Exhibit 10.26


 


AMENDMENT


TO


EMPLOYMENT AGREEMENT


 


This
is an Amendment to the Employment Agreement originally effective as of December 26,
2007 between Texas Roadhouse, Inc. (the “Company”) and SHEILA C. BROWN (“Executive”),
which Amendment shall be effective as of January 1, 2009.


 


Recital


 


A.                                   The Company and
the Executive entered into an employment agreement dated December 26, 2007
(the “Employment Agreement”) providing for the employment of the Executive by
the Company for a period and upon the other terms and conditions therein
stated.


 


B.                                     The Company and
the Executive now mutually desire to amend the Employment Agreement to ensure
that it complies with Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), and the final Treasury Regulations promulgated
thereunder.


 


C.                                     The parties
intend that except as expressly amended by this Amendment to the Employment
Agreement, the Employment Agreement shall remain in full force and effect.  Further, this Amendment shall form a part of
the Employment Agreement for all purposes and the Employment Agreement and this
Amendment shall be read together.


 


NOW,
THEREFORE, in consideration of the mutual promises and covenants herein
contained, the sufficiency of which is specifically acknowledged by the Company
and the Executive, it is agreed as follows:


 


Amendment


 


1.                                       Section 4(b)(i) is
amended to read as follows:


 


The
level of achievement of the objectives each fiscal quarter and the amount
payable as Incentive Bonus shall be determined in good faith by the
Compensation Committee.  Any Incentive
Bonus earned for a fiscal quarter shall be paid to Executive on or before the
74th day following the last day of such fiscal
quarter.


 


2.                                       Section 4(c)(v) is
amended to read as follows:


 


(v)                                  A termination by Executive
for “Good Reason” shall mean a termination based on:


 


(A)                              the assignment
to Executive of a different title or job responsibilities that result in a
substantial decrease in the level of responsibility from those in effect
immediately prior to the Change of Control;


 

















 


(B)                                a reduction by
the Company or the surviving company in Executive’s base pay as in effect
immediately prior to the Change of Control;


 


(C)                                a significant
reduction by the Company or the surviving company in total benefits available
to Executive under cash incentive, stock incentive and other employee benefit
plans after the Change of Control compared to the total package of such
benefits as in effect prior to the Change of Control;


 


(D)                               the requirement
by the Company or the surviving company that Executive be based more than 50
miles from where Executive’s office is located immediately prior to the Change
of Control, except for required travel on company business to an extent
substantially consistent with the business travel obligations which Executive
undertook on behalf of the Company prior to the Change of Control; or


 


(E)                               the failure by the Company
to obtain from any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company (“Successor”) the assent to this Agreement
contemplated by Section 13(g) hereof;


 


which
is not cured within 30 days after Executive has delivered written notice of
such condition to the Employer.  In each
case, Executive must give the Company notice of the condition within 90 days of
the initial existence of the condition, and the separation from service must
occur within a period of time not to exceed two years (or such shorter period
as provided herein) following the initial existence of one or more of the
conditions set forth above, or any termination will not be considered to be for
Good Reason.


 


3.                                       Section 4(e) is
amended to read as follows:


 


Expenses. While Executive is employed by the Company during
the Term, the Company shall reimburse Executive for all reasonable and
necessary out-of-pocket business, travel and entertainment expenses incurred by
her in the performance of her duties and responsibilities hereunder, subject to
the Company’s normal policies and procedures for expense verification and
documentation.  Any reimbursements made
under this Section 4(e) will be paid on or before the last day of the
Executive’s taxable year following the taxable year in which the expense is
incurred.


 

















 


4.                                     Section 9(b) is
amended to read as follows:


 


(b)                                 The date upon
which Executive’s termination of employment with the Company occurs shall be
the “Termination Date.”


 


Provided
that, for purposes of the timing of payments triggered by the Termination Date
under Section 10, the Termination Date shall not be considered to have
occurred until the date the Executive and the Company reasonably anticipate
that (i) Executive will not perform any further services for the Company
or any other entity considered a single employer with the Company under Section 414(b) or
(c) of the Internal Revenue Code (but substituting 50% for 80% in the
application thereof) (the “Employer Group”), or (ii) the level of bona
fide services Employee will perform for the Employer Group after that date will
permanently decrease to less than 20% of the average level of bona fide
services performed over the previous 36 months (or if shorter over the duration
of service).   For this purpose, service
performed as an employee or as an independent contractor is counted, except
that service as a member of the board of directors of an Employer Group entity
is not counted unless termination benefits under this Employment Agreement are
aggregated with benefits under any other Employer Group plan or agreement in
which Executive also participates as a director.  Executive will not be treated as having a
termination of his or her employment while he or she is on military leave, sick
leave or other bona fide leave of absence if the leave does not exceed six
months or, if longer, the period during which Executive has a reemployment
right under statute or contract.  If a
bona fide leave of absence extends beyond six months, Executive’s employment
will be considered to terminate on the first day after the end of such six
month period, or on the day after Executive’s statutory or contractual
reemployment right lapses, if later.  The
Company will determine when Executive’s Termination Date occurs based on all
relevant facts and circumstances, in accordance with Treasury Regulation Section 1.409A-1(h).


 


5.                                     Section 10(c) is
amended to read as follows:


 


(c)                                  If Executive’s
employment is terminated by the Company without Cause following a Change in
Control as defined in this Agreement and before the end of the Term of this
Agreement, or if the Executive’s employment is terminated by the Executive for
Good Reason following a Change in Control and before the end of the Term, then
the Company shall pay to Executive, subject to Executive’s compliance with Section 10(h) of
this Agreement, an amount equal to her then current base salary and incentive
bonus through the end of Term of the Agreement, paid in the same periodic
installments in accordance with the Company’s regular payroll practices, but in
no event will the Company pay the Executive less than one year of her current
base salary and incentive bonus.


 

















 


6.                                     Section 10(h) is
amended to add the following sentence at the end thereof:


 


Executive
must execute and deliver such release to the Company on the date set by the
Company, which shall be no later than 60 days following Executive’s Termination
Date, and the release will be delivered by the Company to the Executive at
least 21 days before the deadline set for its return.


 


7.                                     Section 13
is amended to add the following new subsection (m) at the end thereof:


 


(m)                               Six
Month Delay. 
Notwithstanding anything herein to the contrary, if the Executive is a “specified
employee” within the meaning of Treasury Regulation Section 1.409A-1(i) (or
any successor thereto) on her Termination Date, any payments hereunder that are
triggered by termination of employment and which are not exempt as separation
pay under Treasury Regulation Section 1.409A-1(b)(9) or as short-term
deferral pay, shall not begin to be paid until six months after her  Termination Date, and at that time, the
Executive will receive in one lump sum payment of all the payments that would
have otherwise been paid to the Executive during the first six months following
the Executive’s Termination Date.  The
Company shall determine, consistent with any guidance issued under Code Section 409A,
the portion of payments that are required to be delayed, if any.


 


8.                                        Section 13
is amended to add the following new subsection (n) at the end thereof:


 


(n)                                 409A
Compliance. The Executive and the Company agree and confirm
that this Employment Agreement is intended by both parties to provide for
compensation that is exempt from Code Section 409A as separation pay (up
to the Code Section 409A limit) or as a short-term deferral, and to be
compliant with Code Section 409A with respect to additional severance
compensation and bonus compensation. This Agreement shall be interpreted,
construed, and administered in accordance with this agreed intent, provided
that the Company does not promise or warrant any tax treatment of compensation
hereunder.  Executive is responsible for
obtaining advice regarding all questions to federal, state, or local income,
estate, payroll, or other tax consequences arising from participation herein.  This Agreement shall not be amended or
terminated in a manner that would accelerate or delay payment of severance pay
or bonus pay except as permitted under Treasury Regulations under Code Section 409A.


 

















 


IN
WITNESS WHEREOF, the parties have executed this Amendment to the Employment
Agreement as of the Effective Date but actually on the date(s) stated
below.


 


 


	
   

  	
  TEXAS
  ROADHOUSE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  W. Kent Taylor

  
	
   

  	
   

  	
  W.
  Kent Taylor, Chairman

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  December 24,
  2008

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Sheila C. Brown

  
	
   

  	
  Sheila C. Brown

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  December 19,
  2008