Exhibit 10.17





Exhibit 10.17




JOS A. BANK CLOTHIERS, INC.

2010 DEFERRED COMPENSATION PLAN




Effective as of March 30, 2010





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	INTRODUCTION
	 	 	1	 
	ARTICLE I — TITLE AND DEFINITIONS
	 	 	1	 
	1.1 Definitions
	 	 	1	 
	ARTICLE II — PARTICIPATION
	 	 	6	 
	2.1 Determination of Eligible Persons
	 	 	6	 
	2.2 Enrollment; Duration of Participation
	 	 	6	 
	2.3 Transfers to Non-Participating Related Companies
	 	 	6	 
	2.4 Amendment of Eligibility Criteria
	 	 	6	 
	ARTICLE III — DEFERRAL ELECTIONS
	 	 	6	 
	3.1 Elections to Defer Compensation
	 	 	6	 
	3.2 Deemed Investment Elections
	 	 	8	 
	3.3 Elections as to Form and Timing of Payment
	 	 	9	 
	ARTICLE IV — PARTICIPANT ACCOUNTS
	 	 	10	 
	4.1 Maintenance of Accounts
	 	 	10	 
	4.2 Hypothetical Investment in Stock Unit Account
	 	 	10	 
	ARTICLE V — VESTING
	 	 	11	 
	ARTICLE VI DISTRIBUTIONS
	 	 	11	 
	6.1 General Provision
	 	 	11	 
	6.2 Delay in Distribution for Specified Employees
	 	 	11	 
	6.3 Change in Control
	 	 	11	 
	6.4 Manner of Payment—Cash vs. Stock
	 	 	11	 
	6.5 Death of a Participant
	 	 	12	 
	6.6 Delayed Distribution Attributable to Code Section 162(m)
	 	 	12	 
	6.7 Hardship Distribution
	 	 	12	 
	6.8 Inability to Locate Participant
	 	 	13	 
	ARTICLE VII — ADMINISTRATION
	 	 	13	 
	7.1 Committee Action
	 	 	13	 
	7.2 Powers and Duties of the Committee
	 	 	13	 
	7.3 Construction and Interpretation
	 	 	14	 
	7.4 Information
	 	 	14	 
	7.5 Compensation, Expenses and Indemnity
	 	 	14	 
	7.6 Filing a Claim
	 	 	14	 
	7.7 Appeal of Denied Claims
	 	 	15	 
	ARTICLE VIII — MISCELLANEOUS
	 	 	16	 
	8.1 Unsecured General Creditor
	 	 	16	 
	8.2 Restriction Against Assignment
	 	 	16	 
	8.3 Withholding
	 	 	16	 
	8.4 Amendment, Modification, Suspension or Termination
	 	 	16	 
	8.5 Governing Law
	 	 	17	 
	8.6 Receipt or Release
	 	 	17	 
	8.7 Payments on Behalf of Persons Under Incapacity
	 	 	17	 
	8.8 Limitation of Rights and Employment Relationship
	 	 	17	 
	8.9 Adjustments; Assumptions of Obligations
	 	 	17	 
	8.10 Headings
	 	 	18	 
	EXHIBIT A — PARTICIPATING BUSINESS UNITS
	 	 	19	 









 


 









 







JOS A. BANK CLOTHIERS, INC.

2010 DEFERRED COMPENSATION PLAN




INTRODUCTION




Effective as of March 30, 2010, Jos. A. Bank Clothiers, Inc. (the “Company”) hereby
establishes the JOS A. BANK CLOTHIERS, INC. 2010 DEFERRED COMPENSATION PLAN
to provide a select group of its senior management and highly compensated employees, and
non-employee directors, with the opportunity to accumulate capital by deferring compensation on a
pre-tax basis, and to provide the Company with a method of rewarding and retaining top executives,
managerial employees and non-employee directors by providing them with a means to defer receipt of
certain shares of Stock associated with Restricted Stock Units, Performance Share awards and Other
Cash and Stock Based Awards.



The terms of the Plan as set forth in this Plan document apply solely with respect to
deferrals made pursuant to the terms of the Plan on and after March 30, 2010.



ARTICLE I

TITLE AND DEFINITIONS




1.1 Definitions.



Capitalized terms used in this Plan, shall have the meanings specified below.



“Account” or “Accounts” shall mean a Participant’s Account under this Plan, including any
subaccounts maintained under the Plan. A Participant’s Account shall consist only of an entry on
the records of the Company recording the Participant’s deferrals and unrealized gains or losses
thereon, and shall be utilized solely as a device for the measurement and determination of amounts
to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan.



“Affiliate” shall mean any corporation, trade or business that, together with the Company, is
treated as a single employer under Code Section 414(b) or (c).



“Base Salary” shall mean an Eligible Employee’s annual base salary, excluding commissions,
incentive and all other remuneration for services rendered to the Company, but prior to reduction
for any salary contributions to a plan established pursuant to Sections 125 or 132(f) of the Code
or qualified pursuant to Section 401(k) of the Code.



“Beneficiary” or “Beneficiaries” shall mean the Participant’s spouse unless the Participant
designates a different Beneficiary and the Participant’s spouse consents to such designation. If a
Participant leaves no surviving spouse, then his or her estate shall be the Beneficiary unless the
Participant had designated a different Beneficiary prior to his or her death. A Participant may,
with his spouse’s consent, designate more than one Beneficiary and direct that payments be divided
in specific portions among them. Each Participant may revoke or change a Beneficiary designation
in all respects. The death of a designated Beneficiary prior to or simultaneously with the death
of the designating Participant shall automatically revoke such designated Beneficiary’s status as a
Beneficiary.


 


 









 





“Board of Directors” or “Board” shall mean the Board of Directors of Jos. A. Bank Clothiers,
Inc.



“Business Unit” includes The Joseph A. Bank Mfg Co., Inc. and any other Affiliate of the
Company which, with the consent of the Board, has adopted the Plan. Business Units shall be listed
on Exhibit A to the Plan.



“Change in Control” shall have the same meaning as that accorded the term under the Equity
Incentive Plan. The determination as to the occurrence of a Change in Control shall be based on
objective facts and in accordance with the requirements of Code Section 409A.




“Code” shall mean the Internal Revenue Code of 1986, as amended.



“Committee” shall mean the Compensation Committee of the Board (or such other committee as
shall be designated by the Board).




“Company” shall mean Jos. A. Bank Clothiers, Inc., a Delaware corporation.



“Compensation” shall mean, in the case of all Eligible Employees, Base Salary, cash bonuses
and incentive awards, and any other cash compensation permitted by the Committee to be deferred.
In the case of Eligible Directors, Compensation shall mean Fees (as defined hereinafter).
Compensation shall also include, as the context requires, other elements of compensation (e.g.,
Restricted Stock Units, Performance Shares and Other Stock-Based and Other Cash-Based Compensation)
that may from time to time be deferred under the Plan.



“Compensation Deferrals” shall mean the compensation deferred by a Participant pursuant to
Section 3.1 of this Plan.



“Dividend Equivalents” shall mean, with respect to each dividend or other distribution (if
any) paid by the Company on its Stock, a number of Stock Units in an amount equal to the product of
(i) the amount of such dividend or distribution paid with respect to one share of Stock, multiplied
by (ii) the number of Stock Units credited to the Participant’s Stock Unit Account under the Plan
as of the dividend record date, divided by the Fair Market Value of one share of Stock on the
applicable payment date for the dividend or other distribution, which amount shall be credited in
the form of additional Stock Units to the Participant’s Stock Unit Account on the dividend or
distribution payment date.




“Effective Date” of the Plan means March 30, 2010.



“Election Period” shall mean the time period provided to elect to defer Compensation under the
Plan, as provided in Section 3.1.



“Eligible Director” shall mean each non-Employee Director of the Company who is eligible to
participate in the Plan, as determined in Section 2.1.



“Eligible Employee” shall mean each Employee of the Company or a participating Business Unit
who is eligible to participate in the Plan, as determined in Section 2.1.



“Eligible Person” shall mean each Eligible Employee or Eligible Director of the Company or a
participating Business Unit, to the extent that such individual is eligible to participate in the
Plan, as determined in Section 2.1.


 


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“Employer” shall mean the Company and its Affiliates.



“Equity Incentive Plan” shall mean the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive
Plan, as amended from time to time.




“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.




“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



“Fair Market Value” shall have the same meaning as that accorded the term under the Equity
Incentive Plan; provided, however, that for purposes of calculating the number of Stock Units to be
credited to a Participant’s Stock Unit Account in connection with cash deferrals, the deferral of
dollar denominated Restricted Stock Unit Awards or Performance Based Awards or Dividend
Equivalents, Fair Market Value shall mean the greater of (a) the consolidated closing bid price per
share of Stock or (b) the closing reported sales price per share of Stock, in either case for the
relevant date.



“Fees” shall mean cash amounts to be earned for services as an Eligible Director, including,
without limitation, retainers, Board meeting fees and Board committee chairperson and lead director
fees.



“Other Cash-Based Awards” shall have the meaning accorded the term in the Equity Incentive
Plan.



“Other Stock-Based Awards” shall have the meaning accorded the term in the Equity Incentive
Plan.



“Participant” shall mean any Eligible Person who becomes a Participant in this Plan in
accordance with Article II.




“Payment Date” or “Distribution Date” shall mean:



(i) in the case of a distribution to a Specified Employee upon a Separation from Service, the
first day of the month following the Distribution Restriction Period set forth in Section 6.2;



(ii) in the case of a distribution to all other Participants upon their Separation from
Service, the date on which such Participant experiences the Separation from Service;



(iii) in the case of an Eligible Employee who elects a Scheduled Withdrawal Date with respect
to a portion or all of his or her Account, the Scheduled Withdrawal Date selected by such Eligible
Employee with respect to such portion or all of his or her Account in accordance with Section 3.3;
or



(iv) if a Change in Control occurs prior to the Payment Date that would otherwise apply with
respect to a Participant, the Participant’s Payment Date shall be the date on which the Change in
Control occurs, as determined by the Committee.



“Payment Valuation Date” shall mean the Fair Market Value of the Stock Unit Account determined
on the last trading day immediately prior to the Payment Date, except that in the case of a Change
in Control, the Payment Valuation Date shall mean the Fair Market Value of the Stock Unit Account
on the trading day immediately prior to the date that the Change in Control occurs.


 


3









 





“Performance Based Compensation” shall mean “performance-based compensation” as defined in
Treasury Regulation Section 1.409A-1(e).



“Performance Share Award” or “Performance Share” shall mean an incentive award (including an
Other-Stock Based or Other Cash-Based Award as defined under the Equity Incentive Plan, but
excluding an award of unvested Stock or unvested Restricted Stock), which is intended to be
Performance Based Compensation as defined in Treasury Regulation Section 1.409A-1(e), which, if
deferred under this Plan, is credited in Stock Units when such Performance Share is vested at the
end of the performance period, and which is settled in shares of Company Stock drawn from the
Equity Incentive Plan or any other stock plan of the Company that allows for awards to be deferred.




“Plan” shall mean Jos. A. Bank Clothiers, Inc. 2010 Deferred Compensation Plan.




“Plan Year” shall mean January 1 to December 31 of each year.



“Recordkeeper” shall mean the recordkeeper designated from time to time by the General
Counsel, Chief Executive Officer or Chief Financial Officer of the Company, as the case may be, or,
alternatively, by the Committee.



“Restricted Stock Units” mean restricted stock units granted under the terms of the Equity
Incentive Plan or any other stock plan of the Company, the shares with respect to which may be
subject to forfeiture based on non-compliance with certain enumerated criteria including, if
applicable, performance based criteria.



“Separation from Service” shall mean a Separation from Service within the meaning of Code
Section 409A and related regulations. The Committee will determine, in accordance with Code
Section 409A, whether a Separation from Service has occurred.




(i) An Employee incurs a Separation from Service upon termination of employment with
the Employer. Except in the case of an Employee on a bona fide leave of absence as provided
below, an Employee is deemed to have incurred a Separation from Service if the Employer and
the Employee reasonably anticipate that the level of services to be performed by the
Employee after a date certain would be reduced to 20% or less of the average services
rendered by the Employee during the immediately preceding 36-month period (or the total
period of employment, if less than 36 months), disregarding periods during which the
Employee was on a bona fide leave of absence.




(ii) An Employee who is absent from work due to military leave, sick leave, or other
bona fide leave of absence shall incur a Separation from Service on the first date
immediately following the later of the six-month anniversary of the commencement of the
leave or the expiration of the Employee’s right, if any, to reemployment under statute or
contract.




(iii) For purposes of determining whether a Separation from Service has occurred, the
Employer means the Employer as defined above, except that for purposes of determining
whether another organization is an Affiliate of the Company, common ownership of at least
50% shall be determinative.




(iv) A Director incurs a Separation from Service upon termination of service as a
Director of the Company and its Affiliates.




(v) The Committee specifically reserves the right to determine whether a sale or other
disposition of substantial assets to an unrelated party constitutes a Separation from
Service with respect to a Participant providing services to the seller immediately prior to
the transaction and providing services to the buyer after the transaction. Such
determination shall be made in accordance with the requirements of Code Section 409A.


 


4









 





“Specified Employee” means a Specified Employee as defined for purposes of Code Section 409A
and related regulations. Specified Employee means an Employee who, as of the date of his or her
Separation from Service, is a “key employee” of the Company or any Affiliate, any stock of which is
actively traded on an established securities market or otherwise. An Employee is a key employee if
he or she meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in
accordance with applicable regulations thereunder and without regard to Code Section 416(i)(5)) at
any time during the 12-month period ending on the Specified Employee Identification Date. Such
Employee shall be treated as a key employee for the entire 12-month period beginning on the
Specified Employee Effective Date. In the event of corporate transactions described in Treasury
Regulation Section 1.409A-1(i)(6), the identification of Specified Employees shall be determined in
accordance with the default rules described therein, unless the Committee elects to utilize the
available alternative methodology through designations made within the timeframes specified
therein. For purposes of this definition, Specified Employee Effective Date means the first day of
the third month following the Specified Employee Identification Date (i.e., March 1), or such
earlier date as is selected by the Committee; and Specified Employee Identification Date means
December 31, unless the Committee has elected a different date through action that is legally
binding with respect to all nonqualified deferred compensation plans maintained by the Company.




“Stock” shall mean common stock of Jos. A. Bank Clothiers, Inc.



“Stock Fund” shall mean the deemed investment fund established to record (i) Participants’
deemed investments of Compensation in Stock Units, (ii) Participants’ deferrals of Restricted Stock
Units, (iii) Stock Units credited to Participants’ Accounts upon the vesting of deferred
Performance Shares, and (iv) Dividend Equivalents deemed reinvested in Stock Units. The Company
has reserved 2,000,000 shares of authorized but unissued shares of Common Stock (which includes
1,000,000 shares reserved for issuance pursuant to awards under the Equity Incentive Plan) for the
purposes of settling all deemed investments in Common Stock under this Plan.



“Stock Unit” shall mean a unit of value, equivalent to the value of a share of Stock,
established by the Committee as a means of measuring value of the Stock-related portion of an
Account under the Plan.



“Stock Unit Account” shall mean the bookkeeping account maintained by the Recordkeeper on
behalf of each Participant who is credited with Stock Units and, as applicable, Dividend
Equivalents, resulting from Compensation Deferrals, deferred Restricted Stock Units and deferred
Performance Shares. In the event that the number of shares of Common Stock of the Company shall be
increased or decreased by reason of a stock split, stock dividend, recapitalization,
reclassification or other similar change in the Company’s capital structure, the number of Stock
Units credited to a Participant’s Stock Account shall be adjusted accordingly.


 


5









 





ARTICLE II

PARTICIPATION





2.1 Determination of Eligible Persons.



All executive officers and non-employee Directors of the Company and its Business Units, and
such other management or highly compensated employees who are at the level of Divisional Vice
President or above, who have been selected by the Board or the Committee, shall be eligible to
participate in this Plan.




2.2 Enrollment; Duration of Participation.



An Eligible Person shall become a Participant in the Plan by filing a Deferral Election in
accordance with Section 3.1 during the Election Period specified therein, and in accordance with
such procedures as may be established from time to time by the Committee. An individual who, at
any time, ceases to be an Eligible Person as determined in the discretion of the Committee shall
not be permitted to enter into future Deferral Elections; expressly provided, however, that nothing
herein shall prohibit the Company from giving effect to any previously filed Deferral Election that
was timely made. An individual shall remain a Participant in the Plan with respect to amounts
already deferred that have not yet been distributed or forfeited and with respect to Deferral
Elections that became irrevocable prior to the date of cessation of eligibility.




2.3 Transfers to Non-Participating Related Companies.



An Eligible Employee who becomes employed by an Affiliate which is not a participating
Business Unit, shall no longer be eligible to make any future deferral elections under the Plan.
However, such individual shall remain a Participant in the Plan with respect to amounts already
deferred that have not yet been distributed or forfeited and with respect to Deferral Elections
that became irrevocable prior to the date of transfer.




2.4 Amendment of Eligibility Criteria.




The Committee may change the criteria for eligibility on a prospective basis.



ARTICLE III

DEFERRAL ELECTIONS





3.1 Elections to Defer Compensation.



(a) Election to Defer; General Rule. Subject to the provisions of Article II and
this Article III, each Eligible Person may elect to defer Compensation (including Performance Based
Compensation) and Restricted Stock Units earned for services to be rendered in the calendar year
commencing after the Election Period ends, by filing a written election with the Recordkeeper (a
“Deferral Election”) either via the internet or mail on a form provided by the Recordkeeper, by no
later than December 31st of the year preceding the year in which the services are to be performed
and the
Compensation earned, or by such earlier date as may be determined by the Committee in its sole
discretion. Section 3.1(b), (c), (d) and (e) below provide limited exceptions to this general
timing rule for the filing of Deferral Elections. Deferral Elections become irrevocable as of the
last day of the Election Period and remain irrevocable with respect to the amounts deferred, except
as otherwise expressly provided in the Plan. Except as otherwise permitted by the Committee or as
otherwise expressly provided in a deferral election, elections to defer shall not carry over from
year to year and new elections must be timely filed each year in order to effectively defer
Compensation earned for services rendered in the subsequent Plan Year.


 


6









 





(b) First Year of Eligibility. Notwithstanding (a) above, an Eligible Person shall
have a 30 day Election Period beginning as of the date the Eligible Person becomes eligible to
participate in the Plan in which to file an initial Deferral Election, provided, however, that the
30 day Election Period shall not be available to the extent that the Eligible Person has
been eligible to participate in any nonqualified deferred compensation plan maintained by the
Company that would be considered to be aggregated with this Plan pursuant to the Plan aggregation
rules, including, without limitation, the Jos. A. Bank Non-Qualified Plan. Any such Deferral
Election shall only be effective with respect to Compensation earned for services to be rendered
after the Deferral Election is made. The amount of annual bonus or incentive Compensation
that is subject to a first year Deferral Election must be pro-rated, with such pro-ration being
based on the days remaining in the calendar year from the date of the election, divided by 365.



(c) Deferral of Restricted Stock Units or Other Forfeitable Rights. The initial
Election Period, with respect to the deferral by an Eligible Person of the receipt of some portion
or all of the shares of Stock subject to a Restricted Stock Unit Award or deferral of other
forfeitable rights (that requires the service provider to continue to provide services for a period
of at least 12 months from the date of grant), shall be a date that ends no later than the
thirtieth day following the date of the grant, expressly provided that the Deferral Election is
made at least 12 months in advance of the earliest vesting date applicable to such award (i.e., if
the Deferral Election is made on the thirtieth day, the first vesting period must be at least 13
months long). Notwithstanding anything to the contrary, an Award of Restricted Stock (as opposed
to Restricted Stock Units) may not be deferred. All deferrals of Restricted Stock Units shall be
credited as, and invested in, Stock Units without voting rights or other property rights, other
than the right to Dividend Equivalents. If, and to the extent that the grant, and/or vesting, of
an Award of Restricted Stock Units is conditioned upon satisfaction of “Performance Goals” as set
forth in the Equity Incentive Plan (or any other stock plan of the Company that allows for awards
to be deferred pursuant to the terms of this Plan), then the Performance Based Restricted Unit
Award may be deferred in accordance with Section 3.1(d).



(d) Deferral of Performance Based Compensation. The initial Election Period with
respect to the deferral by an Eligible Person of some portion or all of Performance Based
Compensation shall be any period designated by the Committee, which ends no later than 6 months
prior to the end of the performance period related to such Performance Based Compensation (the “6
month deferral rule”), provided that in no event may an election to defer Performance Based Awards
be made (i) if the performance period is not at least 12 consecutive months in duration, or (ii)
after such compensation has become both readily ascertainable and substantially certain to be paid.
In order to defer under this 6 month deferral rule, the Eligible Person must have provided
services continuously from the later of the beginning of the performance period or the date
the performance criteria are established through the date that the Deferral Election is filed.
Deferrals of Performance Based Compensation shall be credited as, and invested in, Stock Units,
without voting rights or other property rights, other than the right to Dividend Equivalents.



(e) Deferral of Fiscal Year Compensation. To the extent permitted by the Committee,
the initial Election Period with respect to deferral by an Eligible Person of some portion or all
of Fiscal
Year Compensation may, notwithstanding Section 3.1(a) be made no later than the close of the
Company’s taxable year of the year immediately preceding the taxable year of the Company in which
services are performed for which such compensation is to be paid. The term “Fiscal Year
Compensation” means Compensation relating to a period of service co-extensive with one or more
consecutive taxable years of the Company, but would not include a bonus (or other Compensation)
earned over a calendar year.


 


7









 





(f) Maximum Amount of Deferral. Unless a different percentage or amount is specified
in writing by the Committee and subject to the provisions of this Section 3.1 with respect to each
Plan Year, an Eligible Employee may defer, in whole percentages, up to 15% of Annual Base Salary;
up to 25% of cash bonuses and incentive awards, and his entire (i.e., 100%) Restricted Stock Unit
Award and his entire (100%) Performance Share Award (if any). An Eligible Director may defer
either 0% or 100% of each of the following: Restricted Stock Unit Awards or other incentive
compensation, annual retainer Fees, committee chairman Fees, lead director Fees and committee
meeting Fees.



Notwithstanding the foregoing, the total amount deferred shall be limited, as necessary, to satisfy
any applicable income tax and Social Security Tax (including Medicare) withholding obligations, and
employee benefit plan withholding requirements. The minimum contribution that must be made in any
Plan Year by an Eligible Employee shall not be less than $5,000, which may be satisfied from any
deferral source (e.g., Base Salary, annual incentive, etc.)




3.2 Deemed Investments In Stock Fund.



(a) All Compensation (including Fees), Restricted Stock Units, and Performance Based Awards
deferred under this Plan shall be considered deferred under the terms of this Plan on the date on
which such amounts would otherwise have been earned absent the election to defer and shall be
deemed invested in the Stock Fund.



As of the date that a deferred Restricted Stock Unit vests, a Participant’s Stock Unit Account
shall be credited with the number of Stock Units equivalent to the number of shares underlying the
deferred Restricted Stock Unit award that have vested. As of the date that Performance Based
Shares would be payable to the Participant in the absence of a Deferral Election made pursuant to
Section 3.1, the Participant’s Stock Unit Account shall be credited with a number of Stock Units
equivalent to the number of Shares that would be payable to the Participant in settlement of the
Performance Share Award absent such Deferral Election. Each such date shall be referred to as the
“Deferral Date”.



(b) In the case of the deferral of cash Compensation and Fees, or dollar denominated
Restricted Stock Unit Awards or Performance Based Awards being converted into Stock Units, the
number of whole and fractional Stock Units, computed to three decimal places, to be credited to the
Stock Unit Account of a Participant on each Deferral Date shall be equal to the amount of cash
Compensation, Fees or dollar denominated Restricted Stock Unit Awards or Performance Based Awards
then deferred and elected to be invested in the Stock Fund on behalf of a Participant, divided by
the Fair Market Value on the Deferral Date.



(c) Unless otherwise determined by the Committee with respect any deferred Award or other
deferred Compensation, on each dividend payment date with respect to Stock, the Stock Unit Account
of a Participant shall be credited with Dividend Equivalents, i.e., an additional number of whole
and fractional Stock Units computed to three (3) decimal places, equal to the product of the
dividend per share then payable, multiplied by the number of Stock Units then credited to such
Account, divided by Fair Market Value on the dividend payment date.



(d) The value of Participants’ Accounts shall be reported on a periodic basis to
Participants.


 


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3.3 Elections as to Timing of Payment by Eligible Employees; Form of Distribution.



(a) All amounts deferred shall be paid in a lump sum. At the same time that the Eligible
Employee makes the Deferral Elections described in Section 3.1, the Eligible Employee (but not
including Eligible Directors) shall elect, on a form provided by the Recordkeeper, to receive his
or her Compensation Deferrals, Restricted Stock Unit Deferrals, and Performance Share Deferrals, if
any, with respect to such Plan Year either:




(i) upon his or her Separation from Service; or



(ii) at a fixed future date of 5 years or 10 years (as elected by the Eligible Employee)
following the end of the Plan Year in which the Deferral Election becomes irrevocable (a “Scheduled
Withdrawal Date”).



(b) Separate Elections with respect to each Deferral. The Eligible Employee may, but
is not required to, elect to subject each Plan Year’s Deferrals and earnings thereon to a separate
distribution timing schedule.



(c) Subsequent Elections as to the Time of Payment. An Eligible Employee may change
an election as to the timing of payment of amounts in the Employee’s Account by filing a subsequent
written distribution election, provided however that with respect to such amounts:




(i) such subsequent election does not take effect until at least 12 months after the
date on which the subsequent election is made;




(ii) in the case of an election relating to a payment other than on account of death,
the first payment with respect to which such election is made is deferred for a period of
not fewer than five (5) years from the date that payment would otherwise have been made or
commenced; and




(iii) with respect to any election relating to a distribution to be made (or to
commence) as of a specified time or fixed schedule, the subsequent election is made not
fewer than 12 months prior to the date of the first scheduled payment.



No change of election shall permit the acceleration or delay of the time or schedule of any payment
under the Plan, except as may be provided by regulation or other guidance issued pursuant to Code
Section 409A(a)(3) (including, without limitation, Treasury Regulation Section 1.409A-3(j)(4)).



(d) Default. To the extent that an Eligible Employee does not file an election as to
time of payment with respect to Compensation Deferrals, Deferrals of Restricted Stock Units, and
Deferrals of Performance Shares, and except in the event of a Change in Control, the deemed
distribution election automatically shall be a lump sum upon the Eligible Employee’s Separation
from Service, subject to the requirement for a six month delay in the case of distributions to
Specified Employees in accordance with Section 6.2 and subject to the Change in Control
distribution provision in Section 6.3.



(e) Timing of Distribution to Eligible Directors. The Account balances of Eligible
Directors shall be distributed in a lump sum upon the Director’s Separation from Service, subject
to the Change in Control distribution provision in Section 6.3.


 


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ARTICLE IV

PARTICIPANT ACCOUNTS





4.1 Maintenance of Accounts.



(a) The Company shall maintain an Account for each Participant. Such Account shall be
maintained with enough specificity to enable the Company to determine the amounts credited at any
particular point in time to the Participant’s Stock Unit Account. The Recordkeeper shall also
maintain records of Deferral Elections relating to Restricted Stock Units and Performance Share
Awards that have not yet vested.



(b) The number of Restricted Stock Units to be credited to the Participant’s Stock Unit
Account shall be equivalent in value to the number of shares of Restricted Stock Units when vesting
restrictions (and any other applicable conditions) have been satisfied. Unless otherwise
determined by the Committee with respect any deferred Award of Restricted Stock Units, the
Recordkeeper shall credit Dividend Equivalents on such deferred Restricted Stock Units from the
time that such deferral election is made with respect to such Restricted Stock Units, provided,
however, that in no event shall these Dividend Equivalents duplicate those, if any, being credited
on a Restricted Stock Unit Award prior to its deferral under the Plan.



(c) The number of Stock Units to be credited with respect to a deferred Performance Based
Award shall be equivalent in value to the number of shares of Stock that would have been payable to
the Participant in settlement of such Award absent his deferral election. Unless otherwise
determined by the Committee, with respect to Stock Units credited to a Participant’s account in
respect of Performance Shares that vest, such Stock Units shall be credited with Dividend
Equivalents from, and after, the date such Performance Shares are deferred.



(d) Until such time as such Stock Unit Accounts is actually paid in Stock to the Participant
(with cash for fractional shares), the Participant shall have no voting rights associated with such
Account.




4.2 Hypothetical Investment in Stock Units.



(a) The deemed investment in Stock Units is a hypothetical investment used for purposes of
measuring the Participant’s Account value and deemed investment return. Neither the Company nor
the Committee shall have any obligation to actually make any hypothetical investment. The
Committee may, from time to time, designate different or additional deemed investments under the
Plan.


 


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ARTICLE V

VESTING





A Participant shall be 100% vested in his or her Account under the terms of this Plan.



ARTICLE VI

DISTRIBUTIONS




6.1 General Provision.



Subject to the provisions of Section 6.2 (i.e., the 6 month delay in distributions for
Specified Employees) and Section 6.3 (i.e., distribution upon a Change in Control), all
distributions of Accounts (together with net earnings or losses) shall be paid by the Recordkeeper
on the earliest to occur of the Participant’s Separation from Service, Scheduled Withdrawal Date
(only in the case of Eligible Employees, but not Eligible Directors), death, or Change in Control.
Payment shall be made in a lump sum on the Payment Date or within 90 days thereafter (within 10
days in the case of a Change in Control), based on the Payment Valuation Date. In the event that
such payment period straddles two tax years, in no event shall the Participant be able to designate
the taxable year of the payment.



Should a Separation from Service, death, or Change in Control occur prior to a Scheduled
Withdrawal Date, with respect to an Eligible Employee who has a Scheduled Withdrawal election in
effect, any portion of the Eligible Employee’s Account that is subject to a Scheduled Withdrawal
election shall not be paid in accordance therewith, but shall be paid upon the first to occur of
the Separation from Service, death or Change in Control in accordance with the distribution periods
specified in the paragraph above.




6.2 Delay in Distribution for Specified Employees.



Notwithstanding the foregoing, at any time the Company is publicly traded on an established
securities market (as defined for purposes of Code Section 409A) and a distribution is to be made
to a Specified Employee (as defined for purposes of Code Section 409A(a)(2)(B)(i)) on account of a
Separation from Service, no distribution shall be made to the Specified Employee before the date
which is six months after the date of the Specified Employee’s Separation from Service or, if
earlier, the date of death of the Specified Employee (the “Distribution Restriction Period”), and
the Specified Employee’s Payment Date shall be the first day of the first month after the end of
the Distribution Restriction Period.




6.3 Change in Control.



Notwithstanding anything in the foregoing to the contrary, and regardless of any payment
timing election otherwise in effect, in the event of a Change in Control, all of the Stock Units
credited to a Participant’s Account, including Dividend Equivalents, shall be converted into a cash
equivalent amount upon the Change in Control, and all amounts credited to a Participant’s Account,
shall be paid to the Participant in a lump sum within ten (10) days after the Change in Control.




6.4 Manner of Payment—Cash vs. Stock.



Except to the extent otherwise provided by the Plan, distributions of Account balances shall
be made in shares of Company Stock, except that fractional shares shall be paid in cash.
Notwithstanding the foregoing, to the extent that the Committee determines that some portion or
all of such Account is to be paid in cash due to limitations contained in the Equity Incentive Plan,
under applicable law, or otherwise, then such portion or all of such Account shall be paid in cash.


 


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6.5 Death of a Participant.



In the case of the death of a Participant while in the service of the Company or an Affiliate,
the Participant’s entire vested Account balance shall be distributed by the Recordkeeper to the
Participant’s Beneficiary in a lump sum within ninety (90) days after the death occurs; and in no
event shall the Beneficiary be able to designate the taxable year of the payment.




6.6 Delayed Distribution Attributable to Code Section 162(m).



Notwithstanding the foregoing, to the extent the Company reasonably anticipates that if a
payment were made at the time provided for in this Section, the Company’s deduction with respect to
such payment would not be permitted due to the application of Code Section 162(m), it may delay the
payment until the Participant’s first taxable year in which the Company reasonably anticipates (or
should reasonably anticipate) that if the payment is made during the year, the deduction of such
payment will not be barred by the application of Code Section 162(m). This Section shall be
administered in accordance with Treasury Regulation Section 1.409A-2(b)(7)-(i).




6.7 Hardship Distribution.



(a) In the event of an Unforeseeable Emergency, a Participant shall be permitted to elect a
Hardship Distribution from his or her Account prior to the Payment Date, subject to the following
restrictions:




(1) The election to take a Hardship Distribution shall be made by filing a form
provided by and filed with Committee or its delegate prior to the end of any calendar month.




(2) The Committee, or its delegatee, shall have made a determination, in its sole
discretion, that the requested distribution constitutes an Unforeseeable Emergency as
hereinafter defined.




(3) Notwithstanding anything to the contrary, no Hardship Distribution may be made to
the extent that such Hardship is or may be relieved (i) through reimbursement or
compensation by insurance or otherwise, (ii) by liquidation of the Participant’s assets, to
the extent the liquidation of assets would not itself cause severe financial hardship, or
(iii) by cessation of deferrals under this Plan.



(b) The amount determined to qualify for a Hardship Distribution shall be paid in a cash lump
sum as soon as practicable after the Hardship Distribution election is made and approved by the
Committee. To the extent that sub-accounts are held within the Participant’s Account, the amount
paid shall be debited pro rata from such subaccounts.



(c) “Unforeseeable Emergency” means a severe financial hardship as defined in Treasury
Regulation Section 1.409A-3(i)(3). Generally, this means a severe financial hardship of the
Participant resulting from a sudden and unexpected illness or accident of the Participant or of his
or her spouse, beneficiary or dependent, loss of a Participant’s property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of events beyond the
control of the Participant.



(d) This Section is intended to and shall be interpreted to be consistent with Treasury
Regulations Section 409A-3(i)(3).


 


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6.8 Inability to Locate Participant.



In the event that the Committee is unable to locate a Participant or Beneficiary within two
years following the required Payment Date, the amount allocated to the Participant’s Account shall
be forfeited. If, after such forfeiture, the Participant or Beneficiary later claims such benefit,
such benefit shall be reinstated without additional interest or earnings.



ARTICLE VII

ADMINISTRATION





7.1 Committee Action.



The Committee shall act at meetings by affirmative vote of a majority of the members of the
Committee. Any action permitted to be taken at a meeting may be taken without a meeting if, prior
to such action, a written consent to the action is signed by all members of the Committee and such
written consent is filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself or herself as a
Participant. The Chairman or any other member or members of the Committee designated by the
Chairman may execute any certificate or other written direction on behalf of the Committee. In the
event of any conflict between the Plan and the Committee’s charter, the Plan shall govern.




7.2 Powers and Duties of the Committee.



The Committee, on behalf of the Participants and their Beneficiaries, shall enforce the Plan
in accordance with its terms, shall be charged with the general administration of the Plan, and
shall have all powers necessary to accomplish its purposes, including, but not limited to, the
following:




(i) To construe and interpret the terms and provisions of this Plan;



(ii) To compute and certify to the amount and kind of benefits payable to Participants and
their Beneficiaries;




(iii) To add, eliminate or change deemed investment funds;



(iv) To maintain all records that may be necessary for the administration of the Plan, and to
approve all administrative forms and procedures to be used in the establishment and maintenance of
Accounts and Subaccounts;



(v) To provide for the disclosure of all information and the filing or provision of all
reports and statements to Participants, Beneficiaries or governmental agencies as shall be required
by law;



(vi) To make and publish such rules for the regulation of the Plan and procedures for the
administration of the Plan as are not inconsistent with the terms hereof;



(vii) To appoint a Recordkeeper or any other agent, and to delegate to them such powers and
duties in connection with the administration of the Plan as the Committee may from time to time
prescribe; and




(viii) To take all actions necessary for the administration of the Plan.


 


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The Committee shall be the named fiduciary and plan administrator of the Plan for purposes of
ERISA.




7.3 Construction and Interpretation.



The Committee shall have full discretion to construe and interpret the terms and provisions of
this Plan, which interpretations or construction shall be final and binding on all parties,
including but not limited to the Company and any Participant or Beneficiary. The Committee shall
administer such terms and provisions in a uniform and nondiscriminatory manner and in full
accordance with any and all laws applicable to the Plan.



This Plan is intended to comply in form and operation with Internal Revenue Code Section 409A
and guidance issued thereunder, and all provisions hereunder shall be construed in a manner that
complies with that Section (or, if applicable, that allows an Award to be exempt from Section
409A). Notwithstanding the foregoing, the Company makes no representation that the benefits
provided under the Plan will comply with Code Section 409A or guidance issued thereunder.




7.4 Information.



To enable the Committee to perform its functions, the Company shall supply full and timely
information to the Committee on all matters relating to the Compensation of all Participants, their
death or other events which cause termination of their participation in this Plan, and such other
pertinent facts as the Committee may require.




7.5 Compensation, Expenses and Indemnity.



(a) The members of the Committee shall serve without additional compensation for their
services hereunder.



(b) The Committee is authorized at the expense of the Company to employ such legal counsel as
it may deem advisable to assist in the performance of its duties hereunder. Expenses and fees in
connection with the administration of the Plan shall be paid by the Company.



(c) To the extent permitted by applicable state law, the Company shall indemnify and hold
harmless the Committee and each member thereof, the Board of Directors and any delegate of the
Committee who is an employee of the Company against any and all expenses, liabilities and claims,
including legal fees to defend against such liabilities and claims arising out of their discharge
in good faith of responsibilities under or incident of the Plan, other than expenses and
liabilities arising out of willful misconduct. This indemnity shall not preclude such further
indemnities as may be available under
insurance purchased by the Company or provided by the Company under any bylaw, agreement or
otherwise, as such indemnities are permitted under state law.



7.6 Filing a Claim. Any controversy or claim arising out of or relating to the Plan
shall be filed in writing with the Committee which shall make all determinations concerning such
claim. Any claim filed with the Committee and any decision by the Committee denying such claim
shall be in writing and shall be delivered to the Participant or Beneficiary filing the claim (the
“Claimant”).



(a) In General. Notice of a denial of benefits will be provided within ninety (90)
days of the Committee’s receipt of the Claimant’s claim for benefits. If the Committee determines
that it needs additional time to review the claim, the Committee will provide the Claimant with a
notice of the extension before the end of the initial ninety (90) day period. The extension will
not be more than ninety (90) days from the end of the initial ninety (90) day period and the notice
of extension will explain the special circumstances that require the extension and the date by
which the Committee expects to make a decision.


 


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(b) Contents of Notice. If a claim for benefits is completely or partially denied,
notice of such denial shall be in writing and shall set forth the reasons for denial in plain
language. The notice shall (i) cite the pertinent provisions of the Plan document and (ii)
explain, where appropriate, how the Claimant can perfect the claim, including a description of any
additional material or information necessary to complete the claim and why such material or
information is necessary. The claim denial also shall include an explanation of the claims review
procedures and the time limits applicable to such procedures, including a statement of the
Claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse
decision on review.



7.7 Appeal of Denied Claims. A Claimant whose claim has been completely or partially
denied shall be entitled to appeal the claim denial by filing a written appeal with a committee
designated to hear such appeals (the “Appeals Committee”). A Claimant who timely requests a review
of the denied claim (or his or her authorized representative) may review, upon request and free of
charge, copies of all documents, records and other information relevant to the denial and may
submit written comments, documents, records and other information relevant to the claim to the
Appeals Committee. All written comments, documents, records, and other information shall be
considered “relevant” if the information (i) was relied upon in making a benefits determination,
(ii) was submitted, considered or generated in the course of making a benefits decision regardless
of whether it was relied upon to make the decision, or (iii) demonstrates compliance with
administrative processes and safeguards established for making benefit decisions. The Appeals
Committee may, in its sole discretion and if it deems appropriate or necessary, decide to hold a
hearing with respect to the claim appeal.



(a) In General. Appeal of a denied benefits claim must be filed in writing with the
Appeals Committee no later than sixty (60) days after receipt of the written notification of such
claim denial. The Appeals Committee shall make its decision regarding the merits of the denied
claim within sixty (60) days following receipt of the appeal (or within one hundred and twenty
(120) days after such receipt, in a case where there are special circumstances requiring extension
of time for reviewing the appealed claim). If an extension of time for reviewing the appeal is
required because of special circumstances, written notice of the extension shall be furnished to
the Claimant prior to the commencement of the extension. The notice will indicate the special
circumstances requiring the extension of time and the date by which the Appeals Committee expects
to render the determination on review. The review will take into account comments, documents,
records and other information
submitted by the Claimant relating to the claim without regard to whether such information was
submitted or considered in the initial benefit determination.



(b) Contents of Notice. If a benefits claim is completely or partially denied on
review, notice of such denial shall be in writing and shall set forth the reasons for denial in
plain language. The decision on review shall set forth (i) the specific reason or reasons for the
denial, (ii) specific references to the pertinent Plan provisions on which the denial is based,
(iii) a statement that the Claimant is entitled to receive, upon request and free of charge,
reasonable access to and copies of all documents, records, or other information relevant (as
defined above) to the Claimant’s claim, and (iv) a statement describing any voluntary appeal
procedures offered by the plan and a statement of the Claimant’s right to bring an action under
Section 502(a) of ERISA.



(c) Discretion of Appeals Committee. All interpretations, determinations and
decisions of the Appeals Committee with respect to any claim shall be made in its sole discretion,
and shall be final and conclusive.


 


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ARTICLE VIII

MISCELLANEOUS





8.1 Unsecured General Creditor.



Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or
equitable rights, claims, or interest in any specific property or assets of the Company, including
in any Compensation Deferrals made under this Plan. No assets of the Company shall be held in any
way as collateral security for the fulfilling of the obligations of the Company under this Plan.
Any and all of the Company’s assets shall be, and remain, the general unpledged, unrestricted
assets of the Company. The Company’s obligation under the Plan shall be merely that of an unfunded
and unsecured promise of the Company to distribute Stock or cash in the future, and the rights of
the Participants and Beneficiaries shall be no greater than those of unsecured general creditors.
It is the intention of the Company that this Plan be unfunded for purposes of the Code and for
purposes of Title 1 of ERISA. Notwithstanding the foregoing, the Company may enter into one or
more rabbi trusts, in accordance with the provisions of Revenue Procedure 92-64, to assist it and
its Business Units in providing benefits under this Plan.




8.2 Restriction Against Assignment.



The Company shall pay all amounts payable hereunder only to the person or persons designated
by the Plan and not to any other person or corporation. No part of a Participant’s Accounts shall
be liable for the debts, contracts, or engagements of any Participant, his or her Beneficiary, or
successors in interest, nor shall a Participant’s Accounts be subject to execution by levy,
attachment, or garnishment or by any other legal or equitable proceeding, nor shall any such person
have any right to alienate, anticipate, sell, transfer, commute, pledge, encumber, or assign any
benefits or payments hereunder in any manner whatsoever. If any Participant, Beneficiary or
successor in interest is adjudicated bankrupt or purports to anticipate, alienate, sell, transfer,
commute, assign, pledge, encumber or charge any distribution or payment from the Plan, voluntarily
or involuntarily, the Committee, in its discretion, may cancel such distribution or payment (or any
part thereof) to or for the benefit of such Participant, Beneficiary or successor in interest in
such manner as the Committee shall direct.




8.3 Withholding.



There shall be deducted from each payment made under the Plan or any other Compensation
payable to the Participant (or Beneficiary) all taxes that are required to be withheld by the
Company under applicable federal, state and local laws. The Company shall reduce any payment (or
compensation) by the amount, in cash or Stock Units, sufficient to provide the amount of said tax
withholdings. In no event shall the Company or any agent thereof be liable for any taxes or
penalties owed by or due from the Participant, including those resulting from a failure to comply
with Code Section 409A.




8.4 Amendment, Modification, Suspension or Termination.



The Committee, with the approval of the Board, may amend, modify or suspend this Plan in whole
or in part, except to the extent that such power has been expressly reserved otherwise under the
terms of this portion of the Plan. No amendment, modification or suspension shall have any
retroactive effect to reduce any amounts allocated to a Participant’s Accounts. The Committee,
with the approval of the Board, may also terminate this Plan and pay Participants (and
beneficiaries) their Account balances in a single lump sum at any time, but only to the extent
permitted under, and in accordance with, Treas. Reg. Section 1.409A-3(j)(4)(ix).


 


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8.5 Governing Law.



This Plan shall be construed, governed and administered in accordance with the laws of the
State of Delaware without regard to the conflicts of law principles thereof, except to the extent
preempted by federal law.




8.6 Receipt or Release.



Any payment to a Participant or the Participant’s Beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against
the Committee and the Company. The Committee may require such Participant or Beneficiary as a
condition precedent to such payment to execute a receipt and release to such effect; provided that
a failure of the Participant to execute such release within 60 days after it is furnished shall
result in a forfeiture of the amounts otherwise payable hereunder.




8.7 Payments on Behalf of Persons Under Incapacity.



In the event that any amount becomes payable under the Plan to a person who, in the sole
judgment of the Committee, is considered by reason of physical or mental condition to be unable to
give a valid receipt therefore, the Committee may direct that such payment be made to any person
found by the Committee, in its sole judgment, to have assumed the care of such person. Any payment
made pursuant to such determination shall constitute a full release and discharge of the Committee
and the Company.




8.8 Limitation of Rights and Employment Relationship.



Neither the establishment of the Plan nor any modification thereof, nor the creating of any
fund or account, nor the payment of any benefits shall be construed as giving any Participant, or
Beneficiary or other person any legal or equitable right against the Company except as provided in
the Plan; and in no
event shall the terms of employment of any Employee or Participant be modified or in any way be
affected by the provisions of the Plan.




8.9 Adjustments; Assumptions of Obligations.



In the event of a reorganization, recapitalization, stock split, stock or extraordinary cash
dividend, combination of shares, merger, consolidation, distribution of assets, or any other change
in the corporate structure or shares of the Company, the Committee shall make the appropriate
adjustments in (i) the number of Stock Units credited to Participants’ Accounts, (ii) the number
(or type) of shares of Stock reserved for issuance hereunder, (iii) the number (or type) of shares
subject to any deferred Restricted Stock Units and deferred Performance Shares, and (iv) any Share
limitations imposed under the Plan, in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan or any Stock Units credited
hereunder. In the event of any merger, consolidation or other reorganization in which the Company
is not the surviving or continuing entity, all Stock Units, deferred Restricted Stock Units, and
deferred Performance Shares hereunder not assumed by the surviving or continuing entity or
converted into obligations of the other corporation on identical terms, shall be cashed out in
accordance with the provisions of Section 6.3.


 


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8.10 Headings.



Headings and subheadings in this Plan are inserted for convenience of reference only and are
not to be considered in the construction of the provisions hereof.



Adopted this 30th day of March, 2010.



	 	 	 	 	 
	 	JOS. A. BANK CLOTHIERS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


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EXHIBIT A




PARTICIPATING BUSINESS UNITS




As of March 30, 2010




	 	 	 
	Company Name	 	Date of Participation
	 
	 	 
	Jos. A. Bank Clothiers, Inc.

	 	March 30, 2010
	 
	 	 
	The Joseph A. Bank Mfg. Co., Inc.
	 	 






 


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