**Exhibit 10.9**

 

 

**JOS. A. BANK CLOTHIERS, INC.**

 

**NONQUALIFIED DEFERREDCOMPENSATION**

**TRUST AGREEMENT**

 

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**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.                                                                                               |   |

 

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**JOS. A. BANK CLOTHIERS, INC.**

**NONQUALIFIED DEFERREDCOMPENSATION**

**TRUST AGREEMENT**

 

This Agreement is made this20th day of January, 2004, by and between Jos. A. Bank Clothiers, Inc.(hereinafter “Employer”) and Julie D’Angelo and Richard E. Pitts (hereinaftercollectively called “Trustees”).

 

W I T N E S S E T H:

 

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

 

WHEREAS, the Employer hastransferred to the Model Trust certain assets which were held therein, subjectto the claims of creditors of the Employer in the event of the Employer’sInsolvency (as hereinafter defined) until paid to the participant orbeneficiary in such manner and at such times as specified in the NonqualifiedPlan; and

 

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

 

WHEREAS, the Employer wishesto amend and restate the Model Trust; and

 

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

 

 WHEREAS, the Employer intends that the trustprovisions of the Model Trust as amended and restated into the trust herebycreated, to be known as the “Jos. A. Bank Clothiers, Inc. Nonqualified DeferredCompensation Trust Agreement” (“Trust”) shall constitute an unfundedarrangement and shall not affect the status of the Nonqualified Plan as anunfunded plan maintained for the purpose of providing deferred compensation fora select group or management or highly compensated employees for purposes ofTitle I of the Employee Retirement Income Security Act of 1974 (“ERISA”); and

 

WHEREAS, it is the intentionof Employer that it will make contributions to the Trust to provide itself witha source of funds to assist it in the meeting of its liabilities under theNonqualified Plan;

 

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

 

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# **Section 1.****                                         ****Trust Fund.**

#  

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

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## (b)                                 The Trust shall be irrevocable.

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

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## (d)                                 The principal of the Trust and any earningsthereon which are not paid to Employer as provided in Section 4, shall beheld separate and apart from other funds of Employer and shall be usedexclusively for the uses and purposes herein set forth, including but notlimited to the payment of expenses of the Nonqualified Plan and Trust.  Neither the Nonqualified Plan norparticipants thereunder shall have any preferred claim on, or any beneficialownership interest in, any assets of the Trust prior to the time such assetsare paid to the participant as benefits as provided in Section 2, and allrights created under the Nonqualified Plan and this Trust Agreement shall bemere unsecured contractual rights of the participants against Employer.

##  

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

##  

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

##  

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

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# **Section 2.****                                         ****Payments toor on behalf of Participants.**

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## (a)                                  The Trustees shall make payments of benefitsto participants, or on behalf of participants to their beneficiaries under theNonqualified Plan, from the assets of the Trust at all times that Employer isnot Insolvent, as hereinafter defined, if and to the extent such assets areavailable 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 tothe Trustees. The Trustees shall make provision for the reporting andwithholding of any federal, state or local taxes that may be required to bewithheld with respect to the payment of benefits as directed by Employer andshall pay amounts withheld to the appropriate taxing authorities or determinethat such amounts have been reported, withheld and paid by Employer.  Notwithstanding anything to the contraryherein, the Trustees shall be fully protected in making or discontinuingpayments in accordance with written directions of Employer and shall have noresponsibility to see to the application of said payments or to ascertainwhether such directions comply with the terms of the Nonqualified Plan.

 

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## (b)                                 If the assets of the Trust which are not paidto Employer as provided in Section 4, are not sufficient to make paymentsof benefits to participants or beneficiaries in accordance with theNonqualified Plan, Employer shall make the balance of each such payment as itfalls due.  Trustees shall notifyEmployer in the event assets of the Trust are not sufficient to make paymentsas directed by Employer herein.

##  

# **Section 3.****                                         ****Trustees’Responsibilities Regarding Payments to or on Behalf of Participants WhenEmployer Insolvent.**

#  

## (a)                                  Employer shall be considered “Insolvent” forpurposes of this Trust Agreement if (i) it is unable to pay its debts asthey mature, or (ii) it is subject to a pending proceeding as debtorrelating to its debts under any existing or future law of any jurisdictionrelating to bankruptcy, insolvency or other similar relief.

##  

## (b)                                 At all times during the continuance of thisTrust, the principal and income of the Trust shall constitute generalunrestricted assets of Employer and shall be subject to claims of generalcreditors of Employer as hereinafter set forth, and at any time the Trusteeshave actual knowledge, or have determined, that Employer is Insolvent, theTrustees shall deliver any undistributed principal and income in the Trust tosatisfy such claims as a court of competent jurisdiction may direct.  The board of directors and the chiefexecutive officer of Employer shall have the duty to inform the Trustees ofEmployer’s Insolvency.  If Employer or aperson claiming to be a creditor of Employer alleges in writing to the Trusteesthat Employer has become Insolvent, the Trustees shall independently determine,within thirty (30) days after receipt of such notice, whether Employer isInsolvent and, pending such determination, the Trustees shall discontinuepayments of benefits to participants and their beneficiaries.  In the event Trustees have actual knowledgeor determine that Employer is Insolvent, Trustees shall hold the Trust assetsfor the benefit of Employer’s general creditors, and shall resume payments ofbenefits in accordance with Section 2 of this Trust Agreement only afterthe Trustees have determined that Employer is not Insolvent (or is no longerInsolvent if the Trustees initially determined Employer to be Insolvent).  Unless the Trustees have actual knowledge of Employer’sInsolvency, the Trustees shall have no duty to inquire whether Employer isInsolvent.  The Trustees may in allevents rely on such evidence concerning Employer’s solvency as may be furnishedto the Trustees which will give the Trustees a reasonable basis for making adetermination concerning Employer’s solvency, including financial information,whether or not certified, that they receive from the then regularly employedindependent accountants for Employer; and any such determination shall be conclusiveand binding upon Employer, participants and beneficiaries and all otherparties.  Nothing in this Trust Agreementshall in any way diminish any rights of participants or beneficiaries asgeneral creditors of Employer with respect to benefits or otherwise.

##  

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

##  

## (d)                                 The Trustees shall have no responsibility orliability of any kind to Employer, participants, beneficiaries or any otherparty with respect to any loss or damage that occurs as a result of any actionor inaction taken, or any determination made, by the Trustees in good faithpursuant to the terms of this Section 3.

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# **Section 4.****                                         ****Payments toEmployer.**

#  

Except with respect to thepayment of expenses of the Nonqualified Plan and Trust, Employer shall not haveany right or power to direct the Trustees to return to Employer or to divert toothers any of the Trust assets before all payments of benefits have been madeas required by the Nonqualified Plan.  Ifit is determined by the

 

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

 

# **Section 5.****                                         ****Investmentof Principal.**

#  

The Trustees shall investthe principal of the Trust and any earnings thereon which are not paid toEmployer as provided in Section 4, as the participants shall from time totime direct.   The Trustees shall not beliable if such direction results in a breach of any duty of the Trustees todiversify, to maintain liquidity, or to meet any other investmentstandard.  Absent direction from Employeror the participant, the Trustees shall invest the Trust in accordance withapplicable law.

 

# **Section 6.****                                         ****Dispositionof 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 eachyear shall become principal as of the end of such year.

 

# **Section 7.****                                         ****Accountingby Trustees.**

#  

The Trustees shall keepaccurate and detailed records of all investments, receipts, disbursements, andall other transactions required to be done, including such specific records asshall be agreed upon in writing between Employer and the Trustees.  All such accounts, books and records shall beopen to inspection and audit at all reasonable times by Employer, byparticipants, and by those beneficiaries who are in pay status.  Within sixty (60) days following the close ofeach calendar year and within sixty (60) days after the removal or resignationof a Trustee, the Trustees shall deliver to Employer a written account ofadministration of the Trust during such year or during the period from theclose 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 andinvestments purchased and sold with the cost or net proceeds of such purchasesor sales (accrued interest paid or receivable being shown separately), andshowing all cash, securities and other property held in the Trust at the end ofsuch year or as of the date of such removal or resignation, as the case may be.

 

# **Section 8.****                                         ****Responsibilitiesof Trustees.**

#  

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

##  

## (b)                                 The Trustees shall not be required toundertake or to defend any litigation arising in connection with this TrustAgreement, unless they are first indemnified by Employer against theirprospective costs, expenses and liability, and Employer hereby agrees toindemnify the Trustees for such costs, expenses, and liability.

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

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

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

 

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## (f)                                    Except as otherwise specifically provided inthis Trust Agreement, the Trustees shall ensure that no part of the Trust isused for or diverted to purposes other than the exclusive benefit ofparticipants and their beneficiaries.

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

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## (h)                                 The Nonqualified Plan shall be administeredby the Employer as provided for in the Nonqualified Plan, and the Trusteesshall not be responsible for the administration of the Nonqualified Plan.

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## (i)                                     Notwithstanding any powers granted toTrustees pursuant to this Trust Agreement or to applicable law, Trustees shallnot have any power that could give this Trust the objective of carrying on abusiness and dividing the gains therefrom, within the meaning of section 301.7701-2of the Procedure and Administrative Regulations promulgated pursuant to theInternal Revenue Code.

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# **Section 9.****                                         ****Compensationand Expenses of Trustees.**

#  

The Trustees shall beentitled to receive such reasonable compensation for their services as shall beagreed upon by Employer and the Trustees. The Trustees shall also be entitled to receive their reasonable expensesincurred with respect to the administration of the Trust, including feesincurred by the Trustees pursuant to Section 8(c) and 8(d) ofthis Trust Agreement and, to the extent not paid from Trust assets, paymentsmade pursuant to Section 8(g) of this Trust Agreement.

 

# **Section 10.****                                  ****Replacementof Trustees.**

#  

Any Trustee may be removedat any time by Employer, or may resign, in which case a new Trustee shall beappointed by Employer.  If any personserving as Trustee is employed by Employer and such person’s employment withEmployer is terminated, then such person shall automatically cease to be aTrustee under this Trust Agreement as of the date such person gives or receivesnotice of termination of employment. Each successor to any Trustee shall succeed to the title to the Trustvested in his or her predecessor, without the signing or filing of any furtherinstrument, but any resigning or removed Trustee shall execute all documentsand do all acts necessary to vest such title of record in any successorTrustee.  Each successor Trustee shallhave and enjoy all powers, both discretionary and administerial, of itspredecessor.  No successor Trustee shallbe 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 accountrendered and the property delivered to it by its predecessor Trustee as a fulland complete discharge of the predecessor Trustee without incurring anyliability or responsibility for so doing. Until a successor Trustee is appointed to replace a resigning or removedTrustee, the remaining Trustees shall have full authority to act under theterms of this Trust Agreement by unanimous consent of such remaining Trustees.

 

# **Section 11.****                                  ****Amendment orTermination.**

#  

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

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

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

 

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# **Section 12.****                                  ****Severabilityand Alienation.**

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## (a)                                  Any provisions of this Trust Agreementprohibited by law shall be ineffective to the extent of any such prohibitionwithout invalidating the remaining provisions hereof.

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## (b)                                 To the extent permitted by law, benefitspayable to participants or their beneficiaries under this Trust Agreement maynot be assigned (either at law or in equity), alienated or subjected toattachment, garnishment, levy, execution or other legal or equitable process.

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# **Section 13.****                                  ****Miscellaneous.**

#  

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

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## (b)                                 The Trustees shall not be obligated toinquire whether any payee of funds or any distributee of benefits designated byEmployer is entitled thereto or whether any payment, allocation or distributiondirected or authorized by Employer is proper or within the terms of this TrustAgreement or the Nonqualified Plan, and shall not be accountable for anypayment, allocation or distribution made by the Trustees in good faith on theorder or direction of Employer.  TheTrustees shall not be liable or responsible for any payment made by them ingood faith without actual notice or knowledge of the change to condition orstatus of the payee.

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## (c)                                  Evidence required of anyone under this TrustAgreement may be by certificate, affidavit, document or other information whichthe person acting in reliance thereon may consider pertinent, reliable andgenuine, and to have been signed, made or presented by the proper party orparties, except that any action required to be taken by Employer shall be byresolution of its Board of Directors or by a person authorized by resolution ofits Board of Directors.  The Trusteesshall not recognize or take notice of an appointment of any representative ofEmployer unless and until Employer shall have notified the Trustees in writingof such appointment and the extent of the representative’s authority.  The Trustees may assume that such appointmentand authority continue in effect until they receive written notice to thecontrary from Employer.  Any action takenor omitted to be taken by the Trustees by authority of any representative ofEmployer within the scope of his authority shall be as effective for all purposeshereof as if such action or nonaction had been authorized by Employer.  The Trustees, Employer and any representativeof Employer shall each be fully protected in acting and relying upon anyevidence described in this Section 13(c).

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## (d)                                 Unless the context clearly requiresotherwise, words in the masculine gender shall include the feminine and neutergenders, the singular shall include the plural, and the plural shall includethe singular.

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

 

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## (f)                                    For purposes of this Trust, Change of Controlshall mean: The purchase or other acquisition by any person, entity, or groupof persons, within the meaning of Section 13(d) or 14(d) of theSecurities Exchange Act of 1934 (“Act”), or any comparable successorprovisions, of beneficial ownership (within the meaning of rule 13d-3promulgated under the Act) of 30% or more of either the outstanding shares ofcommon stock or the combined voting power of the Employer’s then outstandingvoting securities entitled to vote generally, or the approval by thestockholders of the Employer of a reorganization, merger, or consolidation, ineach case, with respect to which persons who were stockholders of Employerimmediately prior to such reorganization, merger or consolidation do not,immediately thereafter, own more than 50% of the combined voting power entitledto vote generally in the election of directors of the reorganized, merged orconsolidated Employer’s then outstanding securities, or a liquidation ordissolution of the Employer or of the sale of all or substantially all of theEmployer’s assets.

 

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IN WITNESS WHEREOF, Employerand the Trustees have executed this Trust Agreement as of the date first abovewritten.

 
|   | “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 |
|        |                                                                                                              |  |  |  |  |  |

 

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