**Exhibit 10.16**

**RIVERBED TECHNOLOGY, INC.**

**AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT**

This Amended and Restated Change in Control Severance Agreement (the “Agreement”) is made and entered into by and betweenJerry M. Kennelly (”Executive”) and Riverbed Technology, Inc. (the “Company”), effective as of the latest date set forth by the signatures of the parties hereto below (the “Effective Date”). This Agreement amends andsupersedes the prior version of this agreement executed on or about May 1, 2008 in its entirety. 

RECITALS 

I. It is expected that the Company from time to time will consider the possibility of an acquisition by another company or other change in control. TheCompensation Committee of the Board of Directors of the Company (the “Committee”) recognizes that such consideration can be a distraction to Executive and can cause Executive to consider alternative employment opportunities. The Committeehas determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a Change inControl of the Company. 

2. The Committee believes that it is in the best interests of the Company and its stockholders to provideExecutive with an incentive to continue his employment and to motivate Executive to maximize the value of the Company upon a Change in Control for the benefit of its stockholders. 

3. The Committee believes that it is imperative to provide Executive with certain severance benefits upon Executive’s termination of employmentfollowing a Change in Control. These benefits will provide Executive with enhanced financial security and incentive and encouragement to remain with the Company notwithstanding the possibility of a Change in Control. 

4. Certain capitalized terms used in the Agreement are defined in Section 5 below. 

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants containedherein, the parties hereto agree as follows: 

1. Term of Agreement. This Agreement will not terminate until all of the obligationsof the parties hereto with respect to this Agreement have been satisfied. 

2. At-Will Employment. The Company and Executiveacknowledge that Executive’s employment is and will continue to be at-will, as defined under applicable law. If Executive’s employment terminates for any reason other than for the reasons specified herein during the period that is on orwithin twelve (12) months after a Change in Control as provided herein, Executive will not be entitled to any payments, benefits, damages, awards or compensation other than the payment of accrued but unpaid wages, as required by law, and anyunreimbursed reimbursable expenses or pursuant to written agreements with the Company, including equity award agreements. 

3. Severance Benefits. 

(a) Termination without Cause or Resignation for Good Reason in Connection with ****a****Change in Control. If the Company terminatesExecutive’s employment with the Company without Cause or if Executive resigns from such employment for Good Reason, and such termination or resignation occurs on or within twelve (12) months after a Change in Control, and Executive signsand does not revoke a release of claims with the Company in a form reasonably acceptable to the Company (the “Release”) subject to the conditions of Section 3(c), then Executive will receive the following from the Company: 

(i) Accrued Compensation. The Company will pay Executive all accrued but unpaid vacation, expense reimbursements, wages, and other benefitsdue to Executive under any Company-provided plans, policies, and arrangements. 

(ii) Severance Payment. Executive will receive alump-sum payment of severance equal to two hundred percent (200%) of Executive’s annual base salary as in effect immediately prior to Executive’s termination or resignation date or (if greater) at the level in effect immediately priorto the Change in Control. 

(iii) Bonus Payment. Executive will receive a lump-sum cash payment in an amount equal to two hundredpercent (200%) of Executive’s full target bonus for the fiscal year in effect at the date of such termination or resignation. 

(iv) Continued Employee Benefits. If Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for Executive and Executive’s eligibledependents, within the time period prescribed pursuant to COBRA, the Company will reimburse Executive for the COBRA premiums for such coverage (at the coverage levels in effect immediately prior to Executive’s termination or resignation) untilthe earlier of (A) a period of twelve (12) months from the last date of employment of Executive with the Company, or (B) the date upon which Executive and/or Executive’s eligible dependents becomes covered under similar plans.COBRA reimbursements will be made by the Company to Executive consistent with the Company’s normal expense reimbursement policy. 

(b) Timing of Severance Payments. Subject to Section 3(h) below, the severance paymentto which Executive is entitled shall be paid by the Company to Executive in cash and in full on the sixty-first (61st) day following theemployment termination date or such later date as is required under Section 3(h). If Executive should die before all amounts have been paid, such unpaid amounts will be paid in a lump-sum payment (less any withholding taxes) promptly followingsuch event to Executive’s designated beneficiary, if living, or otherwise to the personal representative of Executive’s estate. 

(c) Release Effectiveness. The receipt of any severance payment or benefits pursuant to section 3(a) will be subject to Executive signing and not revoking the Release and 

 

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provided that such Release is effective within sixty (60) days following the termination of Executive’s employment. No severance pursuant to suchsection shall be paid or provided until the Release becomes effective. 

(d) Voluntary Resignation; Termination for Cause. IfExecutive’s employment with the Company terminates (i) voluntarily by Executive (other than for Good Reason during the period that is on or within twelve (12) months after a Change in Control) or (ii) for Cause by the Company,then Executive will not be entitled to receive severance or other benefits except for those (if any) as may then be established under the Company’s then existing written severance and benefits plans and practices or pursuant to other writtenagreements with the Company. 

(e) Disability; Death. lf the Company terminates Executive’s employment as a result ofExecutive’s Disability, or Executive’s employment terminates due to his death, then Executive will not be entitled to receive severance or other benefits except for those (if any) as may then be established under the Company’s thenexisting written severance and benefits plans and practices or pursuant to other written agreements with the Company. 

(f) Terminationnot in Connection with a Change in Control. In the event Executive’s employment is terminated for any reason other than as provided in Section 3(a), then Executive will be entitled to receive severance and any other benefits only asmay then be established under the Company’s then existing written severance and benefits plans and practices or pursuant to other written agreements with the Company. 

(g) Exclusive Remedy. In the event of a termination of Executive’s employment as set forth in Section 3(a) of this Agreement, theprovisions of Section 3, as applicable, are intended to be and are exclusive and in lieu of any other rights or remedies to which Executive or the Company may otherwise be entitled, whether at law, tort or contract, in equity, or under thisAgreement (other than the payment of accrued but unpaid wages, as required by Law, and any unreimbursed reimbursable expenses). Executive will be entitled to no benefits, compensation or other payments or rights upon a Change in Control or atermination of employment following a Change in Control other than those benefits expressly set forth in Section 3 of this Agreement or pursuant to written agreements with the Company, including equity award agreements. 

(h) Section 409A. 

(i)Notwithstanding any provision to the contrary herein, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Executive’s termination of employment with the Company (or anysuccessor entity thereto) will be made unless such termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and anyfinal regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Executive is a “specified employee” of the Company (or any successor entity thereto) within the meaning ofSection 409A on the date of Executive’s termination of employment (other than a termination of employment due to death), then the severance payable to Executive, if any, under this Agreement, when considered together with any otherseverance payments or separation benefits that are considered deferred compensation under Section 409A 

 

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(together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Executive’stermination of employment, shall be delayed until the first payroll date that occurs on or after the date that is six (6) months and one (1) day after the date of Executive’s termination of employment, when they shall be paid in fullarrears. All subsequent Deferred Compensation Separation Payments, if any, will be paid in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following histermination but prior to the six (6) month anniversary of his termination, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Executive’sdeath and all other Deferred Compensation Separation Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separatepayment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. 

(ii) Any amounts paid under this Agreement that satisfythe requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred Compensation Separation Payments for purposes of clause (i) above. 

(iii) Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant toSection 1.409A-1(b)(9)(iii) of the Treasury Regulations that do not exceed the Section 409A Limit shall not constitute Deferred Compensation Separation Payments for purposes of clause (i) above. 

(iv) Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with the requirementsof Section 409A, including: (i) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of Executive shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) thereimbursement of an eligible expense shall be made no later than the last day of Executive’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall notbe subject to liquidation or exchange for another benefit or payment. 

(v) The foregoing provisions are intended to comply with therequirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. TheCompany and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognitionprior to actual payment to Executive under Section 409A. 

4. Limitation on Payments. 

(a) In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute“parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits underSection 3 will be either: 

(A) delivered in full, or 

 

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(B) delivered as to such lesser extent which would result in no portion of such benefits being subjectto excise tax under Section 4999 of the Code, 

whichever of the foregoing amounts, taking into account the applicable federal, state and local incometaxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable underSection 4999 of the Code. Any taxes due under Section 4999 shall be the responsibility of Executive. 

(b) In the event of areduction in accordance with subsection 4(a), the reduction shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid orprovided to Executive. If, as a result of any reduction required by Section 4(a), amounts previously paid to Executive exceed the amount to which Executive is entitled, Executive will promptly return the excess amount to the Company.

(c) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 4 will be made inwriting by a major national “Big Four” accounting firm selected by the Company (the “Accountants”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making thecalculations required by this Section 4, the Accountants may, after taking into account the information provided by Executive, make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faithinterpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determinationunder this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4. 

5. Definition of Terms. The following terms referred to in this Agreement will have the following meanings: 

(a) Cause. “Cause” means: 

(i) Executive’s unauthorized use or disclosure of the Company’sconfidential information or trade secrets; 

(ii) Executive’s material failure to comply with the Company’s written policies orrules; 

(iii) Executive’s conviction of, or plea of “guilty” or “no contest” to, a felony under the laws of theUnited States or any State thereof; or 

 

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(iv) Executive’s gross misconduct. 

(b) Change in Control. “Change in Control” means: 

(i) 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 suck merger,consolidation or other reorganization own immediately after such merger, consolidation or other reorganization fifty percent (50%) or more of the voting power of the outstanding securities of each of (i) the continuing or surviving entityand (ii) any direct or indirect parent corporation of such continuing or surviving entity; 

(ii) The sale, transfer or otherdisposition of all or substantially all of the Company’s assets; 

(iii) A change in the composition of the Board of the Directors(the “Board), as a result of which fewer than fifty percent (50%) of the incumbent directors are directors who either: 

(1) Hadbeen directors of the Company on the date twenty four (24) months prior to the date of such change in the composition of the Board (the “Original Directors”); or 

(2) 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 Paragraph (2); or 

(iv) Any transaction as a result of which any person is the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of1934, as amended (the “Exchange Act”)), directly or indirectly, of securities of the Company representing at least fifty percent (50%) of the total voting power represented by the Company’s then outstanding voting securities. Forpurposes of this Subsection (iv), the term “person” shall have the same meaning as when used in sections 13(d) and 14(d) of the Exchange Act but shall exclude (i) a trustee or other fiduciary holding securities under an employeebenefit plan of the Company or of a parent or subsidiary 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 orto 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. 

(c) Disability. “Disability” means that Executive is unable to engage in any substantial gainful activity by reason of any medicallydeterminable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not less than one (1) year. 

 

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(d) Good Reason. “Good Reason” means Executive’s termination of employment withinninety (90) days following the expiration of any cure period (discussed below) following the occurrence, without Executive’s consent, of one or more of the following: 

(i) A material reduction of Executive’s authority or responsibilities, relative to Executive’s authority or responsibilities in effectimmediately prior to such reduction, or a change in Executive’s reporting position such that Executive no longer reports directly to the Board of Directors of the parent corporation in a group of controlled corporations following a Change inControl to the extent Executive was reporting to the Board prior to the Change in Control, or to the officer position or its functional equivalent to which Executive was reporting immediately prior to such change in reporting position (unlessExecutive is reporting to the comparable officer position of the parent corporation in a group of controlled corporations following a Change in Control); 

(ii) A reduction in Executive’s compensation; 

(iii) A material change in the geographic location atwhich Executive must perform services (in other words, the relocation of Executive to a facility that is more than thirty-five (35) miles from Executive’s current location); 

(iv) Any purported termination of Executive’s employment for “Cause” without first satisfying the procedural protections, as applicable,required by the definition of “Cause” set forth in that definition; or 

(v) The failure of the Company to obtain the assumptionof this Agreement by a successor and/or acquirer and an agreement from such successor and/or acquirer that Executive will retain substantially similar responsibilities in the acquirer or the merged or surviving company as he had prior to thetransaction. 

Executive will not resign for Good Reason without first providing the Company with written notice within sixty (60) daysof the event that Executive believes constitutes “Good Reason” specifically identifying the acts or omissions constituting the grounds for Good Reason and a reasonable cure period of not less than thirty (30) days following the dateof such notice. 

(e) Section 409A Limit. “Section 409A Limit” will mean the lesser of two (2) times:(i) Executive’s annualized compensation based upon the annual rate of pay paid to Executive during Executive’s taxable year preceding Executive’s taxable year of Executive’s termination of employment as determined under, andwith such adjustments as are set forth in, Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that may be taken into account under a qualified planpursuant to Section 401(a)(17) of the Code for the year in which Executive’s employment is terminated. 

6. Successors.

(a) The Company’s Successors. Any successor (whether direct or indirect and whether by purchase, merger, consolidation,liquidation or otherwise) to all or substantially all of the Company’s business and/or assets will assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to thesame 

 

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extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term“Company” will include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 6(a) or which becomes bound by the terms of this Agreement by operationof law. 

(b) Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder will inure to thebenefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. 

7. Arbitration. 

(a) The Company and Executive each agree that any and all disputes arising out ofthe terms of this Agreement, Executive’s employment by the Company, Executive’s service as an officer or director of the Company, or Executive’s compensation and benefits, their interpretation and any of the matters herein released,will be subject to binding arbitration under the arbitration rules set forth in California Code of Civil Procedure Sections 1280 though 1294.2, including Section 1281.8 (the “Act”), and pursuant to California law. Disputes that theCompany and Executive agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under local, state, or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Sarbanes-Oxley Act, the Worker Adjustment and Retraining Notification Act, the California FairEmployment and Housing Act, the Family and Medical Leave Act, the California Family Rights Act, the California Labor Code, claims of harassment, discrimination, and wrongful termination, and any statutory or common law claims. The Company andExecutive further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with Executive. 

(b)Procedure. The Company and Executive agree that any arbitration will be administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”), pursuant to its Employment Arbitration Rules & Procedures (the“JAMS Rules”). The Arbitrator will have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for classcertification, prior to any arbitration hearing. The Arbitrator will have the power to award any remedies available under applicable law, and the Arbitrator will award attorneys’ fees and costs to the prevailing party, except as prohibited bylaw. The Company will pay for any administrative or hearing fees charged by the Arbitrator or JAMS except that Executive will pay any filing fees associated with any arbitration that Executive initiates, but only so much of the filing fees asExecutive would have instead paid had he filed a complaint in a court of law. The Arbitrator will administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and the Arbitrator willapply substantive and procedural California law to any dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law will take precedence. The decision of theArbitrator will be in writing. Any arbitration under this Agreement will be conducted in San Francisco County, California. 

 

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(c) Remedy. Except as provided by the Act and this Agreement, arbitration will be the sole,exclusive, and final remedy for any dispute between Executive and the Company. Accordingly, except as provided for by the Act and this Agreement, neither Executive nor the Company will be permitted to pursue court action regarding claims that aresubject to arbitration. 

(d) Administrative Relief. Executive understand that this Agreement does not prohibit him from pursuing anyadministrative claim with a local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, including, but not limited to, the Department of Fair Employment and Housing, theEqual Employment Opportunity Commission, the National Labor Relations Board, or the Workers’ Compensation Board. This Agreement does, however, preclude Executive from pursuing court action regarding any such claim, except as permitted by law.

(e) Voluntary Nature of Agreement. Each of the Company and Executive acknowledges and agrees that such party is executing thisAgreement voluntarily and without any duress or undue influence by anyone. Executive further acknowledges and agrees that he has carefully read this Agreement and has asked any questions needed for him to understand the terms, consequences, andbinding effect of this Agreement and fully understand it, including that ***Executive is waiving his right to a jury trial.*** Finally, Executive agrees that he has been provided an opportunity to seek the advice of an attorney of his choicebefore signing this Agreement. 

8. Notice. 

(a) General. Notices and all other communications contemplated by this Agreement will be in writing and will be deemed to have been duly given when personally delivered or when mailed by U.S. registered orcertified mail, return receipt requested and postage prepaid. In the case of Executive, mailed notices will be addressed to him at the home address which he most recently communicated to the Company in writing. In the case of the Company, mailednotices will be addressed to its corporate headquarters, and all notices will be directed to the attention of its General Counsel. 

(b)Notice of Termination. Any termination by the Company for Cause or by Executive for Good Reason will be communicated by a notice of termination to the other party hereto given in accordance with Section 8(a) of this Agreement. Such noticewill indicate the specific termination provision in this Agreement relied upon, will set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and will specify thetermination date (which will be not more than thirty (30) days after the giving of such notice). The failure by Executive to include in the notice any fact or circumstance which contributes to a showing of Good Reason will not waive any rightof Executive hereunder or preclude Executive from asserting such fact or circumstance in enforcing his rights hereunder. 

9.Miscellaneous Provisions. 

(a) No Duty to Mitigate. Executive will not be required to mitigate the amount of any paymentcontemplated by this Agreement, nor will any such payment be reduced by any earnings that Executive may receive from any other source. 

 

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(b) Other Requirements. Executive’s receipt of any payments or benefits under Section 3will be subject to Executive continuing to comply with the terms of any confidential information agreement executed by Executive in favor of the Company and the provisions of this Agreement. 

(c) Waiver. No provision of this Agreement will be modified, waived or discharged unless the modification, waiver or discharge is agreed to inwriting and signed by Executive and by an authorized officer of the Company (other than Executive). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party will be considereda waiver of any other condition or provision or of the same condition or provision at another time. 

(d) Headings. All captions andsection headings used in this Agreement are for convenient reference only and do not form a part of this Agreement. 

(e) EntireAgreement. This Agreement constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) ofthe parties with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto and whichspecifically mention this Agreement. 

(f) Choice of Law. The validity, interpretation, construction and performance of thisAgreement will be governed by the laws of the State of California (with the exception of its conflict of laws provisions). Any claims or legal actions by one party against the other arising out of the relationship between the parties contemplatedherein (whether or not arising under this Agreement) will be commenced or maintained in any state or federal court located in the jurisdiction where Executive resides, and Executive and the Company hereby submit to the jurisdiction and venue of anysuch court. 

(g) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement will not affectthe validity or enforceability of any other provision hereof, which will remain in full force and effect. 

(h) Withholding. Allpayments made pursuant to this Agreement will be subject to withholding of applicable income, employment and other taxes. 

(i)Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 

***[Signature Page to Follow]***

 

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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of theCompany by its duly authorized officer, as of the day and year set forth below. 

 
COMPANY RIVERBED TECHNOLOGY, INC. By: 
/s/ Randy S. Gottfried
 Title: 
CHIEF FINANCIAL OFFICER
 Date: 
12-18-08
EXECUTIVE By: 
/s/ Jerry M. Kennelly
 Date: 
12-19-08

 

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