Exhibit 10.21


 


AMENDMENT


TO


TEXAS ROADHOUSE, INC.


2004 EQUITY INCENTIVE PLAN


 


This
is an Amendment to the Texas Roadhouse, Inc. 2004 Equity Incentive Plan
(the “Plan”) made effective as of  January 1, 2009 by Texas
Roadhouse, Inc. ( the “Company”).


 


WHEREAS,
the Company maintains the Plan; and


 


WHEREAS,
the Company wishes to amend and conform the written terms of the Plans to the
requirements of Section 409A of the Internal Revenue Code of 1986;


 


NOW,
THEREFORE, the Texas Roadhouse, Inc. 2004 Equity Incentive Plan is hereby
amended as follows:


 


Amendment


 


1.                                       Section 2(s) is
amended to read as follows:


 


“Fair Market Value” means, as of any date,
the value of the Common Stock determined as follows:


 


(i)  If the Common Stock is listed on any
established stock exchange or traded on The NASDAQ Stock Exchange, the Fair
Market Value of a share of Common Stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such
exchange or market (or the exchange or market with the greatest volume of
trading in the Common Stock) on the last market trading day prior to the day of
determination, as reported in The Wall Street Journal or such other source as
the Board deems reliable.


 


(ii)  In the absence of such markets for the
Common Stock, the Fair Market Value shall be determined in good faith by the
Board by reasonable application of a reasonable valuation method, considering
any and all information the Board determines relevant, consistent with Code Section 409A
and Treasury Regulations thereunder.


 


2.                                       Section 3(c)(i) is amended to add the following sentence at the
end thereof:


 


All
constructions of this Plan shall be made in a manner the Committee believes
consistent with Options under the Plan not constituting “deferred compensation”
within the meaning of Code Section 409A, or, alternatively, to comply with
Code Section 409A’s requirements, and, with respect to Incentive Stock
Options, consistent with the Code and Regulations governing the preservation of
their tax treatment.


 

















 


3.                                       Section 6(c) is
amended to read as follows:


 


Exercise Price of a Nonstatutory Stock Option. The exercise
price of each Nonstatutory Stock Option shall be not less than the Fair Market
Value of the Common Stock subject to the Option on the date the Option is
granted.  Notwithstanding the foregoing,
a Nonstatutory Stock Option may be granted with an exercise price lower than
that set forth in the preceding sentence if such Option is granted pursuant to
an assumption or substitution for another option in a manner satisfying the
provisions of Section 424(a) of the Code.


 


4.                                     Section 7(a) is amended to add the following sentences after
the first sentence thereof:


 


Stock
bonus awards will be designed either to be exempt from the requirements of Section 409A
of the Code, or will be designed to be compliant with the requirements of Section 409A
of the Code; and the Stock Award Agreement setting forth a stock bonus award
will specify such design choice and will include any necessary provisions to
ensure the chosen treatment.  A stock
bonus award may be an immediate award of restricted stock at no cost to the
Participant or a restricted stock unit award providing for issuance of stock in
the future subject to satisfaction of vesting requirements.


 


5.                                     Section 7(b) is amended to add the following sentence after
the first sentence thereof:


 


Restricted stock awards will be designed either to
be exempt from the requirements of Section 409A of the Code, or will be
designed to be compliant with the requirements of Section 409A of the
Code; and the Stock Award Agreement setting forth a restricted stock award will
specify such design choice and will include any necessary provisions to ensure
the chosen treatment.


 


6.                                     Section 11(a) is amended to add the following to the end
thereof:


 


If
any adjustment under this Section would create a fractional Share or a
right to acquire a fractional share of Common Stock, such fractional share
shall be disregarded and the number of shares reserved under this Plan shall be
the next lower number of shares, rounding all fractions downward.  Any adjustment of a Stock Option under this Section shall
be made in such a manner so as not to constitute a “modification” within the
meaning of Section 424(h) of the Code (even though such section may
not otherwise be applicable).  Except as
expressly provided herein, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option.


 

















 


7.                                     Section 12(a) is
amended to read as follows:


 


(a)  Amendment
of Plan. The Board at any time, and from time to time, may amend the
Plan, but no action of the Board may:


 


(i)                                     Decrease the price of an
Option to less than the Fair Market Value on the date the Option was granted;
or


 


(ii)                                  Extend the maximum term
during which an Option can be exercised, unless and until the Committee
determines that such extension does not cause the Option to cease to be exempt
from Code Section 409A because it does not constitute a deferral of
compensation that would subject the Option to the excise taxes provided under
Code Section 409A.


 


Except
as provided in Section 11(a) relating to Capitalization Adjustments,
no amendment shall be effective unless approved by the stockholders of the
Company to the extent stockholder approval is necessary to satisfy the
requirements of Section 422 of the Code.


 


8.                                        Section 12(e) is
amended to read as follows:


 


(e)  Amendment of Stock Awards. The Board at
any time, and from time to time, may amend the terms of any one or more Stock
Awards as permitted by this Section 12; provided, however, that the rights
under any Stock Award shall not be impaired by any such amendment unless (i) the
Company requests the consent of the Participant and (ii) the Participant
consents in writing.


 


9.                                     Section 16
is added to the Plan as follows:


 


                                              16.                                   SECTION 409A
COMPLIANCE.


 


It is intended that Stock Awards granted under the
Plan shall be exempt from taxation under Section 409A of the Code unless
otherwise determined by the Committee at the time of grant.  In that respect the Company, by action of its
Board, reserves the right to amend the Plan, and the Board and the Committee each
reserve the right to amend any outstanding Stock Award Agreement, to the extent
deemed necessary or appropriate either to exempt a Stock Award from taxation
under Section 409A or to comply with the requirements of Section 409A.


 


[signature page follows]


 

















 


IN
WITNESS WHEREOF, the parties have executed this Amendment to the Texas
Roadhouse, Inc. 2004 Equity Incentive Plan as of the Effective Date but
actually on the date(s) stated below.


 


 


	
   

  	
  TEXAS
  ROADHOUSE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Scott M. Colosi

  
	
   

  	
   

  	
  Scott
  M. Colosi, Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  December 26,
  2008