<PAGE> 1
As filed with the Securities and Exchange Commission on May 26, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------
THE MEN'S WEARHOUSE, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-1790172
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5803 GLENMONT DRIVE
HOUSTON, TEXAS 77081
(Address of Principal Executive Offices) (Zip Code)
THE MEN'S WEARHOUSE, INC. EMPLOYEE STOCK DISCOUNT PLAN
(Full title of the plan)
----------------------------------------
DAVID H. EDWAB
40650 ENCYCLOPEDIA CIRCLE
FREMONT, CALIFORNIA 94538
(Name and address of agent for service)
(510) 657-9821
(Telephone number, including area code, of agent for service)
----------------------------------------
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010
(713) 651-5427
ATTENTION: MICHAEL W. CONLON
----------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Proposed maximum
Title of securities Amount to maximum offering aggregate offering Amount of
to be registered be registered price per unit(2) price(2) registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 par value 950,000 shares(1) $ 43.50 $ 41,325,000 $ 12,191
========================================================================================================================
</TABLE>
(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the anti-dilution
provisions of the Employee Stock Discount Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 and based upon
the average of the high and low sales price of a share of Common Stock
on the Nasdaq National Market on May 20, 1998.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference
in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the
fiscal year ended January 31, 1998, as amended by Form 10-K/A; and
2. The description of the Registrant's Common Stock,
$.01 par value, set forth under the caption "Description of Capital Stock" in
the Registrant's Registration Statement on Form 8-A pursuant to Section 12(g) of
the Securities Exchange Act of 1934, filed by the Registrant with the
Securities Exchange Commission on April 3, 1992, and declared effective on
April 13, 1992.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
the filing hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Michael W. Conlon, a partner in the firm of Fulbright &
Jaworski L.L.P., is the Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 2.02-1 of the Texas Business Corporation Act provides
that any director or officer of a Texas corporation may be indemnified against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to
any proceeding arising from actions taken in his official capacity as a
director or officer, he may be indemnified so long as it shall be determined
that he conducted himself in good faith and that he reasonably believed that
such conduct was in the corporation's best interests. In cases not concerning
conduct in his official capacity as a director or officer, a director may be
indemnified as long as he reasonably believed that his conduct was not opposed
to the corporation's best interests. In the case of any criminal proceeding, a
director or officer may be indemnified if he had no reasonable cause to believe
his conduct was unlawful. If a
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<PAGE> 3
director or officer is wholly successful, on the merits or otherwise, in
connection with such a proceeding, such indemnification is mandatory. The
Registrant's Bylaws provide for indemnification of its present and former
directors and officers to the fullest extent provided by Article 2.02-1.
The Registrant's Bylaws further provide for indemnification of
officers and directors against reasonable expenses incurred in connection with
the defense of any such action, suit or proceeding in advance of the final
disposition of the proceeding.
The Registrant's Articles of Incorporation were amended on
September 6, 1991, to eliminate or limit liabilities of directors for breaches
of their duty of care. The amendment does not limit or eliminate the right of
the Registrant or any shareholder to pursue equitable remedies such as an
action to enjoin or rescind a transaction involving a breach of a director's
duty of care, nor does it affect director liability to parties other than the
Registrant or its shareholders. In addition, directors will continue to be
liable for (i) breach of their duty of loyalty, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) declaring an illegal dividend or stock repurchase, (iv) any
transaction in which the directors received an improper personal benefit, or
(v) acts or omissions for which the liability of directors is expressly
provided by statute. In addition, the amendment applies only to claims under
Texas law against a director arising out of his role as a director and not, if
he is also an officer, his role as an officer or in any other capacity and does
not limit a director's liability under any other law, such as federal
securities law.
Texas corporations are also authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot indemnify its directors and officers. The
Registrant currently has in effect a director's and officer's liability
insurance policy, which provides coverage in the maximum amount of $10,000,000,
subject to a $250,000 deductible.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 - Restated Articles of Incorporation (incorporated by
reference from Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended
July 30, 1994).
4.2 - By-laws of the Company, as amended (incorporated by
reference from Exhibit 3.2 to the Registrant's
Annual Report on Form 10-K for the fiscal year
ended February 1, 1997).
4.3 - Form of Common Stock certificate (incorporated by
reference from Exhibit 4.3 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-45949)).
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<PAGE> 4
4.4 - Employment Agreement dated as of January 31, 1991,
by and between the Company and David H. Edwab,
including the First Amendment thereto dated as of
September 30, 1991 (incorporated by reference from
Exhibit 4.4 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-45949)).
4.5 - Second Amendment effective as of January 1, 1993,
to Employment Agreement dated as of January 31,
1991, by and between the Company and David H. Edwab
(incorporated by reference from Exhibit 4.5 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-60516)).
4.6 - Second [sic] Amendment dated as of April 12, 1994,
to Employment Agreement dated as of January 31,
1991 (incorporated by reference to Exhibit 4.6 to
the Company's Annual Report on Form 10-K for the
fiscal year ended January 28, 1995).
4.7 - Option Issuance Agreement dated as of September 30,
1991, by and between the Company and David H. Edwab
(incorporated by reference from Exhibit 4.5 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-45949)).
4.8 - First Amendment to Option Issuance Agreement dated
April 22, 1992, but effective as of September 30,
1991 (incorporated by reference from Exhibit 4.7 to
the Registrant's Registration Statement on Form S-8
(Registration No. 33-48109)).
4.9 - Second Amendment to Option Issuance Agreement dated
effective as of January 1, 1993 (incorporated by
reference from Exhibit 4.8 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-60516)).
4.10 - First [sic] Amendment to Option Issuance Agreement
dated as of April 12, 1994 (incorporated by
reference from Exhibit 4.10 to the Company's Annual
Report on Form 10-K for the fiscal year ended
January 28, 1995).
4.11 - Indenture dated March 1, 1996, between the Company
and Texas Commerce Bank National Association, as
trustee including Form of Note (incorporated by
reference from Exhibit 4.1 to the Registrant's
Quarterly Report on Form 10-Q for the Quarter ended
May 4, 1996).
4.12 - Revolving Credit Agreement dated as of June 2,
1997, by and among the Company and NationsBank of
Texas, N.A. and the Banks listed therein, including
form of Revolving Note (incorporated by reference
from Exhibit 4.1 to the Registrant's
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<PAGE> 5
Quarterly Report on Form 10-Q for the Quarter ended
May 3, 1997).
4.13 - The Men's Wearhouse, Inc. Employee Stock Discount
Plan.
5.1 - Opinion of Fulbright & Jaworski L.L.P.
23.1 - Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
23.2 - Consent of Deloitte & Touche LLP.
24.1 - Powers of Attorney from certain members of the
Board of Directors of the Company (contained on
page II-7).
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar volume of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
II-5
<PAGE> 6
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on May 22, 1998.
THE MEN'S WEARHOUSE, INC.
By: /s/ GEORGE ZIMMER
----------------------------------------
George Zimmer
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints David H. Edwab and Gary G. Ckodre, or
any of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
and all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent,
and any of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of
them, or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ GEORGE ZIMMER Chairman of the Board, Chief Executive May 22, 1998
--------------------------------------- Officer and Director
George Zimmer (Principal Executive Officer)
/s/ DAVID EDWAB President and Director May 22, 1998
---------------------------------------
David Edwab
/s/ GARY G. CKODRE Vice President - Finance May 22, 1998
--------------------------------------- (Principal Financial and Accounting Officer)
Gary G. Ckodre
/s/ RICHARD E. GOLDMAN Executive Vice President May 22, 1998
--------------------------------------- and Director
Richard E. Goldman
Senior Vice President - Real Estate and
--------------------------------------- Director
Robert E. Zimmer
/s/ JAMES E. ZIMMER Senior Vice President - Merchandising and May 22, 1998
--------------------------------------- Director
James E. Zimmer
/s/ HARRY M. LEVY Executive Vice President - Planning and May 22, 1998
--------------------------------------- Systems and Director
Harry M. Levy
/s/ RINALDO BRUTOCO Director May 22, 1998
---------------------------------------
Rinaldo Brutoco
/s/ MICHAEL L. RAY Director May 22, 1998
---------------------------------------
Michael L. Ray
/s/ SHELDON I. STEIN Director May 22, 1998
---------------------------------------
Sheldon I. Stein
</TABLE>
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<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------ -----------------------
<S> <C>
4.1 Restated Articles of Incorporation (incorporated by reference from Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended July 30, 1994).
4.2 By-laws of the Company, as amended (incorporated by reference from Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended February 1, 1997).
4.3 Form of Common Stock certificate (incorporated by reference from Exhibit 4.3 to the
Registrant's Registration Statement on Form S-1 (Registration No. 33-45949)).
4.4 Employment Agreement dated as of January 31, 1991, by and between the Company and David H.
Edwab, including the First Amendment thereto dated as of September 30, 1991 (incorporated by
reference from Exhibit 4.4 to the Registrant's Registration Statement on Form S-1
(Registration No. 33-45949)).
4.5 Second Amendment effective as of January 1, 1993, to Employment Agreement dated as of
January 31, 1991, by and between the Company and David H. Edwab (incorporated by reference
from Exhibit 4.5 to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-60516)).
4.6 Second [sic] Amendment dated as of April 12, 1994, to Employment Agreement dated as of
January 31, 1991 (incorporated by reference from Exhibit 4.6 to the Company's Annual Report
on Form 10-K for the fiscal year ended January 28, 1995).
4.7 Option Issuance Agreement dated as of September 30, 1991, by and between the Company and
David H. Edwab (incorporated by reference from Exhibit 4.5 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-45949)).
4.8 First Amendment to Option Issuance Agreement dated April 22, 1992, but effective as of
September 30, 1991 (incorporated by reference from Exhibit 4.7 to the Registrant's
Registration Statement on Form S-8 (Registration No. 33-48109)).
4.9 Second Amendment to Option Issuance Agreement dated effective as of January 1, 1993
(incorporated by reference from Exhibit 4.8 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-60516)).
4.10 First [sic] Amendment to Option Issuance Agreement dated as of April 12, 1994 (incorporated
by reference from Exhibit 4.10 to the Company's Annual Report on Form 10-K for the fiscal
year ended January 28, 1995).
</TABLE>
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<PAGE> 9
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------ -----------------------
<S> <C>
4.11 Indenture dated March 1, 1996, between the Company and Texas Commerce Bank National
Association, as trustee including Form of Note (incorporated by reference from Exhibit 4.1
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended May 4, 1996).
4.12 Revolving Credit Agreement dated as of June 2, 1997, by and among the Company and
NationsBank of Texas, N.A. and the Banks listed therein, including form of Revolving Note
(incorporated by reference from Exhibit 4.1 to the Registrant's Quarterly Report on
Form 10-Q for the Quarter ended May 3, 1997).
4.13 The Men's Wearhouse, Inc. Employee Stock Discount Plan.
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Powers of Attorney from certain members of the Board of Directors of the Company (contained
on page II-7).
</TABLE>
II-9
<PAGE> 1
EXHIBIT 4.13
THE MEN'S WEARHOUSE, INC.
EMPLOYEE STOCK DISCOUNT PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION
<S> <C>
ARTICLE I - PURPOSE, COMMITMENT AND INTENT
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
Share Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
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
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V - IN SERVICE WITHDRAWAL, TERMINATION OR DEATH
In Service Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
</TABLE>
-ii-
<PAGE> 4
ARTICLE I
PURPOSE, COMMITMENT AND INTENT
1.1 PURPOSE. The purpose of this 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, this 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 this Plan is 950,000, 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 of Stock, 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 of Stock
authorized to be committed to this 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.
1.4 SHAREHOLDER APPROVAL. To be effective, this Plan must be
approved by the stockholders of each of the Employers within 12 months after
the Plan is adopted. The approval of stockholders must comply with all
applicable provisions of the corporate charter, bylaws and applicable laws of
the jurisdiction prescribing the method and degree of stockholder approval
required for the issuance of corporate stock or options.
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<PAGE> 5
ARTICLE II
DEFINITIONS
The words and phrases defined in this Article shall have the meaning
set out in these definitions throughout this 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 that eligible Employees have elected to
exercise 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.
II-1
<PAGE> 6
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 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
this Plan.
2.13 "OFFERING PERIOD" means the period beginning on the Grant Date
and ending on the Exercise Date. The first Offering Period under the Plan
shall commence on July 1, 1998, and shall end on the last Trading Day on or
before September 30, 1998. Thereafter, 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 this Plan to purchase
shares of Stock 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 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 this 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 "SHARES" means shares of Stock.
2.19 "STOCK" means the Company's common stock, $.01 par value.
II-2
<PAGE> 7
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-3
<PAGE> 8
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 subscription form authorizing payroll
deductions and files it with the Employer's payroll office prior to the Grant
Date. For purposes of this Plan, an Employee's employment service with TMWI
Texas Retail L.P. shall be treated as employment service for the Company.
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
<PAGE> 9
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 together
with any funds remaining in the Participant's payroll deduction account at the
beginning of the Offering Period. The Option shall be for that number of whole
Shares that may be purchased by the amount in the Participant's payroll
deduction account on the Exercise Date at the Option Price. Except as may be
otherwise determined by the Committee and announced to Employees prior to an
Offering Period, the maximum number of Shares that a Participant may buy under
the Plan 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 FMV 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 no earlier than 60 days prior to the beginning of the
Offering Period and he must be employed by an Employer on the day before the
start of the Offering Period. 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 normally begin with the first pay date during the Offering Period.
However, if a Participant files his subscription agreement with the Employer
less than ten days before the Grant Date, his payroll deductions shall begin
with the second pay date during the Offering Period. 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 no
earlier than 60 days prior to the commencement of the Offering Period for which
it is to be effective.
4.4 RIGHT TO STOP PAYROLL DEDUCTIONS. A Participant shall have
the right to discontinue payroll deductions by filing a subscription
cancellation form with the Company. The payroll deduction cancellation shall
become effective with the first full pay date following ten business days after
the Company's receipt of the subscription cancellation agreement unless the
Company elects to process a given cancellation in participation more quickly.
With the exception of a complete discontinuance of payroll deductions, a
Participant may not change his participation rate during an Offering Period.
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
IV-1
<PAGE> 10
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
<PAGE> 11
ARTICLE V
IN SERVICE WITHDRAWAL, TERMINATION OR DEATH
5.1 IN SERVICE WITHDRAWAL. 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 withdraw all or a portion
of the funds and Stock then credited to his Plan account by giving notice in
accordance with the rules established by the Committee. The amount elected to
be withdrawn by the Participant shall be paid to him as soon as
administratively feasible. Any election by a Participant to withdraw all or a
portion of his cash balance under 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 Shares and funds 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 Stock and funds 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 Stock and
funds 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.
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<PAGE> 12
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 shares of Stock 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 remain in the Participant's account to be used in
the ensuing Offering Period, together with new payroll deductions, if any, for
that Offering Period to exercise the next succeeding Option which is to be
exercised. If in any Offering Period the total number of shares of Stock to be
purchased by all Participants exceeds the number of shares of Stock committed
to the Plan, then each Participant shall be entitled to purchase only his pro
rata portion of the shares of Stock remaining available under the Plan based on
the balances in each Participant's payroll deduction account as of the Exercise
Date. No fractional shares of Stock shall be purchased under this Plan. After
the purchase of all shares of Stock 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 year from the date of Grant.
6.2 ACCOUNTING FOR STOCK. After the Exercise Date of each
Offering Period, a report shall be given to each Participant stating the amount
of his payroll deduction account, the number of shares of Stock 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 of Stock upon which Options have been exercised under the Plan. The
Committee may determine in its discretion the manner of delivery of the shares
of Stock 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 certificate for any shares of Stock or
cause it to be legended in order to comply with the securities laws of the
applicable jurisdiction.
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<PAGE> 13
ARTICLE VII
ADMINISTRATION
7.1 APPOINTMENT, TERM OF SERVICE & REMOVAL. The Board of
Directors shall appoint a Committee to administer this 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.
VII-1
<PAGE> 14
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 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
<PAGE> 15
ARTICLE VIII
ADOPTION OF PLAN BY OTHER EMPLOYERS
8.1 ADOPTION PROCEDURE. With the approval of the Committee, any
Affiliate may adopt this Plan by:
(a) a certified resolution or consent of the board of
directors of the adopting Affiliate or an executed adoption instrument
(approved by the board of directors of the adopting Affiliate)
agreeing to be bound as an Affiliate by all the terms, conditions and
limitations of this Plan; and
(b) providing all information required by the Committee.
8.2 NO JOINT VENTURE IMPLIED. The document which evidences the
adoption of the Plan by an Affiliate shall become a part of this Plan.
However, neither the adoption of this Plan by an Affiliate nor any act
performed by it in relation to this Plan shall create a joint venture or
partnership relation between it and the Company or any other Affiliate.
VIII-1
<PAGE> 16
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 of
Stock 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 this 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 of Stock 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 this Plan must have stockholder approval as set
forth in Section 1.4.
IX-1
<PAGE> 17
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 this 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 this 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 this 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 of Stock 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.
X-1
<PAGE> 18
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 of Stock as provided in this Plan.
10.7 GOVERNMENTAL REGULATIONS. The obligation to sell or deliver
the shares of Stock under this 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 this Plan shall include the other genders, and words used
in the singular or plural shall include the other.
10.12 SEVERABILITY. Each provision of this 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
this Plan shall be construed, administered, and governed under the laws of the
State of Texas and, to the extent applicable, by the securities, tax,
employment and other laws of the United States.
X-2
<PAGE> 1
EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
May 22, 1998
The Men's Wearhouse, Inc.
40650 Encyclopedia Circle
Fremont, California 94538
Gentlemen:
We have acted as counsel for The Men's Wearhouse, Inc., a Texas
corporation (the "Company"), in connection with its filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended, of 950,000 shares of the Company's common stock, $.01
par value per share (the "Shares"), to be offered upon the terms and subject to
the conditions set forth in the Company's Employee Stock Discount Plan (the
"Plan").
We have examined (i) the Restated Articles of Incorporation and
By-Laws of the Company, each as amended to date, (ii) the Plan, (iii) the
Registration Statement, and (iv) such certificates, statutes and other
instruments and documents as we considered appropriate for purposes of the
opinions hereafter expressed.
In connection with this opinion, we have assumed the authenticity and
completeness of all records, certificates and other instruments submitted to us
as originals, the conformity to original documents of all records, certificates
and other instruments submitted to us as copies, the authenticity and
completeness of the originals of those records, certificates and other
instruments submitted to us as copies and the correctness of all statements of
fact contained in all records, certificates and other instruments that we have
examined.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized and, when issued in accordance with the
terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Fulbright & Jaworski L.L.P.
<PAGE> 1
EXHIBIT NO. 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Men's Wearhouse, Inc. on Form S-8 of our report dated March 3, 1998
appearing in the Annual Report on Form 10-K of The Men's Wearhouse, Inc. for
the year ended January 31, 1998, as amended by Form 10-K/A.
DELOITTE & TOUCHE LLP
Houston, Texas
May 22, 1998
