Exhibit 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
– AMENDMENT NO. 2
THIS EXECUTIVE EMPLOYMENT
AGREEMENT – AMENDMENT NO. 2 (this “Agreement”) is made and
entered into effective October 5, 2009, by and between Granite City
Food and Brewery Ltd. (the “Company”) and Steven J.
Wagenheim (“Executive”).
RECITALS
A.
Executive is employed by the Company
pursuant to an employment agreement made and entered into June 15,
2005 and pursuant to amendments thereto (the “Employment
Agreement”). Pursuant to such Employment Agreement,
Executive is currently employed on an at-will basis and subject to
additional provision of the Employment Agreement.
B.
The Company proposes to enter into a
debt conversion transaction (the “Transaction”) with
DHW Leasing L.L.C. (“DHW”) pursuant to which DHW will
be issued common stock of the Company in exchange for the
conversion of certain indebtedness, and DHW will thereupon become
the majority shareholder of the Company.
C.
It is contemplated that Executive
will continue in the employ of the Company following the
Transaction and the Company desires to secure the services of
Executive following the Transaction.
D.
It is desirable to amend the
Employment Agreement to provide for the term of Executive’s
employment and to confirm certain severance arrangements in
connection therewith.
NOW, THEREFORE
, in consideration of the premises,
the parties hereto agree as follows:
1.
Defined Terms . All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the
Employment Agreement.
2.
Article 3 of the Employment Agreement is hereby amended and
restated to read as follows:
Term of Employment
3.01
Executive’s employment pursuant to this Agreement shall
continue for a term ending one year following the closing of the
debt conversion transaction (the “Transaction”) by and
between the Company and DHW Leasing L.L.C. (“DHW”)
pursuant to which DHW will be issued common stock of the Company in
exchange for the conversion of certain indebtedness, and DHW will
thereupon become the majority shareholder of the Company (the
“Termination Date”). The term of the
Executive’s employment shall automatically be extended for
successive one year periods unless the Company or Executive elects
not to extend employment by giving written notice to the other not
less than sixy (60) days prior to the Termination Date or the end
of any extension periods. If Executive’s employment
continues beyond the Termination Date, it
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shall continue on an at-will basis
under the remaining terms and conditions of this Agreement, as
amended hereby, and as the same may be amended from time to time
with the consent of the Company and Executive, except that Section
4.02 shall be inapplicable and incentive compensation payable to
Executive, if any, shall be only as fixed by the Company’s
Compensation Committee (“Committee”).
Executive’s base compensation under this Agreement shall
continue at Executive’s current monthly base compensation
rate for each month worked and prorated for any partial month
during which employment continues.
3.
Section 4.04 of the Employment Agreement is hereby amended and
restated to read as follows:
4.04
Executive agrees that any and all bonuses or equity compensation
awards paid, awarded or vested after September 21, 2009, shall be
subject to the Board of Director’s Policy on the Recoupment
of Bonuses and Incentive or Equity Based Compensation Related to
Certain Financial Restatements dated September 21, 2009, and that
such policy is hereby deemed to be incorporated by reference into
this Agreement. Executive further agrees that Company may, to
the extent permitted by applicable law, require the Executive to
reimburse the Company for any and all bonuses or equity
compensation awards, severance payments provided for under Article
7 of this Agreement, and base salary payments provided for under
Section 6.05 of this Agreement that are paid, awarded or vested
after September 21, 2009, in the event of a material breach by
Executive of his obligations under Articles 8 or 9 of this
Agreement. In the event Executive fails to make prompt
reimbursement of any such bonuses or equity compensation, severance
payments or base salary payments previously paid, awarded or
vested, the Company may, to the extent permitted by applicable law,
deduct the amount required to be reimbursed from Executive’s
compensation otherwise due under this Agreement. The
obligations contained in this Section 4.04 shall survive the
termination of this Agreement indefinitely.
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