**EXHIBIT 10.3**

 

**AMENDED AND RESTATEDEMPLOYMENT AND SEVERANCE AGREEMENT**

 

THISEXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into effectiveAugust 9, 2010, by and between**GraniteCity Food & Brewery Ltd.**, a corporation duly organized andexisting under the laws of the State of Minnesota, with a place of business at Suite 101,5402 Parkdale Drive, Minneapolis, MN 55416 (hereinafter referred to as the “**Company**”), and **Darius H.Gilanfar**, a Texas resident (hereinafter referred to as “**Executive**”).

 

**RECITALS**

 

ThisAgreement amends and restates in its entirety the Employment and SeveranceAgreement by and between the Company and Executive, dated December 2,2008, including all amendments thereto.

 

**1.  EMPLOYMENT, COMPENSATION AND BENEFITS**

 

1.01  The Company hereby employs Executive as afull-time employee on the terms and conditions of this Agreement, and Executivehereby accepts such employment. Executive’s employment pursuant to this Agreement shall continue for aterm ending on October 6, 2012 (the “Termination Date”).  The term of the Executive’s employment shallautomatically be extended for successive one year periods unless the Company orExecutive elects not to extend employment by giving written notice to the othernot less than sixty (60) days prior to the Termination Date or the end of anyextension periods.  If Executive’semployment continues beyond the Termination Date after either party has givennotice not to extend for an additional year, such employment shall continue onan at-will basis under the remaining terms and conditions of this Agreement,and bonus or incentive compensation payable to Executive, if any, shall be onlyas fixed by the Company’s Compensation Committee.  Executive’s base compensation under thisAgreement shall continue at Executive’s current monthly base compensation ratefor each month worked and prorated for any partial month during whichemployment continues.

 

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

 

1.03  Executive shall report to the Chief ExecutiveOfficer of the Company and the Board of Directors of the Company or anycommittee thereof as the Board shall direct, and shall generally be subject todirection, orders and advice of said officer and the Board.  The Company retains the discretion totransfer or reassign Executive to another executive position or to otherexecutive duties, and any such transfer or reassignment shall not constitute abreach of this Agreement.

 

1.04  Executive agrees that he will at all timesfaithfully, industriously, and to the best of his ability, experience, andtalents, perform all of the duties that may be required of and from 

 

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him pursuant to the express and implicit terms ofthis Agreement, to the reasonable satisfaction of the Company.

 

1.05  During the initial term of employmenthereunder, Executive shall be paid a base salary at Executive’s current annualrate (“Base Salary”), payable in accordance with the Company’s established payperiods, reduced by all deductions and withholdings required by law and asotherwise specified by Executive. Executive’s Base Salary shall be reviewed approximately annually andchanges to Base salary may be made upon the approval of the Board of thecompany or its Compensation Committee; provided, however, that Executive’s BaseSalary shall not be reduced except in connection with Company compensationreductions applied to all other senior executives of the Company.  In the event Executive’s employment shall forany reason terminate during the Term, Executive’s final monthly Base Salarypayment shall be made on a pro-rated basis as of the last day of the month inwhich such employment terminated.

 

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

 

1.07  The Company shall reimburse Executive for allreasonable business expenses incurred by Executive in carrying out Executive’sduties, services, and responsibilities under this Agreement.  Executive shall comply with generallyapplicable policies, practices and procedures of the Company with respect toreimbursement for, and submission of expense reports, receipts or similardocumentation of, such expenses.

 

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

 

1.09   Executive agrees that any and all bonuses orequity compensation awards paid, awarded or vested after September 21,2009, shall be subject to the Board of Director’s Policy on the Recoupment ofBonuses and Incentive or Equity Based Compensation Related to Certain FinancialRestatements dated September 21, 2009, and that such policy is herebydeemed to be incorporated by reference into this Agreement.  Executive further agrees that Company may, tothe extent permitted by applicable law, require the Executive to reimburse theCompany for any and all bonuses or equity compensation awards, severancepayments provided for under Article 3 of this Agreement and base salary paymentsprovided for under Section 2.04 of this Agreement that are paid, awardedor vested after September 21, 2009, in the event of a material breach byExecutive of his obligations under Articles 4 or 5 of this Agreement.  In the event Executive fails to make promptreimbursement of any such bonuses or equity compensation, severance payments orbase salary payments previously paid, awarded or vested, the Company may, tothe extent permitted by applicable law, deduct the amount required to bereimbursed from Executive’s compensation otherwise due under thisAgreement.  The obligations contained inthis Section 1.09 shall survive the termination of this Agreementindefinitely.

 

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**2.  TERMINATION OF EMPLOYMENT**

 

2.01  The Company may terminate Executive’semployment by giving Executive written notice if Executive, due to sickness orinjury, is prevented from carrying out his essential job functions for a periodof three (3) months or longer.  Inthe event of such termination, Executive shall receive base compensation duethrough the date of termination and to a pro-rated bonus due Executive pursuantto any bonus plan or arrangement established prior to termination, to theextent earned or performed through the date of termination based upon therequirements or criteria of such plan or arrangement, as the Board shall ingood faith determine.

 

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

 

2.03  Any other provision of this Agreementnotwithstanding, the Company may terminate Executive’s employment upon writtennotice if the termination is based on any of the following events thatconstitute Cause for the purposes of this Agreement:

 

(a)                                  any convictionor nolo contendere plea by Executive to a felony, gross misdemeanor ormisdemeanor involving moral turpitude, or any public conduct by Executive thathas or can reasonably be expected to have a detrimental effect on the Companyand the image of its management;

 

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

 

(c)                                  any materialbreach of any material provision of this Agreement or of the Company’sannounced or written rules, codes or polices; provided, however, that suchbreach shall not constitute Cause if Executive cures or remedies such breachwithin thirty (30) days after written notice to Executive, without materialharm or loss to the Company, unless (i) such breach is part of a patternof chronic breaches of the same, which may be evidenced by reports or warningletters given by the Company to Executive; or (ii) such breach is of anature that it is deemed by the Board not to be curable, including situationswhere the Board determines that harm or loss to the Company has alreadyoccurred or can reasonably be expected to occur and cannot be eliminated orremedied by such cure;

 

(d)                                 any act ofinsubordination by Executive; provided, however, an act of insubordination byExecutive shall not constitute Cause if Executive cures or remedies suchinsubordination within thirty (30) days after written notice to Executive,without material harm or loss to the Company, unless (i) suchinsubordination is a part of a pattern of chronic insubordination, which may be

 

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evidenced by reports orwarning letters given by the Company to Executive; or (ii) suchinsubordination is of a nature that it is deemed by the Board not to becurable, including situations where the Board determines that harm or loss tothe Company has already occurred or can reasonably be expected to occur andcannot be eliminated or remedied by such cure; or

 

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

 

Inthe event of such termination, and not withstanding any contrary provisionotherwise stated, Executive shall receive only his base salary earned throughthe date of termination.

 

2.04  In the event the employment of Executive isterminated prior to the Termination Date by the Company without Cause (andother than as outlined in Sections 2.01 and 2.02) or by the Executive with GoodReason as defined in Section 3.09, the Company will pay Executive theremainder of Executive’s Base Salary due through the Termination Date.  Such payments will be made on a monthly basiscommencing with the first month following the Executive’s termination.  Such payments shall be in addition to anypayment which shall be due Executive pursuant to Section 3.01; shall notbe deemed to be “cash severance-type benefits” under Section 3.04; andshall not reduce amounts to which Executive is entitled upon a terminationunder Article 3.  Notwithstandingthe above, if the Executive terminates employment due to Section 3.09(d),payment shall be delayed for six (6) months and the delayed payments willbe paid in a lump sum without interest the first month following such six monthdelay.

 

**3.  SEVERANCE BENEFIT**

 

3.01  The Company, its successors or assigns, willpay Executive as severance pay a lump sum (the “Severance Payment”) amountequal to twelve (12) months of the Executive’s monthly Base Salary forfull-time employment at the time of Executive’s termination:

 

(a)           if(i) there has been a Change of Control of the Company (as defined in Section 3.02),and (ii) Executive is an active and full-time employee at the time of theChange of Control, and (iii) within twelve (12) months following the dateof the Change of Control, Executive’s employment is involuntarily terminatedfor any reason (including Good Reason (as definition Section 3.09)), otherthan for Cause or death or disability. If prior to a Change of Control (a) Executive’s employment isinvoluntarily terminated by the Company without Cause or (b) Executiveterminates his employment for Good Reason, and such termination for Good Reason(x) occurred at the request of a person who indicated an intention, ortaken steps reasonably calculated, to effect a Change of Control or (y) otherwiseoccurred in connection with, or in anticipation of, a Change of Control whichactually occurs, then the termination of Executive’s employment shall be deemedto have occurred immediately following a Change of Control; or

 

(b)           ifthe employment of Executive is terminated by the Company without Cause at anytime, or the Executive terminates his employment for “Good Reason” at anytime.  For the purposes of this Section (3.01(b))such termination may occur before, on, or after 

 

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the Termination Date and “Good Reason” shall be asdefined in Section 3.09, except that no “Change of Control” need occur; or

 

(c)           if(i) a Change in Control (as defined in Section 3.02) occurred priorto Executive commencing his employment with the Company, and (ii) at thetime of the Change in Control Executive had accepted employment with theCompany as indicated by his execution of this Agreement and as a result he wasno longer employed by his previous employer, and (iii) the Company decidedto not commence Executive’s employment as a result of the Change in Control.

 

Foravoidance of doubt, if Executive’s employment is terminated without Cause or byExecutive for Good Reason, Executive shall be entitled to receive (i) theSeverance Payment pursuant to Section 3.01 and (ii) his Base Salarythrough the Termination Date.  If theCompany elects to not extend Executive’s employment beyond the Termination Dateor any extension thereof and terminates Executive’s employment, suchtermination shall be a termination without Cause for the purposes of Section 3.01(b) andExecutive shall receive, without duplication, his Base Salary through theTermination Date as provided in Section 2.04.

 

Nothingin this Section 3.01 shall limit the authority of the CompensationCommittee or Board to terminate Executive’s employment in accordance with Section 2.03.  Payment of the Severance Payment pursuant to Section 3.01,less customary withholdings, shall be made in one lump sum within thirty (30)days of the Executive’s termination or resignation; however, such payments willbe delayed for six (6) months if the Executive terminates employment dueto Section 3.09(d).  In addition,the Severance Payment shall be reduced by the amount of cash severance-typebenefits to which Executive may be entitled pursuant to any other cashseverance plan, agreement, policy or program of the Company or any of itssubsidiaries; including any payment for post-employment restrictions, provided,however, that if the amount of cash severance benefits payable under such otherseverance plan, agreement, policy or program is greater than the SeverancePayment payable pursuant to this Agreement, Executive will be entitled toreceive the amounts payable under such other plan, agreement, policy or programwhich exceeds the Severance Payment. Without limiting other payments which would not constitute “cashseverance-type benefits” hereunder, any cash settlement of stock options,accelerated vesting of stock options and retirement, pension and other similarbenefits shall not constitute “cash severance-type benefits” for purposes ofthis Section 3.01.

 

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

 

(a)                        an acquisitionby any individual, entity or group (within the meaning of Section 13(d)(3) or14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ExchangeAct”) of 50% or more of either:

 

(1)           the then outstanding Stock; or

 

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

 

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(i)            any acquisition directly from the Company;

 

(ii)           any acquisition by the Company or Subsidiary;

 

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

 

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

 

(b)                       individualswho, during any twelve (12) month period, constitute the Board (the “IncumbentBoard”), cease to constitute a majority of the Board.  Individuals nominated or whose nominationsare approved by the Incumbent Board and subsequently elected shall be deemedfor this purpose to be members of the Incumbent Board;

 

(c)                        approval by theshareholders of the Company of a reorganization, merger, consolidation,liquidation, dissolution, sale or statutory exchange of Stock which changes thebeneficial ownership of Stock and other voting securities so that after thecorporate change the immediately previous owners of 50% of Stock and othervoting securities do not own 50% of the Company’s Stock and other votingsecurities either legally or beneficially;

 

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

 

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

 

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

 

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

 

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

 

3.05  All severance payments made under thisAgreement, including those paid under Article 2, shall be conditioned uponthe Executive’s signing and not rescinding a separation agreement and releasein a form acceptable to the Company, which agreement shall include, at aminimum a full and general release of all claims to the greatest extent allowedby applicable law, a covenant not to sue, an agreement to be reasonablyavailable for consultation and assistance to the Company during any period inwhich severance is paid, and an agreement to promptly return to the Company allCompany property.

 

3.06  Notwithstanding any other provision of thisAgreement, the Company and Executive intend that any payments, benefits orother provisions applicable to this Agreement comply with the payout and otherlimitations and restrictions imposed under Section 409A, as clarified ormodified by guidance from the U.S. Department of Treasury or the InternalRevenue Service — in each case if and to the extent Section 409A isotherwise applicable to this Agreement and such compliance is necessary toavoid the penalties otherwise imposed under Section 409A.  In this connection, the Company and Executiveagree that the payments, benefits and other provisions applicable to thisAgreement, and the terms of any deferral and other rights regarding thisAgreement, shall be deemed modified if and to the extent necessary to complywith the payout and other limitations and restrictions imposed under Section 409A,as clarified or supplemented by guidance from the U.S. Department of Treasuryor the Internal Revenue Service, in each case if and to the extent Section 409Ais otherwise applicable to this Agreement and such compliance is necessary toavoid the penalties otherwise imposed under Section 409A.

 

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

 

3.08  If the Company is obligated to pay theseverance payment provided in Section 3.01, and if Executive timely electsto continue his group health and dental insurance coverage pursuant to applicableCOBRA/continuation law and the terms of the respective benefit plans, theCompany shall pay on Executive’s behalf the premiums for such coverage for thelesser of twelve (12) months or such time as Executive’s COBRA/continuationrights expire; and cause the immediate vesting of any unvested stock optionsthen held by Executive.

 

3.09  “Good Reason” will be deemed to have occurredif, after a Change in Control:

 

(a)           theCompany, its successors or assigns, assigns Executive position, principalduties, responsibilities, or status materially contrary to that provided inSections 1.02 or 1.03 above;

 

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(b)           theCompany, its successors or assigns, relocates Executive to a location that ismore than fifty (50) miles from the Company’s current headquarters inMinnesota;

 

(c)           theCompany, its successors or assigns, materially reduces Executive’s base salarycontrary to the provisions of Section 1.05 hereof or fails to payExecutive any material compensation or fringe benefits to which the Executiveis entitled within ten (10) business days of the due date; or

 

(d)           asuccessor company fails or refuses to assume the Company’s obligations underthis Agreement;

 

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

 

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

 

3.10  The provisions of this Article 3 will bedeemed to survive the termination of this Agreement for the purposes ofsatisfying the obligations of the Company and Executive hereunder.

 

**4.  NONDISCLOSURE AND INVENTIONS**

 

4.01  Except as permitted or directed by theCompany or as may be required in the proper discharge of Executive’s employmenthereunder, Executive shall not, during the Term of employment or at any timethereafter, divulge, furnish or make accessible to anyone or use in any way anyconfidential, trade secret or proprietary information of the Company, includingwithout limitation, whether or not reduced to writing, customer lists, customerfiles or information, pricing information, expansion information, recipes, formulas,planning and financial information, contracts, sales and marketing information,business strategy or opportunities for new or developing business, whichExecutive has prepared, acquired or become acquainted with during hisemployment by the Company.  Executiveacknowledges that the above-described knowledge or information is the propertyof the Company that constitutes a unique and valuable asset and represents asubstantial investment by the Company, and that any disclosure or other use ofsuch knowledge or information, other than for the sole benefit of the Company,would be wrongful and would cause irreparable harm to the Company.  Executive agrees to at all times maintain theconfidentiality of such knowledge or information, to refrain from any acts oromissions that would reduce its value to the Company, and to take and complywith reasonable security measures to prevent any accidental or intentionaldisclosure or misappropriation.  Upontermination of Executive’s employment for any reason, Executive shall promptlyreturn to the Company all such confidential, trade secret and proprietaryinformation, including all copies thereof, then in Executive’s possession,control or influence, whether 

 

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prepared by Executive or others.

 

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

 

4.03  Executive acknowledges that new and valuableproprietary concepts, recipes, methods, processes, discoveries, trade secrets(as defined in the Minnesota Uniform Trade Secrets Act), improvements,adaptations, or ideas (herein individually and collectively referred to as “Inventions”)may be developed, originated, authorized, conceived, invented, or made byExecutive, either alone or jointly with others, in the course of Executive’semployment by the Company.  All suchInventions shall be the exclusive property of the Company, whether or notpatentable or copyrightable, and whether or not shown or described in writingor reduced to practice.

 

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

 

4.04  In the event of a breach or threatened breachby Executive of the provisions of this Article 4, the Company shall beentitled to an injunction restraining Executive from directly or indirectlydisclosing, disseminating, lecturing upon, publishing or using suchconfidential, trade secret or proprietary information (whether in whole or inpart) and restraining Executive from rendering any services or participatingwith any person, firm, corporation, association or other entity to whom suchknowledge or information (whether in whole or in part) has been disclosed,without the posting of a bond or other security.  Nothing herein shall be construed asprohibiting the Company from pursuing any other equitable or legal remediesavailable to it for such breach or threatened breach, including the recovery ofdamages from Executive.  Executive agreesthat the Company shall be entitled to recover its costs of litigation, expensesand attorney fees incurred in enforcing this Agreement.

 

4.05  The Executive understands and agrees that anyviolation of this Article 4 while employed by the Company may result inimmediate disciplinary action by the Company, including termination ofemployment pursuant to Section 2.03 hereof.

 

4.06  The provisions of this Article 4 shallsurvive termination of this Agreement indefinitely.

 

**5.  NON-COMPETITION AND NON-RECRUITMENT**

 

5.01  The Company and Executive recognize and agreethat: (i) Executive has received, and will in the future receive,substantial amounts of highly confidential and proprietary informationconcerning the Company, its business, customers, Executives and vendors; (ii) asa consequence of using or associating himself with the Company’s name,goodwill, and reputation, 

 

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Executive will develop personal and professionalrelationships with the Company’s current and prospective customers, clients andvendors; and (iii) provision for non-competition and non-recruitmentobligations by Executive is critical to the Company’s continued economicwell-being and protection of the Company’s confidential and proprietarybusiness information.  In light of theseconsiderations, this Article 5 sets forth the terms and conditions ofExecutive’s obligations of non-competition and non-recruitment during the Termof and subsequent to the termination of this Agreement and/or Executive’semployment for any reason.

 

5.02  Unless the obligation is waived or limited bythe Company as set forth herein, Executive agrees that during the term ofExecutive’s employment pursuant to this Agreement and for a period of twelve(12) months following termination of Executive’s employment for any reason,Executive will not directly or indirectly: (a) solicit or do competitivebusiness with any person or entity that is or was a customer or vendor of theCompany within the twelve (12) months prior to the date of termination; or (b) engagewithin the U.S. markets in which the Company engages in business at the time oftermination, in any business activity in competition with the casual diningrestaurant business as conducted by the company at the time of Executive’stermination.  At its sole option, theCompany may, by express written notice to Executive, waive or limit the timeand/or geographic area in which Executive cannot engage in competitive activityor the scope of such competitive activity.

 

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

 

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

 

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

 

**6.  MISCELLANEOUS**

 

6.01  Governing Law.  This Agreement and the employmentrelationship between the Company and Executive shall be governed and construedaccording to the laws of the State of Minnesota without regard to conflicts oflaw provisions.

 

6.02  Successors.  This Agreement is personal to Executive andExecutive may not assign or transfer any part of his rights or dutieshereunder, or any compensation due to him hereunder, 

 

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to any other person or entity.  This Agreement may be assigned by the Companyto any successor to the Company or any purchaser of its assets.

 

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

 

6.04  Modification.  This Agreement supersedes, revokes andreplaces any and all prior oral or written understandings, if any, between theparties relating to the subject matter of this Agreement.  The parties agree that this Agreement: (a) isthe entire understanding and agreement between the parties; and (b) is thecomplete and exclusive statement of the terms and conditions thereof, and thereare no other written or oral agreements in regard to the subject matter of thisAgreement.  This Agreement shall not bechanged or modified except by a written document signed by the parties hereto.

 

6.05  Severability and Blue Penciling.  To the extent that any provision of thisAgreement shall be determined to be invalid or unenforceable as written, thevalidity and enforceability of the remainder of such provision and of thisAgreement shall be unaffected.  If anyparticular provision of this Agreement shall be adjudicated to be invalid orunenforceable, the Company and Executive specifically authorize the tribunalmaking such determination to edit the invalid or unenforceable provision toallow this Agreement, and the provisions thereof, to be valid and enforceableto the fullest extent allowed by law or public policy.

 

INWITNESS WHEREOF the following parties have executed the above instrument theday and year first above written.

 
|   | GRANITE  CITY FOOD & BREWERY LTD |
|--------|-------------------------------------------|
|   |                                      |
|   |                                      |
|   | By                                        | /s/  Steven J. Wagenheim |
|   |                                      | Steven  J. Wagenheim, Chief Executive Officer |
|   |                                      |   |
|   |                                      |   |
|   | EXECUTIVE                                 |
|   |                                      |
|   |                                      |   |
|   | By                                        | /s/Darius  H. Gilanfar |
|   |                                      | Darius  H. Gilanfar |

 

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