exv10w2







Exhibit 10.2



TRUST AGREEMENT


BETWEEN


T. ROWE PRICE TRUST COMPANY AND


THE MEN’S WEARHOUSE, INC.




This TRUST AGREEMENT (“Agreement”) is made by and between THE MEN’S WEARHOUSE, INC.
(“Employer” or “Sponsoring Employer”) and T. ROWE PRICE TRUST COMPANY, a Maryland limited
purpose trust company (“Trustee”).



WITNESSETH




WHEREAS, the Employer sponsors and maintains the THE MEN’S WEARHOUSE, INC. 401(k) SAVINGS PLAN
(“Plan”), a defined contribution plan established through use of a volume submitter
arrangement; and



WHEREAS, the Plan is maintained for the benefit of all eligible employees who participate under the
terms of the Plan, including their beneficiaries and alternate payees (individually,
“Participant” and, collectively, “Participants”); and



WHEREAS, the Employer intends that the Plan and related trust shall qualify under Sections 401(a)
and 501(a) of the Internal Revenue Code of 1986, as amended (the “Code”); and



WHEREAS, the Employer desires to establish a trust to serve as the funding vehicle for the Plan as
provided under the terms of the Plan;



NOW, THEREFORE, the Employer and the Trustee agree as follows:



ARTICLE I. THE TRUST FUND





	1.1	 	Establishment of Trust Fund. The Employer hereby establishes with the Trustee a
trust fund consisting of such sums of U. S. currency and such other property acceptable to the
Trustee as shall from time to time be paid to the Trustee pursuant to this Agreement. All
such money and property, together with all investments and reinvestments made therewith and
proceeds thereof, less any payments or distributions made by the Trustee pursuant to the terms
of this Agreement, are referred to as the “Trust Fund”. The Trustee hereby accepts the Trust
Fund and agrees to hold it in accordance with the express provisions of this instrument and
the requirements of law.
	 
	1.2	 	Effective Date. This Agreement shall be effective as of July 1, 2011.
	 
	1.3	 	Named Fiduciary. The Men’s Wearhouse, Inc. 401(k) Savings Plan Committee is the
named fiduciary of the Plan (“Named Fiduciary”) within the meaning of Section 402(a)(2) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Named Fiduciary
shall have the power and duties with respect to the management and control of the Trust Fund
as set forth in the Plan and in this Agreement. The term “Named Fiduciary,” as used
throughout this Agreement, is deemed to refer to the Named Fiduciary of the Plan, as set forth
in this Section 1.3, and its duly authorized representatives. The Trustee shall not be a
Named Fiduciary of the Plan.
	 
	 	 	Notwithstanding the foregoing, and in accordance with Section 404(a)(1)(B) of ERISA, the
Named Fiduciary and any other fiduciary of the Plan is required to discharge its duties with
respect to the Plan solely in the interest of the Participants and beneficiaries, and with
the care, skill, prudence, and diligence




 









 






	 	 	under the circumstances then prevailing that a
prudent individual 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.
	 
	1.4	 	Nature of Trustee’s Duties. In performing its duties hereunder, the Trustee shall
serve solely in the capacity of a directed trustee within the meaning of Section 403(a)(1) of
ERISA. The Trustee shall not be deemed to be the “administrator” as defined in ERISA Section
3(16)(A), the “plan sponsor” as defined in ERISA Section 3(16)(B), or a trustee with
discretion to perform more than the express ministerial duties pursuant to the terms of this
Agreement.
	 
	1.5	 	Limitation of Trustee’s Duties. The Trustee shall have no duty to: (a) determine or
enforce payment of any contribution due under the Plan; (b) inquire whether any contribution
made to the Trust Fund is in accordance with the terms of the Plan or law; (c) determine the
adequacy of the funding policy adopted by the Employer or the Named Fiduciary; (d) inquire as
to the propriety of any investment or distribution made under the Plan; or (e) ensure the tax
qualified status of the Plan under the Code.
	 
	1.6	 	Tax Qualification and Compliance. The Employer hereby represents and warrants that
the Plan, which is intended to qualify as a qualified and tax-exempt plan under Sections
401(a) and 501(a) of the Code, is and will continue to be operated in compliance with the
Code, ERISA and other applicable laws. The Employer is responsible for maintaining the tax
qualification of the Plan. Additionally, the Employer represents and warrants that it is, and
will continue to be, in compliance with all U.S. securities laws with respect to offering
Qualifying Employer Securities, as defined in Section 2.3 herein, under the Plan.





ARTICLE II. INVESTMENT OF THE TRUST FUND





	2.1	 	Investment of the Trust Fund — In General. The Named Fiduciary shall be solely
responsible for directing the Trustee as to the investment and disposition of the Trust Fund
and shall have responsibility for the overall diversification of the Trust Fund. The Trustee
shall invest and reinvest the Trust Fund only as directed and the Trustee is specifically
prohibited from having or exercising any discretion with respect to the investment of the
Trust Fund.
	 
	2.2	 	Investment Powers of the Trustee. Subject to the limitations of Section 2.1, the
Trustee shall invest and reinvest the Trust Fund as directed, free from any limitations
imposed by state law on investments of trust funds and without distinction between income and
principal, in any investment approved by the Named Fiduciary, including equity or debt
securities, insurance policies and contracts, savings and time deposits, investment contracts
issued by a bank, insurance company or other financial or similar institution, short-term
instruments of deposit, registered investment companies (including any investment company, the
advisor of which is an affiliate of the Trustee), investment partnerships or other pooled
investments funds, common, collective or group trust funds (including any such fund held or
maintained by the Trustee or an affiliate of the Trustee) for commingling assets of
participating trusts, including but not limited to assets of retirement plans which are
qualified under Section 401(a) of the Code (the instrument of trust creating any such
qualified common, collective or group trust fund, to the extent of the Trust Fund’s equitable
share thereof, being adopted hereby). The Trustee shall have the power to hold all or a
portion of the Trust Fund uninvested pending receipt of clear and proper investment directions or
pending receipt of a contribution amount which is necessary to carry out an investment
direction.
	 
	2.3	 	Investment Funds. At the direction of the Named Fiduciary, the Trustee shall
establish one or more separate investment funds within the Trust Fund, each separate fund
being referred to as an “Investment Fund.” Investment Funds shall be established by direct
investment or through the medium of a bank, trust fund, insurance contract or regulated
investment company, as the Named Fiduciary shall direct. Each Investment Fund shall be held
and administered as part of the Trust Fund, but shall be separately invested and accounted
for. To the extent authorized by the Plan and conditioned on the Trustee’s acceptance of such
property pursuant to Section 1.1 hereof, the Named Fiduciary may direct the Trustee to
establish one or more Investment Funds all or a portion of the assets of which shall be
invested in securities which constitute qualifying employer securities within the meaning of
Section 407(d) of ERISA (“Qualifying






	 	 	 

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	 	 	Employer Securities”). Any such direction shall be
deemed to include a certification by the Named Fiduciary that the acquisition and holding of
such Qualifying Employer Securities does not constitute a prohibited transaction under Section
406 of ERISA or Section 4975 of the Code. The Employer shall be solely responsible for
complying with any securities laws that may apply to Qualifying Employer Securities held in
the Trust Fund. The Named Fiduciary shall be responsible for determining that the ability of
Participants to direct their Plan investments into investment vehicles made available by the
Named Fiduciary, including but not limited to their ability to acquire shares of Qualifying
Employer Securities through the Plan, is not inconsistent with the terms of the Plan,
including any investment policy that has been adopted by the Plan. In evidence of this, the
Named Fiduciary shall complete an annual written certification substantially as provided in
Exhibit B.
	 
	2.4	 	Participant Instructions. The Named Fiduciary’s investment direction to the Trustee
may represent the aggregate of investment instructions of Participants with respect to the
assets in each Participant’s Plan account. All references in this Agreement to directions or
instructions provided by the Named Fiduciary shall be deemed to include Participant
instructions that are provided to the Named Fiduciary or its agent, including any recordkeeper
to the Plan authorized to receive Participant investment instruction, and delivered by the
Named Fiduciary or its agent to the Trustee. The Named Fiduciary shall have the duty to
select and monitor all Investment Funds or other investment media made available to
Participants under the Plan. The Named Fiduciary or its agent shall ensure that all
Participants who are entitled to direct the investment of assets in their Plan accounts
previously received or receive a copy of all material describing such Investment Funds that is
required by law. If a Participant fails to direct the investment of assets in the
Participant’s Plan accounts as permitted by the Plan, the Named Fiduciary shall direct the
Trustee as to the investment of such assets.
	 
	2.5	 	Appointment of Investment Manager. The Named Fiduciary may appoint one or more
investment managers, as defined in Section 3(38) of ERISA (“Investment Manager”) to manage,
acquire and dispose of all or a portion of the Trust Fund or an Investment Fund. The Named
Fiduciary shall provide the Trustee with written notice of the appointment of each Investment
Manager and of the termination of such appointment and direct the segregation of that portion
of the Trust Fund to be managed by the Investment Manager. The Named Fiduciary also shall
provide the Trustee with a copy of the investment management agreement and an acknowledgement
by the Investment Manager that it is a fiduciary with respect to the Plan within the meaning
of Section 3(21)(A) of ERISA. The Trustee shall be entitled to rely on such documents until
otherwise notified in writing by the Named Fiduciary. The Trustee shall invest and reinvest
such portion of the Trust Fund under the management of the Investment Manager as directed by
the Investment Manager. The Trustee shall be entitled to conclusively rely upon the valuation
of any securities or other property held in any portion of the Trust Fund that is provided to
it by such Investment Manager for all purposes under this Agreement.
	 
	2.6	 	Plan Loans. At the direction of the Named Fiduciary, the Trustee shall invest assets
of the Trust Fund in loans to Participants. Any such direction shall be deemed to include a
certification by the Named Fiduciary that such loan is in accordance with provisions of the
Plan and ERISA and does not constitute a “prohibited transaction” under ERISA. The Trustee
shall accept as collateral for each Participant loan only the appropriate amount of the
Participant’s Plan account designated by the Plan document or established policies. The Trustee shall invest all loan repayments in accordance with the directions of
the Named Fiduciary and shall make distributions of defaulted loans as directed by the Named
Fiduciary.
	 
	2.7	 	Investment and Insurance Contracts. In the event that insurance policies or
contracts or investment contracts issued by a bank, insurance company or other financial or
similar institution (including structured or synthetic investment contracts) are held in the
Trust Fund at the direction of the Named Fiduciary or an Investment Manager (“Contracts”), the
Trustee shall not be liable for the refusal or inability of any insurance company, bank or
other financial institution to issue, change, pay proceeds or make payments due under any
Contract; for the form, terms, genuineness, validity or sufficiency of any Contract; or for
any delay in payment or proceeds due under any Contract. The Trustee shall not be responsible
for the valuation of any Contract and the Trustee shall be entitled to conclusively rely upon
such valuation provided by the issuer of the Contract for all purposes under this Agreement.
The Trustee shall not be responsible for evaluating or monitoring the financial condition or
status of any financial institution or






	 	 	 

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	 	 	insurance company issuing any such Contract which the
Named Fiduciary or an Investment Manager directs the Trustee to hold or to purchase with the
Trust Fund.
	 
	2.8	 	Trustee’s Duty and Responsibility with Respect to the Trust Fund. The Trustee shall
have no duty to question any action or direction of the Employer, the Named Fiduciary, an
Investment Manager or a Participant or the failure of the Employer, the Named Fiduciary, an
Investment Manager or a Participant to give directions, or to review the securities or other
investments which are held pursuant to directions of the Employer, the Named Fiduciary, an
Investment Manager or a Participant as to the investment, reinvestment, retention or
disposition of any such assets. The Trustee shall not have any responsibility for
diversification of such assets, for any loss to or depreciation of such assets resulting from
the purchase, retention or sale of assets in accordance with the direction of the Employer,
the Named Fiduciary, an Investment Manager or a Participant. The Trustee shall not be
responsible for any investment action taken or omitted by the Trustee in accordance with any
direction of the Employer, the Named Fiduciary, an Investment Manager or Participant; any
investment inaction in the absence of an investment direction from the Employer, the Named
Fiduciary, an Investment Manager or Participant; or any investment action taken by the Trustee
pursuant to an order to purchase or sell securities placed by the Employer, the Named
Fiduciary, an Investment Manager or Participant directly with a broker, dealer or issuer.
	 
	2.9	 	Knowledge of the Trustee. When the Trustee is subject to the direction of the
Employer, the Named Fiduciary, or an Investment Manager in performing its duties under this
Agreement, the Trustee’s responsibilities will be limited to certain ministerial duties with
respect to the portion of the Trust Fund subject to such direction, which duties do not
involve the exercise of any discretionary authority to manage or control Trust Fund assets and
which duties will be performed in the normal course of business by employees of the Trustee,
its affiliates or agents who are unfamiliar with investment management (“Ministerial Duties”).
Except as required by Section 403(a)(1) of ERISA, the Trustee is not undertaking any duty or
obligation, express or implied, to review, and will not be deemed to have reviewed, any
transaction involving the investment of the Trust Fund which it is directed to perform by the
Employer, the Named Fiduciary or an Investment Manager except to the extent necessary to
perform these Ministerial Duties in accordance with such direction.





ARTICLE III. OTHER MINISTERIAL DUTIES OF THE TRUSTEE





	3.1	 	Other Ministerial Duties of the Trustee. The Trustee is authorized and empowered
with respect to the Trust Fund to perform the following Ministerial Duties necessary to
effectuate the instructions and directions of the Named Fiduciary, the plan administrator (as
defined in ERISA Section 3(16)(A)), an Investment Manager or a Participant:






	 	(a)	 	To make, execute, acknowledge and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or appropriate to
carry out the powers herein granted.
	 
	 	(b)	 	To register any investment held by it in the name of the Trustee or in the name
of any custodian or its nominee, with or without words indicating that such securities
are held in a fiduciary capacity, provided that securities held in the name of a
nominee or in street name must be held on behalf of the Plan by (1) a bank or trust
company that is subject to supervision by the United States or a State, or a nominee of
such bank or trust company; (2) a broker or dealer registered under the Securities
Exchange Act of 1934, or a nominee of such broker or dealer; or (3) a clearing agency
as defined in Section 3(a)(23) of the Securities Exchange Act, or its nominee.
	 
	 	(c)	 	To hold or to appoint an agent or custodian to hold any property hereunder in
bearer form or in its own name or the name of its nominee and to deposit or arrange for
the deposit of any securities or other property in a securities depository or clearing
agency; provided, however, that the Trustee may not serve as custodian or appoint or
terminate a custodian for any plan assets, as defined in ERISA and the regulations
thereunder, which are managed by an affiliate of the Trustee. Any agent or custodian
so appointed shall be paid fees as mutually agreed upon by the Employer and the agent
or custodian and






	 	 	 

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	 	 	 	paid in the same manner as other expenses of the Trust Fund. The Trustee shall not
hold any property or securities hereunder in the same account as any individual property
of the Trustee.
	 
	 	(d)	 	To retain custody of original executed documents evidencing loans to
Participants made after the effective date of this Agreement and, to the extent
provided to the Trustee by the Employer, original executed documents evidencing
outstanding loans to Participants made prior to the effective date of this Agreement.
	 
	 	(e)	 	To employ suitable agents, counsel, financial consultants, valuation experts or
other professionals (who may also be agents, counsel, consultants or experts for the
Employer or the Named Fiduciary) and to pay their reasonable expenses and compensation
out of the Trust Fund.
	 
	 	(f)	 	To trade all securities held in the Trust Fund as soon as possible after an
order is received and processed by the Trustee or its agent in accordance with
directions of the Employer, the Named Fiduciary or an Investment Manager, taking into
account any trade delays which may occur due to stock market constraints or the
liquidity of the security.






	 	 	Each and all of the foregoing powers may be exercised without a court order or approval.
	 
	3.2	 	Valuation of Trust Fund. The Trustee, as of the valuation date set forth in the Plan
and at such other time or times as is necessary or as the Trustee and the Named Fiduciary
agree, shall determine the market value of the assets of the Trust Fund. The valuation shall
be based upon valuations provided by Investment Managers, trustees of common trust funds,
sponsors of registered investment companies, records of securities exchanges or valuation
services, market data providers or qualified appraisers. The Trustee has no responsibility to
review the valuations received from such sources and may rely upon such valuations without
independent investigation. Notwithstanding the foregoing, the Trustee shall not be
responsible for providing the value of any Contracts, as described in Section 2.7, or for any
asset which is not liquid or not publicly traded, the value of which shall be provided by the
Named Fiduciary. The Trustee may obtain the opinions of qualified appraisers, as necessary in
the discretion of the Trustee, to determine the fair market value of Qualifying Employer
Securities, the fees of which appraiser shall, unless paid by the Employer, be paid from the
Trust Fund.
	 
	3.3	 	Trust Records. The Trustee shall keep accurate and detailed records of all receipts,
investments, disbursements and other transactions required to be performed hereunder with
respect to the Trust Fund. The Trustee agrees to treat as confidential all records and other
information relative to the Trust Fund. The Trustee shall not disclose such records and other
information to third parties except to the extent required by law or as requested in writing
by the Employer. The Trustee agrees to permit the Employer to inspect the records of the
Trust Fund maintained by the Trustee during regular business hours and to permit the Employer
to audit the same upon the giving of reasonable notice to the Trustee. The Trustee further
agrees that it will provide the Employer with information and records that the Employer may
reasonably require in order to perform audits of such records.
	 
	3.4	 	Confidentiality/ Security of Records. Trustee and Employer agree to treat as
confidential and use only in connection with this Agreement all Plan data, records, computer
programs and software, reports and other documents, which are furnished to the other under
this Agreement. Trustee and Employer will protect the security of such records and will not
disclose such records or other information to third parties except as required by law or when
requested to do so by the other; provided, however, that the Trustee may disclose such records
or information to its agents in the course of performing its duties under this Agreement.
	 
	3.5	 	Accounting. Within 120 days after the close of the Plan’s fiscal year or such other
period as the Employer and the Trustee may agree, and within 120 days after the resignation or
removal of the Trustee, as provided herein, the Trustee shall file with the Employer a written
account setting forth all investments, receipts, disbursement and other transactions effected
by it during such fiscal year or during the period from the close of the last fiscal year to
the date of such resignation or removal. Unless the Employer files





	 	 	 

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	 	 	written objections to such account with the Trustee within 180 days after the filing of such
account with the Employer, the accounting shall be deemed to be approved and the Trustee
shall, to the maximum extent permitted by applicable law, be released and forever discharged
from all liability for further accountability to the Employer for the accuracy of such
accounting and for the propriety of all acts and the transactions of the Trustee reflected in
such account. If written objections are specified and the matters in controversy cannot be
settled between the Employer and the Trustee, the Trustee may apply for a judicial settlement
of the account, the costs of such settlement being allowed as an expense of the Trust Fund.
The only necessary party thereto in addition to the Trustee shall be the Employer.
	 
	3.6	 	Distributions and Other Payments. The Trustee shall make payment to such persons,
including the Employer, the Trustee, the Named Fiduciary, the Plan recordkeeper and
Participants, as the Named Fiduciary may direct from time to time. The Named Fiduciary shall
be responsible for insuring that any distribution or other payment from the Trust Fund
conforms to the provisions of the Plan and ERISA. Excluding those fees and expenses set forth
in this Agreement and the Plan’s recordkeeping agreement, which may be paid from the Trust
Fund if not paid directly by the Employer, the Named Fiduciary’s direction to pay fees or
expenses relating to the administration of the Plan or Trust Fund shall be in the form of a
certificate substantially in the form as set forth in Exhibit “A”. Notwithstanding any other
provisions of this Agreement, the Trustee may condition any distribution or other payment of
Trust Fund assets upon receipt of satisfactory assurances that the approval of appropriate
governmental agencies or other authorities has been secured and that all notice and other
procedures required by applicable law have been satisfied. The Trustee shall be entitled to
rely conclusively upon the Named Fiduciary’s directions and shall not be liable for any
distribution or other payment made in reliance upon the Named Fiduciary’s directions.
	 
	3.7	 	Limitation of Duties. The Trustee is a party to this Agreement solely for the
purposes set forth herein and neither the Trustee nor any of its officers, directors,
employees or agents shall have any duties or obligations with respect to the Trust Fund,
except as expressly set forth herein. To the extent not prohibited by ERISA, the Trustee
shall not be responsible in any way for any action or omission of the Employer or the Named
Fiduciary with respect to the performance of the Employer’s or Named Fiduciary’s duties and
obligations set forth in this Agreement and in the Plan. The Trustee may rely upon such
information, direction, action or inaction of the Employer or the Named Fiduciary as being
proper under the Plan or the Agreement and is not required to inquire into the propriety of
any such information, direction, action or inaction.





ARTICLE IV. DUTIES OF THE EMPLOYER





	4.1	 	Duties of the Employer. In addition to any duties of the Employer otherwise
prescribed in this Agreement, the Employer, individually or through the Named Fiduciary, shall
be responsible for performing the following functions with respect to the Trust Fund:






	 	(a)	 	Transmitting all Trust Fund contributions made by or on behalf of each
Participant to the Trustee at such times and in such manner as is mutually agreed
between the Employer and the Trustee;
	 
	 	(b)	 	Providing the Trustee with such information and data relevant to the Plan as is
necessary for the Trustee to properly perform its duties hereunder;
	 
	 	(c)	 	Providing to the Trustee, on a timely basis, a copy of the Plan document
including all amendments and restatements, and a copy of the Plan’s determination
letter from the Internal Revenue Service;
	 
	 	(d)	 	Determining that the contributions made by or on the behalf of each Participant
are in accordance with any applicable federal and state law and regulations;
	 
	 	(e)	 	Assuring that the Plan maintains qualified status under Section 401(a) of the
Code at all times while any Plan assets are held in the Trust Fund;





	 	 	 

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	 	(f)	 	Providing the Trustee with the value of any Contracts;
	 
	 	(g)	 	Determining the suitability of and selecting every investment offered as an
option under the Plan, including but not limited to Qualifying Employer Securities;
	 
	 	(h)	 	Determining that loans to Participants are made and administered in accordance
with the Plan, ERISA and the Code;
	 
	 	(i)	 	Determining that all payments, including distributions to Participants, are
reasonable, proper and in accordance with the Plan, ERISA and the Code;
	 
	 	(j)	 	Determining whether any domestic relations order is “qualified” in accordance
with Code Section 414(p) and directing the Trustee as to how to effect any such order;
	 
	 	(k)	 	Ensuring that a Participant who makes a required or voluntary contribution has
previously received or receives a copy of the then current prospectus relating to the
investment option(s) to which such contribution is invested; and
	 
	 	(l)	 	Meeting any U.S. securities laws that may apply with respect to offering
Qualifying Employer Securities as an investment option under the Plan. This includes,
but is not limited to, registering such stock with the Securities and Exchange
Commission (“SEC”) and other government agencies, filing reports with the SEC and other
government agencies, and preparing prospectuses, proxy solicitations and other similar
materials.





ARTICLE V. VOTING, TENDER AND SIMILAR RIGHTS





	5.1	 	General Provisions. Except to the extent otherwise provided in Section 5.3 of
this Agreement, the Named Fiduciary (or the Investment Manager with respect to assets under
its management) shall direct the Trustee as to the manner in which it shall: (i) vote in
person or by proxy, general or special, any securities held in the Trust Fund; (ii) exercise
conversion privileges, subscription rights and other options; and (iii) participate in or
dissent from reorganizations, tender offers or other changes in property rights. The Trustee
shall not take any action on behalf of the Employer or the Plan in any legal proceedings,
including bankruptcies or class actions, involving securities, nor will the Trustee file any
proof of claim form in connection with such legal proceedings except at the direction of the
Named Fiduciary; provided, however, that if such legal proceedings involve Qualified Employer
Securities or relate to claims being asserted against the Employer or an affiliate, the
Trustee must have direction from an independent fiduciary in order to file any proof of claim
form.






	5.2	 	Receipt of Notices. Upon receipt, the Trustee shall transmit to the Named Fiduciary
(or to the Investment Manager with respect to assets under its management) all notices of
conversion, redemption, tender, exchange, subscription, class action, claim in insolvency
proceedings or other rights or powers relating to any investment in the Trust Fund, which
notices are received by the Trustee from its agents or custodian, from issuers of securities
and from the party (or its agents) extending such rights. The Trustee shall have no
obligation to determine the existence of any conversion, redemption, tender, exchange,
subscription, class action, claim in insolvency proceedings or other right or power relating
to any investments in the Trust Fund.






	5.3	 	Qualifying Employer Securities. The Trustee shall exercise all voting or tender
offer rights with respect to any Qualifying Employer Securities in the Trust Fund which are
allocated to the Plan accounts of Participants in accordance with instructions from
Participants. Each Participant shall be a named fiduciary within the meaning of Section
403(a)(1) of ERISA for the purpose of directing the voting and tendering of Qualifying
Employer Securities allocated to his Plan account. Each Participant may direct the Trustee,
confidentially, how to vote or whether or not to tender the Qualifying Employer Securities
representing shares allocated to his Plan account. Upon timely receipt of direction, the
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	 	 	such shares of Qualifying Employer Securities as directed by
the Participants. The Named Fiduciary shall use reasonable procedures to inform Participants
as to what action will be taken in the absence of the receipt of such affirmative instructions
from the Participants. For all shareholder meetings, the Named Fiduciary directs the Trustee
to vote shares of Qualifying Employer Securities allocated to Participants’ Plan accounts for
which no Participant direction is received in the same proportion as shares that were
affirmatively voted by Participants. In the case of a tender offer or other right or options
with respect to Qualifying Employer Securities, a Participant who does not issue valid
directions to the Trustee to sell, offer to sell, exchange or otherwise dispose of such
Qualifying Employer Securities shall be deemed to have directed the Trustee that such shares
allocated to his Plan account remain invested in Qualifying Employer Securities. The Employer
shall provide the Trustee with all information and assistance that the Trustee may reasonably
request in order for the Trustee to perform its duties hereunder.





ARTICLE VI. RESIGNATION OR REMOVAL OF TRUSTEE





	6.1	 	Resignation or Removal of Trustee. The Employer may remove the Trustee at any
time upon 60 days prior written notice to the Trustee and the Trustee may resign (i) at any
time upon 60 days prior written notice to the Employer or (ii) without notice in the event
that the shares of Qualifying Employer Securities that are held in the Plan cease to be
publicly traded. If mutually agreed upon between the parties, the 60 days notice may be
waived or reduced. Upon resignation or removal of the Trustee, the Employer shall appoint a
successor trustee. Upon receipt by the Trustee of written acceptance of such appointment by
the successor trustee, the Trustee shall transfer and pay over to the successor the Trust Fund
and all records (or copies) pertaining thereto. The Trustee is authorized, however, to
reserve such sum of money or property as it may deem advisable for payment of any liabilities
constituting a charge against the Trust Fund or against the Trustee, with any balance of such
reserve remaining after payment of all such items to be paid over to the successor trustee.
Upon the transfer and payment over of the assets of the Trust Fund and upon the settlement or
approval of the account for the Trustee pursuant to Section 3.5 herein, the Trustee shall be
released and discharged from any and all claims, demands, duties and obligations arising out
of the Trust Fund and its management thereof.






	6.2	 	Employer’s Failure to Appoint Successor Trustee. If the Employer has not appointed a
successor trustee which has accepted such appointment as of the effective date of the
Trustee’s resignation or removal, the Trustee shall have the right to apply to a court of
competent jurisdiction for the appointment of such successor or for a determination of its
rights and obligations, the costs of such action, unless paid by the Employer, being paid from
the Trust Fund.





ARTICLE VII. AMENDMENT AND TERMINATION OF THE TRUST AGREEMENT





	7.1	 	Amendment. The Employer and the Trustee may amend this Agreement at any time by a
written agreement between them; provided, however, that no such amendment shall make it
possible for any part of the corpus or income of the Trust Fund to be used or diverted to
purposes other than the exclusive benefit of Participants and defraying reasonable expenses of
administering the Plan and trust created under this Agreement.






	7.2	 	Termination. This Agreement and the trust created hereunder shall terminate upon the
termination of the Plan, unless expressly extended by the Employer. The trust also shall
terminate upon the dissolution or liquidation of the Employer where no successor has elected
to continue the Plan and this Agreement. Termination of the trust shall be effected by
distribution of all Trust Fund assets to the Participants or other persons entitled thereto
pursuant to the direction of the Named Fiduciary, subject to the Trustee’s right to reserve
funds as provided in Section 6.1 hereof. Upon the completion of such distribution, the
Trustee shall be relieved from all further liability with respect to all amounts so paid.





	 	 	 

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ARTICLE VIII. MISCELLANEOUS





	8.1	 	Exclusive Benefit. This trust has been established for the exclusive benefit of
the Participants. Except as provided herein, it shall be impossible at any time prior to the
satisfaction of all liabilities to the Participants for any part of the principal or income of
the Trust Fund (other than such part as is required to pay taxes, administrative expenses or
return of contributions to the Employer as provided in Section 8.2 herein) to be paid or
diverted to the Employer or to be used for any purpose whatsoever other than for the exclusive
benefit of the Participants.
	 
	8.2	 	Return of Contributions. The Trustee shall return contributions to the Employer upon
the Employer’s written direction for any of the following reasons: (i) the contribution is
made by reason of a mistake of fact as described in Section 403(c) of ERISA, (ii) the
contribution is conditioned on initial qualification of the Plan under Section 401(a) of the
Code and the Plan does not so qualify, or (iii) the contribution is conditioned on its
deductibility under Section 404 of the Code and the contribution is not deductible.
Contributions returned to the Employer under this Section 8.2 shall be paid to the Employer
within one year after the Employer’s payment of such mistaken contribution, the date of denial
of initial qualification or date of disallowance of the deduction, if the Employer so directs
the Trustee in writing. In making such a return of assets to the Employer, the Trustee shall
accept the Employer’s written direction as its warranty that such return is provided for in
the Plan and complies with the Plan document and ERISA Section 403(c), and the Trustee may
rely on such warranty without further investigation.
	 
	8.3	 	Nonalienation of Benefits. No rights or claims to any of the monies or other assets
of the Trust Fund shall be assignable, nor shall such rights or claims be subject to
garnishment, attachment, execution or levy of any kind; and any attempt to transfer, assign or
pledge the same, except as specifically permitted by law, shall not be recognized by the
Trustee.
	 
	8.4	 	Written Instruction. Any direction of the Employer or the Named Fiduciary pursuant
to any provisions of this Agreement shall be set forth in writing from the Employer or the
Named Fiduciary to the Trustee and the Trustee shall be fully protected in relying upon such
written direction of the Employer or Named Fiduciary. For purposes of this Section 8.4,
written instructions shall include the electronic or telephonic transmission of information or
data as mutually agreed upon by the Trustee and the Employer. The Trustee shall be fully
protected in relying upon any communication that the Trustee reasonably believes to have been
given by the Employer or the Named Fiduciary or their duly authorized representatives, or any
individual having apparent authority as such. The Trustee shall receive all directions or
instructions in writing provided that the Trustee may accept oral directions for purchases or
sales from the Named Fiduciary via telephone or other electronic procedures as agreed to
between the Employer and the recordkeeper for the Plan.
	 
	8.5	 	Indemnification and Hold Harmless. The Employer shall indemnify and hold harmless
the Trustee (including its employees, representatives and agents) from and against any
liability, loss or expense (including reasonable attorneys’ fees) arising out of: (a) the
Trustee’s performance of its duties or responsibilities under this Agreement, except to the
extent that such loss or expense arises from the Trustee’s own willful misconduct or gross
negligence, (b) any action taken by the Trustee in accordance with the direction or
instructions of the Employer, the Named Fiduciary, a Participant or an Investment Manager,
(c) any matter relating to the Plan for which the Trustee has no responsibility, control or
liability under this Agreement, and (d) the failure of the Named Fiduciary or the Employer
(including its employees, representatives and agents) to perform its duties under this
Agreement or with respect to the Plan; provided, however, that this Section 8.5 shall not be
construed to relieve the Trustee from responsibility or liability for any duty imposed upon
directed trustees under Section 403(a)(1) of ERISA. The Trustee shall indemnify and hold
harmless the Employer (including its employees, representatives and agents) from and against
any liability, loss or expense (including reasonable attorneys’ fees) incurred by, imposed
upon or asserted against the Employer (including its employees, representatives and agents) by
reason of any claim, regulatory





	 	 	 

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	 	 	proceeding or litigation arising from the Trustee’s negligence or willful misconduct in the
performance of its duties under this Agreement.
	 
	8.6	 	Trustee’s Fees, Expenses and Taxes. The Trustee shall be paid a fee of $0.00
annually as compensation for its services hereunder. The Trustee shall give 90 days advance
written notice to the Employer whenever its fees are changed. Such fees, any taxes of any
kind whatsoever which may be levied or assessed upon the Trust Fund, and any expenses incurred
by the Trustee in the performance of its duties hereunder, including fees for legal services
rendered to the Trustee, shall, unless paid by the Employer, be paid from the Trust Fund.
	 
	8.7	 	Merger, Consolidation or Transfer. In the event of the merger, consolidation or
transfer of any portion of the Trust Fund to a trust fund held under any other plan, the
Trustee shall dispose of all or part, as the case may be, of the Trust Fund, in accordance
with the written directions of the Named Fiduciary, subject to the right of the Trustee to
reserve funds as provided in Section 6.1 hereof.
	 
	8.8	 	Conflict with the Plan Document. In the event of any conflict between the provisions
of the Plan document and this Agreement with respect to the rights or obligations of the
Trustee, the provisions of this Agreement shall prevail.
	 
	8.9	 	Construction. Whenever used in this Agreement, unless the context indicates
otherwise, the singular shall include the plural, the plural shall include the singular, and
the male gender shall include the female gender.
	 
	8.10	 	Headings. Headings in this Agreement are inserted solely for convenience of
reference and shall neither constitute a part of this Agreement, nor affect its meaning,
construction or intent.
	 
	8.11	 	Severability. If any provision of this Agreement is held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions, and this Trust
Agreement shall be construed and enforced as if such provision had not been included.
	 
	8.12	 	Surviving Sections. Notwithstanding any Sections of this Agreement to the contrary,
Sections 6.1, 6.2, 7.2, 8.5 and 8.6 shall survive the termination of this Agreement.
	 
	8.13	 	Law Governing. This Agreement shall be administered, construed and enforced
according to the laws of the State of Maryland and applicable federal law.
	 
	8.14	 	Notices. All notices and other communications shall be given or served in writing
and sent to the Trustee at 100 East Pratt Street; Baltimore, Maryland 21202.
	 
	8.15	 	Predecessor and Successor Trustees. The Trustee shall not be responsible and shall
have no liability for the acts or omissions of any of its predecessors or successors.
	 
	8.16	 	Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of the parties hereto.
	 
	8.17	 	Entire Agreement; Modification. This instrument contains the entire agreement of the
parties signatory hereto. Except as provided in Section 8.6, no modification, amendment or
waiver of any provision of this Agreement will be effective unless in writing and signed by
all parties hereto.





	 	 	 

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	8.18	 	Signature Authority. The person executing this Agreement on behalf of the
Employer certifies that he or she is duly authorized by the Employer consistent with the terms
of the Plan to do so.





IN WITNESS WHEREOF, the Employer and the Trustee have caused their duly authorized officers to
execute this Agreement on the date as written below.




	 	 	 	 	 	 	 

	ATTEST/WITNESS:	 	T. ROWE PRICE TRUST COMPANY
	 
	 	 	 	 	 	 
	/s/ Kelly Zanis

	 	By:
	 	/s/ Nancy M. Maitland	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Nancy M. Maitland	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	[Print Name]	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:
	 	7/1/2011	 	 
	 
	 	 	 	 	 	 
	ATTEST/WITNESS:	 	THE MEN’S WEARHOUSE, INC.
	 
	 	 	 	 	 	 
	/s/ Lisa B. Crosby

	 	By:
	 	/s/ Kirk H. Warren	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Kirk H. Warren	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	[Print Name]	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President, Benefits	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:
	 	June 30, 2011	 	 






	 	 	 

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EXHIBIT A




TO THE TRUST AGREEMENT BETWEEN

T. ROWE PRICE TRUST COMPANY AND THE MEN’S WEARHOUSE, INC.



PAYMENT OF PLAN EXPENSES FROM THE TRUST FUND



Excluding Plan recordkeeping and Trustee fees and expenses, the Employer shall submit to the
Trustee all expenses to be charged to the Trust Fund. Each submission also shall include the
following certification executed by the Named Fiduciary:





I hereby certify that these expenditures reflect administrative expenses solely for
THE MEN’S WEARHOUSE, INC. 401(k) SAVINGS PLAN for the period of _________ and that
such expenses are proper and reasonable.



Each submission shall also include an explanation of the purpose of the expenditure and an invoice
where relevant.




	 	 	 

	 
	 	 
	 


	 	 
	 
	 	 
	 

[Print Name]

	 	  
	 
	 	 
	 

Title

	 	 
	 
	 	 
	 

Date

	 	 






	 	 	 

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EXHIBIT B




TO THE TRUST AGREEMENT BETWEEN

T. ROWE PRICE TRUST COMPANY AND THE MEN’S WEARHOUSE, INC.



CERTIFICATION OF INVESTMENT POLICY



     The Employer shall submit to the Trustee the following certification, executed by the
Named Fiduciary, at the beginning of each plan year:




I represent that I am an authorized representative of the Named
Fiduciary of THE MEN’S WEARHOUSE, INC. 401(k) SAVINGS PLAN (“Plan”).
In such capacity, I hereby certify that the ability of Plan
Participants to direct their Plan investments into investment
vehicles made available by the Named Fiduciary, including but not
limited to their ability to acquire shares of Qualifying Employer
Securities through the Plan, is not inconsistent with the terms of
the Plan, including any investment policy that has been adopted by
the Plan.



	 	 	 

	 
	 	 
	 


	 	 
	 
	 	 
	 

[Print Name]

	 	  
	 
	 	 
	 

Title

	 	 
	 
	 	 
	 

Date

	 	 






	 	 	 

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