Exhibit 10.9


 


 


JOS. A. BANK CLOTHIERS, INC.


 


NONQUALIFIED DEFERRED
COMPENSATION


TRUST AGREEMENT


 





















 


TABLE OF CONTENTS


 


	
  Section 1.

  	
  Trust Fund.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
  Payments to or on behalf of Participants.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
  Trustees’ Responsibilities Regarding
  Payments to or on Behalf of Participants When Employer Insolvent.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.

  	
  Payments to Employer.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.

  	
  Investment of Principal.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.

  	
  Disposition of Income.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.

  	
  Accounting by Trustees.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.

  	
  Responsibilities of Trustees.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.

  	
  Compensation and Expenses of Trustees.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.

  	
  Replacement of Trustees.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.

  	
  Amendment or Termination.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.

  	
  Severability and Alienation.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.

  	
  Miscellaneous.

  	
   

  



 





















 


JOS. A. BANK CLOTHIERS, INC.


NONQUALIFIED DEFERRED
COMPENSATION 


TRUST AGREEMENT


 


This Agreement is made this
20th day of January, 2004, by and between Jos. A. Bank Clothiers, Inc.
(hereinafter “Employer”) and Julie D’Angelo and Richard E. Pitts (hereinafter
collectively called “Trustees”).


 


W I T N E S S E T H:


 


WHEREAS, the Employer has
established a nonqualified deferred compensation plan (“Nonqualified Plan”) and
model trust agreement (“Model Trust”) effective October 1, 1998; and


 


WHEREAS, the Employer has
transferred to the Model Trust certain assets which were held therein, subject
to the claims of creditors of the Employer in the event of the Employer’s
Insolvency (as hereinafter defined) until paid to the participant or
beneficiary in such manner and at such times as specified in the Nonqualified
Plan; and


 


WHEREAS, the Employer
reserved to itself the right to amend the Model Trust in Section XII (a);
and


 


WHEREAS, the Employer wishes
to amend and restate the Model Trust; and


 


WHEREAS, the Employer has
designated Julie D’Angelo and Richard E. Pitts as successor Trustees; and


 


 WHEREAS, the Employer intends that the trust
provisions of the Model Trust as amended and restated into the trust hereby
created, to be known as the “Jos. A. Bank Clothiers, Inc. Nonqualified Deferred
Compensation Trust Agreement” (“Trust”) shall constitute an unfunded
arrangement and shall not affect the status of the Nonqualified Plan as an
unfunded plan maintained for the purpose of providing deferred compensation for
a select group or management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”); and


 


WHEREAS, it is the intention
of Employer that it will make contributions to the Trust to provide itself with
a source of funds to assist it in the meeting of its liabilities under the
Nonqualified Plan;


 


NOW, THEREFORE, the parties
do hereby amend and restate the trust provisions of the Model Trust into the
trust contained herein, to be known as the “Jos. A. Bank Clothiers, Inc.
Nonqualified Deferred Compensation Trust,” as a supplement to and in order to
carry out the purposes of the Nonqualified Plan and agree that the Trust shall
be comprised, held and disposed of as follows:


 





















 


Section 1.                                          Trust Fund.


 


(a)                                  Subject to the claims of Employer’s creditors
as set forth in Section 3, Employer shall deposit with the Trustees
amounts to be determined pursuant to the Nonqualified Plan which, together with
such amounts held under the Model Trust as of the date on which said Model
Trust is amended and restated by the adoption of this Trust, shall become the
principal of the Trust to be held, administered and disposed of by the Trustees
as provided in this Trust Agreement.


 


(b)                                 The Trust shall be irrevocable.


 


(c)                                  The Trust is intended to be a grantor trust,
within the meaning of Section 671 of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.


 


(d)                                 The principal of the Trust and any earnings
thereon which are not paid to Employer as provided in Section 4, shall be
held separate and apart from other funds of Employer and shall be used
exclusively for the uses and purposes herein set forth, including but not
limited to the payment of expenses of the Nonqualified Plan and Trust.  Neither the Nonqualified Plan nor
participants thereunder shall have any preferred claim on, or any beneficial
ownership interest in, any assets of the Trust prior to the time such assets
are paid to the participant as benefits as provided in Section 2, and all
rights created under the Nonqualified Plan and this Trust Agreement shall be
mere unsecured contractual rights of the participants against Employer.


 


(e)                                  Employer may at any time or from time to time
make additional deposits of cash or other property in Trust with the Trustees
to augment the principal to be held, administered and disposed of by the
Trustees as provided in this Trust Agreement.


 


(f)                                    The Trustees shall be accountable to Employer
for all contributions received, but the Trustees shall have no duty to see that
the contributions received are sufficient to provide for benefits payable under
the Nonqualified Plan, nor shall the Trustees be obligated or have any right to
enforce or collect any contribution from Employer, or otherwise see that funds
are deposited to pay benefits according to the provisions of the Nonqualified
Plan.


 


(g)                                 Upon a Change of Control, Employer shall, as
soon as possible, but in no event longer than 30 days following the Change of
Control, as defined herein, make an irrevocable contribution to the Trust in an
amount that is sufficient to pay each Nonqualified Plan participant or
beneficiary the benefits in which Nonqualified Plan participants and their
beneficiaries would be entitled pursuant to the terms of the Nonqualified Plan
as of the date on which the Change of Control occurred.


 


Section 2.                                          Payments to
or on behalf of Participants.


 


(a)                                  The Trustees shall make payments of benefits
to participants, or on behalf of participants to their beneficiaries under the
Nonqualified Plan, from the assets of the Trust at all times that Employer is
not Insolvent, as hereinafter defined, if and to the extent such assets are
available for distribution, in such manner, at such time, and in such amounts,
as Employer shall from time to time direct in a written document delivered to
the Trustees. The Trustees shall make provision for the reporting and
withholding of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits as directed by Employer and
shall pay amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by Employer.  Notwithstanding anything to the contrary
herein, the Trustees shall be fully protected in making or discontinuing
payments in accordance with written directions of Employer and shall have no
responsibility to see to the application of said payments or to ascertain
whether such directions comply with the terms of the Nonqualified Plan.


 





















 


(b)                                 If the assets of the Trust which are not paid
to Employer as provided in Section 4, are not sufficient to make payments
of benefits to participants or beneficiaries in accordance with the
Nonqualified Plan, Employer shall make the balance of each such payment as it
falls due.  Trustees shall notify
Employer in the event assets of the Trust are not sufficient to make payments
as directed by Employer herein.


 


Section 3.                                          Trustees’
Responsibilities Regarding Payments to or on Behalf of Participants When
Employer Insolvent.


 


(a)                                  Employer shall be considered “Insolvent” for
purposes of this Trust Agreement if (i) it is unable to pay its debts as
they mature, or (ii) it is subject to a pending proceeding as debtor
relating to its debts under any existing or future law of any jurisdiction
relating to bankruptcy, insolvency or other similar relief.


 


(b)                                 At all times during the continuance of this
Trust, the principal and income of the Trust shall constitute general
unrestricted assets of Employer and shall be subject to claims of general
creditors of Employer as hereinafter set forth, and at any time the Trustees
have actual knowledge, or have determined, that Employer is Insolvent, the
Trustees shall deliver any undistributed principal and income in the Trust to
satisfy such claims as a court of competent jurisdiction may direct.  The board of directors and the chief
executive officer of Employer shall have the duty to inform the Trustees of
Employer’s Insolvency.  If Employer or a
person claiming to be a creditor of Employer alleges in writing to the Trustees
that Employer has become Insolvent, the Trustees shall independently determine,
within thirty (30) days after receipt of such notice, whether Employer is
Insolvent and, pending such determination, the Trustees shall discontinue
payments of benefits to participants and their beneficiaries.  In the event Trustees have actual knowledge
or determine that Employer is Insolvent, Trustees shall hold the Trust assets
for the benefit of Employer’s general creditors, and shall resume payments of
benefits in accordance with Section 2 of this Trust Agreement only after
the Trustees have determined that Employer is not Insolvent (or is no longer
Insolvent if the Trustees initially determined Employer to be Insolvent).  Unless the Trustees have actual knowledge of Employer’s
Insolvency, the Trustees shall have no duty to inquire whether Employer is
Insolvent.  The Trustees may in all
events rely on such evidence concerning Employer’s solvency as may be furnished
to the Trustees which will give the Trustees a reasonable basis for making a
determination concerning Employer’s solvency, including financial information,
whether or not certified, that they receive from the then regularly employed
independent accountants for Employer; and any such determination shall be conclusive
and binding upon Employer, participants and beneficiaries and all other
parties.  Nothing in this Trust Agreement
shall in any way diminish any rights of participants or beneficiaries as
general creditors of Employer with respect to benefits or otherwise.


 


(c)                                  Provided that there are sufficient assets, if
Trustees discontinue the payment of benefits from the Trust pursuant to Section 3(b) hereof
and subsequently resume such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Nonqualified Plan
for the period of such discontinuance, less the aggregate amount of any
payments made to Plan participants or their beneficiaries by Employer in lieu
of the payments provided for hereunder during any such period of
discontinuance.  The provisions of Section 2
shall govern with regard to responsibility for determination of the amount of
such payment.


 


(d)                                 The Trustees shall have no responsibility or
liability of any kind to Employer, participants, beneficiaries or any other
party with respect to any loss or damage that occurs as a result of any action
or inaction taken, or any determination made, by the Trustees in good faith
pursuant to the terms of this Section 3.


 


Section 4.                                          Payments to
Employer.


 


Except with respect to the
payment of expenses of the Nonqualified Plan and Trust, Employer shall not have
any right or power to direct the Trustees to return to Employer or to divert to
others any of the Trust assets before all payments of benefits have been made
as required by the Nonqualified Plan.  If
it is determined by the


 





















 


Trustees that certain Trust assets clearly never will be required to
pay benefits, as in the case of a forfeiture pursuant to the terms of the
Nonqualified Plan, such excess assets shall be returned to Employer.


 


Section 5.                                          Investment
of Principal.


 


The Trustees shall invest
the principal of the Trust and any earnings thereon which are not paid to
Employer as provided in Section 4, as the participants shall from time to
time direct.   The Trustees shall not be
liable if such direction results in a breach of any duty of the Trustees to
diversify, to maintain liquidity, or to meet any other investment
standard.  Absent direction from Employer
or the participant, the Trustees shall invest the Trust in accordance with
applicable law.


 


Section 6.                                          Disposition
of Income.


 


Except as provided in Section 4,
during the term of this Trust, all income received by the Trust, net of expenses,
shall be accumulated and reinvested as assets of the Trust.  All income of the Trust earned during each
year shall become principal as of the end of such year.


 


Section 7.                                          Accounting
by Trustees.


 


The Trustees shall keep
accurate and detailed records of all investments, receipts, disbursements, and
all other transactions required to be done, including such specific records as
shall be agreed upon in writing between Employer and the Trustees.  All such accounts, books and records shall be
open to inspection and audit at all reasonable times by Employer, by
participants, and by those beneficiaries who are in pay status.  Within sixty (60) days following the close of
each calendar year and within sixty (60) days after the removal or resignation
of a Trustee, the Trustees shall deliver to Employer a written account of
administration of the Trust during such year or during the period from the
close of the last preceding year to the date of such removal or resignation,
setting forth all investments, receipts, disbursements and other transactions,
effected by the Trustees, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales (accrued interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the Trust at the end of
such year or as of the date of such removal or resignation, as the case may be.


 


Section 8.                                          Responsibilities
of Trustees.


 


(a)                                  The Trustees shall act with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like aims.


 


(b)                                 The Trustees shall not be required to
undertake or to defend any litigation arising in connection with this Trust
Agreement, unless they are first indemnified by Employer against their
prospective costs, expenses and liability, and Employer hereby agrees to
indemnify the Trustees for such costs, expenses, and liability.


 


(c)                                  The Trustees may consult with legal counsel
(who may also be counsel for Employer) with respect to any of their duties or
obligations hereunder.


 


(d)                                 The Trustees may hire agents, accountants,
actuaries and financial consultants.


 


(e)                                  The Trustees shall have, without exclusion,
all powers conferred on trustees generally by applicable law unless expressly
provided otherwise herein.


 





















 


(f)                                    Except as otherwise specifically provided in
this Trust Agreement, the Trustees shall ensure that no part of the Trust is
used for or diverted to purposes other than the exclusive benefit of
participants and their beneficiaries.


 


(g)                                 The Trustees shall make payment of the
reasonable costs and expenses of the Nonqualified Plan and Trust, which payment
may be made out of the assets of the Trust.


 


(h)                                 The Nonqualified Plan shall be administered
by the Employer as provided for in the Nonqualified Plan, and the Trustees
shall not be responsible for the administration of the Nonqualified Plan.


 


(i)                                     Notwithstanding any powers granted to
Trustees pursuant to this Trust Agreement or to applicable law, Trustees shall
not have any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant to the
Internal Revenue Code.


 


Section 9.                                          Compensation
and Expenses of Trustees.


 


The Trustees shall be
entitled to receive such reasonable compensation for their services as shall be
agreed upon by Employer and the Trustees. 
The Trustees shall also be entitled to receive their reasonable expenses
incurred with respect to the administration of the Trust, including fees
incurred by the Trustees pursuant to Section 8(c) and 8(d) of
this Trust Agreement and, to the extent not paid from Trust assets, payments
made pursuant to Section 8(g) of this Trust Agreement.


 


Section 10.                                   Replacement
of Trustees.


 


Any Trustee may be removed
at any time by Employer, or may resign, in which case a new Trustee shall be
appointed by Employer.  If any person
serving as Trustee is employed by Employer and such person’s employment with
Employer is terminated, then such person shall automatically cease to be a
Trustee under this Trust Agreement as of the date such person gives or receives
notice of termination of employment. 
Each successor to any Trustee shall succeed to the title to the Trust
vested in his or her predecessor, without the signing or filing of any further
instrument, but any resigning or removed Trustee shall execute all documents
and do all acts necessary to vest such title of record in any successor
Trustee.  Each successor Trustee shall
have and enjoy all powers, both discretionary and administerial, of its
predecessor.  No successor Trustee shall
be personally liable for any act or failure to act of any predecessor Trustee;
and, with the approval of Employer, a successor Trustee may accept the account
rendered and the property delivered to it by its predecessor Trustee as a full
and complete discharge of the predecessor Trustee without incurring any
liability or responsibility for so doing. 
Until a successor Trustee is appointed to replace a resigning or removed
Trustee, the remaining Trustees shall have full authority to act under the
terms of this Trust Agreement by unanimous consent of such remaining Trustees.


 


Section 11.                                   Amendment or
Termination.


 


(a)                                  This Trust Agreement may be amended at any
time and to any extent by a written instrument executed by the Trustees and
Employer (except that no amendment may make the Trust revocable).


 


(b)                                 The Trust shall remain in existence until the
date on which all participants and beneficiaries entitled to benefits pursuant
to the Nonqualified Plan have been paid.


 


(c)                                  Upon termination of the Trust as provided in Section 11(b),
any assets remaining in the Trust shall be returned to Employer.


 





















 


Section 12.                                   Severability
and Alienation.


 


(a)                                  Any provisions of this Trust Agreement
prohibited by law shall be ineffective to the extent of any such prohibition
without invalidating the remaining provisions hereof.


 


(b)                                 To the extent permitted by law, benefits
payable to participants or their beneficiaries under this Trust Agreement may
not be assigned (either at law or in equity), alienated or subjected to
attachment, garnishment, levy, execution or other legal or equitable process.


 


Section 13.                                   Miscellaneous.


 


(a)                                  To the extent not preempted by federal law,
the laws of the State of Maryland shall govern, control and determine any
questions arising with respect to this Trust Agreement and the validity,
interpretation and performance of its provisions.


 


(b)                                 The Trustees shall not be obligated to
inquire whether any payee of funds or any distributee of benefits designated by
Employer is entitled thereto or whether any payment, allocation or distribution
directed or authorized by Employer is proper or within the terms of this Trust
Agreement or the Nonqualified Plan, and shall not be accountable for any
payment, allocation or distribution made by the Trustees in good faith on the
order or direction of Employer.  The
Trustees shall not be liable or responsible for any payment made by them in
good faith without actual notice or knowledge of the change to condition or
status of the payee.


 


(c)                                  Evidence required of anyone under this Trust
Agreement may be by certificate, affidavit, document or other information which
the person acting in reliance thereon may consider pertinent, reliable and
genuine, and to have been signed, made or presented by the proper party or
parties, except that any action required to be taken by Employer shall be by
resolution of its Board of Directors or by a person authorized by resolution of
its Board of Directors.  The Trustees
shall not recognize or take notice of an appointment of any representative of
Employer unless and until Employer shall have notified the Trustees in writing
of such appointment and the extent of the representative’s authority.  The Trustees may assume that such appointment
and authority continue in effect until they receive written notice to the
contrary from Employer.  Any action taken
or omitted to be taken by the Trustees by authority of any representative of
Employer within the scope of his authority shall be as effective for all purposes
hereof as if such action or nonaction had been authorized by Employer.  The Trustees, Employer and any representative
of Employer shall each be fully protected in acting and relying upon any
evidence described in this Section 13(c).


 


(d)                                 Unless the context clearly requires
otherwise, words in the masculine gender shall include the feminine and neuter
genders, the singular shall include the plural, and the plural shall include
the singular.


 


(e)                                  The headings of the sections of this Trust
Agreement are for convenience of reference only and shall have no substantive
effect on the provisions of this Trust Agreement.


 





















 


(f)                                    For purposes of this Trust, Change of Control
shall mean: The purchase or other acquisition by any person, entity, or group
of persons, within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (“Act”), or any comparable successor
provisions, of beneficial ownership (within the meaning of rule 13d-3
promulgated under the Act) of 30% or more of either the outstanding shares of
common stock or the combined voting power of the Employer’s then outstanding
voting securities entitled to vote generally, or the approval by the
stockholders of the Employer of a reorganization, merger, or consolidation, in
each case, with respect to which persons who were stockholders of Employer
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting power entitled
to vote generally in the election of directors of the reorganized, merged or
consolidated Employer’s then outstanding securities, or a liquidation or
dissolution of the Employer or of the sale of all or substantially all of the
Employer’s assets.


 





















 


IN WITNESS WHEREOF, Employer
and the Trustees have executed this Trust Agreement as of the date first above
written.


 


	
   

  	
  “Employer”

  
	
   

  	
   

  
	
   

  	
  Jos. A. Bank Clothiers, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert B. Hensley

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  EVP - Operations

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Hampstead, MD 21074

  	
   

  
	
   

  	
      City        State    Zip

  
	
   

  	
   

  
	
   

  	
  “Trustee”

  
	
   

  	
   

  
	
   

  	
  /s/ Julie D’Angelo

  	
   

  
	
   

  	
  Julie D’Angelo

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Hampstead, MD 21074

  	
   

  
	
   

  	
      City        State    Zip

  
	
   

  	
   

  
	
   

  	
  “Trustee”

  
	
   

  	
   

  
	
   

  	
  /s/ Richard E. Pitts

  	
   

  
	
   

  	
  Richard E. Pitts

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Hampstead, MD 21074

  	
   

  
	
   

  	
      City        State    Zip