Exhibit 10.1


 


OPENTABLE, INC.


 


2009 EQUITY INCENTIVE AWARD PLAN


 


RESTRICTED STOCK UNIT AWARD GRANT
NOTICE AND

RESTRICTED STOCK UNIT AWARD AGREEMENT


 


OpenTable, Inc., a Delaware corporation, (the “Company”),
pursuant to its 2009 Equity Incentive Award Plan, as amended from time to time
(the “Plan”),
hereby grants to the individual listed below (“Participant”), an award of
restricted stock units (“Restricted Stock Units”  or  “RSUs”).  Each Restricted Stock Unit represents the
right to receive one share of Common Stock upon vesting of such Restricted
Stock Unit.  This award of Restricted
Stock Units is subject to all of the terms and conditions as set forth herein
and in the Restricted Stock Unit Award Agreement attached hereto as Exhibit A
(the “Agreement”)
and the Plan, each of which are incorporated herein by reference.  Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Grant Notice
and the Agreement.


 


	
  Participant’s Name:

  
	
   

  
	
  Participant’s Address:

  
	
   

  
	
  Grant Date:

  
	
   

  
	
  Total Number of RSUs:

  
	
   

  
	
  Vesting Commencement Date:

  
	
   

  
	
  Vesting Schedule:

  



 


By his or her signature and the Company’s signature
below, Participant agrees to be bound by the terms and conditions of the Plan,
the Agreement and this Grant Notice. 
Participant has reviewed the Agreement, the Plan and this Grant Notice
in their entirety and fully understands all provisions of this Grant Notice,
the Agreement and the Plan. 
Additionally, by signing below, Participant agrees that Participant has
read, fully understands and agrees to abide by the terms of the Company’s
Insider Trading Policy and has read and fully understands the Plan Prospectus
and Prospectus Supplement, if applicable, each of which is attached to this
Grant Notice.  In addition, by signing
below, Participant also agrees that the Company, in its sole discretion, may
satisfy any withholding obligations in accordance with Section 2.6 of the
Agreement by (i) withholding shares of Common Stock otherwise issuable to
Participant upon vesting of the RSUs, (ii) instructing a broker on
Participant’s behalf to sell shares of Common Stock otherwise issuable to
Participant upon vesting of the RSUs and submit the proceeds of such sale to
the Company, or (iii) using any other method permitted by Section 2.6
of the Agreement or the Plan. 
Participant hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Committee upon any questions arising under
the Plan or relating to the RSUs. To the extent you provide services to the
Company outside of the United States, the RSUs will also be subject to the
special provisions set forth in Appendix A to the Agreement, including
any sub-plans referenced therein.


 


	
  OPENTABLE, INC.:

  	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT A


 


TO RESTRICTED STOCK UNIT AWARD
GRANT NOTICE


 


RESTRICTED STOCK UNIT AWARD
AGREEMENT


 


Pursuant to the Restricted Stock Unit Award Grant
Notice (the “Grant Notice”) to which this Restricted Stock Unit Award
Agreement (the “Agreement”) is attached, OpenTable, Inc., a
Delaware corporation (the “Company”), has granted to Participant an
award of restricted stock units (“Restricted
Stock Units”  or  “RSUs”)
under the Company’s 2009 Equity Incentive Award Plan, as amended from time to
time (the “Plan”).


 


ARTICLE I


 


GENERAL


 


1.1              Defined Terms.  Capitalized terms not specifically defined
herein shall have the meanings specified in the Plan and the Grant Notice.


 


1.2              General.  Each Restricted Stock Unit shall constitute a
non-voting unit of measurement which is deemed for bookkeeping purposes to be
equivalent to one outstanding share of the Company’s Common Stock (subject to
adjustment as provided in Section 14.2 of the Plan) solely for purposes of
the Plan and this Agreement.  The
Restricted Stock Units shall be used solely as a device for the determination
of the payment to eventually be made to the Participant if such Restricted
Stock Units vest pursuant to Section 2.3. 
The Restricted Stock Units shall not be treated as property or as a
trust fund of any kind.


 


1.3              Incorporation of Terms of Plan.  RSUs are subject to the terms and conditions
of the Plan which are incorporated herein by reference.  In the event of any inconsistency between the
Plan and this Agreement, the terms of the Plan shall control.


 


ARTICLE II


 


GRANT
OF RESTRICTED STOCK UNITS


 


2.1          Grant of RSUs.  In consideration of Participant’s past and/or
continued employment with or service to the Company or a Subsidiary and for
other good and valuable consideration, effective as of the Grant Date set forth
in the Grant Notice (the “Grant Date”), the Company grants to Participant an
award of RSUs as set forth in the Grant Notice.


 


2.2          Company’s
Obligation to Pay.  Each RSU has a value equal to the Fair Market
Value of a share of Common Stock on the date it becomes vested.  Unless and until the RSUs will have vested in
the manner set forth in Article II hereof, Participant will have no right
to payment of any such RSUs.  Prior to
actual payment of any vested RSUs, such RSUs will represent an unsecured
obligation of the Company, payable (if at all) only from the general assets of
the Company.


 


2.3          Vesting
Schedule.  Subject to Section 2.4, the RSUs awarded
by the Grant Notice will vest and become nonforfeitable with respect to the
applicable portion thereof according to the vesting schedule set forth on the
Grant Notice to which this Agreement is attached (the “Vesting Schedule”),
subject to Participant’s continued employment or services through such dates,
as a condition to the vesting of the applicable installment of the RSU and the
rights and benefits under this Agreement. 
Unless 


 


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otherwise determined by the Committee, partial
employment or service, even if substantial, during any vesting period will not
entitle the Participant to any proportionate vesting or avoid or mitigate a
termination of rights and benefits upon or following a Termination of Services
as provided in Section 2.4 below or under the Plan.


 


2.4          Change
in Control Treatment.  In the event the successor corporation in a
Change in Control refuses to assume or substitute for the RSUs in accordance
with Section 14.2 of the Plan, the RSUs will vest as of immediately prior
to such Change in Control.


 


2.5          Forfeiture,
Termination and Cancellation upon Termination of Services.  Upon Participant’s Termination
of Service for any or no reason, the then-unvested RSUs subject to this
Agreement (after giving effect to any accelerated vesting pursuant to Section 2.4)
will thereupon be automatically forfeited, terminated and cancelled as of the
applicable termination date without payment of any consideration by the
Company, and Participant, or Participant’s beneficiary or personal representative,
as the case may be, shall have no further rights hereunder.


 


2.6          Payment
after Vesting.


 


(a)           As
soon as administratively practicable, and, in any event, within sixty (60)
days, following the vesting of any Restricted Stock Units pursuant to Section 2.3
or Section 3.2, the Company shall deliver to the Participant a number of
shares of Common Stock (either by delivering one or more certificates for such
shares or by entering such shares in book entry form, as determined by the
Company in its sole discretion) equal to the number of Restricted Stock Units
subject to this award that vest on the applicable vesting date, unless such
Restricted Stock Units terminate prior to the given vesting date pursuant to Section 2.5.  Notwithstanding the foregoing, in the event
shares of Common Stock cannot be issued pursuant to Section 2.8(a), (b) or
(c) hereof, then the shares of Common Stock shall be issued pursuant to
the preceding sentence as soon as administratively practicable after the
Committee determines that shares of Common Stock can again be issued in
accordance with Sections 2.8(a), (b) and (c) hereof. Notwithstanding
any discretion in the Plan, the Grant Notice or this Agreement to the contrary,
upon vesting of the RSUs, shares of Common Stock will be issued as set forth in
this section.  In no event will the RSUs
be paid to Participant in the form of cash.


 


(b)           Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment by Participant of any sums required by applicable law to be
withheld with respect to the grant of RSUs or the issuance of shares of Common
Stock.  Such payment shall be made by
deduction from other compensation payable to Participant or in such other form
of consideration acceptable to the Company which may, in the sole discretion of
the Company, include:


 


(1)           Cash or check;


 


(2)           Surrender of shares of Common Stock (including, without limitation,
shares of Common Stock otherwise issuable under the RSUs) held for such period
of time as may be required by the Committee in order to avoid adverse
accounting consequences and having a Fair Market Value on the date of delivery
equal to the minimum amount required to be withheld by statute; or


 


(3)           Other property acceptable to the Company in its sole discretion  (including, without limitation, through the
delivery of a notice that the Participant has placed a market sell order with a
broker with respect to shares of Common Stock then issuable under the RSUs, and
that the broker has been directed to pay a sufficient portion of the net
proceeds of the sale to the Company in


 


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satisfaction of its withholding obligations; provided that payment of such proceeds is
then made to the Company upon settlement of such sale).


 


The Company shall not be obligated to deliver any
new certificate representing shares of Common Stock to Participant or
Participant’s legal representative or enter such share of Common Stock in book
entry form unless and until Participant or Participant’s legal representative
shall have paid or otherwise satisfied in full the amount of all federal, state
and local taxes applicable to the taxable income of Participant resulting from
the grant of the RSUs or the issuance of shares of Common Stock.


 


2.7          Rights
as Stockholder.  The holder of the RSUs shall not be, nor have
any of the rights or privileges of, a stockholder of the Company, including,
without limitation, any dividend rights and voting rights, in respect of the
RSUs and any shares of Common Stock underlying the RSUs and deliverable
hereunder unless and until such shares of Common Stock shall have been actually
issued by the Company and held of record by such holder (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company).  No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the shares of Common Stock are issued, except as provided in Section 14.2
of the Plan.


 


2.8          Conditions
to Delivery of Common Stock.  Subject to Section 11.4 of the Plan, the
shares of Common Stock deliverable hereunder, or any portion thereof, may be
either previously authorized but unissued shares of Common Stock or issued
shares of Common Stock which have then been reacquired by the Company.  Such shares of Common Stock shall be fully
paid and nonassessable.  The Company
shall not be required to issue or deliver any shares of Common Stock deliverable hereunder or portion thereof
prior to fulfillment of all of the following conditions:


 


(a)           The
admission of such shares of Common Stock to listing on all stock exchanges on
which such Common Stock is then listed;


 


(b)           The
completion of any registration or other qualification of such shares of Common
Stock under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its absolute discretion, deem necessary or
advisable;


 


(c)           The
obtaining of any approval or other clearance from any state or federal
governmental agency which the Committee shall, in its absolute discretion,
determine to be necessary or advisable;


 


(d)           The
receipt by the Company of full payment for such shares of Common Stock,
including payment of any applicable withholding tax, which may be in one or
more of the forms of consideration permitted under Section 2.6 hereof; and


 


(e)           The lapse of such reasonable period of time following the vesting of any
Restricted Stock Units as the Committee may from time to time establish for
reasons of administrative convenience.


 


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ARTICLE III


 


OTHER PROVISIONS


 


3.1          Administration.  The Committee shall have the power to
interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules.  All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon Participant, the Company and all other interested persons.  No member of the Committee or the Board shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan, this Agreement or the RSUs.


 


3.2          Adjustments
Upon Specified Events.  The Committee may accelerate payment and
vesting of the Restricted Stock Units in such circumstances as it, in its sole
discretion, may determine.  In addition,
upon the occurrence of certain events relating to the Common Stock contemplated
by Section 14.2 of the Plan (including, without limitation, an
extraordinary cash dividend on such Common Stock), the Committee shall make
such adjustments the Committee deems appropriate in the number of Restricted
Stock Units then outstanding and the number and kind of securities that may be
issued in respect of the Restricted Stock Units. The Participant acknowledges
that the RSUs are subject to modification and termination in certain events as
provided in this Agreement and Article 14 of the Plan.


 


3.3          Grant
is Not Transferable.  During the lifetime of Participant, this
grant and the rights and privileges conferred hereby will not be transferred,
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and will not be subject to sale under execution, attachment or
similar process.  Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the RSUs, or any
right or privilege conferred hereby, or upon any attempted sale under any
execution, attachment or similar process, the RSUs and the rights and
privileges conferred hereby immediately will become null and void.  Notwithstanding anything herein to the
contrary, this Section 3.3 shall not prevent transfers by will or
applicable laws of descent and distribution.


 


3.4          Binding
Agreement.  Subject to the limitation on the
transferability of the RSUs contained herein, this Agreement will be binding
upon and inure to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.


 


3.5          Notices.  Any notice to be given under the terms of
this Agreement to the Company shall be addressed to the Company in care of the
Secretary of the Company at the Company’s principal office, and any notice to
be given to Participant shall be addressed to Participant at the Participant’s
last address reflected on the Company’s records.  By a notice given pursuant to this Section 3.5,
either party may hereafter designate a different address for notices to be
given to that party.  Any notice shall be
deemed duly given when sent via email or when sent by certified mail (return
receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.


 


3.6          Titles.  Titles provided herein are for
convenience only and are not to serve as a basis for interpretation or
construction of this Agreement.


 


3.7          Governing
Law; Severability.  The laws of the State of Delaware shall
govern the interpretation, validity, administration, enforcement and
performance of the terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.


 


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3.8          Conformity to Securities Laws.  Participant acknowledges that the Plan and
this Agreement are intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange
Commission thereunder, and state securities laws and regulations.  Notwithstanding anything herein to the
contrary, the Plan shall be administered, and the RSUs are granted, only in
such a manner as to conform to such laws, rules and regulations.  To the extent permitted by applicable law,
the Plan and this Agreement shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.


 


3.9          Amendments, Suspension and Termination.  To the extent permitted by the Plan, this
Agreement may be wholly or partially amended or otherwise modified, suspended
or terminated at any time or from time to time by the Committee or the Board, provided, that, except as may otherwise
be provided by the Plan, no amendment, modification, suspension or termination
of this Agreement shall adversely effect the RSUs in any material way without
the prior written consent of the Participant.


 


3.10        Successors and Assigns.  The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company.  Subject to the restrictions on transfer
herein set forth in Sections 3.2 and 3.3 hereof, this Agreement shall be
binding upon Participant and his or her heirs, executors, administrators,
successors and assigns.


 


3.11        Limitations Applicable to Section 16 Persons.  Notwithstanding any other
provision of the Plan or this Agreement, if Participant is subject to Section 16
of the Exchange Act, the Plan, the RSUs and this Agreement shall be subject to
any additional limitations set forth in any applicable exemptive rule under
Section 16 of the Exchange Act (including any amendment to Rule 16b-3
of the Exchange Act) that are requirements for the application of such
exemptive rule.  To the extent permitted
by applicable law, this Agreement shall be deemed amended to the extent
necessary to conform to such applicable exemptive rule.


 


3.12        Not a Contract of Employment.  Nothing in this Agreement or in the Plan
shall confer upon the Participant any right to continue to serve as an employee
or other service provider of the Company or any of its Subsidiaries.


 


3.13        Entire Agreement.  The Plan, the Grant Notice and this Agreement
(including, where applicable, Appendix A) constitute the entire agreement of
the parties and supersede in their entirety all prior undertakings and
agreements of the Company and Participant with respect to the subject matter
hereof.


 


3.14        Section 409A.  The RSUs are not intended to constitute “nonqualified
deferred compensation” within the meaning of Section 409A of the Code
(together with any Department of Treasury regulations and other interpretive
guidance issued thereunder, including without limitation any such regulations
or other guidance that may be issued after the date hereof, “Section 409A”).  However, notwithstanding any other provision
of the Plan, the Grant Notice or this Agreement, if at any time the Committee
determines that the RSUs (or any portion thereof) may be subject to Section 409A,
the Committee shall have the right in its sole discretion (without any
obligation to do so or to indemnify Participant or any other person for failure
to do so) to adopt such amendments to the Plan, this Agreement or the Grant
Notice or adopt other policies and procedures (including amendments, policies
and procedures with retroactive effect), or take any other actions, as the
Committee determines are necessary or appropriate either for the RSUs to be
exempt from the application of Section 409A or to comply with the
requirements of Section 409A.


 


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3.15        Limitation
on Participant’s Rights.  Participation in the Plan confers no rights
or interests other than as herein provided. 
This Agreement creates only a contractual obligation on the part of the
Company as to amounts payable and shall not be construed as creating a
trust.  Neither the Plan nor any
underlying program, in and of itself, has any assets.  The Participant shall have only the rights of
a general unsecured creditor of the Company with respect to amounts credited
and benefits payable, if any, with respect to the RSUs, and rights no greater
than the right to receive the Common Stock as a general unsecured creditor with
respect to RSUs, as and when payable hereunder.


 


3.16        Additional
Terms for Holders Employed or Providing Services Outside the United States. To the extent the Participant is an employee or provides services to
the Company in a country other than the United States, the RSUs shall be
subject to such additional or substitute terms as shall be set forth for such
country in Appendix A attached hereto.


 


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