Riverbed Technology, Inc. 2012 Stock Incentive Plan


 Exhibit 4.4 
 RIVERBED TECHNOLOGY, INC. 
 2012 Stock Incentive Plan

 (As Amended and Restated January 2, 2013) 

 

	1.	Purpose 

 The purpose of this 2012 Stock
Incentive Plan (the “Plan”) of Riverbed Technology, Inc., a Delaware corporation (the “Company”), is to advance the interests of the Company’s stockholders by enhancing the Company’s ability
to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing such persons with equity ownership opportunities and performance-based incentives and thereby better aligning the
interests of such persons with those of the Company’s stockholders. Except where the context otherwise requires, the term “Company” shall include, as of the date being determined, any of the Company’s present or future subsidiary
corporations as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”). 
 The Plan amends and restates the OPNET Technologies, Inc. 2010 Stock Incentive Plan (the “Prior Plan”), which was assumed by the Company pursuant to the Agreement and Plan of
Merger by and among the Company, OPNET Technologies, Inc. (“OPNET”) and Octagon Acquisition Corp., dated October 28, 2012 (the “Merger Agreement,” and the transaction contemplated thereby, the
“Merger”). 
  

	2.	Eligibility 

 All of the Company’s
employees, officers, directors, consultants and advisors (and any individuals who have accepted an offer for employment) are eligible to be granted options, restricted stock awards, restricted stock units, or other stock-based awards (each, an
“Award”) under the Plan; provided, however, that no individual that was an employee, officer, director or consultant of the Company (other than of OPNET or any of its subsidiaries) prior to the closing of the
Merger (the “Closing”) may be granted an Award under the Plan. Each person who has been granted an Award under the Plan shall be deemed a “Participant.” 

 

	3.	Administration and Delegation 

 (a) Administration by Board of Directors. The Plan will be administered by the Board of Directors of the Company (the “Board”). The Board shall have authority to grant
Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award
in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall be made in the Board’s sole discretion and shall be final and
binding on all persons having or claiming any interest in the Plan or in any Award. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Plan made in
good faith. 






 (b) Appointment of Committees. To the extent permitted by applicable law, the Board
may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (each, a “Committee”). All references in the Plan to the “Board” shall mean the Board or a Committee of
the Board to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee. 
  

	4.	Stock Available for Awards 

 (a) Initial Number of Shares. Subject to adjustment under Section 8, Awards may be made under the Plan for up to 5,027,711 shares of common stock, par value $0.001 per share, of the Company
(the “Common Stock”). 
 (b) Annual Increase to Share Reserve. The number of shares of Common
Stock available for issuance under the Plan shall automatically increase on the first trading day of each calendar year, beginning with the 2013 calendar year and continuing through the term of this Plan, by an amount equal to the lesser of
(i) 1,631,762 shares of Common Stock (which is equal to 3% of the shares of OPNET common stock outstanding immediately prior to the Merger, as converted to shares of Company Common Stock based on the ratio specified in the Merger Agreement), or
(ii) an amount determined by the Board. 
 (c) Reversion of Shares to Share Reserve. If any shares of Common Stock
issued pursuant to a restricted stock award or otherwise are forfeited back to the Company because of the failure to meet a contingency or condition required to vest such shares in the Participant, then the shares that are forfeited shall revert to
and again become available for issuance under the Plan. If an Option (as defined below) or other Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part, or is settled in cash,
such that some or all of the Common Stock subject to the Award is not issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan. Any shares reacquired by the Company pursuant to
Section 9(e) shall again become available for issuance under the Plan. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. 

(d) Per-Participant Limit. Subject to adjustment under Section 8, the maximum number of shares of Common Stock with respect
to which Awards may be granted to any Participant under the Plan shall be 693,976 per calendar year. The per-Participant limit described in this Section 4(d) shall be construed and applied consistently with Section 162(m) of the Code
(“Section 162(m)”). 
 (e) Incentive Stock Option Limit. Subject to adjustment under
Section 8, the aggregate maximum number of shares of Common Stock that may be issued pursuant to the exercise of Incentive Stock Options (as defined below) shall be 2,313,254 shares of Common Stock. 

 

	5.	Stock Options 


  
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 (a) General. The Board may grant options to purchase Common Stock (each, an
“Option”) and determine the number of shares of Common Stock to be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers necessary or advisable. An Option which is not intended to be an Incentive Stock Option (as hereinafter defined) shall be designated a “Nonstatutory Stock
Option.” 
 (b) Incentive Stock Options. An Option that the Board intends to be an “incentive stock
option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be granted to employees of the Company and shall be subject to and shall be construed consistently with the requirements of
Section 422 of the Code. The Company shall have no liability to a Participant, or any other party, if an Option (or any part thereof) which is intended to be an Incentive Stock Option is ultimately deemed not to be an Incentive Stock Option.

 (c) Exercise Price. The Board shall establish the exercise price at the time each Option is granted and specify it in
the applicable option agreement; provided, however, that the exercise price of all Incentive Stock Options shall not be less than 100% of the fair market value of the Common Stock, as determined by the Board, at the time the Incentive
Stock Option is granted. 
 (d) Duration of Options. Each Option shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable option agreement; provided, however, that no Option will be granted for a term in excess of 10 years. 

(e) Exercise of Option. Options may be exercised by delivery to the Company of a written notice of exercise signed by the proper
person or by any other form of notice (including electronic notice) approved by the Board together with payment in full as specified in Section 5(f) for the number of shares for which the Option is exercised. 

(f) Payment Upon Exercise. Common Stock purchased upon the exercise of an Option granted under the Plan shall be paid for as
follows: 
 (1) in cash or by check, payable to the order of the Company; 

(2) except as the Board may, in its sole discretion, otherwise provide in an option agreement, by (i) delivery of an irrevocable and
unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price; 
 (3) with the
Board’s consent, by delivery of shares of Common Stock owned by the Participant valued at their fair market value as determined by (or in a manner approved by) the Board in good faith (“Fair Market Value”), provided such
method of payment is then permitted under applicable law; 
 (4) by payment of such other lawful consideration as the Board may
determine; or 

  
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 (5) by any combination of the above permitted forms of payment. 

 

	6.	Restricted Stock 

 (a)
Grants. The Board may grant Awards entitling recipients to acquire shares of Common Stock, subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to require
forfeiture of such shares if issued at no cost) from the recipient in the event that conditions specified by the Board in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by the
Board for such Award (each, a “Restricted Stock Award”). 
 (b) Terms and Conditions. The Board
shall determine the terms and conditions of any such Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue price, if any. Any stock certificates issued in respect of a Restricted Stock Award shall be
registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together with a stock power endorsed in blank, with the Company (or its designee). At the expiration of the applicable restriction
periods, the Company (or such designee) shall deliver the certificates no longer subject to such restrictions to the Participant or if the Participant has died, to the beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the Participant’s death (the “Designated Beneficiary”). In the absence of an effective designation by a Participant, Designated Beneficiary shall
mean the Participant’s estate. 
  

	7.	Other Stock-Based Awards 

 The Board shall
have the right to grant other Awards based upon the Common Stock having such terms and conditions as the Board may determine, including the grant of shares based upon certain conditions, the grant of securities convertible into Common Stock, the
grant of stock appreciation rights (“SARs”) and the grant of restricted stock units (“RSUs”). 
  

	8.	Adjustments for Changes in Common Stock and Certain Other Events 

 (a) Changes in Capitalization. In the event of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar
change in capitalization or event, or any distribution to holders of Common Stock, other than a normal cash dividend, (i) the number and class of securities available under this Plan, (ii) the per-Participant limit and the Incentive Stock
Option limit set forth in Section 4(d) and Section 4(e), respectively, (iii) the number and class of securities and exercise price per share subject to each outstanding Option, (iv) the repurchase price per share subject to each
outstanding Restricted Stock Award, and (v) the terms of each other outstanding Award shall be appropriately adjusted by the Company (or substituted Awards may be made, if applicable) to the extent the Board shall determine, in good faith, that
such an adjustment (or substitution) is necessary and appropriate. If this Section 8(a) applies and Sections 8(c) or 8(d) also apply to any event, Sections 8(c) or 8(d) shall be applicable to such event, and this Section 8(a)
shall not be applicable. 

  
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 (b) Liquidation or Dissolution. In the event of a proposed liquidation or dissolution
of the Company, the Board shall upon written notice to the Participants provide that all then unexercised Options will (i) become exercisable in full as of a specified time at least 10 business days prior to the effective date of such
liquidation or dissolution, and (ii) terminate effective upon such liquidation or dissolution, except to the extent exercised before such effective date. The Board may specify the effect of a liquidation or dissolution on any Restricted Stock
Award or other Award granted under the Plan at the time of the grant of such Award. 
 (c) Effect of Change in Control.
In the event of any Change in Control, each outstanding Award shall automatically accelerate so that each such Award shall, immediately prior to the effective date of the Change in Control, become fully exercisable for all of the shares of Common
Stock at the time subject to such Award and may be exercised for any or all of those shares as fully-vested shares of Common Stock. However, an outstanding Award shall not so accelerate if and to the extent such Award is, in connection with the
Change in Control, either to be assumed by the successor corporation (or parent thereof) or to be replaced with a comparable Award for shares of the capital stock of the successor corporation (or parent thereof). The determination of Award
comparability shall be made by the Board, and its determination shall be final, binding and conclusive. 
  

	 	(1)	A “Change in Control” means: 

 (a) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to
such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization 50% or more of the voting power of the outstanding securities of each of (i) the continuing or surviving entity and
(ii) any direct or indirect parent corporation of such continuing or surviving entity; 
 (b) The sale, transfer or other
disposition of all or substantially all of the Company’s assets; 
 (c) A change in the composition of the Board, as a
result of which fewer than 50% of the incumbent directors are directors who either (i) had been directors of the Company on the date 24 months prior to the date of such change in the composition of the Board (the “Original
Directors”); or (ii) were appointed to the Board, or nominated for election to the Board, with the affirmative votes of at least a majority of the aggregate of (A) the Original Directors who were in office at the time of their
appointment or nomination and (B) the directors whose appointment or nomination was previously approved in a manner consistent with this Subsection (ii); or 
 (d) Any transaction as a result of which any person is the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”)), directly or
indirectly, of securities of the Company representing at least 50% of the total voting power represented by the Company’s then outstanding voting securities. For purposes of this Subsection (d), the term “person” shall have the same
meaning as when used in sections 13(d) and 

  
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14(d) of the Exchange Act, as amended, but shall exclude (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company and (ii) a corporation owned
directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the common stock of the Company. 
 A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the
same proportions by the persons who held the Company’s securities immediately before such transaction. 
 (d)
Reorganizations. In the event that the Company is a party to a merger or consolidation, all outstanding Awards shall be subject to the agreement of merger or consolidation. Such agreement shall provide for one or more of the following:

 (1) The continuation of such outstanding Awards by the Company (if the Company is the surviving corporation). 

(2) The assumption of such outstanding Awards by the surviving corporation or its parent, provided that the assumption of Options or SARs
shall comply with section 424(a) of the Code (whether or not the Options are ISOs). 
 (3) The substitution by the surviving
corporation or its parent of new awards for such outstanding Awards, provided that the substitution of Options or SARs shall comply with section 424(a) of the Code (whether or not the Options are ISOs). 

(4) Full exercisability of outstanding Options and SARs and full vesting of the shares of Common Stock subject to such Options and SARs,
followed by the cancellation of such Options and SARs. The full exercisability of such Options and SARs and full vesting of such Common Stock may be contingent on the closing of such merger or consolidation. The Optionees shall be able to exercise
such Options and SARs during a period of not less than five full business days preceding the closing date of such merger or consolidation, unless (i) a shorter period is required to permit a timely closing of such merger or consolidation and
(ii) such shorter period still offers the Optionees a reasonable opportunity to exercise such Options and SARs. Any exercise of such Options or SARs during such period may be contingent on the closing of such merger or consolidation.

 (5) The cancellation of outstanding Options and SARs and a payment to the Optionees equal to the excess of (i) the Fair
Market Value of the shares of Common Stock subject to such Options and SARs (whether or not such Options and SARs are then exercisable or such Common Stock is then vested) as of the closing date of such merger or consolidation, over (ii) their
exercise price. Such payment shall be made in the form of cash, cash equivalents, or securities of the surviving corporation or its parent with a Fair Market Value equal to the required amount. Such payment may be made in installments and may be
deferred until the date or dates when such Options or SARs would have become exercisable or such Common Stock would have vested. Such payment 

  
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may be subject to vesting based on the Optionee’s continuing service, provided that the vesting schedule shall not be less favorable to the Optionee than the schedule under which such
Options would have become exercisable or such Common Stock would have vested. If the exercise price of the Common Stock subject to such Options or SARs exceeds the Fair Market Value of such Common Stock, then such Options may be cancelled without
making a payment to the Optionees. For purposes of this Subsection (5), the Fair Market Value of any security shall be determined without regard to any vesting conditions that may apply to such security. 

(6) The cancellation of outstanding RSUs and a payment to the Participants equal to the Fair Market Value of the shares of Common Stock
subject to such RSUs (whether or not such RSUs are then vested) as of the closing date of such merger or consolidation. Such payment shall be made in the form of cash, cash equivalents, or securities of the surviving corporation or its parent with a
Fair Market Value equal to the required amount. Such payment may be made in installments and may be deferred until the date or dates when such RSUs would have vested. Such payment may be subject to vesting based on the Participant’s continuing
service, provided that the vesting schedule shall not be less favorable to the Participant than the schedule under which such RSUs would have vested. For purposes of this Subsection (6), the Fair Market Value of any security shall be determined
without regard to any vesting conditions that may apply to such security. 
 Awards outstanding immediately prior to Closing and
assumed by the Company pursuant to the Merger Agreement shall continue to be subject to Section 8(c) of the Prior Plan and not Sections 8(c) and (d) above. 
  

	9.	General Provisions Applicable to Awards 

 (a) Transferability of Awards. Except as the Board may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to
whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the life of the Participant, shall be exercisable only by the Participant. References to a Participant, to the
extent relevant in the context, shall include references to authorized transferees. 
 (b) Documentation. Each Award
shall be evidenced by a written instrument in such form as the Board shall determine. Each Award may contain terms and conditions in addition to those set forth in the Plan. 
 (c) Board Discretion. Except as otherwise provided by the Plan, each Award may be made alone or in addition to or in relation to any other Award. The terms of each Award need not be identical, and
the Board need not treat Participants uniformly. 
 (d) Termination of Status. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other change in the employment or other status of a Participant and the extent to which, and the period during which, the Participant, the


  
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Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights under the Award. 

(e) Withholding. Each Participant shall pay to the Company, or make provision satisfactory to the Board for payment of, any taxes
required by law to be withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. Except as the Board may otherwise provide in an Award, Participants may, to the extent then permitted under
applicable law, satisfy such tax obligations in whole or in part by delivery of shares of Common Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value. The Company may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant. 
 (f) Amendment of
Award. The Board may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive
Stock Option to a Nonstatutory Stock Option, provided that the Participant’s consent to such action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect
the Participant. 
 (g) Conditions on Delivery of Stock. The Company will not be obligated to deliver any shares of
Common Stock pursuant to the Plan or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company, (ii) in the opinion of the
Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and any applicable stock exchange or stock market rules and regulations, and
(iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations. 

(h) Acceleration. The Board may at any time provide that any Options shall become immediately exercisable in full or in part, that
any Restricted Stock Awards shall be free of restrictions in full or in part or that any other Awards may become exercisable in full or in part or free of some or all restrictions or conditions, or otherwise realizable in full or in part, as the
case may be. 
  

	10.	Miscellaneous 

 (a) No
Right to Employment or Other Status. No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the
Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award. 

  
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 (b) No Rights as Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder of such shares. Notwithstanding the foregoing, in the
event the Company effects a split of the Common Stock by means of a stock dividend and the exercise price of and the number of shares subject to such Option are adjusted as of the date of the distribution of the dividend (rather than as of the
record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such stock dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares
of Common Stock acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend. 

(c) Effective Date and Term of Plan. The Plan originally became effective on January 1, 2010. No Awards shall be granted
under the Plan after December 31, 2019, but Awards previously granted may extend beyond that date. This amendment and restatement of the Plan shall become effective subject to adoption by the Board. 

(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time, provided that to the
extent required by Section 162(m), no Award granted to a Participant that is intended to comply with Section 162(m) after the date of such amendment shall become exercisable, realizable or vested, as applicable to such Award, unless and
until such amendment shall have been approved by the Company’s stockholders if required by Section 162(m) (including the vote required under Section 162(m)). 
 (e) Governing Law. The provisions of the Plan and all Awards made hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law. 

  
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