FOURTH
AMENDMENT
TO
THE
EMPLOYMENT
AGREEMENT
THE FOURTH
AMENDMENT TO THE EMPLOYMENT AGREEMENT (the
“Fourth Amendment”) is made and entered effective the
__ day of June 2009, by Ross Stores, Inc. (the
“Company”) and Michael Balmuth (the
“Executive”). The Executive and the Company previously
entered into an Employment Agreement effective May 31, 2001; a
First Amendment to the Employment Agreement effective January 30,
2003; a Second Amendment to the Employment Agreement effective May
18, 2005; and a Third Amendment to the Employment Agreement
effective April 6, 2007 (the original Agreement; First Amendment to
the Employment Agreement; Second Amendment to the Employment
Agreement; and Third Amendment to the Employment Agreement are
attached and collectively referred to herein as the
“Agreement”), and it is now the intention of the
Executive and the Company to further amend the Agreement as set
forth below. Accordingly, the Executive and the Company now enter
into this Fourth Amendment.
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I.
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The Executive
and the Company amend the Agreement by deleting Paragraph 1 of the
Agreement in its entirety and replacing it with the following new
Paragraph 1:
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1.
Term . The
employment of the Executive by the Company will continue as of the
date hereof and end on January 28, 2012, unless extended or
terminated in accordance with this Agreement, including the
extensions contemplated both in paragraphs 1 and 4(b). During March
2010, and during March every year thereafter (every one year) for
so long as the Executive is employed by the Company, upon the
written request of the Executive, the Board shall consider
extending the Executive’s employment with the Company. Such
request must be delivered to the Chairman of the Compensation
Committee no later than the last day in February which precedes the
March in which the requested extension will be considered. The
Board shall advise the Executive, in writing, on or before the
April 1 st following its consideration of the
Executive’s written request, whether it approves of such
extension. The failure of the Board to provide such written advice
shall constitute approval of the Executive’s request for the
extension. If the Executive’s request for an extension is
approved, this Agreement shall be extended one additional
year.
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II.
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The Executive
and the Company further amend the Agreement by deleting the first
sentence of Paragraph 4(a) of the Agreement in its entirety and
replacing it with the following new sentence:
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4(a).
Salary . During his
employment, the Company shall pay the Executive a base salary of
not less than One Million Twenty-Five Thousand Dollars ($1,025,000)
per annum.
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The Executive
and the Company further amend the Agreement by deleting the fourth
sentence of Paragraph 4(a) of the Agreement in its entirety and
replacing it with the following new sentence:
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In addition,
during his employment, the Company shall pay the Executive each
year an amount (“Premium Payment”) equal to the sum of:
(i) the total premiums for such year on certain life insurance
policies held in an irrevocable life insurance trust established by
the Executive, with an aggregate face value of $12 million; and
(ii) an amount necessary to gross-up Executive for any federal,
state and local income tax liability attributable to the premium
amounts.
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III.
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The Executive
and the Company further amend the Agreement to delete the words
“(the “Matching Contributions”) from the end of
the second sentence of Paragraph 4(e) of the Agreement.
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IV.
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The Executive
and the Company further amend the Agreement by deleting the first
sentence of Paragraph 4(i) of the Agreement in its entirety and
replacing it with the following new three sentences:
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4(i).
Subject to the
third sentence of this paragraph 4(i), the Executive and his spouse
shall be entitled to continue, until their respective deaths, to
participate (at no cost to the Executive and his spouse) in the
following Company employee benefit plans and arrangements (or other
benefit plans or arrangements providing substantially similar
benefits) in which the Executive participates on the date hereof):
medical, dental, vision and behavioral health insurance; life
insurance; accidental death and dismemberment insurance; group
excess personal liability (collectively, “Benefits”);
and the Company shall annually provide the Executive for as long as
he lives an amount equal to the maximum employer matching
contribution permitted under the terms and limits of the
Company’s 401(k) plan in effect during the year of such
payment (assuming the Executive remained employed with the Company
and made the maximum contribution to such plan permitted by law),
grossed up to reflect the pretax nature of a 401(k) contribution
(the “Matching Contribution”). Notwithstanding the
preceding sentence, no payment provided in paragraph 4(a) [Salary]
of this Agreement shall be considered a benefit plan or arrangement
pursuant to this paragraph 4(i) and the Executive, or his spouse,
shall not be entitled to continuation of any payment provided in
paragraph 4(a) pursuant to this paragraph 4(i). Notwithstanding the
first sentence of this paragraph 4(i) to the contrary, the
Executive’s spouse, as of May 19, 2009, shall be entitled to
medical insurance (at no cost to the Executive or such spouse until
such time as Executive and such spouse are no longer legally
married) for so long as the Executive remains employed by the
Company, and such spouse shall not be entitled to any other
Benefits.
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The Executive
and the Company further amend the Agreement by deleting the last
sentence of Paragraph 4(i) of the Agreement in its
entirety.
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V.
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The Executive
and the Company further amend the Agreement by
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