Amended and Restated 2000 Nonemployee Directors Stock Option Plan


  Exhibit 10.2
 AMENDED AND RESTATED
2000 NONEMPLOYEE DIRECTORS
STOCK OPTION PLAN
OF
EMBARCADERO TECHNOLOGIES, INC.
(as amended through April 17, 2003)
      1.      PURPOSES OF THE PLAN
               The purposes of the 2000 Nonemployee Directors Stock Option Plan of Embarcadero Technologies, Inc., a Delaware corporation, are: (a) to
encourage Nonemployee Directors to accept or continue their association with the Company; and (b) to increase the interest of Nonemployee Directors in the Company’s operations and increased profits through participation in the growth in value
of the Common Stock of the Company.
      2.      DEFINITIONS
               As used herein, the following definitions shall apply:
               (a)         “Administrator”   shall mean the entity, either the Board or a
committee appointed by the Board, responsible for administering this Plan, as provided in Section 5.
               (b)
        “Affiliate”   shall mean a parent or subsidiary corporation as defined in the applicable provisions of the Code.
               (c)         “Board”   shall mean the Board of Directors of the Company, as
constituted from time to time.
               (d)         “Code”   shall
mean the Internal Revenue Code of 1986, as amended.
               (e)         “Common
Stock”   shall mean the Common Stock of the Company.
               (f)        
“Company”   shall mean Embarcadero Technologies, Inc., a Delaware corporation.






                (g)         “Director Fee”   shall mean
the cash amount, if any, a Nonemployee Director shall be entitled to receive for serving as a director of the Company in any fiscal year.
               (h)         “Fair Market Value”   shall mean, as of the date in question, the
last transaction price quoted by the Nasdaq National Market System on the date of grant; provided, however, that if the Common Stock is not traded on such market system or the foregoing shall otherwise be inappropriate, then the Fair
Market Value shall be determined by the Administrator in good faith at its sole discretion and on such basis as it shall deem appropriate. Such determination shall be conclusive and binding on all persons.
               (i)         “Initial Option”   shall have the meaning set forth in Section
6(a).
               (j)         “Nonemployee Director”   shall mean any
person who is a member of the Board but is not an employee of the Company or any Parent or Subsidiary of the Company and has not been an employee of the Company or any Parent or Subsidiary of the Company at any time during the preceding 12
months.
               (k)         “Option”   shall mean a stock option
granted pursuant to this Plan.
               (l)         “Option
Agreement”   shall mean the written agreement described in Section 6(c) evidencing the grant of an Option to a Nonemployee Director and containing the terms, conditions and restrictions pertaining to such Option.

              (m)         “Option Shares”   shall mean the Shares subject to an
Option granted under this Plan.
               (n)         “Optionee”  
shall mean a Nonemployee Director who holds an Option.
               (o)        
“Parent” shall mean a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.
               (p)         “Plan”   shall mean this 2000 Nonemployee Directors Stock Option
Plan of Embarcadero Technologies, Inc., as it may be amended from time to time.
               (q)
        “Rule 16b-3”   shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission, or any successor rule thereto.
               (r)         “Section”   unless the context clearly indicates otherwise, shall
refer to a Section of this Plan.
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                (s)         “Share”   shall mean a
share of Common Stock, as adjusted in accordance with Section 7(a).
               (t)        
“Subsidiary”   shall mean a “subsidiary corporation” of the Company, whether now or hereafter existing, within the meaning of Section 424(f) of the Code, but only for so long as it is a “subsidiary
corporation”.
      3.      ELIGIBLE PERSONS
               Every person who at the date of grant of an Option is a Nonemployee Director is eligible to receive Options under this Plan.
      4.     STOCK SUBJECT TO THIS PLAN
               Subject to Section 7(a) of this Plan, the maximum aggregate number of Shares which may be issued on exercise of Options granted pursuant
to this Plan is 400,000 Shares. The Shares covered by the portion of any grant under the Plan which expires unexercised shall become available again for grants under the Plan.
      5.      ADMINISTRATION
               (a)        This Plan shall be administered by the Board, or by a committee (the “Committee”) of
at least two Board members to which administration of the Plan is delegated (in either case, the “Administrator”), in accordance with the requirements of Rule 16b-3.
               (b)        Subject to the other provisions of this Plan, the Administrator shall have the authority, in its
sole discretion: (i) to determine the Fair Market Value of the Shares subject to Option; (ii) to interpret this Plan; (iii) to prescribe, amend and rescind rules and regulations relating to this Plan; (iv) to defer (with the consent of the Optionee)
or accelerate the exercise date of any Option; (v) to authorize any person to execute on behalf of the Company any instrument evidencing the grant of an Option; and (vi) to make all other determinations deemed necessary or advisable for the
administration of this Plan. The Administrator may delegate nondiscretionary administrative duties to such employees of the Company as it deems proper.
               (c)        All questions of interpretation, implementation and application of this Plan shall be determined
by the Administrator. Such determination shall be final and binding on all persons.
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       6.      GRANT OF OPTIONS
               (a)         Grant for Initial Election or Appointment to Board.   Subject to the terms and
conditions of this Plan, if any person who is not an officer or employee of the Company is first elected or appointed as a member of the Board and is otherwise considered a “Nonemployee Director” as defined herein, then the Company shall
grant to such Nonemployee Director on such day an Option to purchase 25,000 Shares (“Initial Option”) at an exercise price equal to the Fair Market Value of such Shares on the date of such Initial Option grant, subject to the limitation of
Section 7(j).
               (b)         Quarterly Grants.   Subject to the terms and
conditions of this Plan, on the date of the first regularly scheduled meeting of the Board on or after the first day of each calendar quarter, the Company shall grant to each Nonemployee Director then in office for longer than three months, an
Option to purchase 5,000 shares at an exercise price equal to the Fair Market Value of such Shares.
               (c)
        No Option shall be granted under this Plan after ten years from the date of adoption of this Plan by the Board. Each Option shall be evidenced by a written Option Agreement, in form and substance
satisfactory to the Company, executed by the Company and the Optionee. Failure by the Company, the Nonemployee Director, or both to execute an Option Agreement shall not invalidate the granting of an Option; however, the Option may not be exercised
until the Option Agreement has been executed by both parties.
      7.      TERMS AND CONDITIONS OF OPTIONS
               Each Option granted under this Plan shall be subject to the terms and conditions set forth in this Section 7.
               (a)         Changes in Capital Structure.  Subject to subsection 7(b), if the Common Stock
is changed by reason of a stock split, reverse stock split, stock dividend, or recapitalization, or converted into or exchanged for other securities as a result of a merger, consolidation, or reorganization, appropriate adjustments shall be made in:
(i) the number and class of shares of Common Stock subject to this Plan and each Option outstanding under this Plan; and (ii) the exercise price of each outstanding Option; provided, however, that the Company shall not be required to
issue fractional shares as a result of any such adjustment. Each such adjustment shall be subject to approval by the Administrator in its sole discretion.
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                (b)         Time of Option Exercise.   Each
Option shall be exercisable over three years in equal quarterly installments. At the discretion of the Administrator, the Company shall have a right of repurchase of Option Shares.
               (c)         Limitation on Other Grants.   The Administrator shall have no discretion to
grant Options under this Plan other than as set forth in Sections 6(a) and 6(b).
               (d)
        Transfer to Immediate Family Members.   All or any portion of this Option may be transferred by Optionee to (i) the spouse, children or grandchildren of the Optionee (“Immediate Family
Members”), (ii) a partnership in which such Immediate Family Members are the only partners, or (iii) a trust or trusts for the exclusive benefit of such Immediate Family Members, provided that (x) there may be no consideration for such transfer
and (y) subsequent transfers of this Option shall be prohibited except those in accordance with Section 7(e). Following transfer, this Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to
transfer. The events of termination of Section 7(g) shall continue to be applied with respect to the original Optionee, following which this Option shall be exercisable by the transferee only to the extent, and for the periods specified in, Section
7(g). Neither the Company nor the Administrator shall have any obligation to provide the transferee with notice of termination of an Optionee.
               (e)         Nontransferability.   This Option is not assignable or transferable by
Optionee except in accordance with Section 7(d) or by will or by the laws of descent and distribution. During the life of Optionee, this Option is exercisable only by the Optionee or by a transferee permitted pursuant to Section 7(d). Any attempt to
assign, pledge, transfer, hypothecate or otherwise dispose of this Option in a manner not herein permitted, and any levy of execution, attachment, or similar process on this Option, shall be null and void.
               (f)         Payment.   Except as provided below, payment in full, in cash, shall be made
for all Option Shares purchased at the time written notice of exercise of an Option is given to the Company, and proceeds of any payment shall constitute general funds of the Company. Payment may also be made pursuant to a cashless exercise/sale
procedure, provided that the Company does not extend or arrange for the extension of credit to an Optionee in connection with such cashless exercise procedure. At the time an Option is granted or exercised, the Administrator, in its absolute
discretion, may authorize any one or more of the following additional methods of payment: (i) delivery by the Optionee of Common Stock already owned by the Optionee for all or part of the Option price, provided the Fair Market Value of such Common
Stock is equal on the date of exercise to the Option price, or such portion thereof as the Optionee is authorized to pay
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  by delivery of such stock; provided, however, that if an Optionee has exercised any portion of any Option granted by the Company by delivery of Common Stock, the Optionee
may not, within six months following such exercise, exercise any Option granted under this Plan by delivery of Common Stock; and (ii) any other consideration and method of payment to the extent permitted under the Delaware General Corporation Law,
provided that the Company does not extend or arrange for the extension of credit to an Optionee in connection with such consideration and method of payment.
               (g)         Termination as Director.   Unless determined otherwise by the Administrator in
its absolute discretion, to the extent not already expired or exercised, an Option shall terminate at the earlier of: (i) the expiration of the term of the Option; or (ii) three months after the last day served by the Optionee as a director of the
Company; provided, that an Option shall be exercisable after the date of termination of service as a director only to the extent exercisable on the date of termination; and provided further, that if termination of service as a
director is due to the Optionee’s death or “disability” (as determined in accordance with Section 22(e)(3) of the Code), the Optionee, or the Optionee’s personal representative (or any other person who acquires the Option from
the Optionee by will or the applicable laws of descent and distribution), may at any time within 12 months after the termination of service as a director (or such lesser period as is specified in the Option Agreement but in no event after the
expiration of the term of the Option), exercise the rights to the extent they were exercisable on the date of the termination.
               (h)         Withholding and Employment Taxes.   At the time of exercise of an Option (or
at such later time(s) as the Administrator may prescribe), the Optionee shall remit to the Company in cash all applicable federal and state withholding and employment taxes. If authorized by the Administrator in its sole discretion, an Optionee
shall be permitted to elect, by means of a form of election to be prescribed by the Administrator, to have shares of Common Stock which are acquired upon exercise of the Option withheld by the Company or to tender to the Company other shares of
Common Stock or other securities of the Company owned by the Optionee on the date of determination of the amount of tax to be withheld as a result of the exercise of such Option (the “Tax Date”) to pay the amount of withholding taxes due.
Any securities so withheld or tendered shall be valued by the Company as of the Tax Date.
               (i)
        Option Term.   Each Option shall expire ten years after the date of grant.
               (j)         Exercise Price.   The exercise price of any Option granted to any person who
owns, directly or by attribution under the Code currently Section 424(d), stock possessing more than ten percent of the total combined voting power of all classes
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  of stock of the Company or of any Affiliate (a “Ten Percent Stockholder”) shall in no event be less than 110% of the fair market value (determined in accordance with 2(i) of
the stock covered by the Option at the time the Option is granted.
      8.      MANNER OF EXERCISE
               (a)         An Optionee wishing to exercise an Option shall give written notice to the Company at its
principal executive office, to the attention of the officer of the Company designated by the Administrator, accompanied by payment of the exercise price as provided in Section 7(f) and, if required, by payment of any federal or state withholding or
employment taxes required to be withheld due to exercise of the Option. The date the Company receives written notice of an exercise accompanied by payment of the exercise price and any required federal or state withholding or employment taxes will
be considered as the date such Option was exercised.
               (b)         Promptly after the
date an Option is exercised, the Company shall, without stock issue or transfer taxes to the optionee or other person entitled to exercise the Option, deliver to the Optionee or such other person a certificate or certificates for the requisite
number of shares of Common Stock. An Optionee or transferee of an Optionee shall not have any privileges as a stockholder with respect to any Common Stock covered by the Option until the date of issuance of a stock certificate.
      9.      NO RIGHT TO DIRECTORSHIP
               Neither this Plan nor any Option shall confer upon any Optionee any right with respect to continuation of the Optionee’s membership on
the Board or shall interfere in any way with provisions in the Company’s Certificate of Incorporation, as amended, and Bylaws, as amended, relating to the election, appointment, terms of office, and removal of members of the Board.

     10.      LEGAL REQUIREMENTS
               The Company shall not be obligated to offer or sell any Shares upon exercise of any Option unless the Shares are at that time effectively
registered or exempt from registration under the federal securities laws and the offer and sale of the Shares are otherwise in compliance with all applicable securities laws and the regulations of any stock exchange on which the Company’s
securities may then be listed. The Company shall have no obligation to register the Shares covered by this Plan under the federal securities laws or take any other steps as may be necessary to enable the Shares covered by this Plan to be offered and
sold under federal or other securities laws. Upon exercising all or any portion of an Option, an Optionee may be required to furnish representations or
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  undertakings deemed appropriate by the Company to enable the offer and sale of the Shares or subsequent transfers of any interest in the Shares to comply with applicable securities
laws. Certificates evidencing Shares acquired upon exercise of Options shall bear any legend required by, or useful for purposes of compliance with, applicable securities laws, this Plan or the Option Agreements.
      11.      AMENDMENTS TO PLAN
               The Board
may amend this Plan at any time. Without the consent of an optionee, no amendment may adversely affect outstanding Options. No amendment shall require stockholder approval unless:
               (a)         stockholder approval is required to meet the exemptions provided by Rule 16b-3, or any
successor rule thereto or under applicable state statutes; or
               (b)         the Board
otherwise concludes that stockholder approval is advisable.
      12.      STOCKHOLDER APPROVAL; TERM
               This Plan shall become effective upon adoption by the Board of Directors; provided, however, that no Option shall be exercisable
unless and until written consent of holders of a majority of the outstanding shares of capital stock of the Company, or approval by holders of a majority of shares of capital stock of the Company present, or represented, and entitled to vote at a
validly called stockholders’ meeting (or such greater number as may be required by law or applicable governmental regulations or orders) is obtained within 12 months after adoption by the Board. This Plan shall terminate ten years after
adoption by the Board unless terminated earlier by the Board. The Board may terminate this Plan at any time without stockholder approval. No Options shall be granted after termination of this Plan, but termination shall not affect rights and
obligations under then-outstanding Options.

	 	 
	 	Adopted by the Board of Directors: February 10, 2000


	 	 
	 	Approved by the Stockholders: February 11, 2000


	 	 
	 	Amended and Restated by the Board of Directors: April 17, 2003


	 	 
	 	Approved by the Stockholders: June 4, 2003

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