ITEM 1.
DESCRIPTION OF REGISTRANTS SECURITIES TO BE REGISTERED.
On September 5, 2007, the board of directors (the
Board of Directors) of Jos. A. Bank Clothiers, Inc. (the Company) declared
a dividend of one preferred share purchase right (a Right) for each
outstanding share of the Companys common stock, par value $0.01 per share (the
Common Shares). The dividend is
payable on September 20, 2007 (the
Record Date) to the stockholders of record on that date. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $1.00 per share (the Preferred
Shares), at a price of $200 per one one-hundredth of a Preferred Share (the
Purchase Price), subject to adjustment.
Each one one-hundredth of a Preferred Share has designations and powers,
preferences and rights, and the qualifications, limitations and restrictions
which make its value approximately equal to the value of a Common Share. The description and terms of the Rights are
set forth in a Rights Agreement (the Rights Agreement), dated as of September
6, 2007 entered into between the Company and Continental Stock Transfer &
Trust Company, as rights agent (the Rights Agent).
Until the earlier to occur of (i) 10 days following a
public announcement that a person, entity or group of affiliated or associated
persons have acquired beneficial ownership of 20% or more of the outstanding
Common Shares (such person, entity or group, an Acquiring Person) or (ii) 10
business days (or such later date as may be determined by action of the Board
of Directors prior to such time as any person or entity becomes an Acquiring
Person) following the commencement of, or announcement of an intention to
commence, a tender offer or exchange offer the consummation of which would
result in any person, entity or group becoming an Acquiring Person (the earlier
of such dates being called the Distribution Date), the Rights will be
evidenced, with respect to any of the Common Share certificates outstanding as
of the Record Date, by such Common Share certificate with or without a copy of
the Summary of Rights to Purchase Preferred Shares, which is included in the
Rights Agreement as Exhibit C thereof (the Summary of Rights).
Until the Distribution Date, the Rights will be
transferable with and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued
after the Record Date, upon transfer or new issuance of Common Shares, will
contain a notation incorporating the Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender or transfer of any
Common Share certificates outstanding as of the Record Date, even without such
notation or a copy of the Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate. As soon
as practicable following the Distribution Date, separate certificates
evidencing the Rights, substantially in the form included as Exhibit 4.2 to
this registration statement on Form 8-A (Right Certificates), will be mailed
to holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on
September 20, 2017 (the Final Expiration Date), unless the Rights are earlier
redeemed or exchanged by the Company, in each case, as described below.
1
The number of outstanding Rights and the number of one
one-hundredths of a Preferred Share issuable upon exercise of each Right are
also subject to adjustment in the event of a stock split of the Common Shares
or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidation or combinations of the Common Shares occurring, in
any case, prior to the Distribution Date.
The Purchase Price payable, and the number of Preferred Shares or other
securities or other property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution as described in the Rights
Agreement.
Preferred Shares purchasable upon exercise of the
Rights will not be redeemable. Each
Preferred Share will be entitled to a minimum preferential quarterly dividend
payment of $1.00 per share, when, as and if declared by the Board of Directors,
but will be entitled to an aggregate dividend of 100 times any dividend
declared per Common Share. In the event
of liquidation, the holders of the Preferred Shares would be entitled to a
minimum preferential liquidation payment of $100.00 per share, but would be
entitled to receive an aggregate payment equal to 100 times the payment made
per Common Share. Each Preferred Share
will have 100 votes, voting together with the Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the amount of
consideration received per Common Share.
These Rights are protected by customary anti-dilution provisions. The Preferred Shares would rank junior to any
other series of the Companys preferred stock.
In the event that any person, entity or group of
affiliated or associated persons becomes an Acquiring Person, each holder of a
Right, other than Rights beneficially owned by the Acquiring Person and its
associates and affiliates (which will thereafter be void), will have the right
to receive upon exercise that number of Common Shares having a market value of
two times the exercise price of the Right (or, if such number of shares is not
and cannot be authorized, the Company may issue Preferred Shares, cash, debt,
stock or a combination thereof in exchange for the Rights).
Generally, under the Plan, an Acquiring Person will
not be deemed to include (i) the Company, (ii) a subsidiary of the Company,
(iii) any employee benefit or compensation plan of the Company or any
subsidiary of the Company, or (iv) any entity holding Common Shares for or
pursuant to the terms of any such employee benefit or compensation plan of the
Company or any subsidiary of the Company.
In addition, except in certain circumstances as set
forth in the Rights Agreement, no person will become an Acquiring Person (
x
) as the result of an acquisition of Common Shares by the
Company which, by reducing the number of Common Shares issued and outstanding,
increases the percentage of Common Shares beneficially owned by such person to
20% or more of the Common Shares then outstanding or (
y
)
as the result of the acquisition of Common Shares directly from the Company;
unless, in either case, such person thereafter acquires additional Common
Shares without the Companys prior written consent.
In the event that the Company is acquired in a merger
or other business combination transaction or 50% or more of its consolidated
assets or earning power are sold to an Acquiring Person, its associates or
affiliates or certain other persons, proper provision will be made so that each
holder of a Right will thereafter have the right to receive, upon the exercise
thereof at the
2
then current exercise
price of the Right, that number of shares of common stock of the acquiring
company which at the time of such transaction will have a market value of two
times the exercise price of the Right.
At any time after a person becomes an Acquiring Person
and prior to the acquisition by such Acquiring Person of 50% or more of the
outstanding Common Shares, the Company may exchange the Rights (other than
Rights owned by such Acquiring Person or group which have become void), in
whole or in part, at an exchange ratio of one Common Share per Right (or, at the
election of the Company, the Company may issue cash, debt, stock or a
combination thereof in exchange for the Rights), subject to adjustment.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an adjustment of at
least 1% in such Purchase Price. No
fractional Preferred Shares will be issued (other than fractions which are
integral multiples of the number of one one-hundredths of a Preferred Share
issuable upon the exercise of one Right, which may, at the Companys election,
be evidenced by depositary receipts), and in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Shares on the last
trading day prior to the date of exercise.
At any time prior to the earlier of (i) such time that
a person has become an Acquiring Person or (ii) the Final Expiration Date, the
Company may redeem all, but not less than all, of the outstanding Rights at a
price of $0.01 per Right (the Redemption Price). The Rights may also be redeemed at certain
other times as described in the Rights Agreement. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors without the consent of the holders of the Rights, except that from
and after such time as the Rights become detached no such amendment may
adversely affect the interest of the holders of the Rights other than the
interests of an Acquiring Person or its affiliates or associates.
The Rights have certain anti-takeover effects. The Rights will cause substantial dilution to
a person or group that attempts to acquire the Company on terms not approved by
the Board of Directors. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors since the Rights may be amended to permit such
acquisition or redeemed by the Company at the Redemption Price.
The Rights Agreement and the form of Right Certificate
are attached as Exhibits 4.1 and 4.2, respectively, and are incorporated herein
by reference. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such exhibits.
3
ITEM 2.
EXHIBITS.
3.1**
|
|
Certificate of Designation of Series A Junior
Participating Preferred Stock.
|
|
|
|
4.1*
|
|
Rights Agreement dated as of September 6, 2007
between Jos. A. Bank Clothiers, Inc. and Continental Stock Transfer &
Trust Company.
|
|
|
|
4.2*
|
|
Form of Right Certificate.
|
(*)
|
|
Filed as an Exhibit to the Registrants Current
Report on Form 8-K filed with the Securities and Exchange Commission on
September 7, 2007, and incorporated herein by reference.
|
|
|
|
(**)
|
|
Filed as an Exhibit to the Registrants Current
Report on Form 8-K filed with the Securities and Exchange Commission on
September 21, 2007, and incorporated herein by reference.
|
4
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
|
Jos. A. Bank Clothiers
,
Inc.
|
|
|
|
|
|
|
Dated: September
21, 2007
|
By:
|
/s/ Charles D. Frazer
|
|
|
|
Charles D. Frazer, Senior Vice President-
|
|
|
General Counsel
|
5
EXHIBIT INDEX
3.1**
|
|
Certificate of Designation of Series A Junior
Participating Preferred Stock.
|
|
|
|
4.1*
|
|
Rights Agreement dated as of September 6, 2007
between Jos. A. Bank Clothiers, Inc. and Continental Stock Transfer &
Trust Company.
|
|
|
|
4.2*
|
|
Form of Right Certificate.
|
(*)
|
|
Filed as an Exhibit to the Registrants Current
Report on Form 8-K filed with the Securities and Exchange Commission on
September 7, 2007, and incorporated herein by reference.
|
|
|
|
(**)
|
|
Filed as an Exhibit to the Registrants Current
Report on Form 8-K filed with the Securities and Exchange Commission on
September 21, 2007, and incorporated herein by reference.
|
6