Exhibit 10.4
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (this
"Amendment"), made as of April 24, 2006, is by and between TEXAS INDUSTRIES,
INC., a Delaware corporation (hereinafter referred to as the "Company"), and MEL
G. BREKHUS (hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, Employee and the Company have entered into an Employment
Agreement dated as of June 1, 2004 (the "Agreement"); and
WHEREAS, the parties are desirous of amending the Agreement as set
forth herein:
NOW, THEREFORE, the Company and the Employee, in consideration of the
premises and promises each to the other herein contained, have agreed and do
hereby agree and covenant as follows:
1. Definitions
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Each capitalized term that is used but not defined in this Amendment
shall have the meaning prescribed in the Agreement.
2. Amendments
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(a) Section 2(a)(iv) is deleted in its entirety and replaced with
the following:
(iv) Deferral of Payment of Incentive-Based Compensation.
Notwithstanding any provision hereof to the contrary, to the
extent that Section 162(m) of the Internal Revenue Code of
1986, as amended, would limit the Company's deduction of any
portion of Employee's base annual compensation and incentive
compensation earned during any one fiscal year if it were paid
to Employee, payment of such nondeductible portion of any
incentive compensation shall be deferred by the Company until
15 days after the earlier of (i) the first time the
deductibility of a payment of some or all of such deferred
amount will not be limited by Section 162(m) (as reasonably
determined by the Company), and (ii) the date Employee's
employment with the Company is terminated. The deferred amount
will bear interest until paid at the average U.S. Treasury
Bill rate for Treasury Bills with a three month maturity
(calculated as the average of such rates on the first day of
the deferral period and at the end of each fiscal quarter
during the deferral period), and upon payment of any portion
of the deferred amount the interest thereon will be paid at
the same time and in the same form as the deferred amount is
paid.
(b) Section 3(a) is deleted in its entirety and replaced by the
following:
(a) In the event of the consummation during the term of
this Agreement of a Change in Control, as defined in the
Change in Control Severance Agreement between the Company and
Employee dated April 24, 2006, the Agreement Not to Compete
set forth in paragraph 4 below and any provision relating to
non-competition applicable to Employee's right to receive
retirement benefits under the Company's Executive Financial
Security Plan shall be deemed waived by the Company.
3. Miscellaneous
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All of the terms of the Agreement, as expressly amended by this
Amendment, remain in full force and effect.
IN WITNESS HEREOF, the parties hereto have executed this Amendment as
of the date shown above.
ATTEST: TEXAS INDUSTRIES, INC.
By: /s/ Frederick G. Anderson By: /s/ Gordon E. Forward
------------------------- ---------------------------------
Frederick G. Anderson Gordon E. Forward, Chairman
Secretary Compensation Committee of the
Board of Directors
EMPLOYEE:
By: /s/ Mel G. Brekhus
---------------------------------
Mel G. Brekhus
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