EXHIBIT
10.35


 


EXECUTIVE
EMPLOYMENT AGREEMENT — AMENDMENT NO. 1


 


STEVEN
J. WAGENHEIM


 


AMENDMENT
NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT is made and
entered into effective December 30, 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 5402 Parkdale Drive, Suite 101, St. Louis Park, Minnesota
55416 (hereinafter referred to as the “Company”), and Steven J. Wagenheim, a resident of the State of Minnesota
(hereinafter referred to as “Executive”).


 


RECITAL


 


WHEREAS,
the parties desire to amend certain portions of the Executive Employment
Agreement dated June 15, 2005 (the “Agreement”) between the Company and
Executive to comply with the requirements of Code Section 409A and other
desired changes.


 


NOW,
THEREFORE, in consideration of the mutual agreements
and covenants hereinafter contained, the Agreement is hereby amended as
follows:


 


1.             Section 4.02(d) is
hereby amended and restated to read as follows:


 


(d)  Upon receipt by the Company of its
audited financial statements, the AIC due Executive, if any, shall be computed
based on Exhibit A and based on the Budget Year to Date.  This amount shall be reduced by the TICPs
made to Executive.  The AIC will be paid
within thirty (30) days of its determination as described above but not later
than the December 31st following the year in which the bonus is earned and
shall be payable from the Retained Amount, plus any additional amount paid by
the Company.  In the event that the
Company determines that the TICPs made to the Executive exceeds the AIC, the
Company shall notify Executive of the amount, if any, of such overpayment.  The Executive shall have thirty (30) days to
repay the Company.


 


2.             Section 7.01
is hereby amended and restated to read as follows:


 


7.01 
The Company, its successors or assigns, will pay Executive as severance
pay a lump sum (the “Severance Payment”) amount equal to eighteen (18) months
of the Executive’s monthly Base Salary for full-time employment at the time of
Executive’s termination:


 


(a)                                  if
(i) there has been a Change of Control of the Company (as defined in Section 7.04),
and (ii) Executive is an active and full-time employee at the time of the
Change of Control, and (iii) within twelve (12) months following the


 

















 


date of the Change of Control, Executive’s
employment is involuntarily terminated for any reason (including Good Reason
(as definition Section 7.03)), other than for Cause or death or
disability.  If prior to a Change of
Control (a) Executive’s employment is involuntarily terminated by the
Company without cause or (b) Executive terminates his employment for Good
Reason, and such termination for Good Reason (x) occurred at the request
of a person who indicated an intention, or taken steps reasonably calculated,
to effect a Change of Control or (y) otherwise occurred in connection
with, or in anticipation of, a Change of Control which actually occurs, then
the termination of Executive’s employment shall be deemed to have occurred
immediately following a Change of Control; or


 


(b)                                 the
employment of Executive is terminated by the Company without Cause, or by the
Executive for Good Reason; or


 


(c)                                  if
(i) a Change in Control (as defined in Section 7.04) occurred prior
to Executive commencing his employment with the Company, and (ii) at the
time of the Change in Control Executive had accepted employment with the
Company as indicated by his execution of this Agreement and as a result he was
no longer employed by his previous employer, and (iii) the Company decided
to not commence Executive’s employment as a result of the Change in Control.


 


Nothing in this Subsection 7.01 shall limit
the authority of the Committee or Board to terminate Executive’s employment in
accordance with Section 6.03. 
Payment of the Severance Payment pursuant to Section 7.01, less
customary withholdings, shall be made in one lump sum within thirty (30) days
of the Executive’s termination or resignation; however, such payments will be
delayed for six (6) months if the Executive terminates employment due to Section 7.03(d).  In addition, the Severance Payment shall be
reduced by the amount of cash severance-type 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; including any payment for
post-employment restrictions, provided, however, that if the amount of cash
severance benefits payable under such other severance plan, agreement, policy
or program is greater than the Severance Payment payable pursuant to this
Agreement, Executive will be entitled to receive the amounts payable under such
other plan, agreement, policy or program which exceeds the Severance
Payment.  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-type
benefits” for purposes of this Section 7.01.


 


3.             Section 7.03
is hereby amended and restated as follows:


 


7.03  “Good
Reason” will be deemed to have occurred if, after a Change in Control:


 


(a)                                  the
Company, its successors or assigns, assigns Executive position, principal
duties, responsibilities, or status materially contrary to that provided in
Sections 1.02 or 1.03 above;


 


(b)                                 the
Company, its successors or assigns, relocates Executive to a location that is
more than fifty (50) miles from the Company’s current headquarters in Minnesota;


 


(c)                                  the
Company, its successors or assigns, materially reduces Executive’s base salary
contrary to the provisions of section 4.01 hereof or fails to pay Executive any
material compensation or fringe benefits to which the Executive is entitled
within ten (10) business days of the due date; or


 


(d)                                 a
successor company fails or refuses to assume the Company’s obligations under
this Agreement;


 


(e)                                  the
Company, its successors or assigns, breaches any of its material obligations
under this Agreement and does not correct any such breach within thirty (30)
days of receiving notice thereof from Executive.


 


If Executive intends to terminate this
Agreement for Good Reason:  (i) he
must give the Company written notice of the facts or events giving rise to Good
Reason at least sixty (60) days prior to such termination, and such notice must
be given within ninety (90) days following the facts or event alleged to give
rise to Good Reason; and (ii) such grounds for Good Reason must continue
and not be remedied for a period of thirty (30) days or more following the
Company’s receipt of such notice.  The
failure to give such notice shall be deemed a waiver of the right to terminate
this Agreement for Good Reason based on such fact or event.


 


4.             Section 7.04(b) is
hereby amended and restated as follows:


 


(b)                                 individuals
who, during any twelve (12) month period, who 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


 


5.             The
remainder of the Agreement shall remain in full force and effect.


 


IN WITNESS WHEREOF
the following parties hereto have executed this Agreement effective the date
and year first above written.


 


	
   

  	
   

  	
  GRANITE
  CITY FOOD & BREWERY LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ James G. Gilbertson

  
	
   

  	
   

  	
   

  	
   James G. Gilbertson, Chief Financial
  Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Steven J. Wagenheim

  
	
   

  	
   

  	
   

  	
   Steven
  J. Wagenheim