exv10w1






Exhibit 10.1




THE MEN’S WEARHOUSE, INC.

CHANGE IN CONTROL SEVERANCE PLAN




(As Amended and Restated Effective October 1, 2009)




 









 








THE MEN’S WEARHOUSE, INC.

CHANGE IN CONTROL SEVERANCE PLAN




(As Amended and Restated Effective October 1, 2009)




     WHEREAS, The Men’s Wearhouse, Inc., a corporation organized and existing under the laws of the
State of Texas (the “Company”), recognizes that one of its most valuable assets is its key
management employees;



     WHEREAS, the Company previously established The Men’s Wearhouse, Inc. Change in Control
Severance Plan (the “Plan”) to provide certain severance benefits in the event that the employment
of certain key management employees is involuntarily terminated in certain circumstances in
conjunction with a change in control of the Company;



     WHEREAS, the Company reserved the right in Section 9 of the Plan to amend the Plan; and



     WHEREAS, the Company desires to amend the Plan;



     NOW, THEREFORE, the Company hereby amends and restates the Plan as set forth in this Agreement
effective as of October 1, 2009.



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. ESTABLISHMENT AND OBJECTIVE
	 	 	1	 
	 
	 	 	 	 
	1.1 Establishment
	 	 	1	 
	 
	 	 	 	 
	1.2 Objective
	 	 	1	 
	 
	 	 	 	 
	2. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	2.1 “Affiliate” and “Affiliates”
	 	 	1	 
	 
	 	 	 	 
	2.2 “Assets”
	 	 	1	 
	 
	 	 	 	 
	2.3 “Base Compensation”
	 	 	1	 
	 
	 	 	 	 
	2.4 “Beneficial Owner”
	 	 	1	 
	 
	 	 	 	 
	2.5 “Board of Directors”
	 	 	2	 
	 
	 	 	 	 
	2.6 “Bonus”
	 	 	2	 
	 
	 	 	 	 
	2.7 “Cause”
	 	 	2	 
	 
	 	 	 	 
	2.8 “Change in Control”
	 	 	2	 
	 
	 	 	 	 
	2.9 “Code”
	 	 	3	 
	 
	 	 	 	 
	2.10 “Committee”
	 	 	3	 
	 
	 	 	 	 
	2.11 “Company”
	 	 	3	 
	 
	 	 	 	 
	2.12 “Disability”
	 	 	3	 
	 
	 	 	 	 
	2.13 “Effective Date”
	 	 	4	 
	 
	 	 	 	 
	2.14 “Eligible Individual”
	 	 	4	 
	 
	 	 	 	 
	2.15 “Employer”
	 	 	4	 
	 
	 	 	 	 
	2.16 “Entity”
	 	 	4	 
	 
	 	 	 	 
	2.17 “ERISA”
	 	 	4	 
	 
	 	 	 	 
	2.18 “Expiration Date”
	 	 	4	 
	 
	 	 	 	 
	2.19 “Good Reason”
	 	 	4	 
	 
	 	 	 	 
	2.20 “Highest Base Compensation”
	 	 	5	 
	 
	 	 	 	 
	2.21 “Highest Bonus”
	 	 	6	 
	 
	 	 	 	 
	2.22 “Incumbent Director”
	 	 	6	 
	 
	 	 	 	 
	2.23 “Merger”
	 	 	6	 
	 
	 	 	 	 
	2.24 “Participant”
	 	 	6	 
	 
	 	 	 	 
	2.25 “Person”
	 	 	6	 
	 
	 	 	 	 
	2.26 “Plan”
	 	 	6	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	2.27 “Post-Change in Control Period”
	 	 	6	 
	 
	 	 	 	 
	2.28 “Renewal Date”
	 	 	6	 
	 
	 	 	 	 
	2.29 “Section 409A”
	 	 	6	 
	 
	 	 	 	 
	2.30 “Separation From Service”
	 	 	7	 
	 
	 	 	 	 
	2.31 “Specified Employee”
	 	 	7	 
	 
	 	 	 	 
	2.32 “Specified Owner”
	 	 	7	 
	 
	 	 	 	 
	2.33 “Term of the Plan”
	 	 	7	 
	 
	 	 	 	 
	2.34 “Termination Date”
	 	 	8	 
	 
	 	 	 	 
	2.35 “Termination of Employment”
	 	 	8	 
	 
	 	 	 	 
	2.36 “Voting Securities”
	 	 	8	 
	 
	 	 	 	 
	2.37 “Wholly-Owned Subsidiary”
	 	 	8	 
	 
	 	 	 	 
	3. ELIGIBILITY
	 	 	9	 
	 
	 	 	 	 
	4. BENEFITS
	 	 	9	 
	 
	 	 	 	 
	4.1 Vesting of Equity Based Compensation Following Termination of
Employment 
	 	 	9	 
	 
	 	 	 	 
	4.2 Benefits Following Termination of Employment
	 	 	9	 
	 
	 	 	 	 
	4.3 Legal Fees
	 	 	11	 
	 
	 	 	 	 
	5. TIME OF BENEFITS PAYMENTS
	 	 	11	 
	 
	 	 	 	 
	6. TERMINATION PROCEDURES
	 	 	11	 
	 
	 	 	 	 
	6.1 Notice of Termination
	 	 	11	 
	 
	 	 	 	 
	6.2 Termination Date
	 	 	12	 
	 
	 	 	 	 
	6.3 Dispute Concerning Termination
	 	 	12	 
	 
	 	 	 	 
	7. WITHHOLDING
	 	 	12	 
	 
	 	 	 	 
	8. DEATH OF PARTICIPANT
	 	 	12	 
	 
	 	 	 	 
	9. AMENDMENT AND TERMINATION
	 	 	12	 
	 
	 	 	 	 
	10. ADOPTION OF PLAN BY AFFILIATES
	 	 	13	 
	 
	 	 	 	 
	11. DISPUTED PAYMENTS AND FAILURES TO PAY
	 	 	13	 
	 
	 	 	 	 
	12. FORFEITURE FOR CAUSE
	 	 	14	 
	 
	 	 	 	 
	13. MISCELLANEOUS
	 	 	15	 
	 
	 	 	 	 
	13.1 Plan Not an Employment Contract
	 	 	15	 






-ii-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	13.2 Alienation Prohibited
	 	 	15	 
	 
	 	 	 	 
	13.3 Number and Gender
	 	 	15	 
	 
	 	 	 	 
	13.4 Headings
	 	 	15	 
	 
	 	 	 	 
	13.5 Severability
	 	 	15	 
	 
	 	 	 	 
	13.6 Binding Effect
	 	 	15	 
	 
	 	 	 	 
	13.7 Settlement of Disputes Concerning Benefits Under the Plan; Arbitration
	 	 	15	 
	 
	 	 	 	 
	13.8 No Mitigation
	 	 	16	 
	 
	 	 	 	 
	13.9 Other Amounts Due
	 	 	16	 
	 
	 	 	 	 
	13.10 Notices
	 	 	16	 
	 
	 	 	 	 
	13.11 Governing Law
	 	 	17	 
	 
	 	 	 	 
	13.12 Compliance With Section 409A
	 	 	17	 






-iii-









 






THE MEN’S WEARHOUSE, INC.

CHANGE IN CONTROL SEVERANCE PLAN




1. ESTABLISHMENT AND OBJECTIVE




     1.1 Establishment. The Men’s Wearhouse, Inc., a Texas corporation, has established this plan
for certain key management employees to be known as “The Men’s Wearhouse, Inc. Change in Control
Severance Plan” (the “Plan”).



     1.2 Objective. The Plan is designed to attract and retain certain designated key management
employees of the Company and the Company’s Affiliates (as those terms are defined below) and to
reward such employees by providing replacement income and certain benefits if such individuals’
employment with the Company and the Company’s Affiliates is terminated in certain circumstances
within one (1) year after a Change in Control (defined below).



2. DEFINITIONS




     As used in the Plan, the following terms and phrases shall have the meanings set forth below:



     2.1 “Affiliate” and “Affiliates” mean, when used with respect to any entity, individual, or
other person, any other entity, individual, or other person which, directly or indirectly, through
one or more intermediaries controls, or is controlled by, or is under common control with such
entity, individual or person.



     2.2 “Assets” means assets of any kind owned by the Company, including but not limited to
securities of the Company’s direct and indirect subsidiaries.



     2.3 “Base Compensation” means a Participant’s base salary or wages from the Employer (as
defined in section 3401(a) of the Code for purposes of federal income tax withholding), modified by
including any portion thereof that such Participant could have received in cash in lieu of any
elective deferrals made by the Participant pursuant to a nonqualified deferred compensation
arrangement or pursuant to a qualified cash or deferred arrangement described in section 401(k) of
the Code and any elective contributions under a cafeteria plan described in section 125 of the
Code, and modified further by excluding any bonus, incentive compensation (including but not
limited to equity-based compensation), commissions, expense reimbursements or other expense
allowances, fringe benefits (cash and noncash), moving expenses, deferred compensation (other than
elective deferrals by the Participant under a qualified cash or deferred arrangement described in
section 401(k) of the Code or a nonqualified deferred compensation arrangement that are expressly
included in “Base Compensation” under the foregoing provisions of this definition), welfare
benefits as defined in ERISA, overtime pay, special performance compensation amounts and severance
compensation.



     2.4 “Beneficial Owner” shall have the meaning ascribed to the term in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as amended, or any
successor act.



- 1 -









 





     2.5 “Board of Directors” means the Board of Directors of the Company.



     2.6 “Bonus” means each annual performance bonus, if any, paid in cash by the Employer to or
for the benefit of the Participant for services rendered or labor performed while an Eligible
Individual. A Participant’s Bonus shall be determined by including any portion thereof that such
Participant could have received in cash in lieu of (a) any elective deferrals made by such
Participant pursuant to any nonqualified deferred compensation arrangement or (b) elective
contributions made on such Participant’s behalf by the Company pursuant to a qualified cash or
deferred arrangement (as defined in section 401(k) of the Code) or pursuant to a plan maintained
under section 125 of the Code.



     2.7 “Cause” means (a) the willful and continued failure by the Participant to substantially
perform the Participant’s duties with the Company (other than any such failure resulting from the
Participant’s incapacity due to physical or mental illness) after a written demand for substantial
performance is delivered to the Participant by the Board of Directors (or by a delegate appointed
by the Board of Directors), which demand specifically identifies the manner in which the Board of
Directors believes that the Participant has not substantially performed the Participant’s duties,
or (b) the willful engaging by the Participant in conduct which is demonstrably and materially
injurious to the Company or any of its Wholly-Owned Subsidiaries, monetarily or otherwise. For
purposes of paragraphs (a) and (b) of this definition, (A) no act, or failure to act, on the
Participant’s part shall be deemed “willful” if done, or omitted to be done, by the Participant in
good faith and with reasonable belief that the act, or failure to act, was in the best interest of
the Company and (B) in the event of a dispute concerning the application of this provision, no
claim by the Company that Cause exists shall be given effect unless the Company establishes to the
Board of Directors by clear and convincing evidence that Cause exists.



     2.8 “Change in Control” means the occurrence of any of the following events during the Term of
the Plan:




     (a) the individuals who are Incumbent Directors cease for any reason to constitute a
majority of the members of the Board of Directors;




     (b) the consummation of a Merger of the Company with another Entity, unless:




     (1) the individuals and Entities who were the Beneficial Owners of the Voting
Securities of the Company outstanding immediately prior to such Merger own, directly
or indirectly, more than 50 percent of the combined voting power of the Voting
Securities of either the surviving Entity or the parent of the surviving Entity
outstanding immediately after such Merger; and




     (2) the individuals who comprise the Board of Directors immediately prior to
such Merger constitute a majority of the board of directors or other governing body
of either the surviving Entity or the parent of the surviving Entity;




     (c) the consummation of a Merger of a Wholly-Owned Subsidiary with another Entity
(other than an Entity in which the Company owns, directly or indirectly, a



- 2 -









 






majority of the voting and equity interests) if the gross revenues of such Wholly-Owned
Subsidiary (including the Entities wholly-owned directly or indirectly by such Wholly-Owned
Subsidiary) for the twelve-month period immediately preceding the month in which the Merger
occurs equal or exceed 30 percent of the consolidated gross revenues reported by the Company
on the Company’s consolidated financial statements for such period;




     (d) any Person, other than a Specified Owner, becomes a Beneficial Owner, directly or
indirectly, of securities of the Company representing 30 percent or more of the combined
voting power of the Company’s then outstanding Voting Securities;




     (e) a sale, transfer, lease or other disposition of all or substantially all of the
Assets is consummated (an “Asset Sale”), unless:




     (1) the individuals and Entities who were the Beneficial Owners of the Voting
Securities of the Company immediately prior to such Asset Sale own, directly or
indirectly, more than 50 percent of the combined voting power of the Voting
Securities of the Entity that acquires such Assets in such Asset Sale or its parent
immediately after such Asset Sale in substantially the same proportions as their
ownership of the Company’s Voting Securities immediately prior to such Asset Sale;
and




     (2) the individuals who comprise the Board of Directors immediately prior to
such Asset Sale constitute a majority of the board of directors or other governing
body of either the Entity that acquired such Assets in such Asset Sale or its
parent; or




     (f) The stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company.



     2.9 “Code” means the Internal Revenue Code of 1986, as amended, or any successor act.



     2.10 “Committee” means, prior to a Change in Control, the Compensation Committee of the Board
of Directors. After a Change in Control, “Committee” means (a) the individuals (not fewer than
three (3) in number) who, on the date six months prior to the Change in Control constitute the
Compensation Committee of the Board of Directors, plus, (b) in the event that fewer than three (3)
individuals are available from the group specified in clause (a) above for any reason, such
individuals as may be appointed by the individual or individuals so available (including for this
purpose any individual or individuals previously so appointed under this clause (b)); provided,
however, that the maximum number of individuals constituting the Committee after a Change in
Control shall not exceed six (6).



     2.11 “Company” means The Men’s Wearhouse, Inc., a Texas corporation, and any successor by
merger or otherwise.



     2.12 “Disability” means the absence of the Participant from the Participant’s duties with the
Company on a full-time basis for 90 calendar days as a result of incapacity due to



- 3 -









 




mental or physical illness that is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Participant or the Participant’s
legal representatives.




     2.13 “Effective Date” means October 1, 2009, the date as of which the Plan is amended and
restated.



     2.14 “Eligible Individual” means a key management employee of an Employer.



     2.15 “Employer” means the Company or any Affiliate that adopts the Plan pursuant to the
provisions of Section 10.



     2.16 “Entity” means any corporation, partnership, association, joint-stock company, limited
liability company, trust, unincorporated organization or other business entity.



     2.17 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor act.



     2.18 “Expiration Date” shall have the meaning specified in the definition of the phrase “Term
of the Plan”.



     2.19 “Good Reason” for termination by the Participant of his employment means the occurrence
(without the Participant’s express written consent) after any Change in Control and before the one
year anniversary of the date of such Change in Control, of any one of the following acts by the
Employer, or failures by the Employer to act, unless, in the case of any act or failure to act
described in paragraphs (a), (e), (f) or (g) below, such act or failure to act is corrected prior
to the effective date of the Participant’s termination for Good Reason:




     (a) the assignment to the Participant of any duties or responsibilities which are
substantially diminished as compared to the Participant’s duties and responsibilities
immediately prior to a Change in Control or a material change in the Participant’s reporting
responsibilities, titles or offices as a key management employee of the Employer and as in
effect immediately prior to the Change in Control;




     (b) a reduction by the Employer in the Participant’s annual Base Compensation as in
effect immediately prior to a Change in Control;




     (c) the relocation of the Participant’s principal place of employment to a location
outside of a 50-mile radius from the Participant’s principal place of employment immediately
prior to the Change in Control or the Employer’s requiring the Participant to be based
anywhere other than such principal place of employment (or permitted relocation thereof)
except for required travel on the Employer’s business to an extent substantially consistent
with the Participant’s business travel obligations immediately prior to a Change in Control;




     (d) a material reduction in the employee benefits provided to the Participant
immediately prior to the Change in Control;



- 4 -









 






     (e) the failure by the Employer to continue in effect any compensation plan in which
the Participant participates immediately prior to the Change in Control which is material to
the Participant’s total compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan, or the
failure by the Employer to continue the Participant’s participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both in terms of
the amount or timing of payment of benefits provided and the level of the Participant’s
participation relative to other participants, as existed immediately prior to the Change in
Control;




     (f) the failure by the Employer to continue to provide the Participant with benefits
substantially similar to those enjoyed by the Participant under any of the Employer’s
pension, savings, retirement, stock ownership, life insurance, medical, health and accident,
or disability plans in which the Participant was participating immediately prior to the
Change in Control (except for across the board changes similarly affecting all individuals
having a similar level of authority and responsibility with the Employer and all individuals
having a similar level of authority and responsibility with any Person in control of the
Employer), the taking of any other action by the Employer which would directly or indirectly
materially reduce any of such benefits or deprive the Participant of any material fringe
benefit enjoyed by the Participant at the time of the Change in Control, or the failure by
the Employer to provide the Participant with the number of paid vacation days to which the
Participant is entitled on the basis of years of service with the Employer in accordance
with the Employer’s normal vacation policy in effect immediately prior to the time of the
Change in Control; or




     (g) any purported termination of the Participant’s employment which is not effected
pursuant to a notice of termination satisfying the requirements of Section 6.1 hereof.



     The Participant’s right to terminate his employment for Good Reason shall not be affected by
the Participant’s incapacity due to physical or mental illness. The Participant’s continued
employment shall not constitute consent to, or a waiver of any rights with respect to, any act or
failure to act constituting Good Reason hereunder.



     For purposes of any determination regarding the existence of Good Reason, any claim by the
Participant that Good Reason exists shall be presumed to be correct unless the Employer establishes
to the Committee by clear and convincing evidence that Good Reason does not exist. The Committee’s
determination regarding the existence of Good Reason shall be conclusive and binding upon all
parties unless the Committee’s determination is arbitrary and capricious.



     2.20 “Highest Base Compensation” means the Participant’s annualized Base Compensation in
effect immediately prior to (a) a Change in Control, (b) the first event or circumstance
constituting Good Reason, or (c) the Participant’s Termination Date, whichever is greatest.



- 5 -









 





     2.21 “Highest Bonus” means an amount equal to the highest Bonus received by the Participant
during the three year period immediately preceding the Company’s fiscal year during which a Change
in Control occurs.



     2.22 “Incumbent Director” means:




(a) a member of the Board of Directors on the Effective Date; or




(b) an individual:




     (1) who becomes a member of the Board of Directors after the Effective Date;




     (2) whose appointment or election by the Board of Directors or nomination for
election by the Company’s stockholders is approved or recommended by a vote of at
least two-thirds of the then serving Incumbent Directors (as defined herein); and




     (3) whose initial assumption of service on the Board of Directors is not in
connection with an actual or threatened election contest.



     2.23 “Merger” means a merger, consolidation or similar transaction.



     2.24 “Participant” means an individual who is eligible to participate in the Plan under the
provisions of Section 3.



     2.25 “Person” shall have the meaning ascribed to the term in Section 3(a)(9) of the Securities
Exchange Act of 1934, as amended, or any successor act, and used in Sections 13(d) and 14(d)
thereof, including a “group” as defined in Section 13(d) thereof, except that the term shall not
include (a) the Company, the Employer or any of their Affiliates, (b) a trustee or other fiduciary
holding Company securities under an employee benefit plan of the Company or any of its Affiliates,
(c) an underwriter temporarily holding securities pursuant to an offering of those securities or
(d) a corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.



     2.26 “Plan” means The Men’s Wearhouse, Inc. Change in Control Severance Plan, as it may be
amended from time to time.



     2.27 “Post-Change in Control Period” means, with respect to a Participant, the period
beginning with the date of a Change in Control and ending on the date of the Participant’s
Termination of Employment.



     2.28 “Renewal Date” shall have the meaning specified in the definition of the phrase “Term of
the Plan.”



     2.29 “Section 409A” means section 409A of the Code and the rules and regulations issued
thereunder by the Internal Revenue Service and the Department of Treasury.



- 6 -









 





     2.30 “Separation From Service” has the meaning ascribed to that term under Section 409A.



     2.31 “Specified Employee” has the meaning ascribed to that term under Section 409A.



     2.32 “Specified Owner” means any of the following:




     (a) George Zimmer; any Person controlled by George Zimmer and any trust established by
George Zimmer for the benefit of himself or his immediate family;




     (b) the Company;




     (c) an Affiliate of the Company;




     (d) an employee benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliate of the Company;




     (e) a Person that becomes a Beneficial Owner of the Company’s outstanding Voting
Securities representing 30 percent or more of the combined voting power of the Company’s
then outstanding Voting Securities as a result of the acquisition of securities directly
from the Company and/or its Affiliates; or




     (f) a Person that becomes a Beneficial Owner of the Company’s outstanding Voting
Securities representing 30 percent or more of the combined voting power of the Company’s
then outstanding Voting Securities as a result of a Merger if the individuals and Entities
who were the Beneficial Owners of the Voting Securities of the Company outstanding
immediately prior to such Merger own, directly or indirectly, at least 50 percent of the
combined voting power of the Voting Securities of any of the Company, the surviving Entity
or the parent of the Company or the surviving Entity outstanding immediately after such
Merger in substantially the same proportions as their ownership of the Voting Securities of
the Company outstanding immediately prior to such Merger.



     2.33 “Term of the Plan” means the period commencing on the Effective Date and ending on the
earlier of:




     (a) the last day of the three-year period beginning on the Effective Date if no Change
in Control shall have occurred during that three-year period (such last day being the
“Expiration Date”);




     (b) if a Change in Control shall have occurred during (i) the three-year period
beginning on the Effective Date or (ii) any period for which the Term of the Plan shall have
been automatically extended pursuant to the second sentence of this definition, the last day
of the two-year period beginning on the date on which the Change in Control occurred; or




     (c) the date on which the Plan is terminated by the Board of Directors as provided in
Section 9.



- 7 -









 





     After the expiration of the time period described in subsection (a) of this definition and in
the absence of a Change in Control (as described in subsection (b) of this definition) the Term of
the Plan shall be automatically extended for successive two-year periods beginning on the day
immediately following the Expiration Date (the beginning date of each successive two-year period
being a “Renewal Date”), unless, not later than 18 months prior to the Expiration Date or
applicable Renewal Date, the Committee shall give notice to Participants that the Term of the Plan
will not be extended.



     2.34 “Termination Date” means the date as of which a Participant incurs a Separation From
Service determined in accordance with the provisions of Section 6.2.



     2.35 “Termination of Employment” means the termination of an individual’s employment
relationship with the Company during the Term of the Plan (a) by the Company without Cause after a
Change in Control occurs and before the one year anniversary of the date of such Change in Control,
or (b) by the individual for Good Reason after a Change in Control occurs and before the one year
anniversary of the date of such Change in Control.



     For purposes of this definition, an individual’s employment shall be deemed to have been
terminated after a Change in Control and before the one year anniversary of the date of such Change
in Control, if (a) a Change in Control occurs and (b) (i) the individual’s employment is terminated
by the Company without Cause prior to a Change in Control and such termination was at the request
or direction of a Person who has entered into an agreement with the Company, the consummation of
which would constitute a Change in Control; (ii) the individual terminates his employment for Good
Reason prior to a Change in Control and the circumstance or event which constitutes Good Reason
occurs at the request or direction of a Person who has entered into an agreement with the Company,
the consummation of which would constitute a Change in Control; or (iii) the individual’s
employment is terminated by the Company without Cause or by the individual for Good Reason and such
termination or the circumstance or event which constitutes Good Reason is otherwise in connection
with or in anticipation of a Change in Control. For purposes of any determination regarding the
applicability of the immediately preceding sentence, any position taken by the Participant shall be
presumed to be correct unless the Company establishes to the Committee by clear and convincing
evidence that such position is not correct.



     Termination of Employment does not include (a) a termination of employment due to the
individual’s death or Disability, (b) a termination of employment by the individual without Good
Reason or (c) a termination of employment by the individual on or after the one year anniversary of
the date of a Change in Control.



     2.36 “Voting Securities” means the outstanding securities entitled to vote generally in the
election of directors or other governing body.



     2.37 “Wholly-Owned Subsidiary” means an Entity that is, directly or indirectly, wholly owned
by the Company.



- 8 -









 





3. ELIGIBILITY




     The individuals who shall be eligible to participate in the Plan shall be those Eligible
Individuals who are selected by the Committee to participate in the Plan. The Committee shall
notify an Eligible Individual who has been selected for participation in the Plan of his
eligibility to participate in the Plan by furnishing him a written notification of participation.



     Notwithstanding any other provision of the Plan, an Eligible Individual shall not be eligible
to participate in the Plan if there is in effect an individual severance agreement (including an
employment agreement that provides for severance benefits) or change in control agreement between
the Eligible Individual and the Company or other Employer.



     Notwithstanding any other provision of the Plan, the Committee may discontinue an individual’s
participation in the Plan at any time by providing him written notice (the “Notice”) that he shall
no longer participate in the Plan, provided, however, that a Change in Control has not occurred and
the discontinuation of the individual’s participation in the Plan is not taken in anticipation of a
Change in Control. If a Change in Control occurs within 12 months after the date the Notice is
provided then there shall be a rebuttable presumption that the discontinuation of the individual’s
participation in the Plan was taken in anticipation of a Change in Control unless the Company
rebuts such presumption by clear and convincing evidence.



4. BENEFITS




     4.1 Vesting of Equity Based Compensation Following Termination of Employment. If a
Participant incurs a Termination of Employment, all options to acquire the Company’s stock and all
shares of restricted Company stock held by the Participant under any plan of the Company shall
become immediately vested, exercisable and nonforfeitable, notwithstanding any provision of the
applicable award agreement.



     4.2 Benefits Following Termination of Employment. If a Participant incurs a Termination of
Employment, the Company shall provide the Participant the benefits described below.




     (a) Severance Payment. The Company will pay the Participant a cash severance
benefit in an amount equal to the positive difference, if any, between:



(A) minus (B)





where (A) is the sum of the Participant’s Highest Base Compensation and the Participant’s
Highest Bonus and (B) is the amount of the Participant’s Base Compensation, Bonus and all
other cash compensation paid by the Company and the Company’s Affiliates to the Participant
for his services to the Company and the Company’s Affiliates during the Post-Change in
Control Period.




     A Participant’s severance payment under this paragraph (a) will be paid in accordance
with the provisions of Section 5.



- 9 -









 






     (b) Accident and Health Insurance Benefits. The Company shall arrange to
provide the Participant and his dependents continuation coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for accident and health
insurance benefits substantially similar to those provided to the Participant and his
dependents by the Company immediately prior to the Termination Date or, if more favorable to
the Participant, those provided to the Participant and his dependents by the Company
immediately prior to the first occurrence of an event or circumstance constituting Good
Reason. The cost of such COBRA coverage will be paid by the Company for that number of
days, if any, COBRA coverage must be offered following the Participant’s Termination Date
equal to the positive difference, if any, of 365 minus the number of days during the
Post-Change in Control Period for such Participant (or such shorter period of time as is
required under COBRA). The Participant will pay all premiums due for any COBRA coverage
provided to the Participant and his dependents after the period described in the preceding
sentence.




     If the Participant is a Specified Employee and the benefits specified in this Section
4.2(b) are taxable to the Participant and not otherwise exempt from Section 409A, the
following provisions shall apply to the reimbursement or provision of such benefits. Any
amounts to which the Participant would otherwise be entitled under this Section 4.2(b)
during the first six months following the date of the Participant’s Separation From Service
shall be accumulated and paid to the Participant on the date that is six months following
the date of his Separation From Service. Except for any reimbursements under the applicable
group health plan that are subject to a limitation on reimbursements during a specified
period, the amount of expenses eligible for reimbursement under this Section 4.2(b), or
in-kind benefits provided, during the Participant’s taxable year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other
taxable year of the Participant. Any reimbursement of an expense described in this Section
4.2(b) shall be made on or before the last day of the Participant’s taxable year following
the Participants’ taxable year in which the expense was incurred. The Participant’s right
to reimbursement or in-kind benefits pursuant to this Section 4.2(b) shall not be subject to
liquidation or exchange for another benefit.




     (c) Life Insurance. A Participant shall be entitled to a single sum cash
payment in an amount equal to:




               (A) multiplied by (B) divided by (C) multiplied by (D)




where (A) is the total monthly basic life insurance premium (both the portion paid by the
Company and the portion paid by the Participant) applicable to the Participant’s basic life
insurance coverage on his Termination Date, (B) is 12, (C) is 365 and (D) is the positive
difference, if any, of 365 minus the number of days during the Post-Change in Control
Period. The single sum cash payment will be made in accordance with the provisions of
Section 5. If a conversion option is applicable under the Company’s group life insurance
program, a Participant may, at his option, convert his basic life insurance coverage to an
individual policy after his Termination Date by completing the forms required by the
Company.



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     4.3 Legal Fees. The Company shall pay all legal fees and expenses incurred by the Participant
(a) in disputing in good faith any issue relating to the Participant’s Termination of Employment,
or (b) in seeking in good faith to obtain or enforce any benefit or right provided under the Plan.
Such payments shall be made within ten (10) business days after the delivery of the Participant’s
written request for the payment accompanied by such evidence of fees and expenses incurred as the
Company may reasonably require. Notwithstanding the preceding sentence, if the Participant incurs
a Separation From Service and is a Specified Employee, the Company shall not make any further
payment of amounts payable by the Company to the Participant under this Section 4.3 before the date
that is six months following the date of his Separation From Service. Rather, on the date that is
six months following the date of the Participant’s Separation From Service the Company shall pay to
the Participant all amounts payable by the Company to the Participant under this Section 4.3 for
which a written request for payment was properly submitted by the Participant during the first six
months following the date of the Participant’s Separation From Service or which were otherwise not
paid before the Participant’s Separation From Service. In any event the Company shall pay the
Participant such legal fees and expenses by the last day of the Participant’s taxable year
following the taxable year in which the Participant incurred such legal fees and expenses. The
legal fees or expenses that are subject to reimbursement pursuant to this Section 4.3 shall not be
limited as a result of when the fees or expenses are incurred. The amount of legal fees or
expenses that is eligible for reimbursement pursuant to this Section 4.3 during a given taxable
year of the Participant shall not affect the amount of expenses eligible for reimbursement in any
other taxable year of the Participant. The right to reimbursement pursuant to this Section 4.3 is
not subject to liquidation or exchange for another benefit. The Participant shall repay to the
Company any expenses reimbursed by the Company pursuant to this Section 4.3 if a court of competent
jurisdiction shall have determined by a final, nonappealable order, that the expenses to be repaid
were incurred solely by reason of the Participant not acting in good faith in incurring such
expenses.



5. TIME OF BENEFITS PAYMENTS




     The Company shall pay the Participant any cash benefits described in paragraphs (a) and (c) of
Section 4.2 in a single sum cash payment within thirty (30) days after the Participant’s Separation
From Service if the Participant is not a Specified Employee or on the date that is six (6) months
following the Participant’s Separation From Service if the Participant is a Specified Employee.



6. TERMINATION PROCEDURES




     6.1 Notice of Termination. After a Change in Control and during the Term of the Plan, any
purported termination of the Participant’s employment by the Company shall be communicated by the
Company by a written Notice of Termination to the Participant in accordance with Section 13.10
hereof. For purposes of the Plan, a “Notice of Termination” shall mean a notice which shall
indicate the specific termination provision in the Plan relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Participant’s employment under the provision so indicated. Further, a Notice of Termination for
Cause is required to include a certified copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters (3/4) of the entire membership of the Board of Directors at a
meeting of the Board of Directors which was called and held for the purpose of



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considering such termination (after reasonable notice to the Participant and an opportunity
for the Participant, together with the Participant’s counsel, to be heard before the Board of
Directors) finding that, in the good faith opinion of the Board of Directors, the Participant
committed an act set forth in clause (a) or (b) of the definition of Cause herein, and specifying
the particulars thereof in detail. No purported termination of the Participant’s employment by the
Company after a Change in Control and during the Term of the Plan shall be effective unless the
Company complies with the procedures set forth in this Section 6.1.




     6.2 Termination Date. “Termination Date”, with respect to any purported Separation From
Service after a Change in Control and during the Term of the Plan, shall mean (a) if the
Participant’s employment is terminated for Disability, thirty (30) days after Notice of Termination
is given (provided that the Participant shall not have returned to the full-time performance of the
Participant’s duties during such thirty (30) day period), and (b) if the Participant’s employment
is terminated for any other reason, the date specified in the Notice of Termination (which, in the
case of a termination by the Company, shall not be less than thirty (30) days (except in the case
of a termination for Cause) and, in the case of a termination by the Participant, shall not be less
than fifteen (15) days nor more than sixty (60) days, respectively, from the date such Notice of
Termination is given).



     6.3 Dispute Concerning Termination. If within fifteen (15) days after any Notice of
Termination is given, or, if later, prior to the Termination Date (as determined without regard to
this Section 6.3), the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Termination Date shall be extended until the earlier
of (a) the date on which the Term of the Plan ends or (b) the date on which the dispute is finally
resolved, either by mutual written agreement of the parties or by a final judgment, order or decree
of an arbitrator or a court of competent jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no appeal has been perfected); provided,
however, that the Termination Date shall be extended by a notice of dispute given by the
Participant only if such notice is given in good faith and the Participant pursues the resolution
of such dispute with reasonable diligence.



7. WITHHOLDING




     The Company may withhold from any benefits paid under the Plan all income, employment, and
other taxes required to be withheld under applicable law.



8. DEATH OF PARTICIPANT




     If a Participant dies after his Termination Date but before the Participant receives full
payment of the benefits to which he is entitled, any unpaid benefits will be paid to the
Participant’s surviving spouse, or if the Participant does not have a surviving spouse, to the
Participant’s estate.



9. AMENDMENT AND TERMINATION




     Subject to the restrictions set forth in this Section 9, the Board of Directors may amend or
terminate the Plan at any time. After a Change in Control occurs, the Plan may not be terminated
or amended in any manner that would negatively affect a Participant’s rights under the Plan.



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Further, the Board of Directors may not amend or terminate the Plan in anticipation of a
Change in Control in any manner that would negatively affect a Participant’s rights under the Plan.
If a Change in Control occurs within 12 months after the date the Board of Directors amends or
terminates the Plan then there shall be a rebuttable presumption that the amendment or termination
of the Plan was made in anticipation of a Change in Control and shall not be effective in any
manner that would negatively affect a Participant’s rights under the Plan unless the Company rebuts
such presumption by clear and convincing evidence.




10. ADOPTION OF PLAN BY AFFILIATES





     (a) With the written approval of the Committee, any entity that is an Affiliate may
adopt the Plan by appropriate action of its board of directors or noncorporate counterpart,
as evidenced by a written instrument executed by an authorized officer of such entity or an
executed adoption agreement (approved by the board of directors or noncorporate counterpart
of the Affiliate), agreeing to be bound by all the terms, conditions and limitations of the
Plan and providing all information required by the Committee.




     (b) The provisions of the Plan shall apply separately and equally to each adopting
Affiliate in the same manner as is expressly provided for the Company, except that the power
to appoint the Committee and the power to amend or terminate the Plan shall be exercised by
the Company.




     (c) For purposes of the Code and ERISA, the Plan as adopted by the Affiliates shall
constitute a single plan rather than a separate plan of each Affiliate.



11. DISPUTED PAYMENTS AND FAILURES TO PAY




     If the Company fails to make a payment in whole or in part as of the payment deadline
specified in the Plan, either intentionally or unintentionally, other than with the express or
implied consent of the Participant, the Participant shall make prompt and reasonable good faith
efforts to collect the remaining portion of the payment. The Company shall pay any such unpaid
benefits due to the Participant, together with interest on the unpaid benefits from the date of the
payment deadline specified in the Plan at an annual rate equal to 120 percent of the applicable
Federal rate provided for in section 1274(d) of the Code, within ten (10) business days of
discovering that the additional monies are due and payable.



     The Company shall hold harmless and indemnify the Participant on a fully grossed-up after tax
basis from and against (i) any and all taxes imposed under Section 409A (and any comparable state
statutes) by any taxing authority as a result of the Company’s failure to comply with this Section
11 and all penalties and interest with respect to the Company’s failure to comply with this Section
11, and (ii) all expenses (including reasonable attorneys’, accountants’, and experts’ fees and
expenses) incurred by the Participant due to a tax audit or litigation addressing the existence or
amount of a tax liability described in clause (i); and (iii) the amount of additional taxes
(including penalties and interest) imposed upon the Participant due to the Company’s payment of the
initial taxes penalties, interest and expenses described in clauses (i) and (ii).



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     The Company shall make a payment to reimburse the Participant in an amount equal to all
federal, state and local taxes imposed upon the Eligible Individual that are described in clauses
(i) and (iii) of the foregoing paragraph of this Section 11, including the amount of additional
taxes imposed upon the Participant due to the Company’s payment of the initial taxes on such
amounts, by the end of the Participant’s taxable year next following the Participant’s taxable year
in which the Participant remits the related taxes to the taxing authority. The Company shall make
a payment to reimburse the Participant in an amount equal to all expenses and other amounts
incurred due to a tax audit or litigation addressing the existence or amount of a tax liability
pursuant to clause (ii) of the foregoing paragraph of this Section 11, by the end of Participant’s
taxable year following the Participant’s taxable year in which the taxes that are the subject of
the audit or litigation are remitted to the taxing authority, or where as a result of such audit or
litigation no taxes are remitted, the end of the Participant’s taxable year following the
Participant’s taxable year in which the audit is completed or there is a final and nonappealable
settlement or other resolution of the litigation.



12. FORFEITURE FOR CAUSE




     12.1 Notwithstanding any other provision of the Plan, if a determination is made as provided
in Section 12.2 (a “Forfeiture Determination”) that (a) the Participant, before or after the
termination of the Participant’s employment with the Company and all Affiliates, (i) committed
fraud, embezzlement, theft, felony or an act of dishonesty in the course of his employment by the
Company or an Affiliate, (ii) knowingly caused or assisted in causing the publicly released
financial statements of the Company to be misstated or the Company or a subsidiary of the Company
to engage in criminal misconduct, (iii) disclosed trade secrets of the Company or an Affiliate or
(iv) violated the terms of any non-competition, non-disclosure or similar agreement with respect to
the Company or any Affiliate to which the Participant is a party; and (b) in the case of the
actions described in clause (i), (iii) and (iv), such action materially and adversely affected the
Company, then at or after the time such Forfeiture Determination is made the Board of Directors, in
its sole discretion, if such Forfeiture Determination is made prior to a Change in Control, or, as
determined by a final, non-appealable order of a court of competent jurisdiction, if such
Forfeiture Determination is made after a Change in Control, as a fair and equitable forfeiture to
reflect the harm done to the Company and a reduction of the benefit bestowed on the Participant had
the facts existing at the time the benefit was bestowed that led to the Forfeiture Determination
been known to the Company at the time the benefit was bestowed, may determine that some or all (x)
benefits payable or to be provided, or previously paid or provided, under the Plan to the
Participant (including any payment previously paid to the Participant under Section 4.2 or legal
expense reimbursement payment under Section 4.3), (y) cash bonuses paid on or after the Effective
Date by the Company to the Participant under any plan, program, policy, practice, contract or
agreement of the Company or (z) equity awards granted to the Participant under any plan, program,
policy, practice, contract or agreement of the Company that vested on or after the Effective Date,
will be forfeited to the Company on such terms as determined by the Board of Directors or the
final, non-appealable order of a court of competent jurisdiction.



     12.2 A Forfeiture Determination for purposes of Section 12.1 shall be made (a) before the
occurrence of a Change in Control, by a majority vote of the Board of Directors and (b) on or after
the occurrence of a Change in Control, by the final, nonappealable order of a court of



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competent jurisdiction. The findings and decision of the Board of Directors with respect to a
Forfeiture Determination made before the occurrence of a Change in Control, including those
regarding the acts of the Participant and the damage done to the Company, will be final for all
purposes absent a showing by clear and convincing evidence of manifest error by the Board of
Directors. No decision of the Board of Directors, however, will affect the finality of the
discharge of the Participant by the Company or an Affiliate.




13. MISCELLANEOUS




     13.1 Plan Not an Employment Contract. The adoption and maintenance of the Plan is not a
contract between the Company and its employees that gives any employee the right to be retained in
its employment. Likewise, it is not intended to interfere with the rights of an Employer to
terminate an employee’s employment at any time with or without notice and with or without cause or
to interfere with an employee’s right to terminate his employment at any time.



     13.2 Alienation Prohibited. No benefits hereunder shall be subject to anticipation or
assignment by a Participant, to attachment by, interference with, or control of any creditor of a
Participant, or to being taken or reached by any legal or equitable process in satisfaction of any
debt or liability of a Participant prior to its actual receipt by the Participant. Any attempted
conveyance, transfer, assignment, mortgage, pledge, or encumbrance of the benefits hereunder prior
to payment thereof shall be void.



     13.3 Number and Gender. As used in the Plan, unless the context otherwise expressly requires
to the contrary, references to the singular include the plural, and vice versa; references to the
masculine include the feminine and neuter; references to “including” mean “including (without
limitation)”; and references to Sections and clauses mean the sections and clauses of the Plan.



     13.4 Headings. The headings of Sections herein are included solely for convenience, and if
there is any conflict between such headings and the text of the Plan, the text shall control.



     13.5 Severability. Each provision of the Plan may be severed. If any provision is determined
to be invalid or unenforceable, that determination shall not affect the validity or enforceability
of any other provision.



     13.6 Binding Effect. The Plan shall be binding upon any successor of the Company. Further,
the Board of Directors shall not authorize a Change in Control that is a merger or a sale
transaction unless the purchaser or the Company’s successor agrees to take such actions as are
necessary to cause all Participants to be paid or provided all benefits due under the terms of the
Plan as in effect immediately prior to the Change in Control.



     13.7 Settlement of Disputes Concerning Benefits Under the Plan; Arbitration. All claims by a
Participant for benefits under the Plan shall be directed to and determined by the Committee and
shall be in writing. Any denial by the Committee of a claim for benefits under the Plan shall be
delivered to the Participant in writing within thirty (30) days after written notice of the claim
is provided to the Company in accordance with Section 13.10 and shall set forth the specific
reasons for the denial and the specific provisions of the Plan relied upon. The Committee shall
afford a reasonable opportunity to the Participant for a review of the decision



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denying a claim and shall further allow the Participant to appeal to the Committee a decision
of the Committee within sixty (60) days after notification by the Committee that the Participant’s
claim has been denied. Any further dispute or controversy arising out of or relating to the Plan,
including without limitation, any and all disputes, claims (whether in tort, contract, statutory or
otherwise) or disagreements concerning the interpretation or application of the provisions of the
Plan shall be resolved by arbitration in accordance with the rules of the American Arbitration
Association (the “AAA”) then in effect. No arbitration proceeding relating to the Plan may be
initiated by either the Company or the Participant unless the claims review and appeals procedures
specified in this Section 13.7 have been exhausted. Within ten (10) business days of the
initiation of an arbitration hereunder, the Company and the Participant will each separately
designate an arbitrator, and within twenty (20) business days of selection, the appointed
arbitrators will appoint a neutral arbitrator from the AAA Panel of Commercial Arbitrators. The
arbitrators shall issue their written decision (including a statement of finding of facts) within
thirty (30) days from the date of the close of the arbitration hearing. The decision of the
arbitrators selected hereunder will be final and binding on both parties. This arbitration
provision is expressly made pursuant to and shall be governed by the Federal Arbitration Act, 9
U.S.C. Sections 1-16 (or replacement or successor statute). Pursuant to Section 9 of the Federal
Arbitration Act, the Company and any Participant agree that a judgment of the United States
District Court for the District in which the principal corporate office of the Company is located
at the time of initiation of an arbitration hereunder may be entered upon the award made pursuant
to the arbitration.




     13.8 No Mitigation. The Company agrees that if the Participant’s employment with the Company
terminates during the Term of the Plan, the Participant is not required to seek other employment or
to attempt in any way to reduce any amounts payable to the Participant by the Company pursuant to
the Plan. Further, except as expressly provided otherwise herein, the amount of any payment or
benefit provided for in the Plan shall not be reduced by any compensation earned by the Participant
as the result of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Participant to the Company, or otherwise.



     13.9 Other Amounts Due. Except as expressly provided otherwise herein, the payments and
benefits provided for in the Plan are in addition to and not in lieu of amounts and benefits that
are earned by a Participant prior to his Termination Date. The Company shall pay a Participant any
compensation earned through the Termination Date but not previously paid to the Participant.
Further the Participant shall be entitled to any other amounts or benefits due the Participant in
accordance with any contract, plan, program or policy of the Company or any of its Affiliates.
Amounts that the Participant is entitled to receive under any plan, program, contract or policy of
the Company or any of its Affiliates at or subsequent to the Participant’s Termination Date shall
be payable or otherwise provided in accordance with such plan, program, contract or policy, except
as expressly modified herein.



     13.10 Notices. For the purpose of the Plan, notices and all other communications provided for
in the Plan shall be in writing and shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested, postage prepaid, addressed, if
to the Participant, to the residential address listed on the Participant’s notification of
participation and, if to the Company, to 6380 Rogerdale Road, Houston, Texas 77072, directed



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to the attention of the Chief Financial Officer, and with a copy to the General Counsel of the
Company at 40650 Encyclopedia Circle, Fremont, California 94538, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon actual receipt.




     13.11 Governing Law. All provisions of the Plan shall be construed in accordance with the
laws of the State of Texas, except to the extent preempted by federal law and except to the extent
that the conflicts of laws provisions of the State of Texas would require the application of the
relevant law of another jurisdiction, in which event the relevant law of the State of Texas will
nonetheless apply, with venue for litigation being solely and exclusively in Houston, Texas.



     13.12 Compliance With Section 409A. It is intended that the Plan shall comply with Section
409A. The provisions of the Plan shall be interpreted and administered in a manner that complies
with Section 409A.



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     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer effective as of October 1, 2009.



	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	/s/ NEILL P. DAVIS
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Executive Vice President