Exhibit 10.4


 


September 24, 2008


 


Jeff Jordan


 


Re:  Employment Agreement


 


Dear Jeff:


 


You and OpenTable, Inc.
(the “Company”) are parties to
that certain offer letter agreement dated as of May 28, 2007 (the “Prior Agreement”), which sets forth,
among other things, the terms of your employment with the Company.  This letter agreement (this “Agreement”) amends and restates the
Prior Agreement in its entirety.  This
Agreement supersedes the Prior Agreement and any other agreement or policy to
which the Company is a party with respect to your employment with the
Company.  Notwithstanding the foregoing,
your Proprietary Information and Inventions Agreement remains in full
effect.  You may accept this Agreement by
signing and returning a copy of this Agreement to the Company as provided
below.


 


1.                                      DUTIES.  Your employment commenced hereunder on a
full-time basis effective as of June 1, 2007.  You will continue to be employed as the Chief
Executive Officer, and will perform the duties customarily associated with this
position.  You will continue to report
solely to the Company’s Board of Directors (the “Board”) and perform your
services on a full-time basis at the Company’s headquarters in San Francisco,
California.  You will also continue to
serve as a member of the Board.  You
shall devote substantially all of your full working time and attention to the
business affairs of the Company.  You may
also serve on other boards of directors or in any other capacity with civic,
educational, or charitable organizations upon consent from the Board, which
shall not be unreasonably withheld.  The
Board hereby consents to your continuing service on the following boards of
directors of which you are now a member: 
Pure Digital Technologies, Inc., CafePress.com, Inc. and
LiveOps Inc.


 


2.                                      BASE
SALARY.  You will continue to receive
an annual base salary of $360,000 for all hours worked to be paid in accordance
with the Company’s customary payroll procedures, less payroll deductions and
withholdings.  The Board shall review
your annual base salary at least annually for adjustments and your base salary
shall not be decreased without your consent.


 


3.                                      STOCK
OPTIONS; CHANGE IN CONTROL; EXCISE TAXES.


 


(a)                                Stock
Option.  On July 9, 2007, the
Board granted you an option to purchase 9,596,202 shares of Company Common
Stock (the “Initial Option”), which represented three and a half percent (3.5%)
of the fully-diluted capital stock of the Company as of the date of grant of
the Initial Option (after giving effect to the Initial Option and Second Option
(as defined below)).  The Initial Option
has a per share exercise price of $0.41, which is equal to the fair market
value of a share of Company Common Stock as of July 9, 2007, as determined
by the Board pursuant to the Company’s then most recent independent appraisal
of its Common Stock.  The vesting of such
stock options commenced on the date you commenced service with the
Company.  The


 

















 


Initial Option is an “incentive stock option” (an “ISO”) within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”) to the maximum extent permitted under applicable law, in light of
the Second Option (as defined below) having been previously granted as an
ISO.  Subject to your entering into the
Company’s form restricted stock purchase agreement with respect to any unvested
shares, the Initial Option was exercisable in full as of the date of
grant.  Assuming continued service with
the Company, the shares subject to the Initial Option vest with respect to the
shares subject thereto in substantially equal monthly installments over four
years, such that the shares subject to the Initial Option are fully vested on
the fourth anniversary of your commencement of service.


 


(b)                                Second
Option.  On July 9, 2007 but prior
to the approval of the Initial Option, the Board approved a second stock option
grant to you to purchase 4,112,658 shares of Company Common Stock (the “Second
Option”), which represented one and a half percent (1.5%) of the fully-diluted
capital stock of the Company as of the date of grant of the Second Option
(after giving effect to the Initial Option and Second Option).  The Second Option has a per share exercise
price equal to $1.87.  The Company
represents that, based on independent appraisals, it has a reasonable good faith
belief that an exercise price of $1.87 is significantly in excess of the fair
market value of a share of Company Common Stock on the date of grant of the
Second Option.  The Second Option is an
ISO to the maximum extent permitted under applicable law.  Subject to your entering into the Company’s
form restricted stock purchase agreement with respect to any unvested shares,
the Second Option was exercisable in full as of the date of grant.  The vesting of such Second Option shall be
measured from the date you commenced service with the Company, and the Second
Option will become vested and exercisable according to the vesting schedule of
the Initial Option.


 


(c)                                Other
Option Terms.  Both the
Initial Option and Second Option (collectively, “Both Options”) shall also be
subject to the terms and conditions specified in this Section 3(c).  Both Options have ten year terms unless they
expire earlier in connection with your termination of service to the
Company.  Both Options were granted under
the Company’s 1999 Stock Plan, as may be amended from time to time (the “Stock
Plan”).  Both Options are subject to the
further terms and conditions of the Stock Plan, the stock option agreements and
restricted stock purchase agreements, if applicable, to be entered into between
you and the Company.


 


(d)                                Section 409A
Liability.  The Company
will indemnify you and provide you with a payment (a “Section 409A Payment”)
for any liability you incur with respect to the grant and/or vesting of the
Initial Option and/or the Second Option solely as a result of Section 409A
of the Code.  The Company will also
provide you with an additional tax gross-up payment with respect to any Section 409A
Payment made to you or on your behalf pursuant to the preceding sentence that
constitutes taxable income to you, which shall be paid in a lump sum and be in
an amount sufficient to provide that after payment of federal and state taxes
on such Section 409A Payment, together with any taxes on such gross-up
payment, you will retain an amount equal to the Section 409A Payment (the “Section 409A
Gross-Up Payment”).


 


4.                                      BENEFITS.  During your employment by the Company, you
will be eligible to participate in any of the employee benefit plans or
programs the Company generally makes available to its senior executives,
pursuant to the terms and conditions of such plans.


 


2

















 


5.                                      CAR
SERVICE.  The Company will continue to
either pay directly or you will be reimbursed by the Company for all expenses
reasonably incurred by you in connection with daily car and driver service (the
“Car Service Payments”).  At the end of
any calendar year or upon your termination of employment with the Company, you
will be eligible to receive an additional tax gross-up payment with respect to
any Car Service Payments made to you or on your behalf pursuant to the
preceding sentence during such calendar year or, if applicable, the calendar
year of your termination of employment, that constitutes taxable income to you,
which shall be paid in a lump sum and be in an amount sufficient to provide
that after payment of federal and state taxes on such payment, together with
any taxes on such gross-up payment, you will have retained an amount equal to
the aggregate Car Service Payments made to you or, if such Car Service Payments
are made on your behalf, you will have retained the amount of your federal and
state taxes attributable to such Car Service Payments, in each case, during
such calendar year or, if applicable, the calendar year of your termination of
employment (the “Car Service Gross-Up Payments,” and together with the Section 409A
Gross-Up, the “Gross-Up Payments”).


 


6.                                      BUSINESS
EXPENSES.  You shall
be entitled to timely reimbursement for all ordinary and reasonable
out-of-pocket business expenses which are incurred by you in furtherance of the
Company’s business and in accordance with the Company’s standard policies.


 


7.                                      COMPANY
POLICIES AND CONFIDENTIALITY AGREEMENT.  As an employee of the Company, you are
expected to abide by all of the Company’s policies and procedures.  As a condition of your continued employment,
you agree to abide by the terms of the Proprietary Information and Inventions
Agreement entered into between you and the Company.


 


8.                                      OTHER
AGREEMENTS.  By
accepting this Agreement, you represent and warrant that your performance of
your duties for the Company have not and will not violate any agreements,
obligations or understandings that you may have with any third party or prior
employer.  You agree not to make any
unauthorized disclosure or use, on behalf of the Company, of any confidential
information belonging to any of your former employers.  You also represent that you are not in
unauthorized possession of any materials containing a third party’s
confidential and proprietary information. 
Of course, during your employment with the Company, you may make use of
information generally known and used by persons with training and experience
comparable to your own, and information which is common knowledge in the
industry or is otherwise legally available in the public domain.


 


9.                                      OUTSIDE
ACTIVITIES.  While
employed by the Company, you will not engage in any business activity in
competition with the Company.


 


10.                               AT-WILL
EMPLOYMENT.  As an
employee of the Company, you may terminate your employment at any time and for
any reason whatsoever simply by notifying the Company.  Similarly, the Company may terminate your
employment at any time and for any lawful reason whatsoever, with or without cause
or advance notice.  Your at-will employment
relationship with the Company cannot be changed except in writing signed by an
authorized representative of the Board.


 


3

















 


11.                               SEVERANCE
BENEFITS.


 


(a)                                Termination
By The Company Without Cause Apart from a Change in Control.  If your employment by the
Company is terminated by the Company without Cause (as defined below) prior to
or more than twelve months after a Change in Control (as defined below) and if
you execute and fail to revoke during any applicable revocation period a
general release of all claims against the Company and its affiliates in a form reasonably acceptable to
the Company within sixty (60) days of such termination of employment, the
Company shall provide you with the following:


 


(i)                                    The
continuation of your base salary for a period of twelve (12) months following
your termination date at the rate in effect immediately prior to your
termination of employment, less applicable withholdings, payable in
installments pursuant to the Company’s normal and customary payroll procedures,
provided that the first such installment
shall be made on the sixtieth (60th) day following your termination date and shall
include all amounts that would have been paid on or prior to such sixtieth (60th) day had the installments
commenced on the first pay date following your date of termination.


 


(ii)                                Provided that
you elect to receive health benefits (e.g., medical and dental) pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”),
then for the period beginning on your date of termination and ending on the
date which is twelve (12) full months following your date of termination (or,
if earlier, the date on which you begin benefit coverage with another
employer), the Company shall pay the costs associated with continuation
coverage pursuant to COBRA.


 


(iii)                            Both Options
shall become vested and exercisable (up to 100%) with respect to that number of
unvested shares subject to each such option that would have vested had your employment
continued for a period of six (6) months following the date of your
termination of employment.


 


(iv)                               If your
termination of employment occurs prior to a Change in Control and the initial
public offering of the Company’s common stock, your ability to exercise the
Second Option, to the extent vested (after giving effect to the accelerated
vesting provided in this Section 11(a)), shall be extended to the earliest
of (i) twenty-four (24) months from the date of your termination of
employment, (ii) the expiration date of such Second Option, (iii) the
consummation of a Change in Control and (iv) the initial public offering
of the Company’s common stock.


 


(b)                                Termination
By The Company Without Cause or Constructive Termination in Connection With a
Change in Control.  If your
employment by the Company is terminated by the Company without Cause or you
experience a Constructive Termination (as defined below), in each case, within
the twelve months following a Change in Control and if you execute and fail to
revoke during any applicable revocation period a general release of all claims
against the Company and its affiliates in a form reasonably acceptable to the
Company within sixty (60) days following such termination of employment, the
Company shall provide you with the following:


 


4

















 


(i)                                    The
continuation of your base salary for a period of twelve (12) months following
your termination date at the rate in effect immediately prior to your
termination of employment, less applicable withholdings, payable in
installments pursuant to the Company’s normal and customary payroll procedures,
provided that the first such installment
shall be made on the sixtieth (60th) day following your termination date and shall
include all amounts that would have been paid on or prior to such sixtieth (60th) day had the installments
commenced on the first pay date following your date of termination.


 


(ii)                                Provided that
you elect to receive health benefits (e.g., medical and dental) pursuant to
COBRA then for the period beginning on your date of termination and ending on
the date which is twelve (12) full months following your date of termination
(or, if earlier, the date on which you begin benefit coverage with another
employer), the Company shall pay the costs associated with continuation
coverage pursuant to COBRA.


 


(iii)                            The Initial
Option shall become vested and exercisable with respect to aggregate number of
unvested shares subject to Both Options that would have vested had your employment
continued for a period of twelve (12) months following the date of your
termination of employment; provided, however, that if the number of unvested shares subject to
Both Options that would have vested had your employment continued for a period
of twelve (12) months following the date of your termination of employment
exceeds the number of unvested shares subject to the Initial Option, then the
Second Option shall become vested and exercisable with respect to that number
of unvested shares that so exceed the number of unvested shares subject to the
Initial Option.  Notwithstanding the
foregoing, in no event shall the Initial Option or the Second Option vest with
respect to more than one hundred percent of the shares subject to each such
option.


 


(c)                                Termination
By The Company With Cause Or Termination By You.  If your employment by the Company is
terminated by the Company with Cause, or if you voluntarily terminate your
employment with the Company (other than pursuant to a Constructive Termination
(as defined below)), you shall not be entitled to any severance pay, severance
benefits, or any compensation or benefits from the Company whatsoever, other
than as required under applicable law.


 


(d)                                No
Other Payments.  You
understand and agree that you shall not be entitled to any other severance pay,
severance benefits, or any other compensation or benefits other than as set
forth in this Section 11 in the event of a termination, other than as
required under applicable law. In the event that you have a legal right to pay
in lieu of termination notice, or to severance pay, the severance pay set forth
herein shall be reduced by the amount of such legally required payments.


 


(e)                                Definitions.


 


(i)                                    Cause.  For purposes of this Agreement, the term “Cause”
means: (a) your unauthorized use or disclosure of the Company’s
confidential information or trade secrets, which use or disclosure causes
material harm to the Company, (b) your breach of any agreement between you
and the Company, which breach causes material harm to the Company, (c) your
failure to comply with the Company’s written policies or rules, which failure
causes material 


 


5

















 


harm to the Company, (d) your conviction of, or your plea of “guilty”
or “no contest” to, a felony under the laws of the United States or any State
if such felony (i) is work-related, (ii) materially impairs your
ability to perform your services under this letter agreement or (iii) causes
material harm to the Company, (e) your gross negligence or willful
misconduct, which causes material harm to the Company, or (f) your willful
failure to follow reasonable and lawful instructions of the Board and your
failure to cure such condition within thirty (30) days after receiving written
notification of the failure from the Board.


 


(ii)                                Change
in Control.  For purposes
of this Agreement, “Change in Control” shall mean (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 shareholders 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 (A) the
continuing or surviving entity and (B) any direct or indirect parent
corporation of such continuing or surviving entity;  (ii) the sale, transfer or other
disposition of all or substantially all of the Company’s assets; or (iii) the
individuals constituting the Board as of the date you commence employment
hereunder (the “Incumbent Board”) cease for any reason to constitute a majority
of the members of the Board; provided, however, that if the election, or
nomination for election by the Company’s stockholders, of any new director was
approved by a vote of at least two-thirds (2/3) of the Incumbent Board, such
new director shall be considered a member of the Incumbent Board.  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.


 


(iii)                            Constructive
Termination.  For
purposes of this Agreement, the term “Constructive Termination” means your
resignation after any of the following are undertaken without your express
written consent: (i) a material reduction in your base salary, other than
in connection with an across the board reduction in base salary applicable to
all senior executives of the Company, (ii) a material adverse reduction in
your duties and responsibilities (except as a result of disability, temporary
illness or other absence); provided, however,
that a reduction in duties and/or responsibilities solely by virtue of the
Company being acquired and made part of a larger entity shall not by itself
constitute grounds for a “Constructive Termination”, (iii) the
elimination or material reduction of your eligibility to participate in the
Company’s benefit programs available generally to senior executives of the
Company, other than in connection with an across the board elimination or
reduction applicable to all senior executives of the Company, or (iv) a
material relocation of your primary workplace to a location that is outside of
a 50 mile radius from Portola Valley, California.  Notwithstanding the foregoing, for purposes
of this Agreement, a Constructive Termination shall not be deemed to have occurred
unless within thirty (30) days of the occurrence of an event providing grounds
for Constructive Termination you have provided the Company thirty (30) days’
written notice setting forth in reasonable specificity the event that
constitutes grounds for Constructive Termination and, if such event is
reasonably susceptible to cure, during such thirty (30) day notice period the
Company shall have failed to cure the event or events in question.


 


6

















 


12.                               GROSS-UP
CALCULATIONS.  The
determination of the amount of a Gross-Up Payment and whether and to what
extent a Gross-Up Payment is required to be made will be made at the Company’s
expense by an independent public accountant(s) selected by the Company
(the “Accountants”), which Accountants shall provide you and the Company with
detailed supporting calculations with respect to such Gross-Up Payment within a
reasonable period of time following the receipt of notice from you or the
Company that you are eligible for such Gross-Up Payment.  For purposes of determining the amount of the
Gross-Up Payment, you will be deemed to pay federal income taxes at the highest
applicable marginal rate of federal income taxation for the calendar year in
which the Gross-Up Payment is to be made and to pay any applicable state and
local income taxes at the highest applicable marginal rate of taxation for the
calendar year in which the Gross-Up Payment is to be made, net of the maximum
reduction in federal income taxes which could be obtained from the deduction of
such state or local taxes if paid in such year (determined without regard to
limitations on deductions based upon the amount of your adjusted gross income);
and to have otherwise allowable deductions for federal, state and local income
tax purposes at least equal to those disallowed because of the inclusion of the
Gross-Up Payment in your adjusted gross income. 
Any determination by the Accountants shall be binding upon you and the
Company.  Any Gross-Up Payment will be
made as soon as practicable following your remittance to the Internal Revenue
Service of any income taxes arising as a result of a Section 409A Payment
or a Car Services Payment and, in any event, prior to the last day of your
taxable year next following your taxable year in which you remit such taxes.


 


13.                               RETURN
OF MATERIALS.  At the
termination of your relationship with the Company, you will promptly return to
the Company, and will not take with you or use, all items of any nature that
belong to the Company, and all materials (in any form, format, or medium)
containing or relating to the Company’s business.


 


14.                               SECTION 409A.


 


(a)                                Separation
from Service. 
Notwithstanding any provision to the contrary in this Agreement, no
amount deemed deferred compensation subject to Section 409A of the Code
shall be payable pursuant to Section 11 unless your termination of
employment constitutes a “separation from service” with the Company within the
meaning of Section 409A of the Code and the Department of Treasury
regulations and other guidance promulgated thereunder.


 


(b)                                Specified
Employee. 
Notwithstanding any provision to the contrary in this Agreement, if you
are deemed by the Company at the time of your separation from service to be a “specified
employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent
delayed commencement of any portion of the benefits to which you are entitled
under this Agreement is required in order to avoid a prohibited distribution
under Section 409A(a)(2)(B)(i) of the Code, such portion of your
benefits shall not be provided to you prior to the earlier of (i) the
expiration of the six-month period measured from the date of the your “separation
from service” with the Company (as such term is defined in the Treasury
Regulations issued under Section 409A of the Code) or (ii) the date
of your death.  Upon the first business
day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period,
all payments deferred pursuant to this Section 13(b) shall be paid in
a lump sum to you, and any remaining payments due under the Agreement shall be
paid as otherwise provided herein.


 


7

















 


(c)                                Expense
Reimbursements.  To the
extent that any reimbursements payable pursuant to this Agreement are subject
to the provisions of Section 409A of the Code, any such reimbursements
payable to you pursuant to this Agreement shall be paid to you no later than December 31
of the year following the year in which the expense was incurred, the amount of
expenses reimbursed in one year shall not affect the amount eligible for
reimbursement in any subsequent year, and your right to reimbursement under
this Agreement will not be subject to liquidation or exchange for another
benefit.


 


(d)                                Installments.  For purposes of Section 409A of the Code
(including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)),
your right to receive the installment payments under this Agreement shall be
treated as a right to receive a series of separate payments and, accordingly,
each installment payment hereunder shall at all times be considered a separate
and distinct payment.


 


15.                               ENTIRE
AGREEMENT; ASSIGNMENT.  This
Agreement, together with the Proprietary Information and Inventions Agreement,
constitutes the complete, final and exclusive embodiment of the entire
agreement between you and the Company with respect to the terms and conditions
of your employment specified herein.  If
you enter into this Agreement, you are doing so voluntarily, and without
reliance upon any promise, warranty or representation, written or oral, other
than those expressly contained herein. 
This Agreement supersedes any other such promises, warranties,
representations or agreements.  This
Agreement may not be amended or modified except by a written instrument signed
by you and an authorized representative of the Board.  This Agreement will be binding upon and inure
to the benefit of (a) your heirs, executors, and legal representatives
upon your death and (b) any successor of the Company.  Any such successor of the Company will be
deemed substituted for the Company under the terms of this Agreement for all
purposes.  Any successor will expressly
assume in writing all of the Company’s obligations under this Agreement before
or at the time of such succession.  For
this purpose, “successor” means any person, firm, corporation, or other
business entity which at any time, whether by purchase, merger, or otherwise,
directly or indirectly acquires all or substantially all of the assets or
business of the Company.


 


16.                               GOVERNING
LAW.  This Agreement will be
governed by and construed in accordance with the laws of the State of
California without regard to the conflicts of law provisions thereof.


 


17.                               DISPUTE
RESOLUTION.  To ensure
the timely and economical resolution of disputes that arise in connection with
your employment with the Company, you and the Company agree that any and all
disputes, claims, or causes of action arising from or relating to the
enforcement, breach, performance or interpretation of this Agreement, your
employment, or the termination of your employment, shall be resolved to the
fullest extent permitted by law by final, binding and confidential arbitration,
by a single arbitrator, in San Francisco County, California, conducted by
Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under the
applicable JAMS employment rules.  By agreeing to this arbitration procedure, both you
and the Company waive the right to resolve any such dispute through a trial by
jury or judge or administrative proceeding.  The arbitrator shall:  (a) have the authority to compel
adequate discovery for the resolution of the dispute and to award such relief
as would otherwise be permitted by law; and (b) issue a written
arbitration decision, to include the arbitrator’s essential findings and
conclusions and a statement of the award. 
The arbitrator shall be authorized to 


 


8

















 


award
any or all remedies that you or the Company would be entitled to seek in a
court of law.  The Company shall pay all
JAMS’ arbitration fees and any other arbitration-specific costs.  Nothing in this Agreement is intended to
prevent either you or the Company from obtaining injunctive relief in court to
prevent irreparable harm pending the conclusion of any such arbitration.  Notwithstanding the foregoing, you and the
Company each have the right to resolve any issue or dispute over intellectual
property rights by Court action instead of arbitration.


 


18.                               RIGHT
TO WORK.  As required by law, this
Agreement is subject to satisfactory proof of your right to work in the United
States.


 


If you
choose to accept this Agreement under the terms described above, please sign
below and return this letter to me.


 


We look
forward to your favorable reply, and to a productive and enjoyable work
relationship.


 


	
   

  	
  Very truly yours,

  
	
   

  	
  /s/ Matt Roberts

  
	
   

  	
  OpenTable, Inc.

  



 


 


Accepted
and Agreed to by:


 


 


	
  /s/ Jeff Jordan

  	
   

  	
  10-15-08

  
	
  Jeff Jordan

  	
   

  	
  Date

  



 


9