EXHIBIT 10.1
THE MEN'S WEARHOUSE, INC.
EMPLOYEE STOCK DISCOUNT PLAN
(AS AMENDED AND RESTATED
EFFECTIVE APRIL 1, 2002)
THE MEN'S WEARHOUSE, INC. EMPLOYEE STOCK DISCOUNT PLAN
(AS AMENDED AND RESTATED APRIL 1, 2002)
THIS AGREEMENT adopted by The Men's Wearhouse, Inc., a Texas
corporation (the "Company"),
WITNESSETH:
WHEREAS, effective July 1, 1998, the Company established The Men's
Wearhouse, Inc. Employee Stock Discount Plan (the 'plan");
WHEREAS, the Company desires to amend and restate the Plan to effect
certain technical revisions; and
WHEREAS, the amendment and restatement of the Plan shall neither
provide for an increase in the number of shares of the Company's common stock
available for issuance under the Plan nor change the class of employees of the
Company and its affiliates who may participate in the Plan;
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety
as set forth below.
TABLE OF CONTENTS
SECTION
-------
ARTICLE I - PURPOSE, COMMITMENT AND INTENT
Purpose................................................................................................1.1
Share Commitment.......................................................................................1.2
Intent.................................................................................................1.3
ARTICLE II - DEFINITIONS
Affiliate..............................................................................................2.1
Beneficiary............................................................................................2.2
Board of Directors.....................................................................................2.3
Code...................................................................................................2.4
Committee..............................................................................................2.5
Company................................................................................................2.6
Employee...............................................................................................2.7
Employer...............................................................................................2.8
Exercise Date..........................................................................................2.9
Fair Market Value.....................................................................................2.10
Five Percent Owner....................................................................................2.11
Grant Date............................................................................................2.12
Offering Period.......................................................................................2.13
Option................................................................................................2.14
Option Price..........................................................................................2.15
Participant...........................................................................................2.16
Plan..................................................................................................2.17
Share.................................................................................................2.18
Stock.................................................................................................2.19
Trading Day...........................................................................................2.20
ARTICLE III - ELIGIBILITY
General Requirements...................................................................................3.1
Limitations Upon Participation.........................................................................3.2
ARTICLE IV - PARTICIPATION
Grant of Option........................................................................................4.1
Payroll Deduction......................................................................................4.2
Payroll Deductions Continuing..........................................................................4.3
Right to Stop Payroll Deductions.......................................................................4.4
Accounting for Funds...................................................................................4.5
Employer's Use of Funds................................................................................4.6
-i-
ARTICLE V - TERMINATION OF PARTICIPATION DURING EMPLOYMENT, TERMINATION OR EMPLOYMENT OR DEATH
Termination of Participation During Employment.........................................................5.1
Termination of Employment for any Reason Other Than Death..............................................5.2
Death..................................................................................................5.3
ARTICLE VI - EXERCISE OF OPTION
Purchase of Stock......................................................................................6.1
Accounting for Stock...................................................................................6.2
Issuance of Shares.....................................................................................6.3
ARTICLE VII - ADMINISTRATION
Appointment, Term of Service & Removal.................................................................7.1
Powers.................................................................................................7.2
Quorum and Majority Action.............................................................................7.3
Standard of Judicial Review of Committee Actions.......................................................7.4
ARTICLE VIII - ADOPTION OF PLAN BY OTHER EMPLOYERS
Adoption Procedure.....................................................................................8.1
No Joint Venture Implied...............................................................................8.2
ARTICLE IX - TERMINATION AND AMENDMENT OF THE PLAN
Termination............................................................................................9.1
Amendment..............................................................................................9.2
ARTICLE X - MISCELLANEOUS
Designation of Beneficiary............................................................................10.1
Plan Not An Employment Contract.......................................................................10.2
All Participants' Rights Are Equal....................................................................10.3
Options Are Not Transferable..........................................................................10.4
Voting of Stock.......................................................................................10.5
No Rights of Stockholder..............................................................................10.6
Governmental Regulations..............................................................................10.7
Notices...............................................................................................10.8
Indemnification of Committee..........................................................................10.9
Tax Withholding......................................................................................10.10
Gender and Number....................................................................................10.11
Severability.........................................................................................10.12
Governing Law; Parties to Legal Actions..............................................................10.13
-ii-
ARTICLE I
PURPOSE, COMMITMENT AND INTENT
1.1 PURPOSE. The purpose of the Plan is to provide Employees of the
Company and its Affiliates that adopt the Plan with an opportunity to purchase
Stock of the Company through quarterly offerings of options at a discount on the
first day of each calendar quarter and thus develop a stronger incentive to work
for the continued success of the Company and its Affiliates. Therefore, the Plan
is available to all Employees of every Employer upon their fulfilling the
eligibility requirements of Section 3.1. It is sponsored by the Company. Any
Affiliate may adopt it with the approval of the Committee by fulfilling the
requirements of Section 8.1.
1.2 SHARE COMMITMENT. The aggregate number of Shares authorized to be
sold pursuant to Options granted under the Plan is 1,425,000, subject to
adjustment as provided in this Section. In computing the number of Shares
available for grant, any Shares relating to Options which are granted, but which
subsequently lapse, are cancelled or are otherwise not exercised by the final
date for exercise, shall be available for future grants of Options.
In the event of any stock dividend, split-up, recapitalization, merger,
consolidation, combination or exchange of Shares, or the like, as a result of
which shares shall be issued in respect of the outstanding Shares, or the Shares
shall be changed into the same or a different number of the same or another
class of stock, the total number of Shares authorized to be committed to the
Plan, the number of Shares subject to each outstanding Option, the Option Price
applicable to each Option, and/or the consideration to be received upon exercise
of each Option shall be appropriately adjusted by the Committee. In addition,
the Committee shall, in its sole discretion, have authority to provide, in
appropriate cases, for (a) acceleration of the Exercise Date of outstanding
Options or (b) the conversion of outstanding Options into cash or other property
to be received in certain of the transactions specified in this paragraph above
upon the completion of the transaction.
1.3 INTENT. It is the intention of the Company to have the Plan qualify
as an "employee stock purchase plan" under section 423 of the Code. Therefore,
the provisions of the Plan are to be construed to govern participation in a
manner consistent with the requirements of section 423 of the Code.
I-1
ARTICLE II
DEFINITIONS
The words and phrases defined in this Article shall have the meaning
set out in these definitions throughout the Plan, unless the context in which
any word or phrase appears reasonably requires a broader, narrower, or different
meaning.
2.1 "AFFILIATE" means any parent corporation and any subsidiary
corporation. The term "parent corporation" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the Company if, at the
time of the action or transaction, each of the corporations (other than the
Company) owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in the chain. The term
"subsidiary corporation" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in the
chain.
2.2 "BENEFICIARY" means the person who is entitled to receive amounts
under the Plan upon the death of a Participant.
2.3 "BOARD OF DIRECTORS" means the board of directors of the Company.
2.4 "CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
2.5 "COMMITTEE" means the committee appointed by the Board of
Directors.
2.6 "COMPANY" means The Men's Wearhouse, Inc., a
Texas corporation.
2.7 "EMPLOYEE" means any person who is a common-law employee of the
Company or any Affiliate.
2.8 "EMPLOYER" means the Company and all Affiliates that have adopted
the Plan.
2.9 "EXERCISE DATE" means the last day of each Offering Period, which
is the day that all Options granted for the Offering Period are to be exercised.
2.10 "FAIR MARKET VALUE" of the Stock as of any date means the average
of the high and low sale prices of the Stock on a given date (or if there was no
sale on that date, the next preceding date on which there was a sale) on the
principal securities exchange on which the Stock is listed.
2.11 "FIVE PERCENT OWNER" means an owner of five percent or more of the
total combined voting power of all classes of stock of the Company or any
Affiliate. An individual is
II-1
considered to own any stock that is owned directly or indirectly by or for his
brothers and sisters (whether by whole or half-blood), spouse, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust is considered as owned proportionately
by or for its shareholders, partners, or beneficiaries. An individual is
considered to own stock that he may purchase under outstanding options. The
determination of the percentage of the total combined voting power of all
classes of stock of the Company or any Affiliate that is owned by an individual
is made by comparing the voting power or value of the shares owned (or treated
as owned) by the individual to the aggregate voting power of all shares actually
issued and outstanding immediately after the grant of the option to the
individual. The aggregate voting power or value of all shares actually issued
and outstanding immediately after the grant of the option does not include the
voting power or value of treasury shares or shares authorized for issue under
outstanding options held by the individual or any other person.
2.12 "GRANT DATE" means the first day of each Offering Period, which is
the day the Committee grants all eligible Employees an Option under the Plan.
2.13 "OFFERING PERIOD" means the period beginning on the Grant Date and
ending on the Exercise Date. The Offering Period shall commence on the first day
of each calendar quarter and shall end on the last Trading Day on or before the
last day of each calendar quarter, unless the Committee specifies another
Offering Period (which may not exceed 27 months).
2.14 "OPTION" means an option granted under the Plan to purchase Shares
at the Option Price on the Exercise Date.
2.15 "OPTION PRICE" means the price to be paid for each Share upon
exercise of an Option, which shall be 85% of the lesser of (a) the Fair Market
Value of a Share on the Grant Date or (b) the Fair Market Value of a Share on
the Exercise Date.
2.16 "PARTICIPANT" means a person who is eligible to be granted an
Option under the Plan and who elects to have payroll deductions withheld under
the Plan for the purpose of exercising that Option on the Exercise Date.
2.17 "PLAN" means The Men's Wearhouse, Inc. Employee Stock Discount
Plan, as set out in this document and as it may be amended from time to time.
2.18 "SHARE" means a share of Stock.
2.19 "STOCK" means the Company's common stock, $.01 par value.
2.20 "TRADING DAY" shall mean a day on which the principal securities
exchange on which the Stock is listed is open for trading.
II-2
ARTICLE III
ELIGIBILITY
3.1 GENERAL REQUIREMENTS. Subject to Section 3.2, each Employee of each
Employer is eligible to participate in the Plan for a given Offering Period if,
prior to the Grant Date, he has completed three months of employment for the
Company and/or its Affiliates, he is in the employ of an Employer on the Grant
Date and he completes a payroll deduction form authorizing payroll deductions
and files it with the Employer's benefit office prior to the Grant Date.
3.2 LIMITATIONS UPON PARTICIPATION. No Employee shall be granted an
Option to the extent that the Option would:
(a) cause the Employee to be a Five Percent Owner immediately
after the grant;
(b) permit the Employee to purchase Stock under all employee
stock purchase plans, as defined in section 423 of the Code, of the
Company and all Affiliates at a rate which exceeds $25,000 in Fair
Market Value of the Stock (determined at the time the Option is
granted) for each calendar year in which the option granted to the
Employee is outstanding at any time as provided in sections 423 and 424
of the Code; or
(c) permit the Employee to purchase Stock in excess of the
number of Shares determined under Section 4.1.
III-1
ARTICLE IV
PARTICIPATION
4.1 GRANT OF OPTION. Effective as of the Grant Date of each Offering
Period, the Committee shall grant an Option to each Participant which shall be
exercisable on the Exercise Date only through funds accumulated by the Employee
through payroll deductions made during the Offering Period. The Option shall be
for that number of whole and fractional Shares that may be purchased by the
amount in the Participant's payroll deduction account on the Exercise Date at
the Option Price, subject to the maximum number of Shares determined by the
Committee in accordance with the following sentence. If so determined by the
Committee and announced to Employees prior to an Offering Period, the Committee
may establish a maximum number of Shares that may be purchased by a Participant
during the Offering Period. Effective for the Offering Period beginning July 1,
2002, and each subsequent Offering Period until changed by the Committee in
accordance with the preceding sentence, such maximum number of Shares that may
be purchased by a Participant during the Offering Period shall be 125 Shares.
Effective for Offering Periods commencing prior to July 1, 2002, the maximum
number of Shares that may be purchased by a Participant during an Offering
Period is that number of Shares that could be purchased with $2,500, assuming
that the purchase price of the Shares is equal to 85% of the Fair Market Value
of the Shares on the Grant Date.
4.2 PAYROLL DEDUCTION. For an Employee to participate during a given
Offering Period, he must complete a payroll deduction form and file it with his
Employer prior to the beginning of the Offering Period and in accordance with
procedures established by the Committee. The payroll deduction form shall permit
a Participant to elect to have withheld from his cash compensation a specified
dollar amount each pay period during the Offering Period. Payroll deductions
shall become effective as soon as administratively feasible in accordance with
procedures established by the Committee. Payroll deductions shall continue
through the last pay date prior to the Exercise Date. A Participant may not make
additional payments to his Plan account.
4.3 PAYROLL DEDUCTIONS CONTINUING. A Participant's payroll deduction
election shall remain in effect for all ensuing Offering Periods until changed
by him by filing an appropriate amended payroll deduction form prior to the
commencement of the Offering Period for which it is to be effective in
accordance with procedures established by the Committee.
4.4 RIGHT TO STOP PAYROLL DEDUCTIONS. A Participant shall have the
right to discontinue payroll deductions by filing a payroll deduction
cancellation form with the Company. The payroll deduction cancellation shall
become effective with the first full payroll period following the Company's
receipt of the payroll deduction subscription cancellation form in accordance
with procedures established by the Committee. With the exception of a complete
discontinuance of payroll deductions, a Participant may not change his
participation rate during an Offering Period.
IV-1
4.5 ACCOUNTING FOR FUNDS. As of each payroll deduction period, the
Employer shall cause to be credited to the Participant's payroll deduction
account in a ledger established for that purpose the funds withheld from and
attributable to the Employee's cash compensation for that period. No interest
shall be credited to the Participant's payroll deduction account at any time.
The obligation of the Employer to the Participant for this account shall be a
general corporate obligation and shall not be funded through a trust nor secured
by any assets which would cause the Participant to be other than a general
creditor of the Employer.
4.6 EMPLOYER'S USE OF FUNDS. All payroll deductions received or held by
an Employer may be used by the Employer for any corporate purpose, and the
Employer shall not be obligated to segregate such payroll deductions.
IV-2
ARTICLE V
TERMINATION OF PARTICIPATION DURING EMPLOYMENT, TERMINATION OF EMPLOYMENT
OR DEATH
5.1 TERMINATION OF PARTICIPATION DURING EMPLOYMENT. A Participant may,
at any time on or before 15 days prior to the Exercise Date, or such other date
as shall be selected by the Committee from time to time, elect to terminate his
participation in the Plan by giving notice in accordance with the rules
established by the Committee. The funds deemed credited to his Account will be
paid to him as soon as administratively feasible following his termination of
participation. Any election by a Participant to terminate his participation in
the Plan terminates his right to exercise his Option on the Exercise Date and
his entitlement to elect any further payroll deductions for the then-current
Offering Period. If the Participant wishes to participate in any future Offering
Period, he must file a new payroll deduction election within the time frame
required by the Committee for participation for that Offering Period.
5.2 TERMINATION OF EMPLOYMENT FOR ANY REASON OTHER THAN DEATH. If a
Participant's employment is terminated for any reason other than death prior to
the Exercise Date, the Option granted to the Participant for that Offering
Period shall lapse. The Participant's funds and Stock then credited to his Plan
Account shall be returned to him as soon as administratively feasible.
5.3 DEATH. If a Participant dies before the Exercise Date, the Option
granted to the Participant for that Offering Period shall lapse. The
Participant's funds and Stock then credited to his Plan account shall be
delivered to his Beneficiary (or to his estate if he has no Beneficiary) as soon
as administratively feasible. If the Participant dies after the Exercise Date
but prior to the delivery of his certificate, the funds and Stock credited to
the Participant's account shall be delivered to his Beneficiary (or to his
estate if he has no Beneficiary). If there is no Beneficiary, the and funds and
Stock credited to a Participant's account may be held in the Participant's Plan
account until the representative of the estate has been appointed and provides
such evidence as may be required by the Committee.
V-1
ARTICLE VI
EXERCISE OF OPTION
6.1 PURCHASE OF STOCK. Subject to Section 3.2, on the Exercise Date of
each Offering Period, each Participant's payroll deduction account shall be used
to purchase the maximum number of whole and fractional Shares that can be
purchased at the Option Price for that Offering Period. Any funds remaining in a
Participant's payroll deduction account after the exercise of his Option for the
Offering Period shall be returned to him as soon as administratively feasible.
If in any Offering Period the total number of Shares to be purchased by all
Participants exceeds the number of Shares committed to the Plan, then each
Participant shall be entitled to purchase only his pro rata portion of the
Shares remaining available under the Plan based on the balances in each
Participant's payroll deduction account as of the Exercise Date. After the
purchase of all Shares available on the Exercise Date, all Options granted for
the Offering Period to the extent not used are terminated because no Option
shall remain exercisable after one calendar quarter from the Grant Date.
6.2 ACCOUNTING FOR STOCK. After the Exercise Date of each Offering
Period, a report shall be given to each Participant stating the number of Shares
purchased and the Option Price.
6.3 ISSUANCE OF SHARES. As soon as administratively feasible after the
end of the Offering Period, the Committee shall advise the appropriate officer
of the Company that the terms of the Plan have been complied with and that it is
appropriate for the officer to cause to be issued the Shares upon which Options
have been exercised under the Plan. The Committee may determine in its
discretion the manner of delivery of the Shares purchased under the Plan, which
may be by electronic account entry into new or existing accounts, delivery of
Stock certificates or any other means as the Committee, in its discretion, deems
appropriate. The Committee may, in its discretion, hold the Stock certificates
for any Shares or cause it to be legended in order to comply with the securities
laws of the applicable jurisdiction or, should the Shares be represented by book
or electronic account entry rather than a certificate, the Committee may take
such steps to restrict transfer of the Shares as the Committee considers
necessary or advisable to comply with applicable law.
VI-1
ARTICLE VII
ADMINISTRATION
7.1 APPOINTMENT, TERM OF SERVICE & REMOVAL. The Board of Directors
shall appoint a Committee to administer the Plan. The members shall serve until
their resignation, death or removal. Any member may resign at any time by
mailing a written resignation to the Board of Directors. Any member may be
removed by the Board of Directors, with or without cause. Vacancies may be
filled by the Board of Directors from time to time.
7.2 POWERS. The Committee has the exclusive responsibility for the
general administration of the Plan, and has all powers necessary to accomplish
that purpose, including but not limited to the following rights, powers, and
authorities:
(a) to make rules for administering the Plan so long as they
are not inconsistent with the terms of the Plan;
(b) to construe all provisions of the Plan;
(c) to correct any defect, supply any omission, or reconcile
any inconsistency which may appear in the Plan;
(d) to select, employ, and compensate at any time any
consultants, accountants, attorneys, and other agents the Committee
believes necessary or advisable for the proper administration of the
Plan;
(e) to determine all questions relating to eligibility, Fair
Market Value, Option Price and all other matters relating to benefits
or Participants' entitlement to benefits;
(f) to determine all controversies relating to the
administration of the Plan, including but not limited to any
differences of opinion arising between an Employer and a Participant,
and any questions it believes advisable for the proper administration
of the Plan; and
(g) to delegate any clerical or recordation duties of the
Committee as the Committee believes is advisable to properly administer
the Plan.
7.3 QUORUM AND MAJORITY ACTION. A majority of the Committee constitutes
a quorum for the transaction of business. The vote of a majority of the members
present at any meeting shall decide any question brought before that meeting. In
addition, the Committee may decide any question by a vote, taken without a
meeting, of a majority of its members via telephone, computer, fax or any other
media of communication.
7.4 STANDARD OF JUDICIAL REVIEW OF COMMITTEE ACTIONS. The Committee has
full and absolute discretion in the exercise of each and every aspect of its
authority under the Plan. Notwithstanding anything to the contrary, any action
taken, or ruling or decision made by the
VII-1
Committee in the exercise of any of its powers and authorities under the Plan
shall be final and conclusive as to all parties other than the Company,
including without limitation all Participants and their beneficiaries,
regardless of whether the Committee or one or more of its members may have an
actual or potential conflict of interest with respect to the subject matter of
the action, ruling, or decision. No final action, ruling, or decision of the
Committee shall be subject to de novo review in any judicial proceeding; and no
final action, ruling, or decision of the Committee may be set aside unless it is
held to have been arbitrary and capricious by a final judgment of a court having
jurisdiction with respect to the issue.
VII-2
ARTICLE VIII
ADOPTION OF PLAN BY OTHER EMPLOYERS
8.1 ADOPTION PROCEDURE. With the approval of the Committee, any
Affiliate may adopt the Plan for all or any classification of its Employees by
depositing with the Company:
(a) a duly executed adoption agreement setting forth agreement
to be bound as an Employer by all the terms, provisions, conditions and
limitations of the Plan except those, if any, specifically set forth in
the adoption agreement;
(b) all other information required by the Company; and
(c) the written consent of the Company to the adoption of the
Plan.
8.2 NO JOINT VENTURE IMPLIED. The document which evidences the adoption
of the Plan by an Affiliate shall become a part of the Plan. However, neither
the adoption of the Plan by an Affiliate nor any act performed by it in relation
to the Plan shall create a joint venture or partnership relation between it and
the Company or any other Affiliate.
VIII-1
ARTICLE IX
TERMINATION AND AMENDMENT OF THE PLAN
9.1 TERMINATION. The Company may, by action of the Board of Directors,
terminate the Plan at any time and for any reason. The Plan shall automatically
terminate upon the purchase by Participants of all Shares committed to the Plan,
unless the number of Shares committed to the Plan is increased by the Board of
Directors and approved by the shareholders of the Company. Upon termination of
the Plan, as soon as administratively feasible there shall be refunded to each
Participant the remaining funds in his payroll deduction account, and there
shall be forwarded to the Participants certificates for all shares of Stock held
under the Plan for the account of Participants. The termination of the Plan
shall not affect the current Options already outstanding under the Plan to the
extent there are Shares committed, unless the Participants agree.
9.2 AMENDMENT. The Board of Directors reserves the right to modify,
alter or amend the Plan at any time and from time to time to any extent that it
deems advisable, including, without limiting the generality of the foregoing,
any amendment deemed necessary to ensure compliance of the Plan with section 423
of the Code. The Board of Directors may suspend the operation of the Plan for
any period as it may deem advisable. However, no amendment or suspension shall
operate to reduce any amounts previously allocated to a Participant's payroll
deduction account, to reduce a Participant's rights with respect to Shares
previously purchased and held on his behalf under the Plan nor to affect the
current Option a Participant already has outstanding under the Plan without the
Participant's agreement. Any amendment changing the aggregate number of Shares
to be committed to the Plan, the class of employees eligible to receive Options
under the Plan or the description of the group of corporations eligible to adopt
the Plan must have stockholder approval.
IX-1
ARTICLE X
MISCELLANEOUS
10.1 DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a
Beneficiary who is to receive any cash and Shares credited to the
Participant's account under the Plan. If a Participant is married and
the designated Beneficiary is not the Participant's spouse, written
spousal consent shall be required for the designation to be effective.
(b) A Participant may change his designation of a Beneficiary
at any time by written notice. If a Participant dies when he has not
validly designated a Beneficiary under the Plan, the Company shall
deliver such Shares and cash to the executor or administrator of the
estate of the Participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its
discretion, may deliver such Shares and cash to the spouse or to any
one or more dependents or relatives of the Participant, or if no
spouse, dependent or relative is known to the Company, then to such
other person as the Company may designate.
10.2 PLAN NOT AN EMPLOYMENT CONTRACT. The adoption and maintenance of
the Plan is not a contract between any Employer and its Employees which gives
any Employee the right to be retained in its employment. Likewise, it is not
intended to interfere with the rights of any Employer to discharge any Employee
at any time or to interfere with the Employee's right to terminate his
employment at any time.
10.3 ALL PARTICIPANTS' RIGHTS ARE EQUAL. All Participants will have the
same rights and privileges under the Plan as required by section 423 of the Code
and Department of Treasury Regulation section 1.423-2(f).
10.4 OPTIONS ARE NOT TRANSFERABLE. No Option granted a Participant
under the Plan is transferable by the Participant otherwise than by will or the
laws of descent and distribution, and must be exercisable, during his lifetime,
only by him. In the event any Participant attempts to violate the terms of this
Section, any Option held by the Participant shall be terminated by the Company
and, upon return to the Participant of the remaining funds in his payroll
deduction account, all of his rights under the Plan will terminate.
10.5 VOTING OF STOCK. Shares held under the Plan for the account of
each Participant shall be voted by the holder of record of those Shares in
accordance with the Participant's instructions.
10.6 NO RIGHTS OF STOCKHOLDER. No eligible Employee or Participant
shall by reason of participation in the Plan have any rights of a stockholder of
the Company until he acquires Shares as provided in the Plan.
X-1
10.7 GOVERNMENTAL REGULATIONS. The obligation to sell or deliver the
Stock under the Plan is subject to the approval of all governmental authorities
required in connection with the authorization, purchase, issuance or sale of
that Stock.
10.8 NOTICES. All notices and other communication in connection with
the Plan shall be in the form specified by the Committee and shall be deemed to
have been duly given when sent to the Participant at his last known address or
to his designated personal representative or beneficiary, or to the Employer or
its designated representative, as the case may be.
10.9 INDEMNIFICATION OF COMMITTEE. In addition to all other rights of
indemnification as they may have as directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal, to which they or any of them may be a party by
reason of any action taken or failure to act under or in connection with the
Plan or any Option granted under the Plan, and against all amounts paid in
settlement (provided the settlement is approved by independent legal counsel
selected by the Company) or paid by them in satisfaction of a judgment in any
action, suit or proceeding, except in relation to matters as to which it is
adjudged in the action, suit or proceeding, that the Committee member is liable
for gross negligence or willful misconduct in the performance of his duties.
10.10 TAX WITHHOLDING. At the time a Participant's Option is exercised
or at the time a Participant disposes of some or all of the Stock purchased
under the Plan, the Participant must make adequate provision for the Employer's
federal, state or other tax withholding obligations, if any, which arise upon
the exercise of the Option or the disposition of the Stock. At any time, the
Employer may, but shall not be obligated to, withhold from the Participant's
compensation the amount necessary for the Employer to meet applicable
withholding obligations.
10.11 GENDER AND NUMBER. If the context requires it, words of one
gender when used in the Plan shall include the other genders, and words used in
the singular or plural shall include the other.
10.12 SEVERABILITY. Each provision of the Plan may be severed. If any
provision is determined to be invalid or unenforceable, that determination shall
not affect the validity or enforceability of any other provision.
10.13 GOVERNING LAW; PARTIES TO LEGAL ACTIONS. The provisions of the
Plan shall be construed, administered, and governed under the laws of the State
of
Texas, without giving effect to principles thereof relating to conflicts of
law rules that would direct the application of the laws of another jurisdiction
and, to the extent applicable, by the securities, tax, employment and other laws
of the United States.
X-2
IN WITNESS WHEREOF, THE MEN'S WEARHOUSE, INC., has caused this
instrument to be executed by its duly authorized officer on this 2nd day of
July, 2002, effective as of April 1, 2002.
THE MEN'S WEARHOUSE, INC.
By /s/ XXXXXXX X. XXXXXX
---------------------------------
Title Vice President
-----------------------------
X-3
