EXHIBIT 10.36


 


EXECUTIVE
EMPLOYMENT AGREEMENT — AMENDMENT NO. 1


 


JAMES
G. GILBERTSON


 


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 James G. Gilbertson, 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 November 29, 2007 (“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.             The
second paragraph of Section 4.01 is hereby amended and restated to read as
follows:


 


During the
term of employment, in addition to payments of Base Salary set forth above,
Executive shall be eligible to participate in any performance-based cash bonus
or equity award plan for senior executives of the Company based upon
achievement of individual and/or Company goals established with respect to each
fiscal year by the Board or Committee after reasonable consultation with
Executive.  Executive’s participation in
bonus plans shall be within the discretion of the Company’s Board or
Compensation Committee.  Subject to the
terms of any such plan, Executive may be eligible to receive a bonus of up to
fifty percent of his Base Salary.  Cash
bonuses may be based upon performance of CFO duties under this Agreement and
Company performance targets that are established by the Company’s Compensation
Committee for the Company’s chief executive officer and chief operating
officer.  Annual performance metrics that
may be used by the Compensation Committee may include, but not be limited to,
objective performance criteria such as revenue, IROP, G&A, opening
expenses, operating weeks and EBITDA, as well as achievement of individual
performance goals.  Any cash bonus will
be pro-rated for any partial fiscal year in which Executive’s employment may
terminate.  Cash bonuses will be paid
within thirty (30) days of the Company’s receipt of its audited financial
statements, but no later than the December 31st following the year in
which the bonus is earned.


 


2.             Section 6.04 is hereby amended and restated to read
as follows:


 

















 


6.04  Executive may terminate his employment upon
sixty (60) days prior written notice to the Company for “Good Reason.”  For purposes of this Agreement, “Good Reason”
means any of the following actions taken by the Company without Cause:


 


(a)                                  the
Company or any of its subsidiaries materially reduces Executive’s Base Salary
or base rate of annual Compensation as in effect immediately prior to the
Change of Control, or otherwise fails to provide Executive compensation and benefit
plans, arrangements, policies and procedures which, taken as a whole, are
materially less favorable to Executive than those, taken as a whole, provided
by the Company or any of its subsidiaries to Executive immediately prior to the
Change of Control;


 


(b)                                 without
Executive’s express written consent, the Company or any of its subsidiaries
significantly reduces Executive’s job authority and responsibility as the
Company’s Chief Financial Officer, as conducted on the date preceding a Change
of Control;


 


(c)                                  without Executive’s
express written consent, the Company or any of its subsidiaries requires
Executive to change the location of Executive’s job or office, so that
Executive will be based at a location more than fifty (50) miles from the
location of Executive’s job or office immediately prior to the Change of
Control;


 


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


 


(e)                                  the Company or any
successor company breaches any of the material provisions of this Agreement.


 


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.


 


3.             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 twelve (12) 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 7.02), 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 6.04)), 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 7.02) 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 6.04(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.


 


4.             Section 7.02(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.             All
the rest and 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/ Steve J.
  Wagenheim

  
	
   

  	
   

  	
   

  	
   Steven
  J. Wagenheim, Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
  /s/ James G.
  Gilbertson

  
	
   

  	
   

  	
   

  	
   James
  G. Gilbertson