Exhibit 10.1


 


SECOND
AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


 


This
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is
made as of this 10th day of March, 2008, and was originally made and
entered into as of September 7, 2005 and first amended and restated
effective as of April 17, 2007, by and between RED ROBIN GOURMET BURGERS,
INC., a Delaware corporation (the “Company”), and DENNIS B. MULLEN
(the “Executive”).


 


RECITAL


 


WHEREAS,
the Company, for itself and its wholly owned subsidiary, Red Robin
International, Inc., a Nevada corporation (“RRI”), entered into an
Employment Agreement with the Executive dated September 7, 2005 and
subsequently amended and restated effective April 17, 2007 (the “Amended
Agreement”) that established the Company’s right to the services of the
Executive in the capacities described below, on the terms and conditions
hereinafter set forth, and the Executive accepted such employment on such terms
and conditions;


 


WHEREAS,
the Company, for itself and RRI, desires to amend certain terms and conditions
of the Amended Agreement.


 


AGREEMENT


 


NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:


 


1.             Employment
Period.  The Company, through RRI,
hereby employs the Executive, and
the Executive hereby accepts such employment, upon the terms and conditions
hereinafter set forth.  The term of the
Executive’s employment hereunder shall be deemed to have commenced on August 11,
2005 (the “Effective Date”), and shall continue through and including December 31,
2010, subject to earlier termination as provided herein (such term being
referred to herein as the “Employment Period”).  RRI shall be the “employer” for tax, legal
reporting, payroll processing and similar purposes.


 


2.             Position and Duties.


 


(a)           During the
Employment Period, the Executive shall be the Chairman and Chief Executive
Officer of the Company, with such duties and responsibilities as are assigned
to him by the Board of Directors of the Company (the “Board”) consistent
with his position as Chairman and Chief Executive Officer of the Company.  Notwithstanding the foregoing, if, during the
Employment Period, a majority of the Board determines that the Executive should
relinquish his position as Chief Executive Officer in connection with the
hiring or promotion of another individual into such position, and the Executive
remains in his position as Chairman of the Board, this Agreement shall remain
in full force and effect (with such modifications, including appropriate
modifications to Section 2(b) and (c) and Section 3 as
are mutually agreed upon) and such change in officer position shall not
constitute a termination under Section 4 hereof.


 

















 


(b)           During the
Employment Period, the Executive shall devote substantially all of his skill,
knowledge and working time to the business and affairs of the Company and its
subsidiaries; provided, however, that the Executive may continue to serve in
his current positions as trustee and/or chairman of certain of the Janus
Funds.  The Executive shall perform his
services primarily at the Company’s headquarters in Denver, Colorado.  The Executive shall use his best efforts to
carry out his responsibilities under this Agreement faithfully and efficiently.


 


(c)           In his position as
Chairman and Chief Executive Officer, the Executive shall, subject to the
oversight of the Board and the “Authorization Limits” established from time to
time by the Board, have full authority and responsibility to manage the
operation of the Company’s restaurants and franchise system, including the
hiring and discharge of employees of the Company and its subsidiaries, closing,
selling, developing and opening restaurants as contemplated by the annual
budget approved by the Board (the “Annual Plan”), establishing and
administering the Company’s marketing plan, making improvements in and
refurbishing the Company’s restaurants consistent with the capital expenditure
budget in the Annual Plan, administering and managing the day-to-day operation
of the restaurants, granting new franchises and administering and managing the
franchise operations consistent with the Annual Plan; provided that
without the approval of the Board, the Executive shall not take any major
action not contemplated by or consistent with the Annual Plan and the Authority
Limits.


 


3.             Compensation.


 


(a)           Base Salary.  During the Employment Period, the Executive
shall receive from the Company an annual base salary (“Annual Base Salary”)
at the rate of $675,000, payable in accordance with the Company’s and RRI’s
normal payroll policy.  The Executive’s
Annual Base Salary shall be subject to annual review by the Board of Directors
during the Employment Term; provided, however, subject to the
following sentence, that so long as the Executive holds both the office of
Chief Executive Officer and Chairman of the Board, the Executive’s Annual Base
Salary may not be reduced below $675,000. 
In the event that the Executive no longer serves as Chief Executive
Officer but remains Chairman of the Board as contemplated above in Section 2(a),
his Annual Base Salary will be modified to an amount mutually agreed upon by
the Company and the Executive at such time, but in no event, without the
consent of the Executive, shall such amount be less than 50% of the Annual Base
Salary in effect immediately prior to the change in position.


 


(b)           Annual Incentive
Compensation.  In addition to the
Annual Base Salary, the Executive shall be eligible to receive a cash bonus
each fiscal year during the Employment Period as determined in accordance with
the Company’s annual incentive plan and as approved by the compensation
committee of the Board.  In the event
that the Executive no longer serves as Chief Executive Officer but remains
Chairman of the Board as contemplated above, his target cash bonus will be modified
to an amount mutually agreed upon by the Company and the Executive at such
time, but in no event, without the consent of the Executive, shall such amount
be less than 50% of the target cash bonus in effect immediately prior to the
change in position.


 


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(c)           Other Benefits.  During the Employment Period: (i) the
Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs of the Company and RRI to
the same extent as other senior executive employees, and (ii) the
Executive and/or the Executive’s family, as the case may be, shall be eligible
to participate in, and shall receive all benefits under, all welfare benefit
plans, practices, policies and programs provided by the Company and RRI
(including, to the extent provided, without limitation, medical, prescription,
dental, disability, salary continuance, employee life insurance, group life
insurance, accidental death and travel accident insurance plans and programs)
to the same extent as other senior executive employees.


 


(d)           Expenses.  During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable travel and
other expenses incurred by the Executive in carrying out the Executive’s duties
under this Agreement, provided that the Executive complies with the policies,
practices and procedures of the Company and RRI for submission of expense
reports, receipts or similar documentation of the incurrence and purpose of
such expenses (collectively referred to herein as “Expense Policies”).


 


(e)           Commuting
Expenses.  During the Employment
Period, the Company and RRI shall pay or reimburse the Executive for travel
expenses actually incurred by the Executive in commuting between Arizona and
Denver, Colorado; provided that the Executive complies with the Expense
Policies, and provided further that such expenses shall be subject to review
for reasonableness at least quarterly by the chairman of the compensation
committee of the Board.


 


(f)            Air Travel.  The Executive may fly on charter or private
aircraft to commute from Arizona to Denver, Colorado and otherwise for
appropriate business use, subject in each case to the Executive’s compliance
with the Expense Policies and the Company’s policy for non-commercial air
travel as established by the Board.


 


(g)           Automobile
Allowance.  During the Employment
Period, the Executive shall be paid a car allowance in the gross amount of
$1,000 per month.


 


(h)           Grant of
Restricted Stock.  Effective as of April 17,
2007, the Company granted to the Executive Seventy-Five Thousand (75,000)
shares of restricted Common Stock under the Company’s 2004 Performance
Incentive Plan, and otherwise on the terms and conditions set forth in the
Restricted Stock Award Agreement between the Company and the Executive.


 


(i)            The Company
reserves the right to modify, suspend or discontinue any and all of the
above-referenced employee benefit plans, practices, policies and programs at
any time without recourse by the Executive so long as such action is taken with
respect to senior executives generally and does not single out the Executive.


 


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4.             Termination.


 


(a)           Death or
Disability.  The Executive’s
employment shall terminate automatically upon the Executive’s death.  If the Company determines in good faith that
the Disability of the Executive has occurred, it may give to the Executive
written notice of its intention to terminate the Executive’s employment.  In such event, the Executive’s employment
with the Company shall terminate effective on the 30th day after receipt of
such notice by the Executive, provided that, within the 30 days after such
receipt, the Executive shall not have returned to full-time performance of his
duties.


 


(b)           Cause.  The Company may terminate the Executive’s
employment at any time for Cause.


 


(c)           Transition Event.  With the mutual approval of the Executive and
a majority of the Board, the Company may terminate the Executive’s employment
as Chief Executive Officer and Chairman of the Board in connection with the
hiring or promotion of another individual into such positions (a “Transition
Event”), by delivery of not less than thirty (30) days’ advance written
notice to the Executive of the effective date of termination.


 


(d)           By the Company
without Cause.  The Company may
terminate the Executive’s employment at any time without Cause by delivery of
not less than thirty (30) days’ advance written notice to the Executive of the
effective date of termination.  In the
event the Board determines that Executive should relinquish his position as
Chief Executive Officer as contemplated by Section 2(a) hereof, but
the parties are unable to agree on appropriate modification to this Agreement,
then so long as the modifications proposed by the Board comply with the minimum
requirements set forth in Sections 3(a) and (b) hereof, the
subsequent termination of the Executive’s employment shall have the same effect
under only this Agreement as a resignation of Executive (and shall not be
deemed a resignation under any other agreement between the Company and
Executive, including the Restricted Stock Grant Agreements dated February 27,
2007 and April 17, 2007).


 


(e)           Change in Control.  Executive’s employment shall terminate upon
the occurrence of a Change in Control Event.


 


(f)            Expiration of
Stated Term.  Unless earlier
terminated pursuant to the preceding subparagraphs of this Section 4 or by
the Executive’s earlier resignation, the Executive’s employment shall otherwise
terminate automatically upon the expiration of the stated term of this
Agreement.


 


(g)           Obligations
of the Company Upon Termination.


 


(i)            Death,
Disability or Resignation.  If the
Executive’s employment is terminated by reason of the Executive’s Death,
Disability or resignation, this Agreement shall terminate without further
obligations to the Executive or his legal representatives under this Agreement,
other than for (A) payment of the sum of (1) the Executive’s Annual
Base Salary through the date of termination to the 


 


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extent not
theretofore paid, and (2) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid (the sum
of the amounts described in clauses (1) and (2) shall be
hereinafter referred to as the “Accrued Obligations”), which Accrued
Obligations shall be paid to the Executive or his estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the effective date of
termination; (B) payment on the next bonus payment date immediately
following the effective date of termination, but no later than two and one half
months after the last day of the year that includes the effective date of
termination, of a pro rata share (determined on the basis of the number of days
during which the Executive was employed by the Company during the applicable
fiscal year prior to the effective date of termination) of the bonus that would
otherwise be payable pursuant to Section 3(b) hereof had the
Executive continued to be employed by the Company on such bonus payment date;
and (C) payment to the Executive or his estate or beneficiary, as
applicable, of any amounts due pursuant to the terms of any applicable welfare
benefit plans; provided, however, that as conditions precedent to
receiving the payments and benefits provided for in this Section 4(g)(i) in
the event of Executive’s resignation (other than payment of the Accrued
Obligations), the Executive shall first execute and deliver to the Company and
RRI a general release agreement substantially in the form attached hereto as Exhibit A,
and all rights of the Executive thereunder or under applicable law to rescind
or revoke the release shall have expired.


 


(ii)           Cause.  If the Executive’s employment is terminated
by the Company for Cause, this Agreement shall terminate without further
obligations to the Executive other than for the payment of Accrued Obligations
through the date of termination in a lump sum in cash within 30 days of the
effective date of termination.  If it is
subsequently determined that the Company did not have Cause for termination
pursuant to Section 4(b) hereof, then the Company’s decision to
terminate shall be deemed to have been made under Section 4(c) hereof,
and the amounts payable under Section 4(g)(iv) hereof shall be the
only amounts the Executive may receive on account of his termination.


 


(iii)          Transition Event.  If, prior to the expiration of the stated
term of this Agreement, the Company terminates the Executive’s employment in
connection with a Transition Event, this Agreement shall terminate without
further obligations to the Executive under this Agreement, other than for (A) 
payment of Accrued Obligations through the effective date of termination in a
lump sum in cash within 30 days of the effective date of termination, (B) payment
on the next bonus payment date immediately following the effective date of
termination, but no later than two and one half months after the last day of
the year that includes the effective date of termination, of the pro rata share
(determined on the basis on the number of days during which the Executive
served the Company during the applicable fiscal year prior to the effective
date of termination) of the bonus that would otherwise have been payable had
the Executive continued to be employed by the Company on such bonus payment
date; and (C) payment to the Executive of any amounts due pursuant to the
terms 


 


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of any applicable
welfare benefit plans; provided, however, that as conditions
precedent to receiving the payments and benefits provided for in this Section 4(g)(iii) (other
than payment of the Accrued Obligations), the Executive shall first execute and
deliver to the Company and RRI a general release agreement substantially in the
form attached hereto as Exhibit A, and all rights of the Executive
thereunder or under applicable law to rescind or revoke the release shall have
expired.


 


(iv)          Upon Change in
Control Event or by the Company without Cause.  If, prior to the expiration of the stated
term of this Agreement, the Company terminates the Executive’s employment upon
the occurrence of a Change in Control Event, for any reason other than for Cause
or other than in connection with a Transition Event, this Agreement shall
terminate without further obligations to the Executive other than:


 


(A)          payment of Accrued
Obligations through the effective date of termination in a lump sum in cash
within 30 days of the effective date of termination;


 


(B)           continued payment of
the Executive’s Annual Base Salary as in effect immediately prior to the date
of termination (such payments to be made in accordance with the Company’s
normal payroll practices) for a period consisting of (1) twenty-four (24)
months following the effective date of termination in the event of a Change in
Control Event or (2) the lesser of twelve (12) months following the
effective date of termination for any reason other than for Cause or other than
in connection with a Transition Event or the remainder of the existing
Employment Period (the applicable period, being referred to herein as the “Severance
Period”); provided that such payments made before the date which is 6
months after the effective date of termination shall not exceed twice the
lesser of (1) the sum of Executive’s Annual Base Salary and Annual
Incentive Compensation during the year prior to the year that includes the
effective date of termination, or (2) the maximum amount that may be taken
into account under a qualified plan pursuant to Section 401(a)(17) of the
Code ($230,000 in 2008), and any excess amount shall be included in the payment
made to Executive on the regular pay date coincident with or next following the
date which is 6 months after the effective date of termination;


 


(C)           (1) upon a
Change in Control Event, two times the annual bonus amount earned by the
Executive for performance in the last completed calendar year prior to the
Change in Control Event for which bonuses have been paid or are payable (which
annual bonus may be in the aggregate if the Executive has earned more than one
bonus payment for such calendar year), or (2) upon a termination for any
reason other than for Cause or other than in connection with a Transition
Event, payment on the next bonus payment date immediately following the
effective date of 


 


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termination, but
no later than two and one half months after the last day of the year that
includes the effective date of termination, of the pro rata share (determined
on the basis on the number of days during which the Executive served the
Company during the applicable fiscal year prior to the effective date of
termination) of the bonus that would otherwise have been payable had the
Executive continued to be employed by the Company on such bonus payment date,
subject in each case of the benefits in clauses (A), (B) and (C) to
standard withholdings and other authorized deductions; and


 


(D)          payment (or reimbursement
to the Executive) of the cost of continuing coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or otherwise, if
COBRA does not apply, for the Executive and his spouse under the Company’s and
RRI’s then existing medical, dental and prescription insurance plans for the
Severance Period, provided that Executive elects such continuing coverage in
accordance with the requirements of each such plan (provided that during any
period when the Executive is eligible to receive such benefits under any
employer-provided plan or through any government-sponsored program such as
Medicare, the benefits provided under this clause (D) may be made
secondary to those provided under such other plan);


 


provided, however, that as conditions
precedent to receiving the payments and benefits provided for in this Section 4(g)(iv) (other
than payment of the Accrued Obligations), the Executive shall first execute and
deliver to the Company and RRI a general release agreement substantially in the
form attached hereto as Exhibit A, and all rights of the Executive
thereunder or under applicable law to rescind or revoke the release shall have
expired.


 


(v)           Expiration of
Stated Term.  In the event that the
Executive’s employment is otherwise terminated by reason of the expiration of
the term of this Agreement, the Company shall have no further obligations to
the Executive other than for (A) the timely payment of Accrued Obligations
through the date of termination; (B) payment on the next bonus payment date
immediately following the effective date of termination of a pro rata share
(determined on the basis of the number of days during which the Executive was
employed by the Company during the applicable fiscal year prior to the
effective date of termination) of the bonus that would otherwise be payable
pursuant to Section 3(b) hereof had the Executive continued to be
employed by the Company on such bonus payment date; and (C) payment to the
Executive of any amounts due pursuant to the terms of any applicable welfare
benefit plans.


 


(vi)          Exclusive Remedy.  The Executive agrees that the payments
contemplated by this Section 4(g) shall constitute the exclusive and
sole remedy for any termination of his employment, and the Executive covenants
not to assert 


 


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or pursue any
other remedies, at law or in
equity, with respect to any termination of employment; provided,  however,
that nothing contained in this Section 4(g)(vi) shall prevent the
Executive from otherwise challenging in a subsequent arbitration proceeding a
determination by the Company that it was entitled to terminate the Executive’s
employment hereunder for Cause.


 


(h)           Survival of
Certain Obligations Following Termination. 
Notwithstanding any other provision contained in this Agreement, the
provisions in Sections 6 through 21 of this Agreement shall survive any
termination of the Executive’s employment hereunder (but shall be subject to
the Executive’s right to receive the payments and benefits provided under this Section 4).


 


5.             Stated
Term.  Subject to earlier termination
pursuant to Section 4 above, the term of this Agreement shall be deemed to
have commenced as of the Effective Date and shall continue through December 31,
2010.


 


6.             Confidential
Information.  The Executive shall not
disclose to any person or entity or use, any information not in the public
domain, in any form, acquired by the Executive while he was employed or
associated with the Company or RRI or, if acquired following the termination of
such association, such information which, to the Executive’s knowledge, has
been acquired, directly or indirectly, from any person or entity owing a duty
of confidentiality to the Company or RRI, relating to the Company or its
business.  The Executive agrees and
acknowledges that all of such information, in any form, and copies and extracts
thereof are and shall remain the sole and exclusive property of the Company,
and the Executive shall on request return to the Company the originals and all
copies of any such information provided to or acquired by the Executive in
connection with his association with the Company or RRI, and shall return to
the Company all files, correspondence and/or other communications received,
maintained and/or originated by the Executive during the course of such
association.


 


7.             Covenant
Not to Compete.  The Executive agrees
that, for the period commencing on the Effective Date and ending on the second
anniversary of the later to occur of (a) the date of termination of
Executive’s employment as Chief Executive Officer and (b) the date that
Executive ceases to serve as Chairman, including due to expiration of the
Employment Period (the “Restrictive Period”), the Executive shall not,
in the Territory (hereinafter defined), directly or indirectly, either for
himself or for, with or through any other Person, own, manage, operate,
control, be employed by, participate in, loan money to or be connected in any
manner with, or permit his name to be used by, any business that, in the reasonable
judgment of the Board, competes with the Company and its subsidiaries in the
casual dining restaurant business (a “Competitive Activity”).  In making its judgment as to whether any
business is engaged in a Competitive Activity, the Board shall act in good
faith, and shall first provide the Executive with a reasonable opportunity to
present such information as the Executive may desire for the Board’s
consideration.  For purposes of this
Agreement, the term “participate” includes any direct or indirect interest,
whether as an officer, director, employee, partner, sole proprietor, trustee,
beneficiary, agent, representative, independent contractor, consultant,
advisor, provider of personal services, creditor, owner (other than by
ownership of less than five percent of the stock of a publicly-held corporation
whose stock is traded on a national securities exchange or in the 


 


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NASD National Market (a “Public Company”).  “Territory” means North America and
the territories of the United States in the Caribbean, including Puerto Rico.


 


8.             No
Interference.  During the Restrictive
Period, the Executive shall not, without the prior written approval of the
Company, directly or indirectly through any other Person (i) induce or
attempt to induce any employee of the Company or RRI at the level of assistant
store manager or higher to leave the employ of the Company or RRI, or in any
way interfere with the relationship between the Company or RRI and any employee
thereof, (ii) hire any Person who was an employee of the Company or RRI at
the level of assistant store manager or higher within twelve months after such
Person’s employment with the Company or RRI was terminated for any reason or (iii) induce
or attempt to induce any supplier or other business relation of the Company or
RRI to cease doing business with the Company or RRI, or in any way interfere
with the relationship between any such supplier or business relation and the
Company or RRI.


 


9.             Return
of Documents.  In the event of the
termination of the Executive’s employment for any reason, the Executive shall
deliver to the Company all of (i) the property of the Company or any of
its subsidiaries, and (ii) non-personal documents and data of any nature
and in whatever medium of the Company or any of its subsidiaries, and he shall
not take with him any such property, documents or data or any reproduction
thereof, or any documents containing or pertaining to any Confidential
Information.


 


10.           Reasonableness
of Restrictions.  The Executive
agrees that the covenants set forth in Sections 6, 7, 8 and 9 are
reasonable with respect to their duration, geographical area and scope.  In the event that any of the provisions of
Sections 6, 7, 8, and 9 relating to the geographic or temporal scope of
the covenants contained therein or the nature of the business or activities
restricted thereby shall be declared by a court of competent jurisdiction to
exceed the maximum restrictiveness such court deems enforceable, such provision
shall be deemed to be replaced herein by the maximum restriction deemed
enforceable by such court.


 


11.           Injunctive
Relief.  The parties hereto agree
that the Company would suffer irreparable harm from a breach by the Executive
of any of the covenants or agreements contained herein, for which there is no
adequate remedy at law.  Therefore, in
the event of the actual or threatened breach by the Executive of any of the
provisions of this Agreement, the Company, or its respective successors or
assigns, may, in addition and supplementary to other rights and remedies
existing in their favor, apply to any court of law or equity of competent
jurisdiction for specific performance, injunctive or other relief in order to
enforce compliance with, or prevent any violation of, the provisions hereof;
and that, in the event of such a breach or threat thereof, the Company shall be
entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in activities
prohibited hereby or such other relief as may be required to specifically
enforce any of the covenants contained herein.


 


12.           Extension
of Restricted Periods.  In addition
to the remedies the Company may seek and obtain pursuant to this Agreement, the
restricted periods set forth herein shall be extended by any and all periods
during which the Executive shall be found by a court to have been in violation
of the covenants contained herein.


 


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13.           Definitions.  As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:


 


“Cause”
means with respect to the termination by the Company of the Executive as an
employee of the Company:


 


(i)            the Executive’s
continual or deliberate neglect in the performance of his material duties;


 


(ii)           the Executive’s
failure to devote substantially all of his working time to the business of the
Company and its subsidiaries (other than as expressly permitted in this
Agreement);


 


(iii)          the Executive’s
willful failure to follow the lawful directives of the Board in any material
respect;


 


(iv)          the Executive’s
engaging willfully in misconduct in connection with the performance of any of
his duties, including, without limitation, falsifying or attempting to falsify
documents, books or records of the Company or its subsidiaries,
misappropriating or attempting to misappropriate funds or other property, or
securing or attempting to secure any personal profit in connection with any
transaction entered into on behalf of the Company or its subsidiaries;


 


(v)           the violation by the
Executive, in any material respect, of any policy or of any code or standard of
behavior or conduct generally applicable to employees of the Company or its
subsidiaries;


 


(vi)          the Executive’s
breach of the material provisions of this Agreement or any other
non-competition, non-interference, non-disclosure, confidentiality or other
similar agreement executed by the Executive with the Company or any of its subsidiaries
or other active disloyalty to the Company or any of its subsidiaries
(including, without limitation, aiding a competitor or unauthorized disclosure
of confidential information); or


 


(vii)         the Executive’s
engaging in conduct which is reasonably likely to result in material injury to
the reputation of the Company or any of its subsidiaries, including, without
limitation, commission of a felony, fraud, embezzlement or other crime
involving moral turpitude, or sexual harassment.


 


“Change in Control Event” means:


 


(i)            The acquisition by
any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act (a “Person”)) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
more than 30% or more of either (1) the then-outstanding shares of common
stock of the Company (the “Outstanding Company Common Stock”) or (2) the
combined voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors 


 


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(the “Outstanding
Company Voting Securities”); provided, however, that, for purposes of this
definition, the following acquisitions shall not constitute a Change in Control
Event; (A) any acquisition directly from the Company, (B) any
acquisition by the Company, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any affiliate
of the Company or a successor, or (D) any acquisition by any entity
pursuant to a transaction that complies with subsections (iii)(A), (B) and
(C) below;


 


(ii)           In the event the
Board is a classified board, a majority of the individuals who serve in the
same class of directors that constitute the Board as of the Effective Date (the
“Incumbent Board”) cease for any reason to constitute at least a
majority of that class of directors, or in the event the Board is not a
classified board, members of the Incumbent Board cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Effective Date whose election,
or nomination for election by the Company’s stockholders, was approved by a
vote of at least two-thirds of the directors then comprising the Incumbent
Board (including for these purposes, the new members whose election or
nomination was so approved, without counting the member and his predecessor
twice) shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board;


 


(iii)          Consummation of a
reorganization, merger, statutory share exchange or consolidation or similar
corporate transaction involving the Company or any of its Subsidiaries, a sale
or other disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company or any
of its Subsidiaries (each, a “Business Combination”), in each case
unless, following such Business Combination, (A) all or substantially all
of the individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common stock and
the combined voting power of the then-outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without limitation, an
entity that, as a result of such transaction, owns the Company or all or
substantially all of the Company’s assets directly or through one or more
subsidiaries (a “Parent”)) in substantially the same proportions as
their ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities,
as the case may be, (B) no Person (excluding any entity resulting from such
Business Combination or a Parent or any employee benefit plan (or related
trust) of the Company or such entity resulting from such Business Combination
or Parent) beneficially owns, directly or indirectly, more than 30% of,
respectively, the then-


 


11

















 


outstanding shares
of common stock of the entity resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of such entity,
except to the extent that the ownership in excess of more than 30% existed
prior to the Business Combination, and (C) at least a majority of the
members of the board of directors or trustees of the entity resulting from such
Business Combination or a Parent were members of the Incumbent Board at the
time of the execution of the initial agreement or of the action of the Board
providing for such Business Combination; or


 


(iv)          Approval by the
stockholders of the Company of a complete liquidation or dissolution of the
Company;


 


provided, however, that any of the foregoing events
shall constitute a Change in Control Event only if Executive’s
employment with the Company as Chairman of the Board or as Chief Executive
Officer is involuntarily terminated for a reason other than Cause or Executive
voluntary terminates for Good Reason within eighteen (18) months following such
Change of Control Event.


 


 “Disability” means a physical or mental
impairment which substantially limits a major life activity of the Executive
and which renders the Executive unable to perform the essential functions of
his position, even with reasonable accommodation which does not impose an undue
hardship on the Company.  The Company
reserves the right, in good faith, to make the determination of disability
under this Agreement based upon information supplied by the Executive and/or
his medical personnel, as well as information from medical personnel (or
others) selected by the Company or its insurers.


 


“Good
Reason” means the occurrence of any of the following after the applicable
Change in Control Event: (i) a reduction in Executive’s compensation; (ii) a
relocation of the Company’s headquarters to a location more than twenty (20)
miles from the location of the Company’s pre-Change of Control Event
headquarters; or (iii) a significant reduction in the then-effective
responsibilities of Executive as Chairman of the Board or Chief Executive
Officer without Executive’s prior written consent; provided that Executive
gives written notice to the Company  of
the existence of such a condition within 90 days of the initial existence of
the condition and the Company has at least 30 days from the date when such
notice is provided to cure the condition without being required to make
payments due to termination by the Company upon Change in Control Event.


 


14.           Arbitration.  Any controversy arising out of or relating to
this Agreement, its enforcement or interpretation, or because of an alleged
breach, default, or misrepresentation in connection with any of its provisions,
or any other controversy arising out of the Executive’s employment, including,
but not limited to, any state or federal statutory claims, shall be submitted
to arbitration in Denver, Colorado, before a sole arbitrator selected from
Judicial Arbiter Group, Inc., Denver, Colorado, or its successor (“JAG”),
or if JAG is no longer able to supply the arbitrator, such arbitrator shall be
selected from the Judicial Arbitration and Mediation Services, Inc., (“JAMS”)
or other mutually agreed upon arbitration provider, as the exclusive forum for
the resolution of such dispute. 
Provisional injunctive relief may, but need not, be sought by either
party to this Agreement in a court of law while arbitration proceedings are 


 


12

















 


pending, and any provisional injunctive relief granted
by such court shall remain effective until the matter is finally determined by
the Arbitrator.  Final resolution of any
dispute through arbitration may include any remedy or relief which the
Arbitrator deems just and equitable, including any and all remedies provided by
applicable state or federal statutes.  At
the conclusion of the arbitration, the Arbitrator shall issue a written
decision that sets forth the essential findings and conclusions upon which the
Arbitrator’s award or decision is based. 
Any award or relief granted by the Arbitrator hereunder shall be final
and binding on the parties hereto and may be enforced by any court of competent
jurisdiction.  The parties acknowledge
and agree that they are hereby waiving any rights to trial by jury in any
action, proceeding or counterclaim brought by either of the parties against the
other in connection with any matter whatsoever arising out of or in any way
connected with this Agreement or the Executive’s employment.  The parties agree that Company shall be
responsible for payment of the forum costs of any arbitration hereunder,
including the Arbitrator’s fee.  The
Executive and the Company further agree that in any proceeding to enforce the
terms of this Agreement, the prevailing party shall be entitled to its or his
reasonable attorneys’ fees and costs incurred by it or him in connection with
resolution of the dispute in addition to any other relief granted.


 


15.           Governing
Law.  This Agreement and the legal
relations hereby created between the parties hereto shall be governed by and
construed under and in accordance with the internal laws of the State of
Colorado, without regard to conflicts of laws principles thereof.


 


16.           Taxes.


 


(a)           Except
as otherwise provided in Section 20, and to the extent specifically
provided in Section 17, Executive shall be solely liable for Executive’s
tax consequences of compensation and benefits payable under this Agreement,
including any consequences of the application of Section 409A of the Code.


 


(b)           In
order to comply with all applicable federal or state income tax laws or
regulations, the Company may withhold from any payments made under this
Agreement all applicable federal, state, city or other applicable taxes.


 


17.           Section 409A
Savings Clause.


 


(a)           It is the intention
of the parties that compensation or benefits payable under this Agreement not
be subject to the additional tax imposed pursuant to Section 409A of the
Code.  To the extent such potential
payments or benefits could become subject to such Section, the parties shall
cooperate to amend this Agreement with the goal of giving Executive the
economic benefits described herein in a manner that does not result in such tax
being imposed.


 


(b)           Notwithstanding
anything in this Agreement to the contrary, if on the date of termination of
Executive’s employment with the Company,


 


(i)            Executive
would not have a separation from service within the meaning of Section 409A
of the Code and the Treasury Regulations thereunder (“Separation From Service”),
and as a result of such termination of employment would receive any payment
that, absent the application of this Section 17(b)(i), 


 


13

















 


would
be subject to additional tax imposed pursuant to Section 409A of the Code,
then such payment shall instead be payable on the date that is the earliest of (A) Executive’s
Separation From Service, (B) the date the Executive becomes disabled
(within the meaning of Section 409A(a)(2)(C) of the Code), (C) the
Executive’s death, or (D) such other date as will not result in such
payment being subject to such additional tax; and if


 


(ii)           Executive
is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of
the Code and would receive any payment sooner than 6 months after
Executive’s separation from service that, absent the application of this Section 17(b)(ii),
would be subject to additional tax imposed pursuant to Section 409A of the
Code as a result of such status as a specified employee, then such payment
shall instead be payable on the date that is the earliest of (A) 6 months
after Executive’s Separation From Service, (B) the Executive’s death, or (C) such
other date as will not result in such payment being subject to such additional
tax.


 


18.           Entire
Agreement.  This Agreement (including
Exhibits) constitutes and contains the entire agreement and final understanding
concerning the Executive’s employment with the Company and the other subject
matters addressed herein between the parties. 
It is intended by the parties as a complete and exclusive statement of
the terms of their agreement.  It
supersedes and replaces all prior negotiations and all agreements proposed or
otherwise, whether written Or oral, concerning the subject matter hereof.  Any representation, promise or agreement not
specifically included in this Agreement shall not be binding upon or
enforceable against either party.  This
is a fully integrated agreement.


 


19.           Amendment
and Waiver.  The provisions of this
Agreement may be amended or waived only with the prior written consent of the
Board (or a person expressly authorized thereby) and the Executive, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.


 


20.           Gross-Up
Payments.


 


(a)           Anything in this
Agreement to the contrary notwithstanding and except as set forth below, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Agreement) (a “Payment”) would be subject to the excise tax imposed by
Code Section 4999 or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the “Excise
Tax”), then the Executive shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that after payment by
the Executive of all taxes imposed upon the Gross-Up Payment (including any
interest or penalties imposed with respect to such taxes), the Executive
retains an amount of the Gross-Up Payment equal to the excise tax imposed upon
the Payments.  Such Gross-Up Payment
shall be made by 


 


14

















 


the Company by December 31
of the year following the year in which the Executive is required to remit the
related Excise Tax.  This provision is
intended to override the cut-back provisions of Section 7.7 of the Company’s
2004 Performance Incentive Plan. 
Notwithstanding the foregoing provisions of this Section, if it is
determined that the Executive is entitled to a Gross-Up Payment, but that the
Payments do not exceed by $25,000 the greatest amount that could be paid to the
Executive such that the receipt of Payments would not give rise to any excise
tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to
the Executive and the Payments, in the aggregate, shall be reduced to the
Reduced Amount.


 


(b)           Subject to the
provisions of Section 20(c) below, all determinations required to be
made under this Section 20, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a certified public
accounting firm designated by the Board (the “Accounting Firm”) which
shall provide detailed supporting calculations both to the Company and the
Executive.  If the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control Event, the Board shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder).  All fees and expenses of the
Accounting Firm shall be borne solely by the Company.


 


(c)           If the Executive is,
or could be, entitled to receive a Gross-Up Payment, pursuant to Section 20(a) the
Executive shall take any position requested by the Company (a “Requested
Position”) on the Executive’s federal income tax returns with respect to
the treatment of the Payment from the Company, any Gross-Up Payment, the
payment of any Indemnified Amount (as defined below), and the receipt of any
refund or interest paid by the government to the Executive as a result of a
Contest (as defined below), provided that: (i) the Company shall provide
the Executive with an opinion from a nationally recognized accounting firm that
there is “substantial authority” for the Requested Position within the meaning
of Code Section 6662; and (ii) the general long term or senior
unsecured corporate credit rating of the Company or its successor is at least
BBB- as rated by Standard & Poors and Baa3 as rated by Moody’s
Investor Services at the time the Executive would be required to take a
Requested Position or the Company places in an escrow account or otherwise
provides security reasonably requested by Executive to ensure payment to the
Executive of the indemnity amount that could become due to the Executive
pursuant to the following sentence.  The
Company shall indemnify the Executive for any tax, penalty and interest
incurred by him as a result of taking the Requested Position.  The amount for which the Executive is
indemnified under the preceding sentence (the “Indemnified Amount”)
shall be computed on an after-tax basis, taking into account any income, Excise
or other taxes, including interest and penalties.  The Executive shall keep the Company informed
of all developments in any audit with respect to a Requested Position.  Upon payment of the Indemnified Amount, or
(if the Indemnified Amount is not yet payable) upon the Company’s written
affirmation, in form and substance reasonably satisfactory to the Executive, of
the Company’s obligation to indemnify the Executive with respect to the
Requested Position, and provided part (ii) of the first sentence of
this Section 20(c) is satisfied at such time, the Company shall be 


 


15

















 


entitled, at its
sole expense, to control the contest of any disallowance or proposed
disallowance of a Requested Position (a “Contest”), and the Executive
agrees to cooperate in connection with a Contest, including, without
limitation, executing powers of attorney and other documents at the reasonable
request of the Company.  The Indemnified
Amount shall be payable whenever an amount is payable to the Internal Revenue
Service as a result of the disallowance of a Requested Position, but shall be
paid no later than December 31 of the year following the year in which
such amount is payable to the Internal Revenue Service.  Following payment by the Company of the
Indemnified Amount, if the Requested Position is sustained by the Internal
Revenue Service or the courts, the Company shall be entitled to any resulting
receipt of interest or refund of taxes, interest and penalties that were
properly attributable to the Indemnified Amount.  If a Requested Position is sustained in whole
or in part in a final resolution of a Contest, and if the Indemnified Amount
therefore exceeds the amount of taxes, penalties and interest payable by the
Executive as a result of the Requested Position (determined on an after-tax
basis after taking into account payments made pursuant to the preceding
sentence and this sentence), any such excess portion of the Indemnified Amount
shall be treated as a loan by the Company to the Executive, which loan the
Executive must repay to the Company together with interest at the applicable
federal rate under Code Section 7872(f)(2).


 


21.           Miscellaneous.


 


(a)           Binding Effect.  This Agreement is intended to bind and inure
to the benefit of and be enforceable by the Executive, the Company and their
respective heirs, successors and assigns, except that the Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company.


 


(b)           Notices.  All notices required to be given hereunder
shall be in writing and shall be deemed to have been given if (i) delivered
personally or by documented courier or delivery service, (ii) transmitted
by facsimile during normal business hours or (iii) mailed by registered or
certified mail (return receipt requested and postage prepaid) to the following
listed persons at the addresses and facsimile numbers specified below, or to
such other persons, addresses or facsimile numbers as a party entitled to
notice shall give, in the manner hereinabove described, to the others entitled
to notice:


 


(i)            If
to the Company, to:


 


Red
Robin Gourmet Burgers, Inc.

6312 South Fiddler’s Green Circle, Suite 200N 

Greenwood Village, CO  80111 

Attention:  Board of Directors, Lead
Director and General Counsel

Facsimile No.:  303-846-6048


 


with a copy to:


 


Davis
Graham & Stubbs LLP

1550 Seventeenth Street, Suite 500


 


16

















 


Denver,
Colorado  80202 

Attention: Ronald R. Levine, II 

Facsimile No.:  303-893-1379


 


If to the Executive, to:


 


Dennis B.
Mullen

c/o Red Robin Gourmet Burgers, Inc.

6312 South Fiddler’s Green Circle, Suite 200N 

Greenwood Village, CO  80111

E-mail:  dmullen@redrobin.com


 


with a copy to:


 


Roger C. Cohen, Esq.

Snell & Wilmer 

Tabor Center

1200 Seventeenth Street, Suite 1900

Denver, Colorado  80202

Facsimile No.:  (303) 634-2020


 


If given personally or by
documented courier or delivery service, or transmitted by facsimile, a notice
shall be deemed to have been given when it is received.  If given by mail, it shall be deemed to have
been given on the third business day following the day on which it was posted.


 


(c)           Headings.  The section and other headings contained in
this Agreement are for the convenience of the parties only and are not intended
to be a part hereof or to affect the meaning or interpretation hereof


 


(d)           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


(e)           Construction.  Each party has cooperated in the drafting and
preparation of this Agreement.  Hence, in
any construction to be made of this Agreement, the same shall not be construed
against any party on the basis that the party was the drafter.


 


(f)            Savings Clause.  If any provision of this Agreement or the
application thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given effect without
the invalid provisions or applications and to this end the provisions of this
Agreement are declared to be severable.


 


[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


 


17

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


	
   

  	
  RED ROBIN GOURMET BURGERS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward T. Harvey

  
	
   

  	
   

  	
  Edward T. Harvey, Lead Director

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis B. Mullen

  
	
   

  	
   

  	
  Dennis B. Mullen

  



 


18

















 


STRICTLY
CONFIDENTIAL


 


EXHIBIT A


 


GENERAL RELEASE


 


1.                                      Definitions.


 


I intend all words used
by this Release to have their plain meanings in ordinary English.  These terms shall have the following
meanings:


 


A.                                   I, me, my and Releasor mean
me and anyone who has or obtains any legal rights or claims through me.


 


B.                                     Employer means: 
(i) Red Robin Gourmet Burgers, Inc. and Red Robin
International, Inc. (collectively, the “Company”), (ii) any company
related to the Company in the past or present, (iii) the past and present
officers, directors, employees, shareholders, attorneys, agents and
representatives of the Company, (iv) any present or past employee benefit
plan sponsored by the Company and/or officers, directors, trustees,
administrators, employees, attorneys, agents and representatives of such plan, (v) and
any person who acted on behalf of the Company on instruction from the Company.


 


C.                                     Employment Agreement means that certain Second Amended and
Restated Employment Agreement dated as of March 10, 2008, between me and
the Company.


 


D.                                    My claims means all of my rights to any relief of
any kind from the Employer, including but not limited to:


 


1.                                       All claims I now have, whether or not I
now know about such claims, including all claims arising out of or relating to
my past employment with Employer, the termination of that employment or
statements or actions of the Employer including, but not limited to: breach of
contract; defamation; infliction of emotional distress; wrongful discharge;
workers’ compensation retaliation; violation of the Age Discrimination in
Employment Act of 1967; Fair Labor Standards Act; Title VII of the Civil Rights
Act of 1964; the Civil Rights Acts of 1866 and 1871; the Civil Rights Act of
1991; the Family and Medical Leave Act; the National Labor Relations Act; The
Americans with Disabilities Act; COBRA; ERISA; the anti-discrimination laws of
the state in which I reside and of any other state; the Wage Claim Act or
corresponding statute of the state in which I reside; and/or any other federal,
state or local statute, law, ordinance, regulation, order or principle of
common law;


 


2.                                       All claims I have now, whether or not I
know about the claims, for any type of relief from the Employer, including, but
not limited to, all claims for back pay, front pay, lost benefits,
reinstatement, liquidated damages, punitive damages, and damages for any
alleged breach of contract, any tort claim and any alleged personal injury or
emotional injury or damage; and


 


B-1

















 


3.                                       All claims for attorneys’ fees;


 


but  excluding my rights to receive
payments and benefits pursuant to Section 4(e)(iv) of my Employment
Agreement.


 


2.                                      Agreement to Release My Claims.


 


In exchange for my right
to receive payments and other benefits under Section 4(e)(iv) of my
Employment Agreement, I agree to give up all My Claims against the Employer and
give up all other actions, causes of action, claims or administrative
complaints that I have against the Employer. 
I will not bring any lawsuits or administrative claims against the
Employer relating to the claims that I have released nor will I allow any
lawsuits or claims to be brought or continued on my behalf or in my name.  The money and other consideration I receive
pursuant to Section 4(e)(iv) of my Employment Agreement is a full and
fair payment for the release of My Claims and the Employer does not owe me
anything further for My Claims.  Separate
from this agreement, I will also receive any compensation due me for the last
pay period during which I was an employee of Employer and compensation for
earned vacation pay.  My rights to
receive the other payments and benefits due under Section 4(e)(iv) of
my Employment Agreement shall be effective only after receipt by the Employer
of this Release, signed by me and properly notarized, and after the expiration
of the seven (7) day revocation period mentioned in Section 5,
below.  I understand that I will not
receive any payments due me under Section 4(e)(iv) of my Employment
Agreement (other than payment of the Accrued Obligations under clause (1) thereof)
if I revoke or rescind this Release, and in any event, until after the seven (7) day
revocation period has expired.


 


I further agree to:


 


A.                                   Reimburse the Employer for any cost;
loss; expense, including reasonable attorneys’ fees; awards or judgments
resulting from my failure to perform my obligations under this Release or under
my Employment Agreement or from any misstatement or omission I have made in
this Release; and


 


B.                                     Indemnify, defend and save harmless the
Employer from any costs, liability or expense, including reasonable attorneys’
fees, arising from the taxation, if any, of any amounts received by me pursuant
to this Release, including but not limited to any penalties or administrative
expenses.


 


3.                                      Additional Agreement and
Understandings.


 


Even though the Employer
will pay me to settle and release My Claims, the Employer does not admit that
it is legally obligated to me, and the Employer denies that it is responsible
or legally obligated for My Claims or that it has engaged in any improper
conduct or wrongdoing against me.


 


I have read this Release
carefully and understand its terms.  I am
hereby being advised by the Employer to consult with an attorney prior to
signing this Release.  My decision to
sign or not to sign this Release is my own voluntary decision made with full
knowledge 


 


B-2

















 


that the Employer has
advised me to consult with an attorney. 
In agreeing to sign this Release, I have not relied on any statement or
explanation of my rights or obligations made by the Employer or its attorneys.


 


I am old enough to sign
this Release and to be legally bound by the agreements that I am making.  I represent that I have not filed for
personal bankruptcy or been involved in any personal bankruptcy proceeding
between the time any of My Claims accrued and date of my signature below.  I am legally able and entitled to receive the
entire sum of money being paid to me by the Employer in settlement of My
Claims.  I have not assigned or pledged
any of My Claims or any portion of them to any third person.  I am a resident of the State of
                    
and have executed this Release within the State of
                    .  I understand and agree that this Release contains
all the agreements between the Employer and me relating to this settlement, and
that it supersedes all prior negotiations and agreements relating to the
subject matter hereof.


 


4.                                      Twenty-One Day Period to Consider
the Release.


 


I understand that I have
twenty-one (21) days from the day that I receive this Release, not counting the
day upon which I receive it, to consider whether I wish to sign this
Release.  If I cannot make up my mind in
that time, the Employer may or may not allow more time.  I acknowledge that if I sign this Release
before the end of the twenty-one (21) day period, it will be my personal,
voluntary decision to do so.


 


5.                                      Seven Day Period to Rescind the
Release.


 


I understand that I may
rescind (that is, cancel) this Release for any reason within seven (7) calendar
days after I sign and deliver it to the Employer.  I understand that my notice rescinding this
agreement must be in writing and hand-delivered or mailed to the Employer.  If mailed, my notice rescinding this
agreement must be:


 


A.                                   Postmarked within seven (7) days
after I sign and deliver this agreement to the Employer;


 


B.                                     Properly addressed to:                                                                        Red Robin Gourmet Burgers, Inc.

Red Robin International, Inc.

6312 South Fiddler’s Green Circle, Suite 200 North 

Greenwood Village, CO  80111 

Attention:  Chief Legal Officer


 


and


 


C.                                     Sent by certified mail, return receipt
requested, postage pre-paid.


 


6.                                      Confidentiality.


 


I understand that part of
the consideration paid to me by the Employer is in consideration for my
agreement to keep the fact of this Release and its terms strictly confidential,
except as required by law.  I may not discuss,
disclose or reveal, directly or indirectly, the 


 


B-3

















 


fact of this Release or
its terms or conditions to any person, corporation, or other entity, other than
to my accountant, legal advisor and members of my immediate family who (prior
to disclosure to them) shall likewise agree in writing to maintain the
confidentiality of this Release.  Neither
may I provide any information, assistance or encouragement of any kind to any
person firm or corporation concerning the investigation or prosecution of any
claim against the Employer, except pursuant to EEOC requirements or court
order.  If I violate the terms of this Section 6,
I shall be liable to the
Employer for the return of all payments made pursuant to Section 4(e)(iv) of
my Employment Agreement (other than payment of the Accrued Obligations
thereunder and for the Employer’s costs and attorneys’ fees in any action
brought to enforce the provisions of this Section 6.  The parties agree that fixing the amount of
damages caused by my breach of this Section 6 would be difficult or
impossible to ascertain, that the amount for which I would become liable to
Employer upon my breach of my obligations under this Section 6 is a fair
and reasonable estimate of the damages that Employer may sustain as a result of
my breach.  On that basis, the amount I
have agreed to pay to Employer upon my breach of my obligations under this Section 6
shall be payable as liquidated damages for my breach and not as a penalty.


 


7.                                      Non-Disparagement.


 


I agree that I will not,
directly or indirectly, make or ratify any statement, public or private, oral
or written, to any person that disparages, either professionally or personally,
the Company or its parents, subsidiaries and affiliates, past and present, and
each of them, as well as its and their trustees, directors, officers, agents,
attorneys, insurers, employees, stockholders, representatives, assigns, and
successors, past and present, and each of them.


 


8.                                      Survival of Certain Provisions of
Employment Agreement.


 


Sections 6
through 21 of the Employment Agreement shall survive the termination of my
employment and are incorporated herein by reference as if fully set forth.


 


9.                                      Choice of Law.


 


This Release shall be
deemed to have been executed and delivered within the State of Colorado, and my
rights and obligations and the rights and obligations of the Employer hereunder
shall be construed and enforced in accordance with, and governed by, the laws
of the State of Colorado without regard to principles of conflict of laws.


 


10.                               Arbitration.


 


Any dispute or
controversy arising out of interpretation or enforcement of this Release shall
be resolved pursuant to the terms set forth in Section 14 of the
Employment Agreement.


 


11.                               Severability.


 


If any provision of this
Release is declared by any court of competent jurisdiction to be invalid for
any reason, such invalidity shall not affect the remaining provisions.  On the 


 


B-4

















 


contrary, such remaining
provisions shall be fully severable, and
this Release shall be construed and enforced as if such invalid provisions
never had been inserted in the Release.


 


RELEASOR


 


	
   

  	
   

  
	
  Dennis B. Mullen

  	
   

  
	
  Date:

  	
   

  	
   

  
			



 


	
  STATE OF

  	
   

  	
  )

  
	
  COUNTY OF

  	
   

  	
  ) ss:

  



 


Subscribed and
sworn to me a Notary Public in and for the state of
                                        
by
                                        
this                     
day of
                                        ,
200    .


 


	
   

  	
   

  
	
   

  	
  Notary Public in
  and for the State of

  	
   

  
	
   

  	
  My commission
  expires:

  	
   

  
				



 


ACCEPTED FOR EMPLOYER:


 


RED ROBIN GOURMET BURGERS, INC.


RED ROBIN INTERNATIONAL, INC.


 


	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  



 


B-5