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.
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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.
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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 (60 th ) day
following your termination date and shall include all amounts that
would have been paid on or prior to such sixtieth (60
th ) 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 e
