (i) are
finally determined by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Indemnified Person (and in such case, such Indemnified Person shall
promptly return to the Indemnifying Party any amounts previously expended by the Indemnifying Party
hereunder) or (ii) are trading losses incurred by the Seller as part of its purchases or sales of
shares of Common Stock pursuant to this Master Confirmation or any Supplemental Confirmation
(unless the Purchaser has breached any agreement, term or covenant herein).



     Section 9.03 Assignment and Transfer. Notwithstanding the Agreement, the Seller may assign any
of its rights or duties hereunder to any one or more of its affiliates without the prior written
consent of



14









 







the Purchaser. Notwithstanding any other provision in this Master Confirmation or any
Supplemental Confirmation to the contrary requiring or allowing Seller to purchase, sell, receive
or deliver any shares of Common Stock or other securities to or from the Purchaser, Seller may
designate any of its affiliates to purchase, sell, receive or deliver such shares of Common Stock
or other securities and otherwise to perform the Seller’s obligations in respect of a Transaction
and any such designee may assume such obligations. The Seller shall be discharged of its
obligations to the Purchaser to the extent of any such performance.



     Section 9.04 Calculation Agent. All determinations made by the Calculation Agent shall be made
in good faith and in a commercially reasonable manner. Following any calculation by the Calculation
Agent hereunder, upon a prior written request by the Purchaser, the Calculation Agent will provide
to the Purchaser by e-mail to the e-mail address provided by the Purchaser in such a prior written
request a report (in a commonly used file format for the storage and manipulation of financial
data) displaying in reasonable detail the basis for such calculation.



     Section 9.05 Confidentiality. The Seller and the Purchaser hereby agree not to issue any press
release, articles, advertising, publicity or other matter relating to this Master Confirmation, any
Supplemental Confirmation or any Transaction or mentioning or implying the name of the parties
hereto or thereto or the subject matter hereof or thereto, except as may be required by law, and
then only after providing the other party with an opportunity to review and comment thereon.
Notwithstanding the foregoing, there is no limitation on (i) disclosure of the tax treatment or any
fact that may be relevant to understanding the purported or claimed Federal income tax treatment of
any Transaction or (ii) the filing of this Master Confirmation or any Supplemental Confirmation by
the Purchaser with the SEC. The foregoing does not constitute an authorization to disclose the
identity of any existing or future party to a Transaction or their representatives or, except
relating to any disclosure of the tax structure or tax treatment, any specific pricing terms or
commercial or financial information. The Purchaser hereby agrees to use reasonable efforts to seek
confidential treatment under Rule 406 of the Securities Act for any pricing terms contained in any
Supplemental Confirmation filed by the Purchaser with the SEC.



     Section 9.06 Unenforceability and Invalidity. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Master Confirmation or any
Supplemental Confirmation shall not render any other provision or provisions herein or therein
contained unenforceable or invalid.



     Section 9.07 Securities Contract. The parties hereto agree and acknowledge as of the date
hereof that (i) the Seller is a “financial institution” within the meaning of Section 101(22) of
Title 11 of the United States Code (the “Bankruptcy Code”) and (ii) this Master Confirmation and
any Supplemental Confirmation shall be deemed a “securities contract,” as such term is defined i n
Section 741(7) of the Bankruptcy Code, entitled to the protection of Sections 362(b)(6) and 555 of
the Bankruptcy Code.



     Section 9.08 No Collateral, Netting or Setoff. Notwithstanding any provision of the Agreement,
or any other agreement between the parties, to the contrary, the obligations of the Purchaser
hereunder are not secured by any collateral. Obligations under a Transaction shall not be netted,
recouped or set off (including pursuant to Section 6 of the Agreement) against any other
obligations of the parties, whether arising under the Agreement, this Master Confirmation or any
Supplemental Confirmation, under any other agreement between the parties hereto, by operation of
law or otherwise, and no other obligations of the parties shall be netted, recouped or set off
(including pursuant to Section 6 of the Agreement) against obligations under such Transaction,
whether arising under the Agreement, this Master Confirmation, any Supplemental Confirmation, under
any other agreement between the parties hereto, by



15









 







operation of law or otherwise, and each party hereby waives any such right of setoff, netting
or recoupment.



     Section 9.09 Notices. Unless otherwise specified herein, any notice, the delivery of which is
expressly provided for in this Master Confirmation or any Supplemental Confirmation, may be made by
telephone, to be confirmed in writing to the address below. Changes to the information below must
be made in writing.



	 	 	 	 	 
	 

	 	(a)
	 	If to the Purchaser:
	 

	 	 	 	Network Appliance, Inc.
	 

	 	 	 	7301 Kit Creek Road
	 

	 	 	 	P.O. Box 13917
	 

	 	 	 	Research Triangle Park, NC 27709
	 

	 	 	 	Attn: Ingemar Lanevi, VP and Corporate Treasurer
	 

	 	 	 	Telephone: 919-476-5750
	 

	 	 	 	Facsimile:
	 
	 	 	 	 
	 

	 	 	 	(b) If to the Seller:
	 

	 	 	 	JPMorgan Chase Bank, National Association
	 

	 	 	 	c/o J.P. Morgan Securities Inc.
	 

	 	 	 	277 Park Avenue
	 

	 	 	 	New York, NY 10172
	 

	 	 	 	Attention: Eric Stefanik
	 

	 	 	 	Title: Operations Analyst
	 

	 	 	 	EDG Corporate Marketing
	 

	 	 	 	Telephone No: (212) 622-5814
	 

	 	 	 	Facsimile No: (212) 622-8534






16









 





     Please confirm that the foregoing correctly sets forth the terms of our agreement by executing
the copy of this Master Confirmation enclosed for that purpose and returning it to us.



	 	 	 	 	 
	 	Yours sincerely,





J.P. MORGAN SECURITIES INC., as agent for

JPMorgan Chase Bank, National Association,

London Branch

 	 
	 	By:  	/s/ Jason M. Wood	 
	 	 	Name:  	Jason M. Wood	 
	 	 	Title:  	Vice President	 
	 



	 	 	 	 	 
	Confirmed as of the date first	 	 
	above written:	 	 
	 
	 	 	 	 
	NETWORK APPLIANCE, INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Steven J. Gomo	 	 
	 

	 	 

Name:  Steven J. Gomo
	 	 
	 

	 	Title:    Executive Vice
President of Finance and Chief Financial Officer





JPMorgan Chase Bank, National Association

Organised under the laws of the United States as a National Banking Association.

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271

Registered as a branch in England & Wales branch No. BR000746. Registered

Branch Office 125 London Wall, London EC2Y 5AJ

Authorised and regulated by the Financial Services Authority




 









 







ANNEX A




COMMUNICATIONS PROCEDURES




December 6, 2006                    




I. Introduction




     Network Appliance, Inc., a Delaware corporation (“Counterparty”) and J.P. Morgan Securities
Inc., as agent for JPMorgan Chase Bank, National Association, London Branch (“JPMorgan”) have
adopted these communications procedures (the “Communications Procedures”) in connection with
entering into the Master Confirmation (the “Master Confirmation”) dated as of December 6, 2006
between JPMorgan and Counterparty relating to the sale by JPMorgan to Counterparty of common stock,
par value $0.001 per share, or security entitlements in respect thereof (the “Common Stock”) of the
Counterparty. These Communications Procedures supplement, form part of, and are subject to the
Master Confirmation.



II. Communications Rules 




     1. From the date hereof until the end of the Contract Period, neither Counterparty, nor any
Employee of Counterparty, nor any Designee of Counterparty shall (a) engage in any Program Related
Communication with any Personnel, other than any of the Permitted Contact, or (b) in any event
disclose any Material Non-Public Information to any Personnel, other than any of the Permitted
Contacts, and



     2. Subject to the preceding provision, the Counterparty, any Employee of Counterparty and any
Designee of Counterparty may at any time engage in any Non-Program Related Communication.



III. Termination 




     If, in the sole judgment of any Personnel or any affiliate or Employee of JPMorgan
participating in any Communication with Counterparty or any Designee of Counterparty, such
Communication would not be permitted by these Communications Procedures, such Personnel or such
affiliate or Employee of JPMorgan shall immediately terminate such Communication. In such case, or
if such Personnel or such affiliate or Employee of JPMorgan determines following completion of any
Communication with Counterparty, or any Designee of Counterparty, that such Communication was not
permitted by these Communications Procedures, such Personnel or such affiliate or Employee of
JPMorgan shall promptly consult with his or her supervisors and with counsel for JPMorgan regarding
such Communication. If, in the reasonable judgment of JPMorgan’s counsel following such
consultation, there is more than an insignificant risk that such Communication could materially
jeopardize the availability of the affirmative defenses provided in Rule 10b5-1 under the 1934 Act
with respect to any ongoing or contemplated activities of JPMorgan or its affiliates in respect of
the Master Confirmation, it shall be an Additional Termination Event with respect to the Master
Confirmation.



IV. Definitions 




     Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Master Confirmation. As used herein, the following words and phrases shall have the
following meanings:


Exh. D-1




 









 








     “Communication” means any contact or communication (whether written, electronic, oral or
otherwise) between Counterparty, any Employee of Counterparty or one or more Designees of
Counterparty, on the one hand, and JPMorgan or any of its affiliates or Employees, on the other
hand.



     “Designee” means a person designated, in writing or orally, by Counterparty to communicate
with JPMorgan on behalf of Counterparty.



     “Employee” means, with respect to any entity, any owner, principal, officer, director,
employee or other agent or representative of such entity, and any affiliate of any of such owner,
principal, officer, director, employee, agent or representative.



     “Material Non-Public Information” means information relating to the Counterparty or the Common
Stock that (a) has not been widely disseminated by wire service, in one or more newspapers of
general circulation, by communication from the Counterparty to its shareholders or in a press
release, or contained in a public filing made by the Counterparty with the Securities and Exchange
Commission and (b) a reasonable investor might consider to be of importance in making an investment
decision to buy, sell or hold shares of Common Stock. For the avoidance of doubt and solely by way
of illustration, information should be presumed “material” if it relates to such matters as
dividend increases or decreases, earnings estimates, changes in previously released earnings
estimates, significant expansion or curtailment of operations, a significant increase or decline of
orders, significant merger or acquisition proposals or agreements, significant new products or
discoveries, extraordinary borrowing, major litigation, liquidity problems, extraordinary
management developments, purchase or sale of substantial assets and similar matters.



     “Non-Program Related Communication” means any Communication other than a Program Related
Communication.



     “Permitted Contact” Mr. David Aidelson, Ms. Bernadette Barnard, Mr. Elliot Chalom, Mr. Santosh
Nabar, Mr. James Rothschild, Mr. James F. Smith, Ms. Fabienne Wilmes and Mr. Jason Wood and any of
the persons designated from time to time in writing by the Counterparty or by a Permitted Contact.



     “Personnel” means Reuben Jacob, Gaurav Arora and any other Employee of the public side of the
Equity Derivatives Group or the Special Equities Group of J.P. Morgan Chase & Co.; provided that
JPMorgan may amend the list of Personnel by delivering a revised list of Personnel to Counterparty.



     “Program Related Communication” means any Communication the subject matter of which relates to
the Master Confirmation or any Transaction under the Master Confirmation or any activities of Agent
(or any of its affiliates) in respect of the Master Confirmation or any Transaction under the
Master Confirmation.




2