EXHIBIT 10.28


 


EMPLOYMENT AND SEVERANCE AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT
AGREEMENT (“Agreement”) is made and entered into effective December 2,
2008, by and between Granite City Food &
Brewery Ltd., a corporation duly organized and existing under the laws
of the State of Minnesota, with a place of business at Suite 101, 5402
Parkdale Drive, Minneapolis, MN 55416 (hereinafter referred to as the “Company”), and Darius H.
Gilanfar, a Texas resident (hereinafter referred to as “Executive”).


 


RECITALS


 


·                                          The
Company and Executive recognize that it is important that the Company protect
its rights with respect to its confidential business information and business
relationships.


 


·                                          Executive
enters into this Agreement in consideration of the following:  (1) the Company’s offer of continuing
employment and the creation of a severance benefit upon a change of control of
the Company; (2) the Company’s continued grant to Executive of access to
confidential information; and (3) other consideration which Executive
acknowledges was received and sufficient consideration for the promises in this
Agreement.


 


1.  EMPLOYMENT, COMPENSATION AND BENEFITS


 


1.01  The
Company agrees to continue to employ Executive as a full-time employee on an
at-will basis.  Either party may terminate
Executive’s employment at any time for any reason as provided in Article 2
of this Agreement.


 


1.02  Executive
shall generally have the authority, responsibilities, travel obligations, and
such other duties as are customarily performed by a chief operating officer of
similar businesses, and shall also render such additional services and duties
as may be reasonably requested of him from time to time by the Company’s Chief
Executive Officer or Board of Directors.


 


1.03  Executive
shall report to the Chief Executive Officer of the Company and the Board of
Directors of the Company or any committee thereof as the Board shall direct,
and shall generally be subject to direction, orders and advice of said officer
and the Board.  The Company retains the
discretion to transfer or reassign Executive to another executive position or
to other executive duties, and any such transfer or reassignment shall not
constitute a breach of this Agreement.


 


1.04  Executive
agrees that he will at all times faithfully, industriously, and to the best of
his ability, experience, and talents, perform all of the duties that may be
required of and from him pursuant to the express and implicit terms of this
Agreement, to the reasonable satisfaction of the Company.


 


1.05  During the initial term of employment
hereunder, Executive shall be paid a base


 

















 


salary at Executive’s current annual rate (“Base
Salary”), payable in accordance with the Company’s established pay periods,
reduced by all deductions and withholdings required by law and as otherwise
specified by Executive.  Executive’s Base
Salary shall be reviewed approximately annually and changes to Base salary may
be made upon the approval of the the Borard of the company or its Compensation
Committee; provided, however, that Executive’s 
Base Salary shall not be reduced except in connection with Company
compensation reductions applied to all other senior executives of the
Company.  In the event Executive’s
employment shall for any reason terminate during the Term, Executive’s final
monthly Base Salary payment shall be made on a pro-rated basis as of the last
day of the month in which such employment terminated.


 


1.06  During the term of employment, Executive
shall be entitled to participate in employee benefit plans, policies, programs,
perquisites and arrangements, as the same may be provided and amended from time
to time, that are provided generally to similarly situated executive employees
of the Company, to the extent Executive meets the eligibility requirements for
any such plan, policy, program, perquisite or arrangement.


 


1.07  The
Company shall reimburse Executive for all reasonable business expenses incurred
by Executive in carrying out Executive’s duties, services, and responsibilities
under this Agreement.  Executive shall
comply with generally applicable policies, practices and procedures of the
Company with respect to reimbursement for, and submission of expense reports,
receipts or similar documentation of, such expenses.


 


1.08  Executive
shall be entitled to three weeks of paid vacation per year, in addition to the
Company’s normal holidays.  Vacation time
will be scheduled taking into account the Executive’s duties and obligations at
the Company.  Sick leave and all other
leaves of absence will be in accordance with the Company’s stated personnel
policies.


 


2.  TERMINATION OF EMPLOYMENT


 


2.01  The
Company may terminate Executive’s employment by giving Executive written notice
if Executive, due to sickness or injury, is prevented from carrying out his
essential job functions for a period of three (3) months or longer.  In the event of such termination, Executive
shall receive base compensation due through the date of termination and to a
pro-rated bonus due Executive pursuant to any bonus plan or arrangement established
prior to termination, to the extent earned or performed through the date of
termination based upon the requirements or criteria of such plan or
arrangement, as the Board shall in good faith determine.


 


2.02  Executive’s
employment will be deemed terminated upon the death of the Executive.  In the event of such termination, Executive
shall receive compensation earned through the date of termination and to a
pro-rated bonus due Executive pursuant to any bonus plan or arrangement
established prior to termination, to the extent earned or performed based upon
the requirements or criteria of such plan or arrangement, as the Board shall in
good faith determine.


 


2.03  Any other
provision of this Agreement notwithstanding, the Company may terminate
Executive’s employment upon written notice if the termination is based on any
of the following events that constitute Cause for the purposes of this
Agreement:


 

















 


(a)                                  any
conviction or nolo contendere plea by Executive to a felony, gross misdemeanor
or misdemeanor involving moral turpitude, or any public conduct by Executive
that has or can reasonably be expected to have a detrimental effect on the
Company and the image of its management;


 


(b)                                 any
act of material misconduct, willful and gross negligence, willful violation of
federal or state securities laws, or material breach of duty with respect to
the Company, including, but not limited to, embezzlement, fraud, dishonesty,
nonpayment of an obligation owed to the Company, or material breach of a
fiduciary duty to the Company which results in harm or loss to the Company;


 


(c)                                  any
material breach of any material provision of this Agreement or of the Company’s
announced or written rules, codes or polices; provided, however, that such
breach shall not constitute Cause if Executive cures or remedies such breach
within thirty (30) days after written notice to Executive, without material
harm or loss to the Company, unless (i) such breach is part of a pattern
of chronic breaches of the same, which may be evidenced by reports or warning
letters given by the Company to Executive; or (ii) such breach is of a
nature that it is deemed by the Board not to be curable, including situations
where the Board determines that harm or loss to the Company has already
occurred or can reasonably be expected to occur and cannot be eliminated or
remedied by such cure;


 


(d)                                 any
act of insubordination by Executive; provided, however, an act of
insubordination by Executive shall not constitute Cause if Executive cures or
remedies such insubordination within thirty (30) days after written notice to
Executive, without material harm or loss to the Company, unless (i) such
insubordination is a part of a pattern of chronic insubordination, which may be
evidenced by reports or warning letters given by the Company to Executive; or (ii) such
insubordination is of a nature that it is deemed by the Board not to be
curable, including situations where the Board determines that harm or loss to
the Company has already occurred or can reasonably be expected to occur and cannot
be eliminated or remedied by such cure; or


 


(e)                                  any
unauthorized disclosure of any Company trade secret or confidential
information, or conduct constituting unfair competition with respect to the
Company, including inducing a party to breach a contract with the Company.


 


In the event of such termination, and not
withstanding any contrary provision otherwise stated, Executive shall receive
only his base salary earned through the date of termination.


 


2.04  Executive
or the Company may terminate Executive’s employment without Cause upon not less
than sixty (60) days written notice.


 


3.  SEVERANCE BENEFIT


 


3.01  The
Company, its successors or assigns, will pay Executive as severance pay an
amount equal to twelve (12) months of the Executive’s monthly base salary for
full-time employment at the time of Executive’s separation if (1) Executive’s
employment is terminated by


 

















 


the Company Without Cause (other than due to death or
disability); or (2) there has been a Change of Control of the Company (as
defined in Section 3.02), and (a) Executive is an active and
full-time employee at the time of the Change of Control, and (b) within
twelve (12) months following the date of the Change of Control, Executive
employment is involuntarily terminated for any reason other than for Cause or
death or disability of Executive. 
Nothing in this Subsection 3.01 shall limit the authority of the
Committee or Board to terminate Executive’s employment for Cause.  Payment of such amount, less customary
withholdings, will be made in one lump sum and will occur within thirty (30)
days of the Executive’s termination or resignation.  Such payment shall be made contingent upon
Executive’s compliance with Sections 4 and 5 of this Agreement.


 


3.02  For the
purposes of this Agreement, “Change in Control” shall mean any one of the
following:


 


(a)                        an
acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) of 50% or more of either:


 


(1)           the then outstanding
Stock; or


 


(2)           the
combined voting power of the Company’s outstanding voting securities
immediately after the merger or acquisition entitled to vote generally in the
election of directors; provided, however, that the following acquisition shall
not constitute a Change of Control:


 


(i)            any
acquisition directly from the Company;


 


(ii)           any
acquisition by the Company or Subsidiary;


 


(iii)          any
acquisition by the trustee or other fiduciary of any employee benefit plan or
trust sponsored by the Company or a Subsidiary;


 


(iv)          any
acquisition by any corporation with respect to which, following such
acquisition, more than 50% of the Stock or combined voting power of Stock and
other voting securities of the Company is beneficially owned by substantially
all of the individuals and entities who were beneficial owners of Stock and
other voting securities of the Company immediately prior to the acquisition in
substantially similar proportions immediately before and after such
acquisition; or


 


(b)                       individuals
who, during any twelve (12) month period, constitute the Board (the “Incumbent
Board”), cease to constitute a majority of the Board.  Individuals nominated or whose nominations
are approved by the Incumbent Board and subsequently elected shall be deemed
for this purpose to be members of the Incumbent Board;


 


(c)                        approval
by the shareholders of the Company of a reorganization, merger, consolidation,
liquidation, dissolution, sale or statutory exchange of Stock which


 

















 


changes the
beneficial ownership of Stock and other voting securities so that after the
corporate change the immediately previous owners of 50% of Stock and other
voting securities do not own 50% of the Company’s Stock and other voting
securities either legally or beneficially;


 


(d)                       the
sale, transfer or other disposition of all substantially all of the Company’s
assets; or


 


(e)                        a
merger of the Company with another entity after which the pre-merger
shareholders of the Company own less than 50% of the stock of the surviving
corporation.


 


A “Change in
Control” shall not be deemed to occur with respect to Executive if the merger,
sale, transfer or an acquisition of a 50% or greater interest is to or by a
group that includes the Executive, nor shall it be deemed to occur if at least
50% of the Stock and other voting securities owned before the occurrence are
beneficially owned subsequent to the occurrence by a group that includes the
Executive.


 


3.03  Section 409A of the Code.  Notwithstanding any other provision of this
Agreement to the contrary, the parties to this Agreement intend that this
Agreement shall satisfy the applicable requirements, if any, of Section 409A
of the Code (“Section 409A”) in a manner that will preclude the imposition
of the penalties described in Section 409A.  The parties agree that the Agreement shall be
deemed modified as may become necessary (as determined by the Company in its
discretion) to satisfy the requirements described above.


 


3.04  In
addition to the Severance Payment payable pursuant to Section 3.01, the
Company will pay Executive a pro-rated bonus due Executive pursuant to any
bonus plan or arrangement in which Executive participates at the time of
termination of his employment.  Such
bonus shall be reduced by the amount of cash severance benefits to which
Executive may be entitled pursuant to any other cash severance plan, agreement,
policy or program of the Company or any of its subsidiaries. Without limiting
other payments which would not constitute “cash severance-type benefits”
hereunder, any cash settlement of stock options, accelerated vesting of stock
options and retirement, pension and other similar benefits shall not constitute
“cash severance-benefits” for purposes of this Section 3.03.


 


3.05  All
severance payments made under this Agreement, including those paid under 2,
shall be conditioned upon the Executive’s signing and not rescinding a
separation agreement and release in a form acceptable to the Company, which
agreement shall include, at a minimum a full and general release of all claims
to the greatest extent allowed by applicable law, a covenant not to sue, an
agreement to be reasonably available for consultation and assistance to the
Company during any period in which severance is paid, and an agreement to
promptly return to the Company all Company property.


 


3.06  Notwithstanding any other provision of this
Agreement, the Company and Executive intend that any payments, benefits or
other provisions applicable to this Agreement comply with the payout and other
limitations and restrictions imposed under Section 409A of the Code (“Section 409A”),
as clarified or modified by guidance from the U.S. Department of Treasury or
the Internal Revenue Service — in each case if and to the extent Section 409A
is


 

















 


otherwise applicable to this Agreement and such
compliance is necessary to avoid the penalties otherwise imposed under Section 409A.  In this connection, the Company and Executive
agree that the payments, benefits and other provisions applicable to this
Agreement, and the terms of any deferral and other rights regarding this
Agreement, shall be deemed modified if and to the extent necessary to comply
with the payout and other limitations and restrictions imposed under Section 409A,
as clarified or supplemented by guidance from the U.S. Department of Treasury
or the Internal Revenue Service, in each case if and to the extent Section 409A
is otherwise applicable to this Agreement and such compliance is necessary to
avoid the penalties otherwise imposed under Section 409A.


 


3.07  The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes required
by applicable law to be withheld by the Company.


 


3.08  The provisions of this Article 3 will be
deemed to survive the termination of this Agreement for the purposes of
satisfying the obligations of the Company and Executive hereunder.


 


4.  NONDISCLOSURE AND INVENTIONS


 


4.01  Except as permitted or directed by the
Company or as may be required in the proper discharge of Executive’s employment
hereunder, Executive shall not, during the Term of employment or at any time
thereafter, divulge, furnish or make accessible to anyone or use in any way any
confidential, trade secret or proprietary information of the Company, including
without limitation, whether or not reduced to writing, customer lists, customer
files or information, pricing information, expansion information, recipes,
formulas, planning and financial information, contracts, sales and marketing
information, business strategy or opportunities for new or developing business,
which Executive has prepared, acquired or become acquainted with during his
employment by the Company.  Executive
acknowledges that the above-described knowledge or information is the property
of the Company that constitutes a unique and valuable asset and represents a
substantial investment by the Company, and that any disclosure or other use of
such knowledge or information, other than for the sole benefit of the Company,
would be wrongful and would cause irreparable harm to the Company.  Executive agrees to at all times maintain the
confidentiality of such knowledge or information, to refrain from any acts or
omissions that would reduce its value to the Company, and to take and comply with
reasonable security measures to prevent any accidental or intentional
disclosure or misappropriation.  Upon
termination of Executive’s employment for any reason, Executive shall promptly
return to the Company all such confidential, trade secret and proprietary
information, including all copies thereof, then in Executive’s possession,
control or influence, whether prepared by Executive or others.


 


4.02  The
foregoing obligations of confidentiality shall not apply to any knowledge or
information the entirety of which is now published or subsequently becomes
generally publicly known, other than as a direct or indirect result of the
breach of this Agreement by Executive or a breach of a confidentiality
obligation owed to the Company by any third party.


 


4.03  Executive
acknowledges that new and valuable proprietary concepts, recipes, methods,
processes, discoveries, trade secrets (as defined in the Minnesota Uniform
Trade Secrets Act), improvements, adaptations, or ideas (herein individually
and collectively referred


 

















 


to as “Inventions”) may be developed, originated,
authorized, conceived, invented, or made by Executive, either alone or jointly
with others, in the course of Executive’s employment by the Company.  All such Inventions shall be the exclusive
property of the Company, whether or not patentable or copyrightable, and
whether or not shown or described in writing or reduced to practice.


 


NOTICE:  The Company hereby notifies Executive that
the foregoing does not apply to Inventions or ideas for which no equipment,
supplies, facility, or trade secret information of the Company was used and
that was developed entirely on Executive’s own time, and (1) which does
not relate (a) directly to the business of the Company and (b) to the
Company’s actual or demonstrably anticipated research or development, or (2) which
does not result from any work performed by Executive for the Company.


 


4.04  In the event of a breach or threatened breach
by Executive of the provisions of this Article 8, the Company shall be
entitled to an injunction restraining Executive from directly or indirectly
disclosing, disseminating, lecturing upon, publishing or using such
confidential, trade secret or proprietary information (whether in whole or in
part) and restraining Executive from rendering any services or participating with
any person, firm, corporation, association or other entity to whom such
knowledge or information (whether in whole or in part) has been disclosed,
without the posting of a bond or other security.  Nothing herein shall be construed as
prohibiting the Company from pursuing any other equitable or legal remedies
available to it for such breach or threatened breach, including the recovery of
damages from Executive.  Executive agrees
that the Company shall be entitled to recover its costs of litigation, expenses
and attorney fees incurred in enforcing this Agreement.


 


4.05  The Executive understands and agrees that any
violation of this Article 4 while employed by the Company may result in
immediate disciplinary action by the Company, including termination of employment
pursuant to Section 2.03 hereof.


 


4.06  The provisions of this Article 4 shall
survive termination of this Agreement indefinitely.


 


5. 
NON-COMPETITION AND NON-RECRUITMENT


 


5.01  The Company and Executive
recognize and agree that: (i) Executive has received, and will in the
future receive, substantial amounts of highly confidential and proprietary
information concerning the Company, its business, customers, Executives and
vendors; (ii) as a consequence of using or associating himself with the
Company’s name, goodwill, and reputation, Executive will develop personal and
professional relationships with the Company’s current and prospective
customers, clients and vendors; and (iii) provision for non-competition
and non-recruitment obligations by Executive is critical to the Company’s
continued economic well-being and protection of the Company’s confidential and
proprietary business information.  In
light of these considerations, this Article 9 sets forth the terms and
conditions of Executive’s obligations of non-competition and non-recruitment
during the Term of and subsequent to the termination of this Agreement and/or
Executive’s employment for any reason.


 


5.02  Unless the
obligation is waived or limited by the Company as set forth herein, Executive
agrees that during the term of Executive’s employment pursuant to this
Agreement and


 

















 


for a period of twelve (12) months following
termination of Executive’s employment for any reason, Executive will not
directly or indirectly: (a) solicit or do competitive business with any
person or entity that is or was a customer or vendor of the Company within the
twelve (12) months prior to the date of termination; or (b) engage within
the U.S. markets in which the Company engages in business at the time of termination,
in any business activity in competition with the casual dining restaurant
business as conducted by the company at the time of Executive’s
termination.  At its sole option, the
Company may, by express written notice to Executive, waive or limit the time
and/or geographic area in which Executive cannot engage in competitive activity
or the scope of such competitive activity.


 


5.03  During the
period of employment, and for a period of twelve (12) months following
termination of Executive’s employment for any reason, Executive will not
directly, or indirectly on behalf of any other person, engage in the  recruitment or hiring of any of the Company’s
employees.


 


5.04  Executive
agrees that breach by him of the provisions of this Article 5 will cause
the Company irreparable harm that is not fully remedied by monetary
damages.  In the event of a breach or
threatened breach by Executive of the provisions of this Article 5, the
Company shall be entitled to an injunction restraining Executive from directly
or indirectly competing or recruiting as prohibited herein, without posting a
bond or other security and, if the Company is successful in establishing a
breach of this Agreement, its reasonable attorneys’ fees and costs..  Nothing herein shall be construed as prohibiting
the Company from pursuing any other equitable or legal remedies available to it
for such breach or threatened breach, including the recovery of damages from
Executive.  Executive agrees that the
Company shall be entitled to recover its costs of litigation, expenses and
attorney fees incurred in enforcing this Agreement.


 


5.05  The
obligations contained in this Article 5 shall survive the termination of
this Agreement indefinitely.


 


6.  MISCELLANEOUS


 


6.01  Governing
Law.  This Agreement and the employment
relationship between the Company and Executive shall be governed and construed
according to the laws of the State of Minnesota without regard to conflicts of
law provisions.


 


6.02  Successors.  This Agreement is personal to Executive and
Executive may not assign or transfer any part of his rights or duties
hereunder, or any compensation due to him hereunder, to any other person or
entity.  This Agreement may be assigned
by the Company to any successor to the Company or any purchaser of its assets.


 


6.03  Waiver.  The waiver by the Company of the breach or
nonperformance of any provision of this Agreement by Executive will not operate
or be construed as a waiver of any future breach or nonperformance under any
such provision of this Agreement or any similar agreement with any other
Executive.


 


6.04  Modification.  This Agreement supersedes, revokes and
replaces any and all prior oral or written understandings, if any, between the
parties relating to the subject matter of this Agreement.  The parties agree that this Agreement: (a) is
the entire understanding and agreement


 

















 


between the parties; and (b) is the complete and
exclusive statement of the terms and conditions thereof, and there are no other
written or oral agreements in regard to the subject matter of this
Agreement.  This Agreement shall not be
changed or modified except by a written document signed by the parties hereto.


 


6.05  Severability
and Blue Penciling.  To the extent
that any provision of this Agreement shall be determined to be invalid or
unenforceable as written, the validity and enforceability of the remainder of
such provision and of this Agreement shall be unaffected.  If any particular provision of this Agreement
shall be adjudicated to be invalid or unenforceable, the Company and Executive
specifically authorize the tribunal making such determination to edit the
invalid or unenforceable provision to allow this Agreement, and the provisions
thereof, to be valid and enforceable to the fullest extent allowed by law or
public policy.


 


IN WITNESS WHEREOF the following parties have
executed the above instrument the day and year first above written.


 


	
   

  	
   

  	
  GRANITE CITY
  FOOD & BREWERY, LTD

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
  /s/ Steven
  J. Wagenheim

  
	
   

  	
   

  	
   

  	
  Steven J.
  Wagenheim, Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
  /s/ Darius
  H. Gilanfar

  
	
   

  	
   

  	
   

  	
  Darius H.
  Gilanfar