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EXHIBIT 10.2
TRUST AGREEMENT
THIS TRUST AGREEMENT is made and entered into as of the 20th day of February,
2001 by and between The Men's Wearhouse, Inc. ("Company") and American Express
Trust Company ("Trustee").
RECITALS
FIRST: The Company has established The Men's Wearhouse, Inc. 401(k)
Savings Plan (the "Plan"); and
SECOND: The Company has previously established a trust to fund
benefits under the Plan; and
THIRD: The Company desires to amend and restate the Trust and to
continue with American Express Trust Company as Trustee
hereunder;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Incorporation of Definitions Used in Plan
Unless otherwise defined herein, the definitions stated in the Plan, as
defined in Section 1.2 of this Agreement, are hereby incorporated by
reference into this Trust Agreement.
1.2 Definitions of Terms
(a) "Administrator" means the Committee appointed by the Board of
Directors to administer the Plan
(b) "Business Day" means any day the New York Stock Exchange is open
for business.
(c) "Code" means the Internal Revenue Code of 1986, as amended, or its
successor.
(d) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or its successor.
(e) "Investment Funds" mean the investment funds designated by the
Company or the Administrator pursuant to Section 4.2 of this Trust
Agreement.
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(f) "Investment Manager" means the person appointed pursuant to
Section 4.3 of this Trust Agreement to manage all or a portion of
the assets of the Trust Fund.
(g) "Plan" means the Men's Wearhouse, Inc. 401(k) Savings Plan, as
from time to time amended.
(h) "Trust Fund" means the fund maintained pursuant to this Trust
Agreement for the exclusive purpose of funding the Plan as
provided herein.
(i) "Valuation Date" means each Business Day.
ARTICLE 2
TRUST FUND
2.1 Title
The title of the trust created by this Trust Agreement is the Men's
Wearhouse, Inc. 401(k) Savings Plan Trust (the "Trust").
2.2 Trust Fund
The Trust Fund shall consist of such sums of money or other property as
shall from time to time be paid or delivered to the Trustee pursuant to
the Plan, plus all income and gains, less losses, distributions and
expenses chargeable thereto. The Trust Fund shall be held in trust and
dealt with in accordance with the provisions of this Trust Agreement.
2.3 Tax Status of Trust
The Company intends by this Trust Agreement to create a trust forming a
part of the Plan which shall meet the requirements for qualification
under section 401(a) of the Code and which shall be exempt from tax
pursuant to section 501(a) of the Code.
2.4 Appointment of and Acceptance by Trustee
The Company hereby appoints American Express Trust Company as
nondiscretionary trustee of the Trust. The Trustee shall function as a
directed Trustee as defined in Section 403(a) of ERISA. American Express
Trust Company hereby accepts the Trust imposed upon it by this Trust
Agreement and covenants and agrees to perform the same as herein
expressed.
2.5 Right of the Company to Trust Assets
The Company shall have no rights or claims of any nature in or to the
Trust Fund.
2.6 Exclusive Benefit of Members and Beneficiaries
(a) Notwithstanding anything to the contrary contained in this Trust
Agreement, or in any amendment thereto, it shall be impossible,
except as otherwise provided under ERISA, at any time prior to the
satisfaction of all liabilities with respect to the
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Members and Beneficiaries of the Plan, for any part of the Trust
Fund, other than such part as is required to pay taxes and
expenses of administration of the Plan and the Trust (including
the payment of Trustee's fees), to be used for, or diverted to,
purposes other than for the exclusive benefit of the Members and
Beneficiaries.
(b) The Company shall have no beneficial interest in the assets of the
Trust, and no part of the Trust shall ever revert to or be repaid
to the Company, directly or indirectly, except that upon written
request, the Company shall have a right to recover:
(1) a contribution to the Plan made by mistake of fact if such
contribution (to the extent made by mistake of fact) is
returned to the Company within one year after payment of
such contribution;
(2) a contribution to the Plan which is disallowed as a
deduction under section 404 of the Code if such
contribution (to the extent disallowed) is returned to the
Company within one year after the deduction is disallowed;
(3) any residual assets due to a section 415 excess
contribution upon termination of the Plan if all
liabilities of the Plan to Members and their Beneficiaries
have been satisfied and the reversion does not contravene
any provision of law;
(4) a return of excess employee or employer matching
contributions to comply with the Contribution Percentage
Test; and
(5) a return of excess salary deferral contributions to comply
with the Actual Deferral Percentage Test.
2.7 Administrator Shall Direct Trustee
Company authorizes the Administrator to direct and instruct Trustee as
provided in this Agreement.
ARTICLE 3
CONTRIBUTIONS TO AND DISTRIBUTIONS FROM THE TRUST
3.1 Receipt of Contributions
The Trustee shall receive and hold as part of the Trust Fund such assets
of the Plan as may be transferred to it from time to time and any
contributions to the Plan made to the Trust Fund from time to time. The
Trustee shall not be required to determine that any contributions, or the
timing of such contributions, are in compliance with the Plan, ERISA or
the Code, and shall be accountable only for the funds actually received
by it. In the case of assets transferred from another trustee or any
other fiduciary, the Trustee shall not be responsible for any actions or
inactions of such trustee or other fiduciary either prior to or after the
transfer of Trust Fund assets. Company represents that any such assets,
from time to time so transferred, were part of a qualified trust at the
time of the transfer.
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3.2 Distributions to Members
The Trustee, upon the written direction of the Administrator or by any
other method authorized by the Administrator and agreed to by the
Trustee, shall make distributions from the Trust Fund to such persons, in
such manner, in such amounts (but not exceeding the then value of the
Trust Fund), and for such purposes as may be specified in the direction
of the Administrator. The Trustee may reserve from a distribution such
reasonable amounts as the Trustee shall deem necessary to pay its
expenses and any income, estate, inheritance or other tax, charge or
assessment attributable to a distribution or may require such release
from a taxing authority or such indemnification from the distributee as
the Trustee shall deem necessary for the protection of the Trustee.
The Trustee shall not be liable for making any distribution, failing to
make any distribution, or discontinuing any distribution on the direction
of the Administrator, or for failing to make any distribution by reason
of the Administrator's failure to direct that such distribution be made,
except to the extent required by ERISA, and any other state or federal
law applicable, under which liability cannot be waived. The Trustee has
no duty to inquire whether any direction or absence of direction is in
conformity with the provisions of the Plan or whether it is made in good
faith without actual notice or knowledge of the changed condition or
status of any recipient. The Company warrants that all such directions
are and shall be in accordance with the provisions of the Plan with
respect to which such distribution is made. The Trustee shall not be
required to determine or make any investigation to determine the identity
or mailing address of any person entitled to benefits under the Plan, and
shall be discharged of any obligation in that respect when the Trustee
shall have sent checks and other papers by regular mail, postage prepaid,
to such persons and at such addresses as may be furnished by the Company.
ARTICLE 4
INVESTMENT OF THE TRUST FUND
4.1 Title to Assets
The Trustee is vested with title to all the assets of the Trust Fund and
shall have full power and authority to do all acts necessary to carry out
its duties hereunder. Members, former Members, and Beneficiaries shall
not have any right or interest in the Trust Fund except as provided in
the Plan. Prior to the time of distribution, neither a Member, former
Member, nor a Beneficiary (nor a legal representative of a Member, former
Member, or a Beneficiary) shall have any right, by way of anticipation or
otherwise, to assign, encumber, or in any manner dispose of any interest
in the Trust except as permitted under the Plan or as required by law or
directed by a court of competent jurisdiction.
4.2 Direction
(a) The Administrator will direct the Trustee as to the Investment
Funds to be established for investment of Trust Fund assets in
accordance with the provisions of the Plan. Except for those
Investment Funds that are mutual funds or that are under the
investment control of an Investment Manager, the Company or the
Administrator
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shall exercise exclusive investment direction and control of the
Investment Funds. To such extent: (1) the Company or the
Administrator shall have the power and authority to invest,
acquire, manage or dispose of the assets of the Trust Fund and to
direct the Trustee with respect to the investment, reinvestment
and sale of such assets; and (2) the Trustee does not have any
duty to question any direction, to review any securities or other
property, or to make any suggestions in connection therewith. The
Trustee will promptly comply with any direction given by the
Company or the Administrator.
(b) The Trustee shall invest in the Investment Funds in accordance
with investment directions given by the Members, former Members,
and Beneficiaries for whose accounts such assets are held, to the
extent so provided for in the Plan. All such directions by the
Members, former Members, or Beneficiaries to the Trustee will be
made in writing or by telephone or in such other manner as is
acceptable to the Trustee. Members and Beneficiaries will be
deemed fiduciaries for purposes of such investment selection.
(c) Where the Company or the Administrator, a Member, former Member, a
Beneficiary or an Investment Manager (except the Trustee as
Investment Manager of any assets as provided herein), has the
power and authority to direct the investment of any assets of the
Trust Fund, the Trustee does not have any duty to question any
direction, to review any securities or other property, or to make
any suggestions in connection therewith. The Trustee will promptly
comply with any direction given by the Company or the
Administrator, a Member, former Member, a Beneficiary or
Investment Manager.
(d) The Trustee will not be liable in any manner or for any reason for
any loss or other unfavorable investment results arising from its
compliance with direction under this Section, nor be liable for
failing to invest any assets of the Trust Fund under the
management and control of the Company or the Administrator, a
Member, a Beneficiary or an Investment Manager in the absence of
investment directions regarding such assets, so long as the
Trustee acts in good faith and in accordance with the
responsibilities, obligations and duties placed on it under ERISA.
4.3 Investment Managers
(a) The Company has the power and authority to appoint one or more
Investment Managers as defined in and subject to the requirements
of ERISA. Each Investment Manager so appointed will have the power
and authority to invest, acquire, manage or dispose of the assets
of the Trust Fund under its management and to direct the Trustee
with respect to the investment, reinvestment and sale of such
assets.
(b) If the Company elects to delegate investment authority for the
assets of all or any portion of the Trust Fund to an Investment
Manager pursuant to subsection (a), the Company will inform the
Trustee in writing of such designation and such written notice
shall describe the portion of the Trust Fund affected. Upon
receipt of such
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notice, the Trustee will be obligated to follow the investment
directions of the Investment Manager with respect to the assets of
the specified portion of the Trust Fund until the Trustee receives
written notice that such Investment Manager has resigned or has
been removed or replaced by the Company. The Trustee will not be a
party to any agreement between the Company and an Investment
Manager, and will have no responsibility with respect to the terms
and conditions of such agreement.
(c) In exercising its authority to delegate investment authority to an
Investment Manager, the Company shall have the duty,
responsibility and power to (i) examine and analyze the
performance of prospective Investment Managers; (ii) select an
Investment Manager or Managers; (iii) determine the portion of the
Trust Fund that will be under the management of each Investment
Manager; (iv) issue appropriate instructions to the Trustee and to
each Investment Manager regarding the allocation of investment
authority; (v) review the performance of each Investment Manager
at periodic intervals; and (vi) remove any Investment Manager when
the Company deems such removal to be necessary or appropriate.
(d) All directions by an Investment Manager to the Trustee concerning
the investment, reinvestment, sale or management of assets of the
Trust Fund will be made, in writing or in such other manner as is
acceptable to the Trustee, by such person or persons as the
Investment Manager designates in writing to the Trustee from time
to time.
(e) An Investment Manager who engages any investment advisor or
investment counselor that it deems necessary or appropriate, may
provide that directions concerning the investment and reinvestment
of the assets of the Trust Fund under its management and control
to be made directly to the Trustee by such advisor or counselor as
the Investment Manager's agent; provided, however, that prior to
any such direction by the investment advisor or investment
counselor, the Trustee receives written notice from the Investment
Manager that the directions of such agent will be considered the
directions of the Investment Manager and that the Investment
Manager will be responsible for the directions of such agent.
(f) If an Investment Manager resigns or is removed by the Company, the
Company will notify the Trustee in writing of such resignation or
removal. Upon actual receipt of such notice, the power and
authority to invest and reinvest the assets of the Trust Fund
formerly under the control and management of the Investment
Manager will return to the Company unless the Company indicates
that a successor Investment Manager has been appointed with
respect to such assets.
(g) The fees and expenses of each Investment Manager, except to the
extent paid by the Company, shall be paid from the Trust Fund. The
Trustee may request a representation from the Company that such
payments are allowed under ERISA.
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4.4 Investment in a Collective Fund
When so directed by the Company or the Administrator or pursuant to
investment directions given by Members, former Members, or Beneficiaries
pursuant to Section 4.2, the Trustee shall invest and reinvest all or a
portion of the Trust Fund through any common or collective trust fund or
pooled investment fund, including collective investment funds maintained
by American Express Trust Company or its successor, for the collective
investment of funds held by it in a fiduciary capacity. The 2000 Amended
and Restated Declaration of Trust creating the American Express Trust
Collective Investment Funds for Employee Benefit Trusts ("Declaration of
Trust") is hereby incorporated by reference and made a part of this
Agreement. Notwithstanding any other provision of this Agreement, the
Trustee may commingle the designated assets from the Trust Fund with the
money of trusts created by others, by causing such assets to be invested
as a part of any one or more of the collective funds created by the
others' declaration of trust and assets of this Trust Fund so added to
any of the collective funds at any time shall be subject to all of the
provisions of the declaration of trust as it is amended from time to
time.
4.5 Trustee as Investment Manager
The Company hereby appoints Trustee to serve as Investment Manager with
respect to the Investment Funds set forth in Exhibit A, which Exhibit may
be amended from time to time (said Investment Funds hereinafter referred
to as the "Account"):
Trustee shall have full discretionary authority to formulate and execute
an investment program for the management and investment of the Account,
including the authority to:
(a) buy, sell, exchange, convert or otherwise trade in any stocks,
bonds and other investments including money market instruments and
investment contracts; and
(b) place orders for the execution of such investment transactions
with or through such brokers, dealers or issuers as Trustee may
select; and
(c) request the issuance of average price confirmations by
participating brokers.
Such authority shall be subject to the terms and conditions of this
Agreement, the provisions of the Declaration of Trust with respect to any
assets in the collective funds as provided in Section 4.4 of this Trust
Agreement and any written investment objectives and guidelines that are
executed by the Company and accepted by the Trustee. Such guidelines,
including the attached Exhibit B, are incorporated herein by reference.
To the extent the Trustee is an Investment Manager, it shall invest and
reinvest the principal and income of the Account with the care, skill,
prudence and diligence under the circumstances then prevailing that a
prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with
like aims. The Trustee acknowledges that it is a fiduciary with respect
to Plan assets for which it is an Investment Manager.
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ARTICLE 5
TRUSTEE'S POWERS
5.1 Powers Exercisable by the Trustee in its Sole Discretion
In addition to all other powers and authorities elsewhere in this
Agreement specifically granted to the Trustee, the Trustee shall have the
following powers and authority, to be exercised in its sole discretion:
(a) To keep any or all securities or other property in the name of a
nominee with or without power of attorney for a transfer or in its
own name without disclosing its capacity, or in bearer or
book-entry form.
(b) To make, execute, acknowledge and deliver any and all instruments
deemed necessary or appropriate to carry out the powers herein
granted.
(c) To employ suitable agents, including, but not limited to,
auditors, actuaries, accountants, and legal and other counsel, and
to pay their expenses and reasonable compensation for services to
the Trust from the Trust Fund. The Trustee may from time to time
consult with legal counsel who may, but need not be, legal counsel
for the Company and shall be fully protected in acting or
refraining from acting upon the advice of any counsel with respect
to legal questions.
(d) To settle securities trades through a securities depository that
utilizes an institutional delivery system, in which event the
Trustee may deliver or receive securities in accordance with
appropriate trade reports or statements given to the Trustee by
such depository.
5.2 Powers exercisable by the Trustee, Subject to the Direction of the
Company or the Administrator, or an Investment Manager
The Trustee will exercise the following powers upon the direction of the
Company or the Administrator, or the designated Investment Manager.
(a) To invest and reinvest Trust Fund assets in common stocks,
preferred stocks, bonds, notes, debentures, mortgages, insurance
policies, individual or group annuity contracts, investment
contracts, commercial paper, fixed time deposits, money market
instruments, mutual funds, collective investment funds or other
investments, including investments offered by the Trustee or its
affiliates.
(b) To invest and reinvest in stocks and other securities issued by
the Company or any subsidiary or affiliate thereof.
(c) To borrow money for the purposes of this Trust upon such terms and
conditions as deemed appropriate, and to obligate the Trust Fund
for repayment.
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(d) To hold cash uninvested and unproductive of income or deposit same
with any banking or savings institution, including its own banking
department or the banking department of an affiliate.
(e) To exercise any or all conversion and subscription rights with
respect to properties held in the Trust Fund.
(f) To hold, acquire, or invest up to 100% of the Trust assets in
qualifying Employer securities as defined in section 407(d)(5) of
ERISA or qualifying Employer real property as defined in section
407(d)(4) of ERISA (or both) so long as the purchases are made in
accordance with the provisions of ERISA.
(g) To pool all or any of the assets of the Trust with assets
belonging to any other employee benefit trust created by the
Company or an affiliate of the Company, and to commingle such
assets and make joint or common investment carry joint accounts on
behalf of the Trust and such other trust or trusts, and allocated
undivided shares or interest in such investments or accounts or in
any pooled assets to the two or more trusts in respect to their
respective interests in the pooled investment.
5.3 Powers Exercisable by the Trustee Only Upon the Direction of the
Administrator
Upon the direction of the Administrator, the Trustee will accept,
compromise or otherwise settle any claims by or against the Trust Fund or
disputed liabilities due to or from the Trustee with respect to the Trust
Fund, including any claim that may be asserted for taxes under present or
future laws, or to enforce or contest the same by appropriate legal
proceedings.
5.4 Proxies and other Incidents of Ownership
Funds Other Than Company Stock
The Trustee shall deliver or cause to be delivered, to the
Administrator or the designated Investment Manager, all notices,
prospectuses, financial statements, proxies and proxy soliciting
materials relating to investments, other than Company Stock, held
hereunder. Except for those Trust Fund assets for which American
Express Trust is the Investment Manager, the Trustee shall not vote any
proxy or tender offer election, participate in any voting trust,
exercise any option or subscription right or join in, dissent from or
oppose any merger, reorganization, consolidation, liquidation or sale
with respect to any asset held hereunder except in accordance with the
timely written instructions of the Administrator. If no such written
instructions are received, such proxies elections and voting trust
votes shall not be voted; such options or subscription rights shall not
be exercised; and such mergers, reorganizations, consolidation,
liquidations or sales shall not be joined, dissented from or opposed.
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COMPANY STOCK
(a) VOTING OF COMPANY STOCK. When the Company files preliminary or final
proxy solicitation materials with the Securities and Exchange Commission, the
Company shall cause a copy of all materials to be simultaneously sent to the
Trustee. Based on these materials, the Trustee shall prepare a voting
instruction form. At the time of mailing of notice of each annual or special
stockholders' meeting of the Company, the Company shall cause a copy of the
notice and all proxy solicitation materials to be sent to each Member with an
interest in Company Stock held in the Trust, together with the foregoing voting
instruction form to be returned to the Trustee or its designee. The form shall
show the number of full and fractional shares of the Company Stock credited to
each Member's or former Member's Account. The Company shall provide the Trustee
with a copy of any materials provided to the Members and shall certify to the
Trustee that the materials have been mailed or otherwise sent to the Members and
former Members.
Each Member and former Member with an interest in Company Stock held in
the Trust shall have the right to direct the Trustee as to the manner in which
the Trustee is to vote the number of shares of the Company Stock reflecting such
Member's or former Member's proportional interest in the Company Stock held in
the Trust. Directions from a Member or former Member to the Trustee concerning
the voting of the Company Stock shall be communicated in writing, or by mailgram
or similar means. These directions shall be held in confidence by the Trustee
and shall not be divulged to the Company, or any officer or employee thereof, or
any other person except to the extent that the Company must have the safeguarded
information in order to comply with federal laws or state laws not preempted by
ERISA. Upon its receipt of the directions, the Trustee shall vote the shares of
the Company Stock reflecting the Member's or former Member's proportional
interest in the Company Stock held in the Trust as directed by the Member or
former Member. The Trustee shall vote shares of the Company Stock reflecting
such Member's or former Member's proportional interest in the Company Stock held
in the Trust for which it has received no directions from the Member or former
Member in the same proportion on each issue as it votes those shares for which
it received voting directions from Members and former Members. The Trustee shall
vote shares of the Company Stock not credited to Members' or former Members'
Accounts in the same proportion on each issue as it votes those shares credited
to Members' and former Members' Accounts for which it received voting directions
from Members and former Members.
(b) TENDER OFFERS. Upon commencement of a tender offer for any securities
held in the Trust that are the Company Stock, the Company shall notify each
Member and former Member of the tender offer and utilize its best efforts to
timely distribute or cause to be distributed to each Member and former Member
the same information that is distributed to other stockholders of the Company in
connection with the tender offer, and, after consulting with the Trustee, shall
provide and pay for a means by which the Member or former Member may direct the
Trustee whether or not to tender the Company Stock credited to the Member's or
former Member's Accounts. The Company shall provide the Trustee with a copy of
any material provided to the Members and former Members and shall certify to the
Trustee that the materials have been mailed or otherwise sent to Members and
former Members.
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Each Member and former Member shall have the right to direct the Trustee
to tender or not to tender some or all of the shares of the Company Stock
reflecting his proportional interest in the Company Stock held in the Trust.
Directions from a Member or former Member to the Trustee concerning the tender
of the Company Stock shall be communicated in writing, or by mailgram or such
similar means as is agreed upon by the Trustee and the Company under the
preceding paragraph. These directions shall be held in confidence by the Trustee
and shall not be divulged to the Company, or any officer or employee thereof, or
any other person except to the extent that the consequences of such directions
are reflected in reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services hereunder. The
Trustee shall tender or not tender shares of Company Stock as directed by the
Member or former Member. To the extent that Members or former Members fail to
affirmatively direct the Trustee or fail to issue valid directions to the
Trustee to tender shares of the Company Stock credited to their Accounts, those
Members or former Members will be deemed to have instructed the Trustee not to
tender those shares. Accordingly, the Trustee shall not tender shares of Company
Stock credited to a Member's or former Member's Accounts for which it has
received no directions or invalid directions from the Member or former Member.
The Trustee shall tender that number of shares of the Company Stock not
credited to Members' or former Members' Accounts which is determined by
multiplying the total number of shares of the Company Stock not credited to
Members' or former Members' Accounts by a fraction of which the numerator is the
number of shares of the Company Stock credited to Members' or former Members'
accounts for which the Trustee has received valid directions from Members or
former Members to tender (which directions have not been withdrawn as of the
date of this determination) and of which the denominator is the total number of
shares of the Company Stock credited to Members' or former Members' Accounts.
A Member or former Member who has directed the Trustee to tender some or
all of the shares of the Company Stock credited to the Member's or former
Member's Accounts may, at any time prior to the tender offer withdrawal date,
direct the Trustee to withdraw some or all of the tendered shares, and the
Trustee shall withdraw the directed number of shares from the tender offer prior
to the tender offer withdrawal deadline. Prior to the withdrawal deadline, if
any shares of the Company Stock not credited to Members' or former Members'
Accounts have been tendered, the Trustee shall redetermine the number of shares
of the Company Stock that would be tendered under this Section if the date of
the foregoing withdrawal were the date of determination, and withdraw from the
tender offer the number of shares of the Company Stock not credited to Members'
or former Members' Accounts necessary to reduce the amount of tendered Company
Stock not credited to Members' or former Members' Accounts to the amount so
redetermined. A Member or former Member shall not be limited as to the number of
directions to tender or withdraw that the Member or former Member may give to
the Trustee.
A direction by a Member or former Member to the Trustee to tender shares
of the Company Stock reflecting the Member's or former Member's proportional
interest in the Company Stock held in the Trust shall not be considered a
written election under the Plan by the Member or former Member to withdraw, or
have distributed, any or all of his withdrawable shares. The Trustee shall
credit to each proportional interest of the Member or former Member
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from which the tendered shares were taken the proceeds received by the Trustee
in exchange for the shares of the Company Stock tendered from that interest.
(c) SHARES CREDITED. For all purposes of this Section 5.4, the number of
shares of the Company Stock deemed "credited" to a Member's or former Member's
Accounts as of the relevant date (the record date or the date specified in the
tender offer) shall be calculated by reference to the number of shares reflected
on the books of the transfer agent as of the relevant date. In the case of a
tender offer, the number of shares credited shall be determined as of a date as
close as administratively feasible to the relevant date.
(d) CONVERSION. All provisions in this Article shall also apply to any
securities received as a result of a conversion of the Company Stock.
(e) NAMED FIDUCIARY. For purposes of ERISA, each Member or former Member
shall be the named fiduciary for purposes of section 403(a)(1) of ERISA in
connection with the exercise of voting and tender offer rights relating to
shares of the Company Stock credited to his Accounts and any shares of the
Company Stock not credited to his Accounts that may be affected by his voting or
tender decision.
ARTICLE 6
ACCOUNTING
6.1 Valuation
(a) The Trustee will determine the current fair market value of the
assets and liabilities of the Trust Fund as of the end of each
Valuation Date.
(b) The fair market value of assets of the Trust Fund will be
determined by the Trustee on the basis of such sources of
information as it may deem reliable, including (but not limited
to) information reported in (i) newspapers of general circulation,
(ii) standard financial periodicals or publications, (iii)
statistical and valuation services, (iv) records of securities
exchanges, (v) reports of any Investment Manager, insurance
company or financial institution that has issued an investment
contract to the Trustee or brokerage firm deemed reliable by the
Trustee, or (vi) any combination of the foregoing. If the Trustee
is unable to value assets from such sources, it may rely on
information from the Company, the Administrator, appraisers or
other sources, and will not be liable for inaccurate valuation
based in good faith on such information.
(c) The Administrator may, for administrative purposes, establish unit
values for one or more Investment Funds (or any portion thereof)
and maintain the accounts setting forth each Member's interest in
such Investment Fund (or any portion thereof) in terms of such
units, all in accordance with such rules and procedures as the
Administrator shall deem to be fair, equitable and
administratively practicable. In the event that unit accounting is
thus established for any Investment Fund, the value of a Member's
interest in that Investment Fund (or any portion thereof) at any
time shall
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be an amount equal to the then value of a unit in such Investment
Fund (or any portion thereof) multiplied by the number of units
then credited to the Member.
6.2 Records
The Trustee will keep complete accounts of all investments, receipts and
disbursements, other transactions hereunder, and gains and losses
resulting from same. Such accounts will be sufficiently detailed to meet
the Trustee's duties of reporting and disclosure required under
applicable federal and state law. All accounts, books, contracts and
records relating to the Trust Fund will be open to inspection and audit
at all reasonable times by any person designated by the Administrator.
6.3 Reports
(a) Within 90 days following the close of each Plan Year, and as
otherwise directed by the Administrator, and within 90 days
following the Trustee's resignation or removal under Article 8 of
this Agreement, the Trustee will furnish the Administrator with a
written report setting forth the transactions effected by the
Trustee during the period since it last furnished such a report
and any gains or losses resulting from same, any payments or
disbursements made by the Trustee during such period, the assets
of the Trust Fund as of the last day of such period (at cost and
at fair market value), and any other information about the Trust
Fund that the Administrator may reasonably request. The Trustee
will certify the accuracy of the report if such certification is
required by any applicable federal or state law or regulation.
(b) Each report submitted pursuant to subsection (a) will be promptly
examined by the Administrator. If the Administrator approves of
such report, the Trustee will be forever released from any
liability or accountability with respect to the propriety of any
of its accounts or transactions so reported, as if such account
had been settled by judgment or decree of a court of competent
jurisdiction in which the Trustee, the Administrator, the Company,
and all persons having or claiming any interest in the Trust Fund
were made parties. The foregoing, however, is not to be construed
to deprive the Trustee of the right to have its account judicially
settled if it so desires.
(c) The Administrator may approve of any report furnished by the
Trustee under subsection (a) either by written statement of
approval furnished to the Trustee or by failure to file a written
objection to the report with the Trustee within 90 days of the
date on which the Administrator receives such report.
ARTICLE 7
COMPENSATION, RIGHTS AND INDEMNITIES OF THE TRUSTEE
7.1 Compensation and Reimbursement
(a) The Trustee will receive reasonable compensation for its services,
including investment management services as provided in Section
4.5 herein, as agreed upon in writing from time to time between
the Administrator and the Trustee. The Trustee will, as part of
its compensation for services provided to the Plan, receive the
earnings
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from any uninvested cash awaiting investment into or distributions
from the Trust Fund. The Trustee agrees to make every reasonable
effort to prevent occurrences where cash to be invested is delayed
from being invested upon receipt. The Client agrees that the
Trustee may hold such uninvested cash without incurring any
liability for the payment of earnings on such uninvested cash.
(b) The Trustee will be reimbursed for all reasonable expenses it
incurs in the performance of its duties under this Trust
Agreement. In this regard, reasonable expenses include (but are
not limited to) accounting, consulting, actuarial, valuation of
assets and, subject to Section 5.1, legal fees for professional
services related to the administration of the Plan and this
Agreement.
(c) Compensation and expenses payable under this Section 7.1 will be
paid from the Trust Fund (and may be charged, if applicable, to an
appropriate sub-account or subtrust), unless the Company pays such
compensation and expenses directly to the Trustee. In addition,
the Trustee is directed to pay compensation, expenses, or fees for
other services provided to the Plan (including but not limited to
recordkeeping services by American Express Trust) under separate
agreement from the Trust Fund, unless the Company pays such
compensation, and expenses or fees. The Company in its discretion
may reimburse the Trust Fund for any compensation and expenses
paid from the Trust Fund.
(d) In the event the Company files or declares bankruptcy, the Company
authorizes the Trustee to make payment from the Trust Fund for any
and all fees, expenses or other forms of compensation due under
this Section whether or not the fees, expenses or other forms of
compensation were earned but not yet paid prior to or after the
bankruptcy filing.
7.2 Rights of the Trustee
(a) Whenever in the administration of the Plan a certification or
direction is required to be given to the Trustee, or the Trustee
deems it necessary that a matter be approved prior to taking,
permitting or omitting any action hereunder, such certification or
direction will be fully made, or such matter may be deemed to be
conclusively approved, by delivery to the Trustee of an instrument
signed either (i) in the name of the Company by its Secretary or
Assistant Secretary; or (ii) unless the matter concerns the
authority of the Administrator, in the name of the Administrator
by the Chairman, Secretary, or any one of the members of the
Committee who were delegated the authority by the Committee; and
the Trustee, when acting in good faith, may rely upon such
instrument to the extent permitted by law. Notwithstanding the
foregoing, the Trustee may in its sole discretion accept such
other evidence of a matter or require such further evidence as may
seem reasonable to it, in lieu of such instrument. The Trustee
will be protected in acting in good faith upon any notice,
resolution, order, certificate, opinion, telegram, letter or other
document believed by the Trustee to be genuine and to have been
signed by the proper party or parties, and may act thereon without
notice to a Member, former Member, or Beneficiary.
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(b) The Company will provide the Trustee with specimen signatures of
the Administrator and its delegates and the current authorized
signers of each Investment Manager. The Trustee will be entitled
to rely in good faith upon any directions signed by the
Administrator or its appointed delegate, or by any authorized
signer of an Investment Manager, and will incur no liability for
following such directions in good faith.
(c) The Trustee may accept communications by photostatic
teletransmissions with duplicate or facsimile signatures as a
delivery of such communications in writing until notified in
writing by the Administrator or the Investment Manager that the
use of such devices is no longer authorized.
7.3 Indemnification for Following Direction
Upon demand, the Company will immediately indemnify and hold harmless the
Trustee from all losses or liabilities, costs and expenses (including
reasonable attorneys' fees) to which the Trustee may be subject by reason
of any acts taken in good faith in accordance with directions or
instructions from the Company, Administrator, an Investment Manager
(other than the Trustee acting in such capacity) or their delegates,
Members, former Members, or Beneficiaries, or acts omitted in good faith
due to absence of directions from the Company, the Administrator, an
Investment Manager (other than the Trustee acting in such capacity),
Members, former Members, or Beneficiaries unless such loss or liability
is due to the Trustee's negligence or willful misconduct. This Section
7.3 shall survive the termination of this Trust Agreement.
7.4 Limitation of Liability of Trustee
(a) If the Trustee makes a written request for directions from the
Company, the Administrator or an Investment Manager, the Trustee
may await such directions without incurring liability. The Trustee
has no duty to act in the absence of such requested directions,
but may in its discretion take such action as it deems appropriate
to carry out the purposes of this Agreement.
(b) The Trustee is not responsible for determining the adequacy of the
Trust Fund to meet liabilities under the Plan, and is not liable
for any obligations of the Plan or the Trust Fund in excess of the
assets of the Trust Fund.
(c) The Company indemnifies and holds the Trustee harmless from and
against all taxes, expenses (including reasonable attorney fees),
liabilities, claims, damages, actions, suits or other charges
incurred by or assessed against the Trustee resulting directly or
indirectly from any act or omission of a predecessor trustee or
other entity acting as a fiduciary.
7.5 Undertaking for Costs
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties
hereunder, or in the exercise of any of its rights or powers as trustee.
In the event that the Trustee must commence or defend any
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action, administrative, judicial or otherwise, the Trustee may retain
professionals including legal or financial advisors to represent the
Trustee in its capacity as Trustee hereunder. The Company shall promptly
pay for the entire cost to retain such professionals. In the event
Company does not pay for the cost to retain such professionals, such
costs will be paid from the Trust Fund.
7.6 Necessary Parties to Legal Actions
Except as required by Section 502(h) of ERISA, only the Company, the
Administrator and the Trustee will be considered necessary parties in any
legal action or proceeding with respect to the Trust Fund, and no Member,
former Member, Beneficiary or other person having an interest in the
Trust Fund will be entitled to notice. Any judgment entered on any such
action or proceeding will be binding on all persons claiming under the
Trust. Nothing in this Section 7.6 is intended to preclude a Member,
former Member, or Beneficiary from enforcing his or her legal rights.
7.7 Binding Arbitration
Any unresolved controversy arising out of, or relating to, this Agreement
or the breach thereof, shall be settled by binding arbitration, conducted
pursuant to the Federal Arbitration Act, before an independent
arbitration panel which shall be mutually agreed upon by the parties. In
the event the parties are unable to agree upon a suitable independent
arbitration panel, arbitration shall be before the American Arbitration
Association ("AAA"). The arbitration panel shall consist of three
members, one selected by American Express Trust, one selected by the
Company and the third selected by the two arbitrators. The decisions made
by a majority of the panel shall be final and binding on the parties.
Such judgment may be entered and enforced in any court of competent
jurisdiction.
ARTICLE 8
RESIGNATION OR REMOVAL OF THE TRUSTEE
8.1 Resignation
The Trustee may resign at any time by delivering to the Company a written
notice of resignation, to take effect not less than 60 days after
delivery, unless such time period is waived by the Company.
8.2 Removal
The Company may remove the Trustee at any time by delivering to the
Trustee a written notice of removal. Such removal will take effect no
less than 60 days after delivery of such notice to the Trustee, unless
such time period is waived by the Trustee.
8.3 Successor Trustee
Upon the resignation or removal of the Trustee, the Company will appoint
a successor trustee, which may accept such appointment by execution of a
written instrument. In the event that no successor trustee is appointed,
or accepts appointment, by the time that the resignation or removal of
the Trustee is effective, the Trustee may apply to a court of
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competent jurisdiction for the appointment of a successor trustee or for
instructions. Any expenses incurred by the Trustee in connection with
said application will be paid from the Trust Fund as an expense of
administration.
8.4 Settlement
After delivery of notice of the Trustee's resignation or removal, the
Trustee is entitled to a settlement of its account from the Trust Fund
unless otherwise paid by the Company.
8.5 Transfer to Successor Trustee
Upon settlement of the Trustee's account, the Trustee will transfer to
the successor trustee the Trust Fund as it is then constituted and true
copies of its records relevant to the Trust Fund. Upon the transfer of
Trust Fund assets, the Trustee's responsibilities under this Agreement
will cease and the Trustee will be discharged from further accountability
for all matters embraced in its settlement with respect to those assets,
provided, however, that the Trustee executes and delivers the documents
and written instruments which are necessary to transfer and convey the
right, title and interest in such Trust Fund assets, to the successor
trustee. If fees and expenses are outstanding on the settlement date, the
Trustee is authorized to reserve assets in an amount equal to any fees or
expenses outstanding.
8.6 Duties of the Trustee Prior to Transfer to Successor Trustee
The Trustee's powers, duties, rights and responsibilities under this
Agreement will continue, with respect to those Trust Fund assets held by
the Trustee, until the date on which the transfer of the Trust Fund
assets and delivery of the related documents to the successor trustee
under Section 8.5 is completed. The successor trustee will neither be
liable or responsible for any act or omission to act with respect to the
operation or administration of the Trust Fund under this Agreement prior
to the date it receives any Trust Fund assets and related documents, nor
be under any duty or obligation to audit or otherwise inquire into or
take any action concerning the acts or omissions of the Trustee or any
predecessor trustee.
8.7 Powers, Duties and Rights of the Successor Trustee
Upon its receipt of assets of the Trust Fund and the documents related
thereto, the successor trustee will become vested with all the estate,
power, duties and rights of the Trustee under this Agreement with respect
to such assets with the same effect as though the successor trustee were
originally named as Trustee hereunder.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 Amendment
The Company through its Board of Directors, reserves the right at any
time and from time to time to amend, retroactively, if necessary, in
whole or in part, any or all of the provisions of this Agreement by
notice thereof in writing delivered to the Trustee, provided that no such
amendment which affects the rights, duties, liabilities or
responsibilities of the Trustee may be made without its consent and
provided further that no such amendment shall
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authorize or permit any part of the corpus or income of the Trust Fund to
be used or diverted to purposes other than for the exclusive benefit of
Members, former Members, and Beneficiaries, or permit any portion of the
Trust Fund to revert to or become the property of the Company, except as
otherwise provided under ERISA.
9.2 Termination
This Agreement and the Trust may be terminated at any time by the Board
of Directors of the Company, and this Agreement and the Trust shall
terminate in the event that a corporate successor to the Company notifies
the Trustee in writing within ninety (90) days following the date it
becomes the corporate successor that it does not intend to become a party
to this Agreement. In the event of the termination of the Trust as
provided herein, the Trustee shall dispose of the Trust Fund in
accordance with the written directions of the Company and upon its
certification that such direction is in accordance with the terms of the
Plan, except that the Trustee may reserve such reasonable amounts as the
Trustee may deem necessary for outstanding and accrued charges against
the Plan including Trustee's expenses. If the Company fails to provide
the Trustee with written directions regarding disposition of the Trust
Fund, the Trustee may apply to a court of competent jurisdiction for
directions as to the disposal of the Trust Fund. Upon termination of this
Trust, the Trustee shall continue to have all of the powers provided in
this Agreement as are necessary or desirable for the orderly liquidation
and distribution of the Trust Fund.
ARTICLE 10
MISCELLANEOUS
10.1 Successors and Assigns
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns. No assignment (as
defined in the Investment Advisors Act of 1940) of this Agreement shall
be made by the Trustee without the written consent of the Company;
provided, however, that the Trustee may assign this Agreement to the
parent company of the Trustee or to a wholly-owned subsidiary of such
parent company if such company is organized and chartered as a trust
company. Company agrees to promptly notify Trustee in the event there is
a corporate successor to the Company.
10.2 Governing Law
This Agreement will be construed and governed in all respects in
accordance with applicable federal law, and, to the extent not preempted
by such federal law, in accordance with the laws of the State of
Minnesota.
10.3 Notices
All notices required to be given pursuant to this Agreement shall be in
writing and delivered first class U.S. mail, postage prepaid or by
telecopy, telex or facsimile addressed to the appropriate party(ies) at
their respective address set forth below, or at any other address of
which a party shall have notified the other parties in writing.
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(a) If to American Express Trust:
American Express Trust
Attn: Account Team for The Men's Wearhouse, Inc. 401(k)
Savings Plan
1977 AXP Financial Center
Xxxxxxxxxxx, XX 00000
(b) If to Company:
The Men's Wearhouse, Inc.
00000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
10.4 Allocation of Responsibility
The responsibilities and obligations of the Trustee shall be strictly
limited to those set forth in this Agreement. Except to the extent
imposed by ERISA, no fiduciary of the Plan shall have the duty to
question whether any other fiduciary is fulfilling all of the
responsibility imposed upon such other fiduciary by ERISA or by any
regulations or rulings issued thereunder. The Trustee shall not be
responsible in any way or any manner in which the Company or the
Administrator carry out their respective responsibilities under this
Agreement or, more generally, under the Plan.
10.5 Execution of Agreement
This Agreement may be executed in any number of counterparts and each
fully executed counterpart shall be deemed an original.
10.6 ERISA Bond
Company hereby represents and warrants that it has obtained a fidelity
bond that complies with the bonding provisions of Section 412 of ERISA
and that the bond covers every fiduciary of the Plan and every person who
handles funds or other property of the Plan including the Trustee and its
agents, if any.
10.7 Loans to Members
Loans to Members as provided for in the Plan shall be granted and
administered by the Administrator. The Trustee shall distribute cash to
such Members who are granted loans in such amount and at such times as
the Administrator shall from time to time direct in writing or by any
other method authorized by the Administrator. Loan payments collected by
the Administrator shall be forwarded to the Trustee. The amount of such
loans shall be carried by the Trustee as an asset of the trust equal to
the combined unpaid principal balance of all Members. The Trustee shall
rely conclusively upon the determination of the Administrator with
respect to the amount of the combined unpaid principal balance of all
Members. The Trustee shall have no responsibility (1) to ascertain
whether a loan complies with the provisions of the Plan, (2) for the
decision to grant a loan, or (3) for the collection and repayment of a
loan. Notwithstanding the foregoing, a loan to a Member shall be a Member
directed investment of his Account. The loan is a Trust investment but no
Account other than the borrowing Member's Account shall share in the
interest paid on the loan or bear any expense or loss incurred because of
the loan. All principal and interest
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paid on the loan shall be credited to the Member's Loan Account. Such
payments shall be transferred from the Loan Account and credited to the
Member's Account.
10.8 Severability
If any provisions of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provisions hereof and this Agreement shall be construed and
enforced as if such provision, to the extent invalid or unenforceable had
not been included.
10.9 Effective Date
The effective date of this Agreement shall be January 1, 2001.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
THE MEN'S WEARHOUSE, INC. AMERICAN EXPRESS TRUST COMPANY
By: /s/ NEILL X. XXXXX By: /s/ XXX XXXXXXXXX
--------------------------- --------------------------
Title: Senior Vice President, Title: Vice President Senior
------------------------ -----------------------
Chief Financial Officer Trust Officer
------------------------ -----------------------
and Treasurer
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EXHIBIT A
Pursuant to Section 4.5, the Company hereby appoints American Express Trust to
serve as an Investment Manager for the following Investment Funds:
American Express Trust Equity Index Fund II
American Express Trust Money Market Fund I
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