Exhibit
10.1


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”)
is made as of this 17th day of April, 2007, and was originally made
and entered into as of September 7, 2005, 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
(the “Original 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 Original 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
the date of this Agreement, 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 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 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(e)(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 timely payment of Accrued
Obligations through the 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(e)(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) timely payment of Accrued Obligations through the effective
date of termination, (B) on the next bonus payment date immediately following
the effective date of termination, payment 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 of any applicable
welfare benefit plans; provided, however, that as conditions
precedent to receiving the payments and benefits provided for in this Section
4(e)(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



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hereto as Exhibit B,
and all rights of the Executive thereunder or under applicable law to rescind
or revoke the release shall have expired.


(iv)                              By
the Company upon Change in Control Event or 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 or 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: (1) timely
payment of Accrued Obligations through the effective date of termination; (2)
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 the lesser of (A) twelve (12) months following the effective date of
termination or (B) the remainder of the existing Employment Period (the
applicable period, being referred to herein as the “Severance Period”);
(3) on the next bonus payment date immediately following the effective date of
termination, payment 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 (1), (2) and (3) to standard withholdings and other
authorized deductions; and (4) payment (or reimbursement to the Executive) of
the cost of continuing coverage 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 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 (4) 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(e)(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



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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(e) shall constitute the
exclusive and sole remedy for any termination of his employment, and the
Executive covenants not to assert 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(e)(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



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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 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.



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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.


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



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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 (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



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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-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 one (1) year 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.


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 



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sought by either party to this Agreement in a court of
law while arbitration proceedings are 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.  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.


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



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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.  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



 13
 









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 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.  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.



 14
 









(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

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.

Ballard Spahr Andrews & Ingersoll, LLP 

Seventeenth Street Plaza Building, 

1225 17th Street Suite 2300

Denver, Colorado 80202-5596 

Facsimile No.:  303-296-3956


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.



 15
 









(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]



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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

  



 



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