Exhibit 10.1


 





AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


 


THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Agreement”) between Ryan M. Zink (the “Executive”) and Good Times Restaurants Inc.
(“Good Times”) is made and entered into this 6th day of April, 2020 (the “Effective Date”).


 


BACKGROUND


 


WHEREAS, the Executive
entered into an Employment Agreement with Good Times on July 18, 2017, as amended and restated on August 5, 2019.


 


WHEREAS, the Executive
and Good Times desire to change the Executive’s capacity and duties as set forth in Article 3, to a description that is current
at this Effective Date.


 


WHEREAS, on April 6,
2020 the Board of Directors approved the promotion, of the Executive, to Chief Executive Officer.


 


WHEREAS, the Executive
and Good Times desire to bring the Executive’s salary as set forth in Article 4(a) to current as of the Effective Date and
to address the temporary salary reduction.


 


NOW, THEREFORE, for
and in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the adequacy, receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


 


AGREEMENT


 


1.             EMPLOYMENT.
By executing this Agreement, Good Times employs the Executive and the Executive accepts such employment and agrees to perform the
services specified herein, upon the terms and conditions of this Agreement.


 


2.             TERM.
The term of the Executive’s employment shall be one year from the Effective Date of this Agreement (the “Term”).
Unless earlier terminated as provided in Section 7 of this Agreement, or unless the Executive or Good Times gives ninety days
prior written notice to the other to the contrary, upon the end of the Term and upon each yearly anniversary of such end of the
Term, this Agreement shall automatically extend for additional periods of one year (the “Additional Terms”). In the
event that the Company or the Executive elects not to extend this Agreement, such election together with the reasons therefor shall
constitute a termination by the electing party subject to the provisions of Section 7 of this Agreement.



  



    	 		 



    	 



    




 


3.             CAPACITY
AND DUTIES. Good Times shall employ the Executive as Chief Executive Officer. During the Term of this Agreement, the
Executive shall devote his best efforts to the business and affairs of Good Times and shall devote substantially all of his business
time to perform his duties hereunder. Notwithstanding the foregoing, with the prior approval of the Board, the Executive may devote
a reasonable portion of his time to serve on boards of directors, boards of managers or boards of trustees, or committees thereof,
of companies or organizations involving no conflict of interest with the interests of Good Times. The Executive shall further be
entitled to have investments in other business enterprises, provided however he shall not have any investment or financial interest
in any business enterprise which conducts business activities directly competitive with any business activities conducted by Good
Times now or at any time during the Term or Additional Terms of this Agreement (other than an investment of no more than one percent
of any class of equity securities of a company which conducts business activities directly competitive with any business activities
of Good Times provided that those securities are publicly traded).


 


4.             COMPENSATION.


 


(a)          Base
Compensation. During the Term of this Agreement and each Additional Terms, the Executive shall be paid a minimum annual base
salary of $250,000 (the “Base Compensation”). The Base Compensation shall be paid, at the election of Good Times, in
equal biweekly, bimonthly or monthly payments or at such other times and in such other installments as are paid to other executives
of Good Times. The Base Compensation may be increased, but not decreased, by the Board, in its sole discretion, if the Board determines
that such increase is appropriate based upon a performance review of the Executive, which review shall be conducted no less often
than annually during the Term and the Additional Terms.


 


(b)          Performance
Cash Bonuses and Equity Awards. Good Times agrees to consider annual cash bonuses paid and equity awards granted to the Executive
for each fiscal year through the Term and the Additional Terms, with such bonuses and awards to be based upon the performance of
the Executive and of Good Times. At the beginning of each year of the Term and each year of the Additional Terms the Executive
and the Board shall agree on a bonus percentage of his Base Compensation which the Executive may receive for such year related
to the Executive and Good Times meeting their performance goals and objectives for such year payable in the form of cash or equity
awards (the “Target Bonus”). Upon the completion of each such year the determination of the portion and the form of
the Target Bonus to which the Executive is entitled shall be made by the Board in its reasonable discretion, including the right
of the Board to determine to pay the Executive a bonus in excess of the Target Bonus.


 


5.             EXPENSES.
The Executive shall be reimbursed, consistent with policies applicable to other officers of Good Times, for all reasonable expenses
incurred by the Executive in performing services under this Agreement. The Executive shall submit appropriate receipts, invoices
and other evidence of expenditures as required by Good Times policy.





 



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6.             ADDITIONAL
BENEFITS.


 


(a)          Benefits.
During the Term and each Additional Terms of this Agreement, Good Times shall provide the Executive with an annual discretionary
allowance of $15,000 together with other benefits generally provided to its other executive officers under its welfare benefit
plans, practices, policies and programs (including, without limitation, medical, prescription, dental, disability, life and other
insurance plans, pension plans, and savings or profit-sharing plans).


 


(b)          Vacation.
The Executive shall be entitled to four weeks paid annual vacation taken at such times as are reasonably convenient to the Executive,
provided that such vacation times do not substantially interfere with the performance of his duties hereunder.


 


7.             EARLY
TERMINATION.


 


(a)          Termination
for Cause. Termination “for cause” shall mean termination determined by the Board of Directors of the Executive’s
employment with Good Times because of (i) any intentional, wanton, or reckless act or omission that constitutes a material
breach by the Executive of his obligations under this Agreement; (ii) any willful and material failure by the Executive to
perform his duties and to serve Good Times in the capacities prescribed by the Board, provided that with respect to the first occurrence
(unless additional such occurrences are approved by the Board) only of any such willful and material failure, such willful and
material failure remains substantially uncured more than thirty days after the date on which Good Times provides written notice
to the Executive of such willful and material failure; (iii) a criminal conviction, guilty plea or no contest plea of the
Executive to any felony, any drug related offense, or a crime involving an act of moral turpitude; or (iv) the Executive’s
perpetration of an act of fraud or embezzlement against Good Times. For purposes of this provision, no act or failure to act on
the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive
in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of Good Times.


 


(b)         Termination
Without Cause or Without Good Reason. Either party may terminate this Agreement without cause by providing the other party
ninety days’ prior written notice as to which termination the other provisions of this Agreement shall govern.


 


(c)          Termination
Upon Death or Disability. This Agreement shall terminate upon (i) the death of the Executive or, (ii) at Good Times’
written election, if the Executive becomes unable, by reason of physical or mental disability, with reasonable accommodation, to
perform the essential functions of his position for the Minimum Disability Period. The term “Minimum Disability Period”
means any period exceeding (i) ninety consecutive calendar days, or (ii) an aggregate of one hundred and twenty business
days during any twelve-month period. If this Agreement terminates under this provision the Executive (or his estate) shall be entitled
to the Severance Compensation and Stock Sale Option in the amount and at such time as set forth under Section 7(g). In addition,
all options and rights granted to the Executive under any Good Times Stock Option Plan shall be accelerated and shall become immediately
exercisable on or after the event giving rise to termination under this provision so as to permit the Executive (or his estate)
to fully exercise all outstanding options and rights in accordance with their terms.


 



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(d)          Breach
by Good Times. The Executive shall have the right to terminate his employment pursuant to this Agreement upon Good Times’
material breach or violation of any of the terms and conditions of this Agreement by delivering written notice to Good Times stating
with particularity the applicable term or condition breached or violated, the specific facts relied upon and a termination date
not less than thirty days after the date of delivery of such writing, provided that Good Times shall have thirty days to cure such
breach. If the Executive terminates his employment under this provision, it shall be deemed a termination without cause by Good
Times and the Executive shall be entitled to the Severance Compensation and Stock Sale Option in the amount and at such time as
set forth under Section 7(g). In addition, all options and rights granted to the Executive under any Good Times Stock Option Plan
shall be accelerated and shall become immediately exercisable on or after the Executive’s termination under this provision
so as to permit the Executive to fully exercise all outstanding options and rights in accordance with their terms.


 


(e)           Termination
for Good Reason.


 


(i)          The
Executive shall have the right to terminate his employment pursuant to this Agreement for Good Reason by delivering written notice
to Good Times stating with particularity the Good Reason including the specific facts relied upon and a termination date not less
than thirty days after the date of delivery of such writing. Good Times shall have thirty days to eliminate such Good Reason. If
the Executive terminates his employment under this provision, it shall be deemed a termination without cause by Good Times and
the Executive shall be entitled to the Severance Compensation and Stock Sale Option in the amount and at such time as set forth
under Section 7(g). In addition, all options and rights granted to the Executive under any Good Times Stock Option Plan shall be
accelerated and shall become immediately exercisable on or after the Executive’s termination under this provision so as to
permit the Executive to fully exercise all outstanding options and rights in accordance with their terms.


 


(ii)          For
purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following, in each case during the
Term without the Executive’s written consent:


 



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(1)       a
reduction in the Executive’s Base Compensation (other than a general reduction that affects all similarly situated Good Times
executives in substantially the same proportions) or a reduction in the Executive’s Performance Bonus Percentage;


 


(2)       a
relocation of the Executive’s principal place of employment outside the Denver, Colorado metropolitan area;


 


(3)       a
requirement that the Executive spend more than one-third of his working time outside the Denver, Colorado metropolitan area during
a twelve-month period;


 


(4)       a
material, adverse change in the Executive’s authority, duties or responsibilities (other than temporarily while the Executive
is physically or mentally incapacitated); or


 


(5)       a
material adverse change in the reporting structure applicable to the Executive.


 


(f)          Change
In Control. If a Change in Control (as defined below) occurs with respect to Good Times, then if the employment of the Executive
is terminated within one year prior to or following the Change in Control (i) by Good Times without cause, (ii) by the
Executive for Good Reason, or (iii) as a result of a material breach of this Agreement by Good Times, the Executive shall
receive the Change in Control Severance and the Stock Sale Option as set forth under Section 7(g). In addition, all options and
rights granted to the Executive under any Good Times Stock Option Plan shall be accelerated and shall become exercisable immediately
so as to permit the Executive to fully exercise all outstanding options and rights. “Change in Control” is defined
herein to include: (i) the sale of all or substantially all of the assets of Good Times; (ii) the sale of at least thirty
percent of the capital stock of Good Times in a single transaction or series of related transactions; (iii) taking Good Times
“private” such that its stock is no longer publicly traded; (iv) a merger, consolidation, reorganization or similar
transaction to which Good Times is a party, except for a transaction in which Good Times is the surviving corporation and, after
giving effect to such transaction, the holders of Good Times’ outstanding capital stock immediately before the transaction
own enough of Good Times’ outstanding capital stock to elect a majority of Good Times’ Board of Directors; and (v) during
any 24 month period the persons who were a majority of the members of the Good Times Board of Directors at the beginning of such
period cease to constitute a majority of members of the Board of Directors at the end of such period.


 



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(g)          Severance
Compensation, Change in Control Severance and Stock Sale Option.


 


(i)          If
the Executive’s employment is terminated (A) without cause by Good Times, (B) by the Executive for Good Reason,
(C) on account of a material breach of this Agreement by Good Times, or (D) by the death or disability of the Executive,
Good Times shall pay the Executive (or his estate) in a lump-sum payment within five business days of the Executive’s termination
of employment an amount equal to the sum of (A) the Executive’s Base Compensation for the fiscal year of the termination,
(B) the average of the Executive’s annual Target Bonus compensation for the two fiscal years immediately prior to the
fiscal year of the termination, (C) $15,000, and (D) a lump sum amount equal to what the monthly COBRA premium payable
for the health insurance coverage of the Executive is at the time of his termination multiplied by 12 (together the “Severance
Compensation”).


 


(ii)          The
Executive (or his estate) shall have the right, but not the requirement, exercisable at any time within fifteen business days after
the effective date of such termination to sell to Good Times all or any portion of the outstanding shares of Good Times stock owned
by the Executive (including any shares acquired by exercise of accelerated options or otherwise) (“Stock Sale Option”).
If the Executive (or his estate) exercises his rights under the Stock Sale Option, the purchase price for each share of Good Times
stock to be purchased by Good Times from the Executive (or his estate) shall be the average daily market price of Good Times stock
(“GTIM”) on NASDAQ or any other applicable public trading market for Good Times stock over the thirty trading days
immediately preceding the termination of the Executive’s employment. The purchase price shall be paid in cash to the Executive
(or his estate) and the closing of such sale shall occur within five business days after the Executive (or his estate) provides
Good Times with written notification of the exercise of the Stock Sale Option.


 


(iii)          If
the Executive’s employment is terminated with respect to a Change of Control as set forth in paragraph (f) above, instead
of the Severance Compensation set forth in subparagraph (i) of this Section (g), Good Times shall pay the Executive in a lump-sum
payment within five business days of the Executive’s termination of employment an amount equal to 2.99 times the average
W-2 Base Compensation and Target Bonus compensation of the Executive for the five fiscal years of Good Times prior to such termination.


 


(iv)          In
addition to the foregoing provisions of this paragraph (g), all options and rights granted to the Executive under any Good Times
Stock Option Plan shall be accelerated and shall become immediately exercisable on or after the Executive’s termination so
as to permit the Executive (or his estate) to fully exercise all outstanding options and rights in accordance with their terms.


 


(v)          Notwithstanding
anything to the contrary, Executive’s right to any payments or other benefits under this Section 7(g) shall be conditioned
on Executive’s execution of a reasonable mutual release (provided that the release in favor of Executive shall exclude any
release of Executive’s unknown commission of intentional tortious acts or omissions such as fraud, theft, or embezzlement
against Good Times or its affiliates).


 



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(h)          Code
Section 409A Compliance.


 


(i)          Definition
of Termination of Employment. For purposes of this Agreement, the phrase “Termination of Employment” means the
termination of the Executive’s employment with Good Times and all of its affiliates due to death, retirement or other reasons.
The Executive’s employment relationship is treated as continuing while the Executive is on sick leave, or other bona fide
leave of absence (if the period of such leave does not exceed six months, or if longer, so long as the Executive’s right
to reemployment with Good Times or an affiliate is provided either by statute or contract). If the Executive’s period of
leave exceeds six months and the Executive’s right to reemployment is not provided either by statute or by contract, the
employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period.
Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance
with regulations issued by the United States Treasury Department pursuant to Section 409A of the Internal Revenue Code of
1986, as amended (“Code”).


 


(ii)          Delay
of Payments. Notwithstanding the provision for the time of payment as set forth in this Section 7, if Good Times determines
that the Executive is a “specified employee” (as defined in Code Section 409A), and no exception to Code Section 409A
applies, the payments set forth above shall commence on the first day of the seventh month following the Executive’s termination
of employment. All payments that would have otherwise been paid to the Executive during this six-month period shall also be paid
to the Executive in one lump sum on the first day of the seventh month following his termination of employment, plus interest accruing
at the prime rate of interest announced in the Wall Street Journal. If the Executive dies before he receives the above payments,
the Company will distribute the benefits to the Executive’s estate or beneficiaries as soon as administratively feasible
following the date of the Executive’s death. Except for the above required delay in payment, neither the Executive nor Good
Times shall have the right or the ability to accelerate or defer the payment of amounts determined pursuant to this Section 7.


 


(iii)          Code
Section 409A Savings Clause. Notwithstanding any other provision in the Agreement, Good Times shall administer this Agreement,
and exercise all authority and discretion under this Agreement, to satisfy the requirement of Code Section 409A or any exemption
thereto.


 


8.             OTHER
AGREEMENTS. Within ten business days following the execution of this Agreement the Executive shall execute agreements in customary
form as reasonably specified by Good Times with respect to confidentiality, non-competition and non-solicitation.


 



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9.             ENTIRE
AGREEMENT. This Agreement, together with any applicable Stock Option Agreement between Good Times and the Executive,
set forth the entire understanding of the parties regarding the Executive’s employment with Good Times, and replace and supersede
any previous understandings, agreements, discussions, letters or representations between such parties, written or oral, that may
have related in any way to the subject matter hereof including, without limitation, any employment offers or term sheets dated
as of or prior to the date hereof.


 


10.           AMENDMENT.
This Agreement may only be amended or modified by an instrument in writing signed by each of the parties hereto. No failure or
delay on the part of either party to this Agreement in the exercise of any power or right, and no course of dealing between the
parties hereto, shall operate as a waiver of such power or right, nor shall any single or partial exercise of any power or right
preclude any further or other exercise thereof or the exercise of any other power or right. Any waiver of any provision of this
Agreement, and any consent to any departure by either party from the terms of any provision hereof, shall be effective only in
the specific instance and for the specific purpose for which given. Nothing contained in this Agreement and no action or waiver
by any party hereto shall be construed to permit any violation of any other provision of this Agreement or any other document or
operate as a waiver by such party of any of his or its rights under any other provision of this Agreement or any other document.


 


11.           BINDING
EFFECT. This Agreement is personal to, and may not be assigned or otherwise transferred by, the Executive; however,
this Agreement shall inure to the benefit of the Executive’s legal representatives and heirs. This Agreement shall be binding
upon, and inure to the benefit and be the obligation of Good Times, its successors or assigns.


 


12.           MISCELLANEOUS.


 


(a)          Severability;
Construction. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is held by a court of competent jurisdiction to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.


 


(b)          Choice
of Law. This Agreement shall be governed by, and construed in accordance with, the internal laws (as opposed to conflict of
laws provisions) of the State of Colorado.


 


(c)          Expenses.
In the event of any litigation between the parties relating to this Agreement and their rights hereunder, the prevailing party
shall be entitled to recover all reasonable litigation costs and reasonable attorneys’ fees and expenses from the non-prevailing
party.


 



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IN WITNESS WHEREOF,
this Agreement has been executed by Good Times and the Executive as of the date first above written.


 


	 	GOOD TIMES RESTAURANTS INC.
	 	 	 
	 	By:	
	 	 	Geoffrey R. Bailey, Chairman
	 	 	 
	 	 	 
	 	EXECUTIVE
	 	 	 
	 	By:	
	 	 	Ryan M. Zink


 




 


 


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