Amended Statement of Ownership: Solicitation (sc 14d9/a)
06 March 2014 - 8:12AM
Edgar (US Regulatory)
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 13)
JOS. A. BANK CLOTHIERS, INC.
(Name of Subject Company)
JOS. A. BANK
CLOTHIERS, INC.
(Name of Person(s) Filing Statement)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
480838101
(CUSIP Number of Class of Securities)
Charles D. Frazer
Senior Vice President – General Counsel
500 Hanover Pike
Hampstead, Maryland 21074
(410) 239-5730
(Name, Address and Telephone Number of Person
Authorized to Receive
Notice and Communications on Behalf of the Person(s)
Filing Statement)
With copies to:
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Paul T. Schnell, Esq.
Jeremy D. London, Esq.
Skadden, Arps, Slate, Meagher & Flom
LLP
4 Times Square
New York, New York 10036
(212) 735-3000
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Jim J. Shoemake, Esq.
Guilfoil Petzall & Shoemake, L.L.C.
100 South Fourth Street, Suite 500
St. Louis, Missouri 63102
(314) 266-3014
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¨
Check
the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
This Amendment No. 13 to Schedule 14D-9 amends
and supplements the Schedule 14D-9, filed by Jos. A. Bank Clothiers, Inc., a Delaware corporation (the “Company”),
with the Securities and Exchange Commission on January 17, 2014 (as amended and restated on February 27, 2014, the “Statement”),
relating to the tender offer commenced by Java Corp., a Delaware corporation and wholly owned subsidiary of The Men’s Wearhouse,
a Texas corporation, to acquire all outstanding shares of common stock, par value $0.01 per share, of the Company at a purchase
price of $63.50 per share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms
and subject to the conditions set forth in the Amended and Restated Offer to Purchase, dated February 24, 2014, and in the related
Letter of Transmittal. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule 14D-9.
Except as otherwise noted below, no changes
are being made to the Schedule 14D-9.
Item 8. Additional Information
Item 8 is hereby amended and supplemented as set forth below.
The section titled “Litigation”
is hereby amended to add the following language after the sixth paragraph thereof:
“On March 4, 2014, Boston filed a motion
for leave to file a second amended complaint that purports to raise direct claims against the Boston Defendants (the “
Amended
Boston Complaint
”). In addition to the allegations described above, the Amended Boston Complaint, among other things,
alleges that the Boston Defendants breached their fiduciary duties by moving forward with the Everest transaction while failing
to give good-faith consideration of the revised MW Offer. In addition to the requests mentioned above, the Amended Boston Complaint
asks the court to (i) determine that the action is a proper derivative action and to excuse demand, and (ii) enjoin the Company
from consummating the Everest transaction.”
The section titled “Litigation”
is hereby amended to delete the eighth paragraph thereof and add the following language after the seventh paragraph thereof:
“The foregoing description is qualified
in its entirety by reference to the initial complaint, filed as Exhibit (a)(7) herewith and the Amended Boston Complaint, filed
as Exhibit (a)(18) herewith.”
Item 9. Exhibits
Item 9 is hereby amended and restated in its
entirety as follows:
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Exhibit No.
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Description
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(a)(1)
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Press release issued by the Company on November 26, 2013 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on November 26, 2013).
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(a)(2)
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Press release issued by the Company on December 23, 2013 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed on December 23, 2013).
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(a)(3)
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Press release issued by the Company on January 6, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed January 6, 2014).
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(a)(4)*
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Press release issued by the Company on January 17, 2013.
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(a)(5)*
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Letter to the Company’s Stockholders.
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(a)(6)*
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Complaint in
Eminence Capital, LLC v. Robert N. Wildrick, et al.
, filed by Eminence in the Court of Chancery of the State of Delaware on January 13, 2014.
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(a)(7)*
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Complaint in
State-Boston Retirement System v. Wildrick, et al.
, filed by Boston in the Court of Chancery of the State of Delaware on January 29, 2014.
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(a)(8) *
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Press release issued by the Company on February 2, 2014.
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(a)(9) *
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Complaint in
Eminence Capital, LLC v. Robert N. Wildrick, et al.
, filed by Eminence in the Court of Chancery of the State of Delaware on February 4, 2014.
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(a)(10)
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Press release regarding the Everest Transaction issued by the Company on February 14, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(a)(11)
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Investor Presentation, dated February 14, 2014 (incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(a)(12)
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Press release regarding Company earnings update issued by the Company on February 14, 2014 (incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(a)(13)
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Press Release, dated February 19, 2014 (incorporated by reference to Exhibit (a)(1)(F) to the Schedule TO filed by the Company on February 19, 2014).
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(a)(14)*
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Complaint in
Eminence Capital, LLC v. Robert N. Wildrick, et al.
, filed by Eminence in the Court of Chancery of the State of Delaware on February 21, 2014.
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(a)(15)
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Press release issued by the Company on February 24, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, dated February 24, 2014).
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(a)(16)*
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Complaint in
The Men’s Wearhouse Inc. v. Robert N. Wildrick et al.
, filed by The Men’s Wearhouse in the Court of Chancery of the State of Delaware on February 24, 2014.
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(a)(17)*
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Press Release issued by the Company on February 27, 2014.
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(a)(18)
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Complaint in
State-Boston Retirement System v. Wildrick, et al.
, filed by Boston in the Court of Chancery of the State of Delaware on March 4, 2014.
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(e)(1)*
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Excerpts from the Company’s Definitive Proxy Statement on Schedule 14A, filed on May 17, 2013.
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(e)(2)
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The Company’s 2007 Rights Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated September 6, 2007).
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(e)(3)
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The Company’s 1994 Incentive Plan (incorporated by reference to the Company’s Registration Statement on Form S-1, filed on May 3, 1994).
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(e)(4)
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Amendments, dated as of October 6, 1997, to the Company’s 1994 Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 1998).
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(e)(5)
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Summary of the Company’s 2012 and 2013 Cash and Equity Incentive Programs (incorporated by reference to Exhibit 10.2 to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(6)
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Amended and Restated Employment Agreement, dated as of May 15, 2002, between David E. Ullman and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2002).
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(e)(7)
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Fifth Amendment, dated as of April 9, 2008, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended February 2, 2008).
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(e)(8)
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Sixth Amendment, dated as of April 7, 2009, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
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(e)(9)
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Seventh Amendment, dated as of March 30, 2010, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(e)(10)
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Eighth Amendment, dated as of December 28, 2010, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).
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(e)(11)
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Ninth Amendment, dated as of March 29, 2011, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
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(e)(12)
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Tenth Amendment, dated as of March 27, 2012, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
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(e)(13)
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Eleventh Amendment, dated as of April 2, 2013, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to Exhibit 10.3(g) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(14)
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The Company’s Nonqualified Deferred Compensation Trust Agreement, dated January 20, 2004 (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2005).
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(e)(15)
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Employment Agreement, dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
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(e)(16)
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First Amendment, dated as of March 30, 2010, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(e)(17)
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Second Amendment, dated as of December 28, 2010, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).
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(e)(18)
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Third Amendment, dated as of March 29, 2011, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
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(e)(19)
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Fourth Amendment, dated as of March 27, 2012, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
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(e)(20)
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Fifth Amendment, dated as of April 2, 2013, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to Exhibit 10.5(e) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(21)
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Amended and Restated Employment Agreement, dated May 15, 2002, by and between Charles D. Frazer and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2002).
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(e)(22)
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Consulting Agreement, dated as of September 9, 2008, between Robert N. Wildrick and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated September 9, 2008).
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(e)(23)
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First Amendment, dated as of November 30, 2010, to Consulting Agreement, dated as of September 9, 2008, between Robert N. Wildrick and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 30, 2010).
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(e)(24)
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Second Amendment, dated as of April 2, 2013, to Consulting Agreement, dated as of September 9, 2008, between Robert N. Wildrick and the Company (incorporated by reference to Exhibit 10.7(d) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(25)
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Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 30, 1999).
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(e)(26)
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First Amendment, dated as of January 1, 2000, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 1998).
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(e)(27)
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Fourth Amendment, dated as of May 28, 2002, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2002).
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(e)(28)
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Ninth Amendment, dated as of April 9, 2008, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended February 2, 2008).
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(e)(29)
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Tenth Amendment, dated as of April 7, 2009, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
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(e)(30)
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Eleventh Amendment, dated as of March 30, 2010, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
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(e)(31)
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Twelfth Amendment, dated as of December 28, 2010, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).
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(e)(32)
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Thirteenth Amendment, dated as of March 29, 2011, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
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(e)(33)
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Fourteenth Amendment, dated as of March 27, 2012, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
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(e)(34)
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Fifteenth Amendment, dated as of April 2, 2013, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to Exhibit 10.8(i) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(35)
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Amended and Restated Employment Agreement, dated as of August 30, 2010, by and between R. Neal Black and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended July 31, 2010).
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(e)(36)
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First Amendment, dated as of April 2, 2013 to Amended and Restated Employment Agreement, dated as of August 30, 2010, by and between R. Neal Black and the Company (incorporated by reference to Exhibit 10.9(a) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(37)
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Employment Agreement, dated as of June 3, 2008, between Gary Merry and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 3, 2008).
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(e)(38)
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First Amendment, dated as of April 7, 2009 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
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(e)(39)
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Second Amendment, dated as of March 30, 2010 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
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(e)(40)
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Third Amendment, dated as of December 28, 2010 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).
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(e)(41)
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Fourth Amendment, dated as of March 29, 2011 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
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(e)(42)
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Fifth Amendment, dated as of March 27, 2012 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
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(e)(43)
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Sixth Amendment, dated as of April 2, 2013 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to Exhibit 10.11(f) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(44)
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The Company’s 2002 Long-Term Incentive Plan (incorporated by reference to the Company’s Definitive Proxy Statement on Schedule 14(A) filed May 20, 2002).
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(e)(45)
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Form of stock option agreement under the Company’s 2002 Long-Term Incentive Plan (incorporated by reference to the Company’s Current Report on Form 8-K, dated April 7, 2005).
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(e)(46)
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Collective Bargaining Agreement, dated May 1, 2012, by and between Joseph A. Bank Mfg. Co., Inc. and Mid-Atlantic Regional Joint Board, Local 806 (incorporated by reference to Exhibit 10.14 to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(e)(47)
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Form of Officer and Director Indemnification Agreement (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(48)
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Indemnification Agreement dated September 1, 2009 between the Company and Robert N. Wildrick (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(49)
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Indemnification Agreement dated September 1, 2009 between the Company and Andrew A. Giordano (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(50)
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Indemnification Agreement dated September 1, 2009 between the Company and R. Neal Black (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(51)
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Indemnification Agreement dated September 1, 2009 between the Company and James H. Ferstl (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(52)
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Indemnification Agreement dated September 1, 2009 between the Company and William E. Herron (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(53)
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Indemnification Agreement dated September 1, 2009 between the Company and Sidney H. Ritman (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(54)
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Indemnification Agreement dated September 1, 2009 between the Company and David E. Ullman (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(55)
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Indemnification Agreement dated August 30, 2010 between the Company and Robert Hensley (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
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(e)(56)
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The Company’s Executive Management Incentive Plan (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 18, 2009).
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(e)(57)
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Amendment to the Company’s Executive Management Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(e)(58)
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The Company’s 2010 Deferred Compensation Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(e)(59)
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The Company’s 2010 Equity Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(e)(60)
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The Company’s 2010 Equity Incentive Plan — CEO Performance Restricted Stock Unit Award Agreement, dated June 17, 2010, by and between the Company and R. Neal Black (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(e)(61)
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The Company’s 2010 Equity Incentive Plan — EVP Performance Restricted Stock Unit Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(e)(62)
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The Company’s 2010 Equity Incentive Plan — Non-Employee Director Restricted Stock Unit 2010 Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(e)(63)
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The Company’s 2010 Equity Incentive Plan — Non-Employee Director Restricted Stock Unit Annual Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(e)(64)
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The Company’s 2010 Equity Incentive Plan — Non-Employee Director Restricted Stock Unit Inaugural Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(e)(65)
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Third Amendment to Consulting Agreement between the Company and Robert N. Wildrick (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated December 20, 2013).
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(e)(66)
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Amendment No. 1 to the 2007 Rights Agreement, dated January 3, 2014 between the Company and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated January 3, 2014).
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(e)(67)
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Amendment No. 2 to the 2007 Rights Agreement, dated February 13, 2014 between the Company and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(e)(68)
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Membership Interest Purchase Agreement, dated as of February 13, 2014, by and among Everest Topco LLC, Everest Holdings LLC and the Company (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(e)(69)
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Standstill and Stockholder Agreement, dated as of February 13, 2014, by and between the Company and Everest Topco LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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*
Previously Filed
SIGNATURE
After due inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true, complete, and correct.
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JOS. A. BANK CLOTHIERS, INC.
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By:
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/s/ Charles D. Frazer
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Name:
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Charles D. Frazer
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Title:
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Senior Vice President – General Counsel
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Dated: March 5, 2014
Jos. A. Bank Clothiers (NASDAQ:JOSB)
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Jos. A. Bank Clothiers (NASDAQ:JOSB)
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From Jul 2023 to Jul 2024
