**Exhibit10.4**

 

[TRAMMELL CROW COMPANY LETTERHEAD]

 

April 6, 2004

 

 

Derek R. McClain

[XXXXXXXXXX]

[XXXXXXXXXX]

 

Re:                               Amendment to EmploymentAgreement

 

Dear Derek:

 

As you know, you and Trammell Crow Company(the “Company”, or “we”, or “us”) are parties to that certain employment letteragreement, dated as of October 17, 2003, as supplemented by that certainletter delivered by us to you, dated as of January 9, 2004 (the “Employment Agreement”), which set forth theterms of your employment with us.  Weand you now wish to amend and supplement the Employment Agreement in certainrespects as set forth in this letter agreement (this “Amendment”). We and you both acknowledge and agree that this Amendment is being madefor good and valuable consideration, the receipt and sufficiency of which arealso acknowledged.  Each capitalizedterm used in this Amendment and not otherwise defined herein will have themeaning given such term in the Employment Agreement.

 

1.                                       **Amendment****.**

 

(a)                                  Section 3(d)of the Employment Agreement is hereby amended and restated to read in itsentirety as follows:

 

(d)                                 Resignationby You.  You may terminate youremployment hereunder at any time (i) subject to Section 6(a), forGood Reason or (ii) without Good Reason. Prior to a Change in Control and following the second anniversary ofsuch Change in Control, “Good Reason” means (A) any material diminution(considering all previous diminutions during the Employment Period in theaggregate, including all previous diminutions during the Employment Periodwhich are not material when considered separately) in your position, authority,powers, functions, duties or responsibilities; provided, however, that GoodReason may not be asserted by you under this clause (A) after a Non-RenewalNotice has been given; (B) the relocation or transfer of your principaloffice to a location more than 50 miles from your regular work address as ofthe date hereof without your consent; **(C) any reduction in your Annual Base Salary to anamount that is less than 90% of the highest Annual Base Salary in effect foryou during the Employment Period;******(D) any reduction in your Annual Bonus Target from yourAnnual Bonus Target for the calendar year 2003; (E) the

 

----

 

receipt by you of Awards(excluding Non-Performance Awards) in any calendar year that differ (as tonumber, terms or type of Awards), in a manner adverse to you, from the Awards(excluding Non-Performance Awards) received by you in calendar year 2002,unless either (1) such adverse differences are in the same manner and to thesame proportional extent as the average (mean) changes made to the Awards(excluding Non-Performance Awards) received by all other members of theExecutive Officer Committee (excluding the Chief Executive Officer of theCompany) in such calendar year (for purposes of this clause (1), any member ofthe Executive Officer Committee in such calendar year who was not a member ofthe Executive Officer Committee in calendar year 2002 shall be deemed to havereceived an Award of 57,500 stock options in calendar year 2002) or (2) suchadverse differences are directly related to the Board’s good faith assessmentof your relative contribution to the Company or your relative performance ascompared to other members of the Executive Officer Committee (excluding theChief Executive Officer of the Company); provided,however, that in the case of adverse differences pursuant to clause (2), thereceipt by you of a number of any type of Award in such calendar year that isless than one-half of the Final Average Number of Awards of such type for suchcalendar year shall constitute Good Reason; or (F) any failure by the Companyto comply with any of the provisions of Section 2(b) which failureis not contemplated previously within this definition, excluding in all suchcases any isolated, insubstantial and inadvertent failure not occurring in badfaith and which is remedied by the Company promptly after receipt of noticethereof given by you.  Upon or after aChange in Control but prior to the second anniversary of such Change inControl, “Good Reason” means (A) any material diminution(considering all previous diminutions during the Employment Period in theaggregate, including all previous diminutions during the Employment Periodwhich are not material when considered separately) in your position authority,powers, functions, duties or responsibilities in effect immediately prior tothe Change in Control (subject to the same exclusions as provided above priorto a Change in Control and following the second anniversary of such Change inControl); (B) any reduction in your Annual Base Salary;(C) (i) any reduction in your Annual Bonus Target from your AnnualBonus Target for the calendar year 2003 or (ii) the awarding to you of anAnnual Bonus that is less in amount than the Annual Bonus awarded to you forthe calendar year immediately preceding the year during which the Change inControl occurs; (D) the receipt by you of Awards (excludingNon-Performance Awards) in any calendar year that differ (as to number, termsor type of Awards), in a manner adverse to you, from the Awards (excludingNon-Performance Awards) received by you in calendar year 2002, unless either(1) such adverse differences are in the same manner and to the sameproportional extent as the average (mean) changes made to the Awards (excludingNon-Performance Awards) received by all other members of the Executive OfficerCommittee (excluding the Chief Executive Officer

 

2

----

 

of the Company) in suchcalendar year (for purposes of this clause (1), any member of the ExecutiveOfficer Committee in such calendar year who was not a member of the ExecutiveOfficer Committee in calendar year 2002 shall be deemed to have received anAward of 57,500 stock options in calendar year 2002) or (2) such adversedifferences are directly related to the Board’s good faith assessment of yourrelative contribution to the Company or your relative performance as comparedto other members of the Executive Officer Committee (excluding the ChiefExecutive Officer of the Company); provided,however, that in the case of adverse differences pursuant to clause (2), thereceipt by you of a number of any type of Award in such calendar year that isless than one-half of the Final Average Number of Awards of such type for suchcalendar year shall constitute Good Reason; or (E) any failure by theCompany to comply with any of the provisions of Section 2(b) whichfailure is not contemplated previously within this definition; or (F) therelocation or transfer of your principal office to a location more than 50miles from your regular work address as of the date hereof without yourconsent, excluding in all such cases any isolated, insubstantial andinadvertent failure not occurring in bad faith and which is remedied by theCompany promptly after receipt of notice thereof given by you.  As used in this Agreement:

 

(i)                                     “Annual Bonus Target” meansthe percentage of your Annual Base Salary that is authorized to be awarded toyou as an Annual Bonus if certain performance criteria are met.

 

(ii)                                  “FinalAverage Number of Awards” means, for any calendar year and for eachtype of Award granted during such year, the quotient (rounded up to the nearestwhole number) equal to the aggregate number of Awards of such type (excludingNon-Performance Awards) received by all members of the Adjusted EOC Group insuch calendar year, divided by the number of members of the Adjusted EOC Groupin such calendar year.

 

(iii)                               “AdjustedEOC Group” means, for any calendar year and for each type of Awardgranted during such year, the members of the Executive Officer Committee whoare eligible to receive Awards of such type (excluding members of the ExecutiveOfficer Committee who receive Non-Performance Awards) in such calendar year, excludingthe Chief Executive Officer of the Company and each Outlier Award Recipient insuch calendar year; provided, however, that if more than 50% of the members ofthe Executive Officer Committee for any calendar year are determined to beOutlier Award Recipients in such calendar year, then, notwithstanding the

 

3

----

 

foregoing,all members of the Executive Officer Committee (excluding the Chief ExecutiveOfficer of the Company) who are eligible to receive Awards of such type(excluding members of the Executive Officer Committee who receiveNon-Performance Awards) in such calendar year shall be included in the AdjustedEOC Group for such calendar year with respect to such type.

 

(iv)                              “Non-Performance Awards” means,for any calendar year and for each type of Award granted during such year,Awards of such type received by members of the Executive Officer Committee thatare granted to such members primarily in recognition of promotions (as toposition, authority, powers, functions, duties or responsibilities) or inrecognition of becoming a member of the Executive Officer Committee.

 

(v)                                 “OutlierAward Recipient” means, for any calendar year and for each type ofAward granted during such year, each member of the ExecutiveOfficer Committee (excluding the Chief Executive Officer of the Company) who iseligible to receive Awards of such type (excluding any member of the ExecutiveOfficer Committee who receives Non-Performance Awards) in such calendar yearand who receives a number of Awards of such type (excluding Non-PerformanceAwards) in such calendar year that is (i) 150% or more of the PreliminaryAverage Number of Awards or (ii) 66 2/3% or less of the Preliminary AverageNumber of Awards.

 

(vi)                              “PreliminaryAverage Number of Awards” means, for any calendar year and for eachtype of Award granted during such year, the quotient (rounded up to the nearestwhole number) equal to the aggregate number of Awards of such type (excludingNon-Performance Awards) received by all members of the Executive OfficerCommittee (excluding the Chief Executive Officer of the Company) in suchcalendar year, divided by the number of members of the Executive OfficerCommittee (excluding the Chief Executive Officer of the Company) who are eligibleto receive Awards of such type (excluding members of the Executive OfficerCommittee who receive Non-Performance Awards) in such calendar year.

 

(vii)                           The phrase “number of Awards” refersto the underlying number of shares of capital stock of the Company to which theapplicable Award relates.

 

4

----

 

(b)                                 Section 7(a)of the Employment Agreement is hereby amended and restated to read in itsentirety as follows:

 

(a)                                   You acknowledge thatthe Company has trade, business and financial secrets and other confidentialand proprietary information regarding the Company and its business, in whateverform, tangible or intangible (collectively, the “Confidential Information”),and that during the course of your employment with the Company you havereceived, will receive or will contribute to the Confidential Information.  Confidential Information includes, to theextent confidential and proprietary to the Company, sales materials, technicalinformation, processes and compilations of information, records, specificationsand information concerning customers, prospective customers or vendors,customer and prospective customer lists, and information regarding methods ofdoing business.  However, ConfidentialInformation does not include your general knowledge of and experience in thereal estate business or your personal and professional relationships and itdoes not include information that (i) is obtained by you from a source otherthan the Company or its affiliates who is not under a duty of non-disclosure tothe Company or such affiliate or (ii) is in the public domain or is or becomesgenerally available to the public other than through disclosure by you inviolation of the provisions of this Agreement.

 

**2.****                                      ****Agreement Not toTerminate****.****  We agree that, notwithstanding any provisionto the contrary contained in the Employment Agreement or this Amendment, weshall not have the right to terminate your employment, other than for Cause,for a period of time commencing on the date of this Amendment and ending on the180th day following the date of this Amendment.  During this 180-day period, we will (a) disclose to you, or placeyou in a position to have access to or develop, Confidential Information, (b)place you in a position to develop business goodwill on behalf of the Company,and/or (c) disclose or entrust business opportunities of the Company to you.**

 

3.                                       **EmploymentAgreement Otherwise Unchanged****.**  Except as specifically amended or supplemented in this Amendment,the Employment Agreement will continue in full force and effect in accordancewith its terms.

 

4.                                       **Counterparts****.**  This Amendment may be executed (including byfacsimile transmission) in any number of counterparts.

 

5.                                       **Governing Law****.**  THIS AMENDMENT SHALL BE GOVERNED BY ANDCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REFERENCETO PRINCIPLES OF CONFLICT OF LAWS OF TEXAS OR ANY OTHER JURISDICTION, AND,WHERE APPLICABLE, THE LAWS OF THE UNITED STATES.

 

[SIGNATURE PAGE FOLLOWS]

 

5

----

 

By signing and countersigning this Amendmentin the appropriate space set forth below, we and you have agreed to be bound bythe terms and conditions set forth herein, effective as of the date firstwritten above.

 
|                                   | Sincerely,                 |
|----------------------------------------|----------------------------|
|                                   |                       |
|                                   | **TRAMMELL CROW COMPANY**, |
|                                   | a Delaware corporation     |
|                                   |                       |
|                                   |                       |
|                                   | By:                        | /s/ ROBERT E. SULENTIC |
|                                   | Name:                      | Robert E. Sulentic |
|                                   | Title:                     | Chairman and Chief Executive  Officer |
|                                   |                       |
|                                   | Address:                   | Trammell Crow Company |
|                                   |                       | 2001 Ross Avenue, Suite 3400 |
|                                   |                       | Dallas, Texas  75201 |
|                                   |                       | Attention:  General Counsel |
|                                   |                       | Telephone:  (214) 863-3000 |
|                                   |                       | Fax:  (214) 863-3125 |
|                                   |                       |
|                                   |                       |
| ACKNOWLEDGED AND AGREED BY  EXECUTIVE: |                       |
|                                   |                       |
|                                   |                       |
| /s/ DEREK R. MCCLAIN                   |                       |   |
| Name:  Derek R. McClain           |                       |
|                                   |                       |
|                                   |                       |
| Address:                               | [XXXXXXXXXX]               |   |
|                                   | [XXXXXXXXXX]               |   |
|                                   | Telephone: [XXXXXXXXXX]    |   |
|                                   | Fax: [XXXXXXXXXX]          |   |
|                                        |                            |  |  |  |  |

 

6

----