UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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Jos. A. Bank Clothiers,
Inc.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the appropriate box):
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þ
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4)
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Proposed maximum aggregate value of transaction:
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(5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify
the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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JOS. A. BANK CLOTHIERS, INC.
500 Hanover Pike
Hampstead, Maryland 21074
Dear Stockholder:
You are cordially invited to attend the 2012 Annual Meeting of Stockholders of Jos. A. Bank Clothiers, Inc., which will be held at the
Companys corporate offices, 500 Hanover Pike, Hampstead, Maryland, 21074 commencing at 10:00 a.m., local time, on Friday, June 15, 2012.
The following pages contain the formal notice of the Annual Meeting and the related Proxy Statement. The Companys Annual Report on Form 10-K for the fiscal year ended January 28, 2012 is
enclosed as a separate document with these materials.
The matters to be considered and voted on at the Annual Meeting are set
forth in the Proxy Statement. You are encouraged to carefully review the Proxy Statement and attend the Annual Meeting in person. Whether or not you plan to attend the Annual Meeting, I hope you will vote as soon as possible. You may vote by mail,
phone or the Internet. Instructions are contained on the enclosed proxy or voting instruction card. If you attend the Annual Meeting and wish to change your vote, you may be able to do so by voting in person at the Annual Meeting.
I look forward to meeting you on June 15th and discussing with you the business of your company.
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Sincerely,
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R. Neal Black,
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President and Chief Executive Officer
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May 11, 2012
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS TO BE HELD JUNE 15, 2012
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Time and Date
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10:00 a.m., local time, on June 15, 2012
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Place
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Our corporate offices, 500 Hanover Pike, Hampstead, Maryland 21074
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Items of Business
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(1) To elect two directors for terms expiring at our 2015 Annual
Meeting of Stockholders;
(2) To ratify the appointment of Deloitte & Touche LLP, our registered public
accounting firm, for the fiscal year ending February 2, 2013;
(3) To hold an advisory vote to approve the compensation of our named executive officers (Say on Pay); and
(4) To consider such
other business as may properly come before the Annual Meeting.
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Adjournments and Postponements
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Any action on the items of business described above may be considered at the Annual Meeting at the time and on the date specified above or at any time and date to which the
Annual Meeting may be properly adjourned or postponed.
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Record Date
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The Record Date for the Annual Meeting is April 27, 2012. You are entitled to vote only if you were a Jos. A. Bank stockholder as of the close of business on the Record
Date.
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Meeting Admission
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You are entitled to attend the Annual Meeting only if you were a Jos. A. Bank stockholder as of the close of business on the Record
Date or hold a valid proxy for the Annual Meeting. You should be prepared to present photo identification for admittance, in addition to the documentation described below, if applicable.
If you hold your shares through a broker, trustee or other nominee, your name is not
registered directly with our stock transfer agent. In such case, you are known as a beneficial owner that holds shares in street name, rather than a stockholder of record. If you are not a stockholder of record, you should be prepared to provide
proof of stock ownership as of the Record Date, such as your most recent account statement, a copy of the voting instruction card provided by your broker, trustee or other nominee, or other similar evidence of
ownership.
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Voting
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Your vote is very important. Whether or not you plan to attend the Annual Meeting, we encourage you to read this Proxy Statement and submit your proxy or voting instructions
as soon as possible, but in no event later than 11:59 p.m. (Eastern Time) on June 14, 2012, at which time proxy voting will close. You may vote by mail, phone or the Internet. Instructions are contained on the enclosed proxy or voting
instruction. For specific instructions on how to vote your shares, please refer to the Questions and Answers section beginning on page 1 of the Proxy Statement and to the instructions on the proxy or voting instruction
card.
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By order of the Board of Directors,
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Charles D. Frazer, Secretary
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May 11, 2012
Important Notice Regarding the Availability of Proxy Materials for the 2012
Annual Meeting of Stockholders to Be Held on June 15, 2012.
The Proxy Statement and Annual Report on Form 10-K
are available at
https://materials.proxyvote.com/480838.
JOS. A. BANK CLOTHIERS, INC.
PROXY STATEMENT TABLE OF CONTENTS
JOS. A. BANK CLOTHIERS, INC.
PROXY STATEMENT FOR THE
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 15, 2012
QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS
AND THE ANNUAL MEETING
Q:
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W
HY
AM
I
RECEIVING
THESE
MATERIALS
?
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A:
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The Board of Directors (the Board) of Jos. A. Bank Clothiers, Inc., a Delaware corporation (Jos. A. Bank, the Company,
our or we), is providing these proxy materials to you in connection with the Boards solicitation of proxies for our 2012 Annual Meeting of Stockholders (the Annual Meeting), which will take place on
June 15, 2012. As a stockholder of record, you are invited to attend the Annual Meeting and are entitled and requested to vote on the items of business described in this Proxy Statement. This Proxy Statement and accompanying proxy card (or
voting instruction card) are being mailed on or about May 11, 2012 to all stockholders entitled to vote at the Annual Meeting.
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Q:
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W
HAT
INFORMATION
IS
CONTAINED
IN
THIS
P
ROXY
S
TATEMENT
?
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A:
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This Proxy Statement contains information regarding our corporate governance practices, our board of directors, our named executive officers, the compensation of
our named executive officers, the proposals to be voted on at the Annual Meeting and certain other required information.
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Q:
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H
OW
MAY
I
OBTAIN
J
OS
. A. B
ANK
S
A
NNUAL
R
EPORT
ON
F
ORM
10-K
FOR
THE
YEAR
ENDED
J
ANUARY
28, 2012?
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A:
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We have enclosed with this Proxy Statement a copy of our Annual Report on Form 10-K for the fiscal year ended January 28, 2012 (Fiscal 2011).
Our Annual Report on Form 10-K can also be accessed through our website at
www.josbank.com
. We filed our Annual Report on Form 10-K with the Securities and Exchange Commission (the SEC) on March 28, 2012.
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Q:
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C
AN
I
VIEW
THESE
PROXY
MATERIALS
OVER
THE
I
NTERNET
?
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A:
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Yes. The Notice of Meeting, this Proxy Statement and accompanying proxy card and our Annual Report on Form 10-K are available at
https://materials.proxyvote.com/480838.
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Q:
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W
HAT
ITEMS
OF
BUSINESS
WILL
BE
VOTED
ON
AT
THE
A
NNUAL
M
EETING
?
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A:
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The items of business scheduled to be voted on at the Annual Meeting are:
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The election of two directors for terms expiring at our 2015 Annual Meeting of Stockholders;
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The ratification of the appointment of Deloitte & Touche LLP (Deloitte) as our registered public accounting firm for the fiscal
year ending February 2, 2013 (Fiscal 2012); and
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An advisory vote to approve the compensation of our named executive officers (Say on Pay).
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We will also consider other business that properly comes before the Annual Meeting.
Q:
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H
OW
DOES
THE
B
OARD
RECOMMEND
THAT
I
VOTE
?
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A:
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Our Board recommends that you vote your shares FOR the nominees to the Board; FOR the ratification of the appointment of Deloitte as our
registered public accounting firm for Fiscal 2012; and FOR the approval of the compensation of our named executive officers (Say on Pay).
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1
Q:
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W
HAT
SHARES
MAY
I
VOTE
?
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A:
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Each share of our common stock issued and outstanding as of the close of business on April 27, 2012 (the Record Date) is entitled to one vote on
each of the matters to be voted upon at the Annual Meeting.
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You may vote all shares owned by you as of the
Record Date, including (a) shares held directly in your name as the stockholder of record and (b) shares held for you as the beneficial owner through a broker, trustee or other nominee (collectively, a Broker).
We had 27,836,804 shares of common stock issued and outstanding on the Record Date.
Q:
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W
HAT
IS
THE
DIFFERENCE
BETWEEN
BEING
A
STOCKHOLDER
OF
RECORD
AND
BEING
THE
BENEFICIAL
OWNER
OF
SHARES
HELD
IN
STREET
NAME
?
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A:
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A stockholder of record owns shares which are registered in his or her own name. A beneficial owner owns shares which are registered in street name through a
third party, such as a Broker. Most of our stockholders own their shares beneficially in street name through Brokers rather than directly in their own names. As summarized below, there are some distinctions between stockholders of record and
beneficial owners.
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Stockholder of Record
You are the stockholder of record of any of your shares registered directly in your name with our transfer agent, Continental Stock Transfer & Trust Company. With respect to such shares, these
proxy materials are being sent to you by Jos. A. Bank. As the stockholder of record, you have the right to grant your voting proxy directly to our designees, R. Neal Black (our President and Chief Executive Officer) and Charles D. Frazer (our
General Counsel and corporate Secretary), or to any other person you wish to designate, or to vote in person at the Annual Meeting. We have enclosed a proxy card for you to grant your voting proxy to Messrs. Black and Frazer.
Shares Beneficially Held in Street Name
You are the beneficial owner of any of your shares registered in street name. With respect to such shares registered through a Broker, these proxy materials, together with a voting instruction card, are
being forwarded to you by your Broker. As the beneficial owner, you have the right to direct your Broker how to vote. You may use the voting instruction card provided by your Broker for this purpose. Even if you have directed your Broker how to
vote, you may also attend the Annual Meeting. However, you may not vote your shares in person at the Annual Meeting unless you obtain a legal proxy or other evidence from your Broker giving you the right to vote the shares at the Annual
Meeting.
Q:
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W
HO
IS
ENTITLED
TO
ATTEND
THE
A
NNUAL
M
EETING
AND
WHAT
ARE
THE
ADMISSION
PROCEDURES
?
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A:
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You are entitled to attend the Annual Meeting only if you were a Jos. A. Bank stockholder as of the close of business on the Record Date or if you hold a valid
proxy for the Annual Meeting. A list of stockholders eligible to vote at the Annual Meeting will be available for inspection at the Annual Meeting and for a period of ten days prior to the Annual Meeting during regular business hours at our
principal executive offices, which are located at 500 Hanover Pike, Hampstead, Maryland 21074. To obtain directions to the Annual Meeting, please contact our Investor Relations Department at (410) 239-5900.
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If you are a beneficial holder, you will need to provide proof of beneficial ownership as of the Record Date, such as a brokerage account
statement showing that you owned Jos. A. Bank stock as of the Record Date or the voting instruction card provided by your Broker. The Annual Meeting will begin promptly at 10:00 a.m., local time. You should be prepared to present photo
identification for admittance. Check-in will begin one-half hour prior to the meeting. Please allow ample time for the admission procedures.
2
Q:
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M
AY
I
VOTE
MY
SHARES
IN
PERSON
AT
THE
A
NNUAL
M
EETING
?
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A:
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If you are a stockholder of record, you may vote your shares at the Annual Meeting in person or through a proxy. If you decide to vote your shares in person, you
do not need to present your share certificate(s) at the Annual Meeting; your name will be on the list of stockholders eligible to vote. If you hold your shares beneficially in street name, you may vote your shares in person at the Annual Meeting
only if you obtain a legal proxy or other evidence from your Broker giving you the right to vote the shares.
Even if you plan to attend the Annual Meeting, we recommend that you also submit your proxy or voting instructions as described below so
that your vote will be counted if you later decide not to attend the Annual Meeting.
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Q:
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H
OW
CAN
I
VOTE
MY
SHARES
WITHOUT
ATTENDING
THE
A
NNUAL
M
EETING
?
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A:
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Whether you hold shares directly as the stockholder of record or beneficially in street name, you may direct how your shares are voted without attending the
Annual Meeting. If you are a stockholder of record, you may vote by submitting a proxy. If you hold shares beneficially in street name, you may vote by submitting voting instructions to your Broker. For directions on how to vote, please refer to the
instructions below and those included on your proxy card or, for shares held beneficially in street name, the voting instruction card provided by your Broker.
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Stockholders of record may submit proxies by completing, signing and dating their proxy cards and mailing them in the accompanying pre-addressed envelopes. Stockholders who hold shares beneficially in
street name may vote by completing, signing and dating the voting instruction cards provided and mailing them in the accompanying pre-addressed envelopes. The proxy card also includes directions as to how you may submit your vote through the
Internet and by telephone. The voting instruction card may also include directions for alternative methods of submitting your vote. Except for shares voted in person at the Annual Meeting, voting will close at 11:59 p.m. (Eastern Time) on
June 14, 2012. To be included in the vote count, your votes must be received prior to that time. We encourage you to vote early. If you choose to vote by mail, please allow sufficient time for your proxy or voting instruction card to reach our
vote tabulator prior to the deadline.
Q:
|
C
AN
I
CHANGE
MY
VOTE
?
|
A:
|
Yes. You may change your vote at any time prior to the vote at the Annual Meeting. If you are a stockholder of record, you may change your vote by granting a new
proxy bearing a later date (which automatically revokes the earlier proxy), by providing a written notice of revocation prior to your shares being voted or by attending the Annual Meeting and voting in person. Any notice of revocation should be
addressed to our Secretary, Charles D. Frazer, Esquire, 500 Hanover Pike, Hampstead, Maryland 21074. For shares you hold beneficially in street name, you may change your vote by submitting new voting instructions to your Broker or, if you have
obtained a legal proxy or other evidence from your Broker giving you the right to vote your shares, by attending the Annual Meeting and voting in person. Without taking one of the actions described above, attendance at the Annual Meeting will not
cause your previously granted proxy or voting instructions to be revoked.
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Q:
|
W
HO
CAN
HELP
ANSWER
MY
QUESTIONS
?
|
A:
|
If you have any questions about the Annual Meeting or how to vote or revoke your proxy or if you need additional copies of this Proxy Statement or voting
materials, please contact our Investor Relations Department at (410) 239-5900.
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Q:
|
I
S
MY
VOTE
CONFIDENTIAL
?
|
A:
|
Proxy instructions, ballots and voting tabulations that identify individual stockholders are handled in a manner that protects your voting privacy. Your vote
will not be disclosed either within Jos. A. Bank or to third parties, except: (a) as necessary to meet applicable legal requirements; (b) to allow for the tabulation and certification of the vote; or (c) to facilitate a successful
proxy solicitation.
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3
Q:
|
W
HAT
IS
THE
QUORUM
REQUIRED
TO
CONDUCT
BUSINESS
AT
THE
A
NNUAL
M
EETING
?
|
A:
|
In order to hold and transact business at the Annual Meeting, holders of a majority of outstanding shares of Jos. A. Bank common stock entitled to vote must be
present in person or represented by proxy. If you hold shares beneficially in street name and do not provide your Broker with voting instructions, your shares may constitute broker non-votes. Generally, broker non-votes occur when a
Broker returns a properly executed proxy but fails to vote on one or more matters because the Broker lacks the authority to do so. Broker non-votes will be counted toward a quorum, but will not be counted in determining whether the items of business
to which they apply have been approved.
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Q:
|
H
OW
ARE
VOTES
COUNTED
?
|
A:
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In the election of the directors, you may vote FOR, AGAINST or ABSTAIN with respect to either or both of the nominees.
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For the ratification of the appointment of Deloitte as our registered public accounting firm, you may vote
FOR, AGAINST or ABSTAIN.
For the advisory vote to approve the compensation of our named
executive officers (Say on Pay), you may vote FOR, AGAINST or ABSTAIN.
Abstentions will be counted toward a quorum, but will not be counted in determining whether the items of business to which they apply have
been approved.
If you provide specific instructions with regard to certain items, your shares will be voted as you instruct on
such items. If you sign your proxy card or voting instruction card without giving specific instructions, your shares will be voted in accordance with the recommendations of the Board (in the case of this Annual Meeting, FOR our nominees
to the Board; FOR the ratification of the appointment of Deloitte as our registered public accounting firm; and FOR the approval of the compensation of our named executive officers (Say on Pay)). With regard to
any other matters that properly come before the Annual Meeting, your shares will be voted in the discretion of the proxy holders.
Q:
|
W
HAT
IS
THE
VOTING
REQUIREMENT
TO
APPROVE
EACH
OF
THE
PROPOSALS
TO
BE
VOTED
ON
AT
THE
A
NNUAL
M
EETING
?
|
A:
|
Nominees for director in uncontested elections must be elected by majority vote. As of the Record Date, the number of nominees for election at the Annual Meeting
is equal to the number of directors to be elected. Therefore, the election at the Annual Meeting will be uncontested and a nominee for director will be elected only if such nominee receives the affirmative vote of a majority of the total votes cast
for and against such nominee at the Annual Meeting. A properly executed proxy abstaining with respect to the election of a director nominee will not be counted in the total votes cast for and against such nominee, although it will be counted for
purposes of determining whether there is a quorum.
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The affirmative vote of a majority of the votes cast on the
proposal at the Annual Meeting, either in person or by proxy, is required to ratify the selection of Deloitte as our registered public accounting firm for Fiscal 2012.
The affirmative vote of a majority of the votes cast on the proposal at the Annual Meeting, either in person or by proxy, is required to approve, on an advisory basis, the compensation of our named
executive officers (Say on Pay).
Abstentions and broker non-votes, if any, will have no effect on the outcome of
any of the proposals presented at the Annual Meeting.
Q:
|
W
HAT
HAPPENS
IF
ADDITIONAL
MATTERS
ARE
PRESENTED
AT
THE
A
NNUAL
M
EETING
?
|
A:
|
As to matters which are set forth in this Proxy Statement, the persons named as proxy holders, R. Neal Black and Charles D. Frazer, will vote as
instructed in your proxy or voting instruction card. We are not
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4
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aware of any business to be acted upon at the Annual Meeting other than the three items of business described in this Proxy Statement. If you grant a proxy to Messrs. Black and Frazer, they will
have the discretion to vote your shares on any additional matters properly presented for a vote at the Annual Meeting. If for any unforeseen reason either of our director nominees is unavailable to stand for election, the proxy holders will vote
your proxy for such other candidate(s) as may be nominated by our Nominating and Corporate Governance Committee.
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Q:
|
W
HO
WILL
SERVE
AS
INSPECTOR
OF
ELECTIONS
?
|
A:
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The inspector of elections will be a representative of Jos. A. Bank.
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Q:
|
W
HAT
SHOULD
I
DO
IF
I
RECEIVE
MORE
THAN
ONE
SET
OF
VOTING
MATERIALS
?
|
A:
|
You may not vote more shares than you own. However, you may receive more than one set of voting materials, including multiple copies of this Proxy Statement and
multiple proxy cards or voting instruction cards. For example, you may receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a stockholder of record and your shares are registered in more than one
name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive.
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Q:
|
H
OW
MAY
I
OBTAIN
A
SEPARATE
SET
OF
VOTING
MATERIALS
?
|
A:
|
Pursuant to an SEC approved procedure called householding, multiple stockholders who share the same address will receive a single proxy
statement and annual report at that address unless they provide contrary instructions. Any such stockholder who wishes to receive a separate proxy statement and/or annual report now or in the future may write or call the Company at our
Investor Relations Department, 500 Hanover Pike, Hampstead, Maryland 21074, telephone: (410) 239-5900. You may also request a separate copy of this years Proxy Statement and/or Annual Report on Form 10-K by visiting our website,
www.josbank.com. The Company will promptly, upon written or oral request, deliver a separate copy of the Proxy Statement and/or Annual Report on Form 10-K to any stockholder at a shared address to which only a single copy was delivered. Similarly,
stockholders sharing the same address who have received multiple copies of this Proxy Statement or our Annual Report on Form 10-K may contact the Company at the above address and phone number to request delivery of a single copy in the future.
Stockholders who hold shares beneficially in street name may contact their Broker to request information about householding.
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Q:
|
W
HO
WILL
BEAR
THE
COST
OF
SOLICITING
VOTES
FOR
THE
A
NNUAL
M
EETING
?
|
A:
|
Jos. A. Bank is making this solicitation and will pay the entire cost of preparing, printing, assembling, mailing and distributing these proxy materials and
soliciting votes. Upon request, we will also reimburse brokerage houses and other custodians, nominees and fiduciaries for forwarding proxy and solicitation materials to stockholders. To assist with the solicitation of proxies or votes, the Company
has retained Georgeson Inc. for an estimated fee of $11,500 plus out-of-pocket expenses. In addition, the solicitation of proxies or votes may be made by our directors, officers and employees. These individuals will not receive any additional
compensation for any solicitation activities. Solicitations may be in person, by telephone or by any other means of communication.
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Q:
|
W
HERE
CAN
I
FIND
THE
VOTING
RESULTS
OF
THE
A
NNUAL
M
EETING
?
|
A:
|
We intend to announce preliminary voting results at the Annual Meeting and will disclose results on a Form 8-K that will be filed not more than four business
days following the Annual Meeting.
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5
Q:
|
W
HAT
IS
THE
DEADLINE
FOR
SUBMITTING
PROPOSALS
FOR
INCLUSION
IN
J
OS
. A. B
ANK
S
PROXY
STATEMENT
FOR
THE
C
OMPANY
S
2013 A
NNUAL
M
EETING
OF
S
TOCKHOLDERS
?
|
A:
|
Pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the Exchange Act), stockholders may present proper proposals for
inclusion in our Proxy Statement relating to, and for consideration at, the 2013 Annual Meeting of Stockholders by submitting their proposals to us in a timely manner. Such proposals will be so included if received at our principal executive offices
not later than January 11, 2013 and if they otherwise comply with the requirements of Rule 14a-8.
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Q:
|
W
HAT
IS
THE
DEADLINE
TO
PROPOSE
ACTIONS
FOR
CONSIDERATION
AT
THE
C
OMPANY
S
2013 A
NNUAL
M
EETING
OF
S
TOCKHOLDERS
OR
TO
NOMINATE
INDIVIDUALS
TO
SERVE
AS
DIRECTORS
?
|
A:
|
You may submit proposals for consideration at the Companys 2013 Annual Meeting, including director nominations, that are not intended to be included in the
Companys proxy statement by complying with the procedures specified in our Amended and Restated Bylaws. In order for a stockholder proposal or director nomination to be considered at the Companys 2013 Annual Meeting, such proposal or
nomination must be delivered to or mailed and received at the Companys principal executive offices no later than February 15, 2013. In the event that the date of the Annual Meeting is advanced by more than 60 days or delayed by more than
90 days from the anniversary of the previous Annual Meeting, notice by the stockholder to be timely must be received not earlier than the one hundred twentieth day prior to such Annual Meeting and not later than the close of business on the later of
(a) the sixtieth day prior to such Annual Meeting or (b) the tenth day following the date on which notice of the date of the Annual Meeting was mailed or public disclosure thereof was made, whichever first occurs. Any stockholder
considering submitting a director nomination or proposal for action at the Companys 2013 Annual Meeting is directed to the Companys Amended and Restated Bylaws, which contain additional requirements as to submission of nominations for
directors or proposals for stockholder action. You may contact the Secretary of Jos. A. Bank at our principal executive offices for a copy of the relevant provisions of our Amended and Restated Bylaws regarding the requirements for making
stockholder proposals and nominating director candidates.
|
OVERVIEW OF OUR CORPORATE
GOVERNANCE PRACTICES
The Company has adopted a Statement of Corporate Governance Standards, which may be found on our
website at
www.josbank.com
. We believe that our corporate governance practices are appropriate and in the best interest of our Company and our stockholders. Some of the key aspects of our corporate governance practices are as follows:
ELECTION OF DIRECTORS
Our Amended and Restated Bylaws provide that in uncontested elections (i.e., elections at which the number of nominees is equal to the number of board seats being filled), nominees for directors must be
elected by a majority vote. Conversely, in a contested election, nominees for directors may be elected by a plurality vote. In an uncontested election, a nominee for director will be elected only if such nominee receives the affirmative vote of a
majority of the total votes cast for and against such nominee. The election of directors to be held at the 2012 Annual Meeting is an uncontested election. Our Statement of Corporate Governance Standards provides that if an incumbent director does
not receive the votes required in the Companys Amended and Restated Bylaws, the director must promptly tender his or her resignation for consideration by the Board. The Board may accept or reject such resignation. A current copy of the
Companys Statement of Corporate Governance Standards is available on our website at
www.josbank.com
.
6
INDEPENDENCE OF DIRECTORS
Five out of seven of our current directors are independent directors as defined in the Nasdaq Stock Market Rules (the
Nasdaq Rules). Our two non-independent directors, Robert N. Wildrick and R. Neal Black, bring special insight to the Board as a result of their service as the Companys former and current, respectively, Chief Executive Officer.
COMMITTEE INDEPENDENCE
Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee is composed entirely of independent directors.
BOARD LEADERSHIP STRUCTURE
We maintain a Board leadership structure that separates the positions of Chairman of the Board, Lead Independent Director and Chief Executive Officer. By having separate individuals serve in these three
distinct capacities, we believe that we provide for additional oversight by the Board and enable our Chief Executive Officer, R. Neal Black, to focus his time and attention on the Companys operations. Our current Chairman of the Board, Robert
N. Wildrick, has been a director since 1994 and served as our Chief Executive Officer from November 1999 through December 2008. Our current Lead Independent Director, Andrew A. Giordano, has been a director since 1994, served as our interim Chief
Executive Officer from May 1999 to October 1999 and has served as Lead Independent Director since November 1999. In addition, Mr. Giordano is chairman of our Nominating and Corporate Governance Committee and a member of our Audit Committee.
These experiences enhance Mr. Wildricks and Mr. Giordanos ability (and therefore the Boards ability) to oversee the Chief Executive Officer in his management of our Company. The Board as a whole engages in risk oversight
as part of its functions. We believe that our Board leadership structure enables the Board to manage risk oversight effectively.
BOARD EVALUATIONS
Our Nominating and Corporate Governance Committee coordinates evaluations of our Board, its
committees and individual members.
DIRECTOR AND EXECUTIVE OFFICER STOCK OWNERSHIP GUIDELINES
All of our directors and executive officers own shares of our common stock. We believe that the directors and
executive officers of the Company should own and hold our common stock or other qualifying shares to further align their interests and actions with the interests of the Companys stockholders. The Board has adopted stock ownership guidelines
applicable to all of our directors, our Chief Executive Officer and our Executive Vice Presidents. Pursuant to the guidelines, each of our directors are required to accumulate and hold 7,500 qualified shares of equity in the Company; our Chief
Executive Officer is required to accumulate and hold 75,000 qualified shares of equity in the Company; and each of our Executive Vice Presidents is required to accumulate and hold 15,000 qualified shares of equity in the Company. The guidelines
further provide that each director is expected to be in compliance with the targeted share holdings by June 2013 and each executive officer is expected to be in compliance with the targeted share holdings by June 2015. The Board anticipates that the
guidelines will be timely satisfied by each director and executive officer. The stock ownership guidelines may be found on our website at
www.josbank.com
.
AUDIT
For at least each of the three
fiscal years for which we provide audited financial statements in our Annual Report on Form 10-K for Fiscal 2011: (a) Deloitte, our independent registered public accounting firm, has
7
expressed an unqualified opinion on the Companys consolidated financial statements; (b) we have not restated any of our consolidated financial statements; (c) all of our financial
disclosure filings have been timely; (d) no securities regulator has taken enforcement action against us; and (e) we have not had any material weaknesses in our internal controls.
INFORMATION REGARDING OUR BOARD OF DIRECTORS
The following table sets forth our current directors, their ages and the positions they hold:
|
|
|
|
|
|
|
Name
|
|
Age
|
|
|
Position
|
R. Neal Black
|
|
|
57
|
|
|
Director, Chief Executive Officer and President
|
James H. Ferstl
|
|
|
69
|
|
|
Director
|
Andrew A. Giordano
|
|
|
79
|
|
|
Director, Chairman Emeritus, Lead Independent Director and Chairman of the Nominating and Corporate Governance Committee
|
William E. Herron
|
|
|
66
|
|
|
Director and Chairman of the Audit Committee
|
Henry Homes, III
|
|
|
64
|
|
|
Director
|
Sidney H. Ritman
|
|
|
79
|
|
|
Director and Chairman of the Compensation Committee
|
Robert N. Wildrick
|
|
|
67
|
|
|
Director and Chairman of the Board
|
BOARD INDEPENDENCE
The Board has affirmatively determined that each of Messrs. Ferstl, Giordano, Herron, Homes and Ritman (individually, an Independent
Director and collectively, the Independent Directors) is an independent director as defined in the Nasdaq Rules. In making this determination, the Board found that none of the Independent Directors has a disqualifying
relationship that would prohibit him from being considered independent under the Nasdaq Rules and that none of the Independent Directors has any relationship that would interfere with the exercise of independent judgment in carrying out
the responsibilities of a director.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board has a standing Audit Committee, Compensation Committee, Executive Committee and Nominating and Corporate Governance Committee.
The members and primary responsibilities of those committees are as follows:
A
UDIT
C
OMMITTEE
The Audit Committee, comprised of Messrs. Giordano, Herron (Chairman) and Ritman, assists the Board with the oversight of: (a) the
integrity of our financial statements; (b) the qualifications and independence of our registered public accounting firm; (c) the performance of our registered public accounting firm; (d) the adequacy of our systems of internal
accounting and financial controls; and (e) our compliance with ethics policies and legal and regulatory requirements. As required by applicable law, rules or regulations and otherwise to the extent it deems necessary or appropriate, the Audit
Committee also reviews and approves all related party transactions and considers information regarding potential relationships between the Company and the directors, executive officers or their immediate family members.
The Audit Committee is directly responsible for the appointment, compensation and oversight of the work of our registered public
accounting firm for the purpose of preparing or issuing an audit report or related work. Such responsibility includes the resolution of disagreements between management and our registered public accounting firm regarding financial reporting. There
were no such disagreements in Fiscal 2011. Our registered public accounting firm reports directly to the Audit Committee. The Audit Committee has the authority, to the
8
extent it deems necessary or appropriate to carry out its duties, to retain independent legal, accounting or other advisors. The Company covers all payments to these independent advisors. The
Audit Committee has established procedures for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters, and the confidential, anonymous submission by employees
of concerns regarding questionable accounting or auditing matters.
The Board has determined that Mr. Herron is an
audit committee financial expert, as such term is defined in Item 407(d)(5)(ii) of Regulation S-K. All members of the Audit Committee are independent directors as defined in the Nasdaq Rules and Rule 10A-3 of the Exchange Act.
The Audit Committee operates pursuant to a charter duly adopted by the Board. A current copy of the charter is available on
our website at
www.josbank.com
.
C
OMPENSATION
C
OMMITTEE
During Fiscal 2011 and through April 25, 2012, the Compensation Committee was
comprised of Messrs. Herron, Homes and Ritman (Chairman). On April 26, 2012, Mr. Ferstl was added as a member of the Compensation Committee. The Compensation Committee determines the compensation of the Chief Executive Officer and other
executive officers of the Company in compliance with the Nasdaq Rules and may advise the Board, or take other action, on other matters of compensation (such as setting compensation for non-employee directors). The Board has determined that all
members of the Compensation Committee are independent directors as defined in the Nasdaq Rules. The Compensation Committee operates pursuant to a charter duly adopted by the Board. A current copy of the charter is available on our website at
www.josbank.com
. The Compensation Committee may delegate any aspect of its responsibility and authority to subcommittees or individual Compensation Committee members.
E
XECUTIVE
C
OMMITTEE
The Executive Committee, comprised of Messrs. Giordano, Ritman and Wildrick (Chairman), is authorized to exercise all of the powers and authority of the Board at times when the Board is not meeting;
provided, however, that the Executive Committee is not permitted to exercise such powers as are reserved for the Board under Delaware law or otherwise restricted under the terms of the Executive Committees charter duly adopted by the Board. A
current copy of the charter is available on our website at
www.josbank.com
.
N
OMINATING
AND
C
ORPORATE
G
OVERNANCE
C
OMMITTEE
The Nominating and Corporate Governance Committee, comprised of Messrs. Ferstl, Giordano
(Chairman) and Ritman: (a) proposes the slate of candidates for election as directors at each Annual Meeting of Stockholders; (b) considers and reviews the qualifications of any individual nominated for election to the Board by
stockholders; (c) in the event of any vacancies which may arise on the Board, identifies and recommends to the Board candidates who are qualified to serve on the Board; (d) recommends to the Board the assignment of directors to serve on
committees of the Board; and (e) develops and recommends to the Board (and reviews from time to time) corporate governance principles for the Company as the Nominating and Corporate Governance Committee may deem necessary or advisable. If there
should occur an uncontested election for directors at which a director-nominee is not elected by majority vote, the director-nominee shall tender his or her resignation to the Board. The Nominating and Corporate Governance Committee shall thereupon
consider such resignation and shall recommend to the Board whether to accept or reject the resignation. The Board has determined that all members of the Nominating and Corporate Governance Committee are independent directors as defined in the Nasdaq
Rules. The Nominating and Corporate Governance Committee operates pursuant to a charter duly adopted by the Board. A current copy of the charter is available on our website at
www.josbank.com
.
9
DIRECTOR ATTENDANCE AT BOARD AND COMMITTEE MEETINGS
During Fiscal 2011, the Board held four meetings; the Audit Committee held four meetings; the Compensation Committee held two meetings;
the Executive Committee held four meetings; and the Nominating and Corporate Governance Committee held one meeting. During Fiscal 2011, each director attended or participated in 75% or more of (a) the meetings of the Board and (b) the
meetings of all committees of the Board on which such director served.
DIRECTOR ATTENDANCE AT ANNUAL MEETING;
STOCKHOLDER COMMUNICATION WITH THE BOARD OF DIRECTORS
It is the policy of the Board that all directors are expected to
attend the Companys annual meetings of stockholders. All of our directors were present at the 2011 Annual Meeting of Stockholders held on June 17, 2011. Our Chairman of the Board will be available to respond to appropriate questions and
comments from stockholders immediately following the 2012 Annual Meeting. Stockholders may also communicate with the Board by sending a letter to Jos. A. Bank Clothiers, Inc. Board of Directors c/o General Counsel, 500 Hanover Pike, Hampstead,
Maryland 21074. The General Counsel will receive the correspondence and forward it to the Chairman of the Board, the Chairman of the Audit Committee or to any individual director or directors to whom the communication is directed, as appropriate.
Notwithstanding the above, the General Counsel has the authority to discard or disregard any communication which is unduly hostile, threatening, illegal or otherwise inappropriate or to take any other appropriate actions with respect to such
communications.
CONSIDERATION OF DIRECTOR NOMINEES
D
IRECTOR
Q
UALIFICATIONS
The Board does not believe that it is in our best interests to establish rigid criteria for the selection of prospective director
nominees. Rather, the Board recognizes that the challenges and needs we face will change over time and, accordingly, believes that the selection of prospective director nominees should be based on skill sets relevant to the issues we face or are
likely to face at the time of nomination. At the same time, the Board strongly believes that we will benefit from a diversity of background and experience on the Board. The Board therefore seeks prospective director nominees who, in addition to
general management experience and business knowledge, possess an expertise in one or more areas critical to the Company, such as: retail; finance; international business; investment banking; corporate governance; financial control systems; risk
assessment; logistics; and investor relations.
In addition, there are certain general attributes that the Board believes all
prospective director nominees must possess in order to be recommended by the Nominating and Corporate Governance Committee, including:
|
|
|
a commitment to ethics and integrity;
|
|
|
|
a commitment to personal and organizational accountability;
|
|
|
|
a history of achievement that reflects superior standards for themselves and others; and
|
|
|
|
an ability to take tough positions while, at the same time, being respectful of the opinions of others and working collaboratively.
|
In evaluating any prospective director, the Board and the Nominating and Corporate Governance Committee
will also take into consideration whether such prospective director, if elected to the Board, would qualify as an independent director in accordance with the Nasdaq Rules.
I
DENTIFYING
AND
E
VALUATING
P
ROSPECTIVE
D
IRECTOR
N
OMINEES
The Nominating and Corporate Governance Committee uses a variety of methods for identifying nominees for director.
Prospective director nominees may come to our attention through current directors, professional search firms, professional associations, stockholders or other persons.
10
The Nominating and Corporate Governance Committee will evaluate all prospective director
nominees, including those recommended by stockholders, in the same manner. Generally, prospective director nominees will be evaluated at special meetings of the Nominating and Corporate Governance Committee. The Nominating and Corporate Governance
Committee will make an initial determination as to whether to conduct a full evaluation of the prospective director nominee based upon various factors, including, but not limited to: (a) the information submitted with the nomination;
(b) the Nominating and Corporate Governance Committees own knowledge of the prospective director nominee; (c) the current size of the Board and any anticipated vacancies or needs; and (d) whether the prospective director nominee
can satisfy any specific qualifications established by the Nominating and Corporate Governance Committee. The Nominating and Corporate Governance Committee may then decide to do a comprehensive evaluation of a prospective director nominee, which may
include an interview of the candidate.
S
TOCKHOLDER
N
OMINEES
The policy of the Nominating and Corporate Governance Committee is to consider prospective director nominations
properly submitted by a stockholder. For a description of the process for nominating directors in accordance with our Amended and Restated Bylaws, see What is the deadline to propose actions for consideration at the Companys 2013 Annual
Meeting of Stockholders or to nominate individuals to serve as directors? in the Questions and Answers section of this Proxy Statement. No stockholder has submitted a nominee for consideration by the Nominating and Corporate
Governance Committee in connection with the Annual Meeting.
NON-EMPLOYEE DIRECTOR COMPENSATION
Each of our directors other than Mr. Black (Non-Employee Directors) is entitled to compensation for
board service as set by the Compensation Committee. As an officer of the Company, Mr. Black is not entitled to compensation for his services as a director. Management assists the Compensation Committee with the compensation setting process as
needed.
Each Non-Employee Director receives an annual retainer of $40,000. Additional annual retainers are paid as follows:
Chairman of the Board-$150,000; Lead Independent Director-$60,000; and the Chairmen of each of the Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee-$30,000. Each Non-Employee Director also receives attendance
fees of $3,000 per Board meeting and $1,500 per meeting of the Audit, Compensation and Nominating and Corporate Governance committees. One-half of the usual meeting attendance fee (i.e., $1,500 and $750, respectively) is paid to each Non-Employee
Director for participation in each telephonic Board or Committee meeting. No fees are paid for the chairmanship or meetings of the Executive Committee. All directors are reimbursed for actual out-of-pocket expenses incurred by them in connection
with attending meetings of the Board or of a Committee.
The Jos. A. Bank Clothiers, Inc. Equity Incentive Plan (the
Equity Incentive Plan) provides for certain automatic awards to Non-Employee Directors. Unless the Compensation Committee determines in its discretion to make a lesser award or no award, (a) on each June 1 (or the next business
day thereafter if June 1 is not a business day), each person then serving as a Non-Employee Director shall receive an annual award of 2,250 restricted stock units and (b) any person who first becomes a Non-Employee Director after
June 17, 2010, shall receive an inaugural award of 1,500 restricted stock units upon his or her election to the Board. All such restricted stock units will vest approximately (but not less than) twelve months following the date of grant.
11
Fiscal 2011 Director Compensation
The table below provides information concerning compensation of the Non-Employee Directors for Fiscal 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
(a)
|
|
Fees Earned
or Paid
in
Cash
(1)
($)
(b)
|
|
|
Stock
Awards
(2)
($)
(c)
|
|
|
Option
Awards
($)
(d)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)
(e)
|
|
|
Change in
Pension
Value
and
Nonqualified
Deferred
Compensation
Earnings
($)
(f)
|
|
|
All
Other
Compensation
(3)
($)
(g)
|
|
|
Total
($)
(h)
|
|
James H. Ferstl
|
|
|
53,500
|
|
|
|
111,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
164,898
|
|
Andrew A. Giordano
|
|
|
148,750
|
|
|
|
111,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
260,148
|
|
William E. Herron
|
|
|
89,500
|
|
|
|
111,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,898
|
|
Henry Homes, III
|
|
|
54,250
|
|
|
|
111,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
165,648
|
|
Sidney H. Ritman
|
|
|
91,000
|
|
|
|
111,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
202,398
|
|
Robert N. Wildrick
|
|
|
202,000
|
|
|
|
111,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
835,332
|
|
|
|
1,148,730
|
|
(1)
|
Amounts reported in column (b) represent retainers and attendance fees as more fully detailed in the table below.
|
(2)
|
Amounts reported in column (c) represent the grant date fair value of restricted stock units issued to the directors, based on the closing price
of the Companys common stock on the date of grant. At the end of Fiscal 2011, each non-employee director held 2,250 restricted stock units and no unexercised options or other unvested stock awards.
|
(3
)
|
The amount reported in column (g) represents fees paid to Mr. Wildrick during Fiscal 2011 pursuant to his consulting agreement with the
Company ($825,000), as more fully discussed below in the section of this Proxy Statement titled Transactions with Related Persons, and the incremental cost to the Company of medical, dental, vision and medical expense reimbursement
insurance provided to Mr. Wildrick during Fiscal 2011 ($10,332).
|
The table below provides detail
regarding cash fees earned by or paid to Non-Employee Directors in Fiscal 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Annual
Retainer
($)
|
|
|
Lead
Independent
Director
Retainer
($)
|
|
|
Committee
Chair
Retainer
($)
|
|
|
Chairman
Retainer
($)
|
|
|
Attendance
Fees
($)
|
|
|
Total
($)
|
|
James H. Ferstl
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,500
|
|
|
|
53,500
|
|
Andrew A. Giordano
|
|
|
40,000
|
|
|
|
60,000
|
|
|
|
30,000
|
|
|
|
|
|
|
|
18,750
|
|
|
|
148,750
|
|
William E. Herron
|
|
|
40,000
|
|
|
|
|
|
|
|
30,000
|
|
|
|
|
|
|
|
19,500
|
|
|
|
89,500
|
|
Henry Homes, III
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14,250
|
|
|
|
54,250
|
|
Sidney H. Ritman
|
|
|
40,000
|
|
|
|
|
|
|
|
30,000
|
|
|
|
|
|
|
|
21,000
|
|
|
|
91,000
|
(1)
|
Robert N. Wildrick
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
150,000
|
|
|
|
12,000
|
|
|
|
202,000
|
|
(1)
|
In Fiscal 2011,
Mr. Ritman deferred receipt of $91,000 of cash compensation for Board service and was credited with approximately 1,842 stock units in the Jos. A. Bank Clothiers, Inc. 2010 Deferred Compensation Plan (the 2010 Deferred Compensation
Plan). Each stock unit is the economic equivalent of one share of Jos. A. Banks Common Stock.
|
12
INFORMATION REGARDING OUR NAMED EXECUTIVE OFFICERS
Generally, a named executive officer is a companys chief executive officer, its chief financial officer and its
three other most highly compensated executive officers. Our named executive officers are: R. Neal Black, our Chief Executive Officer; David E. Ullman, our Chief Financial Officer; and Robert B. Hensley, Gary M. Merry and James W. Thorne, our three
other most highly compensated executive officers. Messrs. Hensley, Merry, Thorne and Ullman are sometimes referred to collectively in this Proxy Statement as our Executive Vice Presidents. The following table sets forth the name, age and
position(s) of each of our five named executive officers:
|
|
|
|
|
|
|
Name
|
|
Age
|
|
|
Position
|
R. Neal Black
|
|
|
57
|
|
|
Director, President and Chief Executive Officer
|
Robert B. Hensley
|
|
|
59
|
|
|
Executive Vice President for Human Resources, Real Estate and Loss Prevention
|
Gary M. Merry
|
|
|
49
|
|
|
Executive Vice President for Store and Catalog Operations
|
James W. Thorne
|
|
|
51
|
|
|
Executive Vice President for Merchandising and Chief Merchandising Officer
|
David E. Ullman
|
|
|
54
|
|
|
Executive Vice President, Chief Financial Officer and Principal Financial and Accounting Officer
|
R. NEAL BLACK
R. Neal Black has served as one of our directors and as our Chief Executive Officer since December 2008. Mr. Black has been our
President since April 2007. He joined the Company in January 2000 and served as Executive Vice President-Merchandising and Marketing from January 2000 to April 2007. In addition, Mr. Black was our Chief Merchandising Officer from January 2000
to December 2008. Mr. Black has spent his entire professional career in the retail industry, including: from 1998 to 2000, with McRaes department stores, a division of Saks Incorporated, as Senior Vice President/General Merchandise
Manager; from 1995 to 1998, with Venture Stores, Inc., a publicly traded family value retailer, ending as Senior Vice President of Product Development and General Merchandise Manager; from 1992 to 1995, with Gottschalks Department Stores, a regional
department store headquartered in Fresno, California, ending as Vice President/General Merchandise
Manager; from 1983 to 1992, with Design
Linens, Inc., a privately-owned specialty retail chain headquartered in Portland, Oregon, ending as President; and from 1976 to 1983, with Meier & Frank, a division of May Department Stores, ending as a Buyer.
ROBERT B. HENSLEY
Robert B. Hensley has been our Executive Vice President for Human Resources, Real Estate and Loss Prevention since July 2007. Mr. Hensley was our Executive Vice President-Store Operations, Real
Estate and Human Resources from April 2007 to July 2007 and our Executive Vice President-Stores and Operations from December 1999 to April 2007.
GARY M. MERRY
Gary M. Merry has been our
Executive Vice President for Store and Catalog Operations since July 2007. Mr. Merry was our Senior Vice President for Operations from April 2007 to July 2007 and our Senior Vice President-Chief Information Officer from July 2001 to April 2007.
JAMES W. THORNE
James W. Thorne has been our Executive Vice President for Merchandising and Chief Merchandising Officer since February 2009. Mr. Thorne joined the Company in 1986 and has held a variety of
increasingly
13
important merchandising positions, including: Senior Vice President for Merchandising from September 2008 to January 2009; Senior Vice President for Planning and Allocation from June 2005 to
September 2008; and Vice President/General Merchandise Manager for Tailored Clothing from February 2000 to June 2005.
DAVID E. ULLMAN
David E. Ullman has been our Executive Vice President-Chief Financial Officer since September
1995. Mr. Ullman is our Principal Financial and Accounting Officer.
EXECUTIVE COMPENSATION
AND RELATED INFORMATION
COMPENSATION DISCUSSION AND ANALYSIS
The following discussion and analysis discusses the principles underlying the Companys compensation policies and decisions and the
most important factors relevant to an analysis of these policies and decisions. This discussion focuses on the compensation of our named executive officers. This discussion and analysis provides qualitative information regarding the manner and
context in which compensation is awarded to and earned by our named executive officers and is intended to place in perspective the data presented in the tables and narratives that follow.
P
ROCESS
OF
D
ETERMINING
E
XECUTIVE
C
OMPENSATION
Our Compensation Committee determines the compensation of our named executive officers
and may advise the Board, or take other action, on other matters of compensation. At the 2011 Annual Meeting of Stockholders, over 96% of the votes cast were in favor of the advisory proposal to approve our executive compensation (Say on
Pay). The Compensation Committee reviewed the voting results and believes that this favorable outcome conveys our stockholders support of the Compensation Committees decisions and the existing executive compensation programs.
Therefore, the Compensation Committee did not make any material changes to our executive compensation program or objectives in response to the vote.
Management provides the Compensation Committee with material for review concerning the compensation of the named executive officers, including a history of salary and other compensation paid to each named
executive officer. Our Chief Executive Officer presents to the Compensation Committee an annual review of executive and management compensation and recommendations for base salary increases and equity and non-equity incentive compensation for our
named executive officers. Our Chief Executive Officer is not present during the deliberation or determination by the Compensation Committee regarding his own compensation. Charles D. Frazer, our corporate Secretary, acts as Secretary to the
Compensation Committee and is usually present during general, but not executive, sessions of the Compensation Committee. Mr. Frazer does not participate in the deliberations of the Compensation Committee. The Compensation Committee reviews the
performance of each named executive officer against the established criteria for payment of incentive compensation for performance in the prior year and determines whether and in what amount incentive compensation should be paid. The Compensation
Committee also considers compensation matters applicable to the current fiscal year and, when appropriate, authorizes employment contracts, contract extensions, base salary increases and equity and non-equity incentive compensation targets.
O
BJECTIVES
OF
THE
C
OMPENSATION
P
ROGRAM
Our Compensation Committee applies a consistent philosophy to compensation for our named
executive officers. This philosophy is based on the premise that the Companys achievements are the result of the coordinated efforts of all of our employees working toward common objectives. We strive to achieve those objectives through
teamwork that is focused on meeting the expectations of our customers and stockholders. The primary objectives of the compensation program are to:
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align compensation with our corporate strategies and business objectives and performance;
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enable the Company to attract, retain and reward senior managers who contribute to the long-term success of the Company; and
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promote the achievement of key financial performance measures by linking compensation to the achievement of measurable corporate performance goals.
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We believe that this compensation program allows us to successfully attract and retain talented employees,
enhance stockholder value and foster innovation.
To achieve these objectives, our Compensation Committee has established the
following principles to guide the development of our compensation program and to provide a framework for all compensation decisions: (a) provide a total compensation package that will attract the best talent to the Company, motivate individuals
to perform at their highest levels, reward outstanding performance and retain executives whose skills are critical for building long-term stockholder value and (b) establish performance-based incentives that are directly tied to the overall
financial results of the Company.
C
OMPONENTS
OF
O
UR
E
XECUTIVE
C
OMPENSATION
P
ROGRAM
The primary
elements of our executive compensation program are:
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Non-equity performance-based incentive compensation (in the form of cash bonuses);
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Equity performance-based incentive compensation (in the form of restricted stock units); and
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Other employee benefits and non-cash perquisites.
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In order to permit us to retain our named executive officers and to provide sufficient incentives for their highest possible level of performance, salaries and incentive compensation of such officers are
reviewed at least annually and are usually adjusted after taking into account market conditions, individual responsibilities, experience, performance and other factors (including, where applicable, the terms of their employment agreements). Each
named executive officer is employed by the Company pursuant to an employment agreement which sets forth, among other matters, the executive officers annualized cash base salary and non-equity incentive compensation opportunity (expressed as a
percentage of base salary). Mr. Blacks agreement also sets forth his equity incentive compensation opportunity (expressed as a percentage of base salary).
These agreements with our named executive officers provide for certain potential payments upon termination for a variety of reasons, including, for Mr. Black only, following a change in control of
the Company. We have provided more detailed information about these benefits, along with estimates of their values under certain circumstances, below under the caption Potential Payments on Termination or Change in Control. We believe
these benefits help us compete for the services of talented individuals in a manner which is responsible and in the best interests of our Company and stockholders.
Substantially all of the incentive compensation paid or granted to our named executive officers is intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue
Code. Our compensation-setting process consists of establishing for each named executive officer a targeted overall compensation level intended to permit us to retain that officer and provide sufficient incentive for his highest possible level of
performance. The targeted compensation level is then allocated between base salary; non-equity incentive compensation (in the form of cash bonuses); and equity incentive compensation (in the form of restricted stock units). Unless otherwise provided
in the employment agreement for a particular named executive officer, neither the targeted compensation nor the allocation thereof is fixed by formula. Rather, they are determined based on many factors including internal pay equity, external market
factors, reasonable employee expectations, pay history and performance.
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Base Salary
We pay a base salary to attract talented executives and provide them with a secure base of cash compensation. The Compensation Committee
typically reviews compensation for the named executive officers at a time proximate to the filing of our Annual Report on Form 10-K for the prior fiscal year. Annual increases are not assured. In fiscal 2011, base salary increases for the named
executive officers were set on March 29, 2011, effective July 31, 2011, the date on which general base salary increases were implemented for other employees of the Company. Generally, in deciding whether, and to what extent, to make an
adjustment to the respective base salaries of the named executive officers (other than the Chief Executive Officer), an important factor considered by the Compensation Committee is the Chief Executive Officers evaluation of the individual
performances of the other named executive officers. Generally, the Chief Executive Officer makes his recommendation based upon his evaluation of each other named executive officers individual contribution to the performance of the Company and
such other factors as he may deem relevant.
As of the date hereof, for pay year 2012, the Compensation Committee has not
approved base salary increases for our named executive officers and the Company has not approved base salary increases for other employees. In the event general base salary increases are granted to other employees of the Company at some later date
this year, the Compensation Committee may re-consider its decision with respect to base salary increases for the named executive officers. The annualized base salaries for the named executive officers are currently:
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Named Executive
Officer
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Current Fiscal
2012
Annualized
Base Salary
($)
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R. Neal Black
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791,275
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Robert B. Hensley
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494,900
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Gary M. Merry
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465,000
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James W. Thorne
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440,000
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David E. Ullman
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469,650
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Non-Equity Incentive Compensation
If approved by the Compensation Committee, non-equity incentive compensation to the named executive officers is generally paid under the
Jos. A. Bank Clothiers, Inc. Executive Management Incentive Plan (the Cash Incentive Plan). The Cash Incentive Plan is intended to permit award payments that may qualify as performance-based compensation within the meaning of
Section 162(m) of the Internal Revenue Code, thereby preserving the Companys ability to receive federal income tax deductions for those awards to the extent that they in fact comply with that Code section. For each of Fiscal 2011 and
Fiscal 2012, the Compensation Committee established under the Cash Incentive Plan cash incentive programs designed to reward Company-wide performance through tying the payment of non-equity incentive compensation primarily to, among other things,
the earning by the Company of certain net income goals. Such cash incentive programs are referred to herein respectively as the 2011 Cash Incentive Program and the 2012 Cash Incentive Program and collectively as the
Cash Incentive Programs. For purposes of the Cash Incentive Programs, net income is the reported net income of the Company for the applicable fiscal year and is therefore determined after deduction for all incentive plan and
other compensation expenses. All award payments under the 2011 Cash Incentive Program were paid in cash. If payable under the 2012 Cash Incentive Program, award payments are expected to be paid in cash.
The key performance goal under each of the Cash Incentive Programs is the Company earning net income within or above a specified range
(the Eligibility Range) for the applicable fiscal year. Within the Eligibility Range is a series of discrete net income levels. If the Companys net income is below the Eligibility Range for a particular Cash Incentive Program, an
award payment cannot be authorized under that program. If the
16
Companys net income is within the Eligibility Range, the percentage of the award target which each named executive officer is eligible to earn increases at each new net income level. Awards
are not prorated between income levels. If the Companys net income is at or above the highest level of net income within the Eligibility Range, each named executive officer is eligible to earn his maximum award target. As net income is a key
factor in determining a companys overall financial success, the Compensation Committee believes that using an Eligibility Range based on net income is an appropriate basis for establishing incentive compensation goals.
The Company earning net income within or above the applicable Eligibility Range is the only performance goal under each of the Cash
Incentive Programs for Mr. Black, our Chief Executive Officer. With respect to Messrs. Hensley, Merry, Thorne and Ullman, our Executive Vice Presidents (who are the only other named executive officers), the following goals (the Personal
Goals) may also be considered and utilized by the Compensation Committee in its exercise of negative discretion to reduce the amount of an award that would otherwise have been payable at any particular level of net income achieved by the
Company: (a) the participant receiving an overall job performance rating of Effective or better (the equivalent of 3 out of 5); (b) the participant complying with the Companys Code of Conduct, Associate Handbook and other
rules, regulations and policies and not engaging in any dishonest acts or other acts that are or may be detrimental to customers, fellow associates or the Company; and (c) the participant achieving specific goals for departmental or individual
performance. The Personal Goals, together with the Company earning net income within or above the Eligibility Range, are collectively referred to as the Performance Goals.
For the 2012 Cash Incentive Program, the Compensation Committee established for Mr. Black an Eligibility Range of $97.5 million to
$107.3 million of net income and for the Executive Vice Presidents an Eligibility Range of $100.9 million to $108.7 million of net income. If the Company earns net income below the low end of the Eligibility Range, the applicable participant will
not receive an award payment under this program. At $97.5 million of net income, Mr. Black will be eligible to receive up to 60% of his base salary; at $100.9 million of net income Messrs. Hensley, Merry, Thorne and Ullman will each be eligible
to receive up to 10% of their respective base salaries. At or above $107.3 million of net income, Mr. Black will be eligible to receive up to approximately 151.6% of his base salary; at or above $108.7 million of net income, Messrs. Hensley,
Merry, Thorne and Ullman will each be eligible to receive up to 65% of their respective base salaries. Between the low and high ends of the Eligibility Ranges, the percentage of base salary which each participant will be eligible to receive will
increase at each new net income level.
For the 2011 Cash Incentive Program, the Compensation Committee established for
Mr. Black an Eligibility Range of $85.5 million to $94.1 million of net income and for the Executive Vice Presidents an Eligibility Range of $88.5 million to $95.3 million of net income. If the Company had earned net income below the low end of
the Eligibility Range, the applicable participant would not have received an award payment under this program. If net income had been $85.5 million, Mr. Black would have been eligible to receive up to 60% of his base salary; if net income had
been $88.5 million, Messrs. Hensley, Merry, Thorne and Ullman would have each been eligible to receive up to 10% of their respective base salaries. If net income had been at or above $94.1 million, Mr. Black would have been eligible to receive
up to approximately 151.6% of his base salary; if net income had been at or above $95.3 million, Messrs. Hensley, Merry, Thorne and Ullman would have each been eligible to receive up to 65% of their respective base salaries. If net income had been
between the low and high ends of the Eligibility Ranges, the percentage of base salary which each participant would have been eligible to receive would have increased at each new net income level.
17
Upon a review of the Companys Fiscal 2011 performance (which exceeded the maximum net
income amount in the Eligibility Range for the 2011 Cash Incentive Program), the Compensation Committee approved the payment of the following amounts under the 2011 Cash Incentive Program:
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Named Executive
Officer
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2011 Cash
Incentive Program
Award Payments
($)
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R. Neal Black
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1,199,675
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Robert B. Hensley
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321,685
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Gary M. Merry
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302,250
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James W. Thorne
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286,000
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David E. Ullman
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305,273
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For Fiscal 2011, the non-equity incentive compensation paid to each named executive officers was 100% of
his respective maximum award target under the 2011 Cash Incentive Program.
Equity Incentive Compensation
If approved by the Compensation Committee, equity incentive compensation may be granted to the named executive
officers under the Equity Incentive Plan. The principal purposes of the Equity Incentive Plan are to promote the interests of the Company and our stockholders by providing our employees, directors and consultants with appropriate incentives and
rewards to encourage them to enter into and continue in the employ or service of the Company or its subsidiaries, to acquire a proprietary interest in the long-term success of the Company and to reward the performance of individuals in fulfilling
their personal responsibilities for long-range and annual achievements. The Equity Incentive Plan is intended to permit the grant of performance-based compensation within the meaning of Section 162(m) of the Internal Revenue Code,
thereby preserving the Companys ability to receive federal income tax deductions for those awards to the extent that they in fact comply with that Code section.
For each of Fiscal 2011 and Fiscal 2012, the Compensation Committee established under the Equity Incentive Plan restricted stock unit programs designed to reward Company-wide performance through tying the
earning of equity incentive compensation primarily to, among other things, the earning by the Company of certain net income goals. Such equity incentive programs are referred to herein respectively as the 2011 Equity Incentive Program
and the 2012 Equity Incentive Program and collectively as the Equity Incentive Programs. For purposes of the Equity Incentive Programs, net income is the reported net income of the Company for the applicable
fiscal year and is therefore determined after deduction for all incentive plan and other compensation expenses. All award payments under the 2011 Equity Incentive Program were paid in performance restricted stock units (Performance
RSUs). If payable under the 2012 Equity Incentive Program, award payments are expected to be paid in Performance RSUs.
The performance goals under each of the Equity Incentive Programs are qualitatively the same as the Performance Goals under the Cash
Incentive Program, i.e., such goals are based upon the Company earning net income within or above an Eligibility Range for the applicable fiscal year and, with respect to the Executive Vice Presidents, the Personal Goals as set forth above under
Non-equity Incentive Compensation. However, the levels of net income within the Eligibility Ranges for the Equity Incentive Programs are higher than those established under the Cash Incentive Programs. As net income is a key factor in
determining a companys overall financial success, the Compensation Committee believes that using an Eligibility Range based on net income is an appropriate basis for establishing incentive compensation goals.
If the Companys net income is below the Eligibility Range for a particular Equity Incentive Program, no Performance RSUs can be
earned under that program. If the Companys net income is within the Eligibility Range, the number of Performance RSUs which the named executive officers are eligible to earn increases at each new net income level. Awards are not prorated
between income levels. If the Companys net income is at or above the highest level of net income within the Eligibility Range, each named executive officer is eligible to earn his maximum award target.
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The Company earning net income within or above the applicable Eligibility Range is the only
performance goal under each of the Equity Incentive Programs for Mr. Black. With respect to Messrs. Hensley, Merry, Thorne and Ullman, the same Personal Goals applicable to the Cash Incentive Programs are also applicable to the Equity Incentive
Programs.
For the 2012 Equity Incentive Program, the Compensation Committee established for Mr. Black an Eligibility
Range of $99.5 million to $107.3 million of net income and for the Executive Vice Presidents an Eligibility Range of $107.7 million to $109.7 million of net income. If the Company earns net income below the low end of the Eligibility Range, the
applicable participant cannot earn Performance RSUs under this program. At $99.5 million of net income, Mr. Black will be eligible to earn a number of Performance RSUs having a value of up to $178,675; at $107.7 million of net income, each of
the Executive Vice Presidents will be eligible to earn a number of Performance RSUs having a value of up to $50,000. At or above $107.3 million of net income, Mr. Black will be eligible to earn a number of Performance RSUs having a value of up
to $1,965,425; at or above $109.7 million of net income, each of the Executive Vice Presidents will be eligible to earn a number of Performance RSUs having a value of up to $150,000. Between the low and high ends of the Eligibility Ranges, the
number of Performance RSUs which each participant will be eligible to earn will increase at each new net income level. The number of Performance RSUs granted was determined based on $54.48 per unit, the equivalent of the closing price of a share of
common stock on March 27, 2012, the date of grant under the 2012 Equity Incentive Program.
For the 2011 Equity Incentive
Program, the Compensation Committee established for Mr. Black an Eligibility Range of $87.2 million to $94.1 million of net income and for the Executive Vice Presidents an Eligibility Range of $94.5 million to $96.2 million of net income. If
the Company had earned net income below the low end of the Eligibility Range, the applicable participant could not have earned Performance RSUs under this program. If net income had been $87.2 million, Mr. Black would have been eligible to earn
a number of Performance RSUs having a value of up to $178,675; if net income had been $94.5 million, Messrs. Hensley, Merry, Thorne and Ullman would have each been eligible to earn a number of Performance RSUs having a value of up to $50,000. If net
income had been at or above $94.1 million of net income, Mr. Black would have been eligible to earn a number of Performance RSUs having a value of up to $1,965,425; if net income had been at or above $96.2 million of net income, Messrs.
Hensley, Merry, Thorne and Ullman would have each been eligible to earn a number of Performance RSUs having a value of up to $150,000. If net income had been between the low and high ends of the Eligibility Ranges, the number of Performance RSUs
which each participant would have been eligible to earn would have increased at each new net income level. The number of Performance RSUs granted was determined based on $48.72 per unit, the equivalent of the closing price of a share of common stock
on March 29, 2011, the date of grant under the 2011 Equity Incentive Program.
Upon a review of the Companys
performance (which exceeded the maximum net income amount in the Eligibility Range for the 2011 Equity Incentive Program), the Compensation Committee certified the earning of Performance RSUs under the 2011 Equity Incentive Program as follows:
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Named Executive
Officer
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2011 Equity
Incentive
Program
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R. Neal Black
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40,341
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(1)
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Robert B. Hensley
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3,078
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(2)
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Gary M. Merry
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3,078
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(2)
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James W. Thorne
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3,078
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(2)
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David E. Ullman
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3,078
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(2)
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(1)
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Subject to the terms of Mr. Blacks Performance RSU Award Agreement, of the Performance RSUs earned by Mr. Black, 16,242 Performance
RSUs vested on March 29, 2012, 12,050 Performance RSUs will vest on March 29, 2013 and 12,049 Performance RSUs will vest on March 29, 2014.
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(2)
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Subject to the
terms of each Executive Vice Presidents Performance RSU Award Agreement, all of the Performance RSUs earned by each Executive Vice President will vest on March 29, 2014.
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For Fiscal 2011, the Performance RSUs earned by each named executive officer was 100% of his respective maximum award target under the
2011 Equity Incentive Program.
2011 Supplemental Equity Incentive Program
As a special incentive to the named executive officers to achieve extraordinary results in Fiscal 2011, the Compensation Committee
established for the named executive officers a supplemental equity incentive program for Fiscal 2011 (the 2011 Supplemental Equity Incentive Program) pursuant to the Equity Incentive Plan. The 2011 Supplemental Equity Incentive Program
permitted the Company to grant performance-based compensation within the meaning of Section 162(m) of the Internal Revenue Code, thereby preserving the Companys ability to receive federal income tax deductions for those awards
to the extent that they in fact comply with that Code section. If payable under the 2011 Supplemental Equity Incentive Program, award payments were expected to be paid in Performance RSUs.
The performance goals under the 2011 Supplemental Equity Incentive Program were very similar to the performance goals under the 2011 Cash
Incentive Program and the 2011 Equity Incentive Plan, i.e., such goals are based upon the Company earning a certain amount net income for Fiscal 2011 and, with respect to the Executive Vice Presidents, Personal Goals as set forth above under
Non-equity Incentive Compensation. However, instead of being based upon Eligibility Ranges of net income, the 2011 Supplemental Equity Incentive Program was based on a single level of net income. In the event the Company had earned at
least $102.6 million of net income in fiscal 2011 (the Supplemental 2011 Goal), Mr. Black would have been eligible to earn a number of Performance RSUs having a value of up to $250,000 and each of the Executive Vice Presidents would
have been eligible to earn a number of Performance RSUs having a value of up to $100,000. The number of Performance RSUs granted was determined based on $48.72 per unit, the equivalent of the closing price of a share of common stock on
March 29, 2011, the date of grant under the 2011 Supplemental Equity Incentive Program. As the Company did not satisfy the 2011 Supplemental Goal, no awards were payable under the 2011 Supplemental Equity Incentive Program.
Negative Discretion
For each of the Incentive Programs (i.e., the 2011 Cash Incentive Program, the 2011 Equity Incentive Program, the 2011 Supplemental Equity Incentive Program, the 2012 Cash Incentive Program and the 2012
Equity Incentive Program), the Compensation Committee was or is entitled to exercise negative discretion to reduce the amount of a cash award that otherwise would have been payable to, or to reduce the number of Performance RSUs that would otherwise
have been earned by, a named executive officer at any particular level of net income achieved by the Company, even if the Companys net income is within or above the applicable Eligibility Range or level.
In deciding whether, and to what extent, to pay a cash award to, or to certify the earning of Performance RSUs by, an Executive Vice
President, an important factor which may also be considered by the Compensation Committee in exercising its negative discretion is Mr. Blacks evaluation of the individual performance of each Executive Vice President. Mr. Black shall
make a recommendation to the Compensation Committee for a cash and/or equity award to each Executive Vice President at or below the applicable bonus potential based upon his evaluation of the Executive Vice Presidents satisfaction of the
applicable Performance Goals, the Executive Vice Presidents contribution to the performance of the Company and such other factors as Mr. Black may deem relevant.
The final determination of the amount of a cash award that will be paid to, or the number of Performance RSUs that will be earned by, each named executive officer is made by the Compensation Committee;
however,
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the Compensation Committee may not increase the cash award payable to, or the number of Performance RSUs which will be earned by, a named executive officer above the amount or number that is
otherwise applicable at any particular level of net income achieved by the Company. The Incentive Programs do not confer any right or entitlement to the receipt of any cash or equity award.
Other Employee Benefits and Non-Cash Compensation
In addition to the compensation described above, certain perquisites and benefits are provided to our named executive officers in cash,
in-kind or through direct payment to third party providers. The Company believes these perquisites and benefits help us to be competitive in attracting and retaining senior management and are commensurate with the experience and skill of our named
executive officers. In Fiscal 2011, the total value of these perquisites and benefits for the named executive officers ranged from approximately 6.7% to approximately 8.8% of base salary of the applicable named executive officer.
Certain perquisites are provided in accordance with the respective employment agreements of the named executive officers. Messrs. Black,
Hensley, Merry and Thorne each receive a car allowance. Mr. Ullman receives the use of a Company-leased car.
Certain
benefits are made available by the Company under broad-based programs offered to most of our employees, including the named executive officers. Such benefits include insurance for medical, prescription drugs, dental, vision, long-term disability,
life and accidental death and dismemberment and a legal services plan. For each of the named executive officers, the Company pays for these insurance benefits, as well as insurance for up to $2,500 of medical expense reimbursement. The Company also
sponsors a 401(k) plan. The Company has generally elected, from year to year, to make a discretionary contribution to employees 401(k) accounts. In the event the Company elects to make a discretionary contribution, the named executive officers
would be eligible to participate on the same basis as all other eligible employees; provided, however, that the contribution for certain executives may be limited by IRS rules.
In March 2010, the Board adopted the 2010 Deferred Compensation Plan, which is a nonqualified, unfunded plan designed to provide a select
group of the Companys senior management (which includes each of the named executive officers), highly compensated employees and non-employee directors with the opportunity to accumulate capital by deferring compensation on a pre-tax basis. The
2010 Deferred Compensation Plan strengthens the ability of the Company to attract, reward and retain eligible employees and non-employee directors by providing them with a means to defer receipt of cash and shares of common stock associated with
future grants of restricted stock units, performance share awards and certain other cash- and stock-based awards.
Employees
who participate in the 2010 Deferred Compensation Plan may defer either all or none of any restricted stock unit awards and any performance share awards and up to 15% of base salary and up to 25% of cash bonuses and incentive awards. Non-employee
directors who participate in the 2010 Deferred Compensation Plan may defer all or none of any restricted stock unit awards and any other incentive compensation and all or none of their annual retainer fees, committee chairman fees, lead director
fees and meeting fees.
All cash and awards that are to be deferred under the 2010 Deferred Compensation Plan will be deemed
invested in Company common stock equivalent units. In the case of stock-based awards that are deferred, the number of common stock equivalent units credited to a participants account will be based on the number of shares underlying those
awards. In the case of cash deferrals, the number of common stock equivalent units credited to a participants account will be based on the Companys share price on the date of the deemed investment. If stock-based awards are subject to a
vesting condition, the investment in stock unit equivalents will be deemed to occur on the date that the award vests.
In
general (and subject to certain exceptions set forth in the 2010 Deferred Compensation Plan), elections to defer compensation must be made in the tax year prior to the year in which the compensation would otherwise be earned. At the time that an
employee makes each deferral election, he or she may choose between a distribution
21
upon separation from service (subject to a 6-month delay applicable to certain officers) or payment at a scheduled future date of 5 years or 10 years following the end of the year in which that
election becomes irrevocable. Regardless of election, distributions to employees will be made upon the first to occur of (a) separation from service (subject to a 6-month delay applicable to certain officers); (b) occurrence of the 5 or 10
year scheduled distribution date, as applicable; (c) a change in control of the Company; or (d) death. Distributions to Non-Employee Directors will be made upon the first to occur of (x) separation from service; (y) change in
control of the Company; or (z) death. Distributions under the 2010 Deferred Compensation Plan will generally be paid in shares of Company common stock, with fractional shares paid in cash. However, the Companys Compensation Committee has
the discretion to make a determination that distributions be paid in cash or a combination of cash and shares. In the event of an unforeseeable emergency, a participant will be permitted, subject to plan rules, to elect a hardship distribution from
his or her account prior to the otherwise applicable payment date.
The Company also maintains a nonqualified deferred
compensation plan (the Fidelity Deferred Compensation Plan) that is administered by Fidelity Management Trust Company (Fidelity). Under the Fidelity Deferred Compensation Plan, certain executives, including the named
executive officers, are entitled to defer up to 15% of their base salary and up to 25% of their annual non-equity incentive compensation. Effective salary deferral elections must be made by eligible executives prior to the end of the calendar year
with respect to salary amounts to be earned in the following year and effective non-equity incentive compensation deferral elections must be made no later than six months prior to the end of the applicable performance period. Participants in the
Fidelity Deferred Compensation Plan are entitled to direct the investment of the deferred amounts by selecting one or more permissible investment alternatives offered under the plan. Under the Fidelity Deferred Compensation Plan, participants are
entitled to change their investment selection by contacting Fidelity. The Company does not restrict the frequency of changes in the investment selection. Fidelity maintains an excessive trading policy which generally prohibits exchanges in and then
out of a fund option within 30 days (a roundtrip). Under Fidelitys excessive trading policy, participants are limited to one roundtrip transaction per fund within any rolling 90-day period, subject to an overall limit of four
roundtrip transactions across all funds over a rolling 12-month period. The value of the participants investment is based directly on the performance of the underlying mutual funds selected by the participants.
Under the Fidelity Deferred Compensation Plan, a participant is entitled to elect to receive distributions, either in a lump sum or in a
series of substantially equal payments, either at separation of service or at the earlier of separation of service or reaching a pre-selected age. Regardless of any such election made by the participant, a lump sum distribution will automatically be
made upon the earlier to occur of (a) separation of service prior to age 62; (b) death; or (c) a change in control of the Company.
We do not contribute to the Fidelity Deferred Compensation Plan or guarantee or supplement deemed investment returns on the participants accounts. The Fidelity Deferred Compensation Plan essentially
operates as an uninsured, tax-advantaged personal brokerage account of the participant. Participation in this plan does not affect the participants base salary or annual incentive compensation. Amounts deferred under the Fidelity Deferred
Compensation Plan are held in trust for payment of benefits under the plan, subject to the claims of the Companys general creditors.
The 2010 Deferred Compensation Plan and the Fidelity Deferred Compensation Plan provide an opportunity for the participants to save for future financial needs at little cost to the Company. Providing
these nonqualified deferred compensation plans contributes to the Companys attractiveness as an employer by providing the Company with a method of rewarding and retaining these individuals.
For a more detailed discussion of the amounts earned in Fiscal 2011 under the Fidelity Deferred Compensation Plan by our named executive
officers, see the Nonqualified Deferred Compensation table and accompanying narrative below.
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T
AX
AND
A
CCOUNTING
C
ONSIDERATIONS
Section 162(m) of the Internal Revenue Code imposes a
$1 million limit on the tax deductibility of nonperformance-based compensation that is paid to a covered employee (generally, the five executive officers whose compensation is reported to stockholders in a proxy statement). Compensation
that qualifies as performance-based compensation is excluded from the $1 million deductibility cap, and therefore remains fully deductible by the Company. In making compensation design and award decisions, the Company takes
Section 162(m) into account in determining the total compensation cost which may be incurred by the Company. If, consistent with our business needs and without violating contractual obligations, we are able to structure compensation
arrangements to eliminate the negative effects of Section 162(m), we will do so. If, however, the Companys business needs dictate hiring or making compensation decisions which may result in the Company incurring non-deductible
compensation expense, the Company will take such actions as may be necessary to meet those needs. For example, a much sought-after candidate for employment may be able to command in the marketplace compensation arrangements which do not meet the
exceptions to the deductibility limitations under Section 162(m). In Fiscal 2011 and Fiscal 2010, substantially all compensation paid by the Company was deductable without limitation under Section 162(m). We were limited under
Section 162(m) in prior years and may be limited in future years. To mitigate the impact of Section 162(m), the Company adopted the Cash Incentive Plan and the Equity Incentive Plan.
In Fiscal 2006, the Company adopted the Statement of Financial Accounting Standards No. 123R, now codified as FASB ASC Topic 718
Stock Compensation (FASB ASC 718), which generally requires a public entity to measure the cost of employee services received for an award of equity instruments based on the grant-date fair value of the award. The adoption of FASB
ASC 718 had no material effect on our financial statements, because, at the time of the adoption, all options issued under our previous equity incentive plans were fully vested. FASB ASC 718 will govern the expense to the Company associated with any
equity that may be issued under the Equity Incentive Plan. Generally, such equity will be expensed over the associated vesting period established pursuant to an equity award.
COMPENSATION COMMITTEE REPORT
The
Compensation Committee has reviewed and discussed with the management of the Company the foregoing Compensation Discussion and Analysis and, based on such review and discussion, has recommended to the Board that the Compensation Discussion and
Analysis be included in this Proxy Statement.
Respectfully submitted, Compensation Committee:
Sidney H. Ritman (Chairman)
William E. Herron
Henry Homes, III
23
COMPENSATION TABLES
The following tables, narrative and footnotes discuss the compensation of our named executive officers for Fiscal 2011, Fiscal 2010 and
Fiscal 2009. We follow the National Retail Federations 4-5-4 retail calendar, whereby for each fiscal quarter, the first month contains four weeks, the second month contains five weeks and the third month contains four weeks (each
week containing the seven days from Sunday through Saturday). Dividing the retail calendar into 52 weeks of seven days each, or 364 days, leaves an extra day each year to be accounted for in a future fiscal period. As a result every five to six
years a week is added to the fiscal calendar. Fiscal 2012 is a 53 week year. Fiscal 2011, Fiscal 2010 and Fiscal 2009 were all 52 week years.
S
UMMARY
C
OMPENSATION
T
ABLE
The following table sets forth information concerning compensation earned by our named executive officers for Fiscal 2011, Fiscal 2010 and Fiscal 2009.
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Name and
Principal Position
(a)
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Year
(b)
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Salary
($)
(c)
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Bonus
($)
(d)
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Stock
Awards
($)
(e)
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Option
Awards
($)
(f)
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Non-Equity
Incentive Plan
Compensation
($)
(g)
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Change
in
Pension Value
and Nonqualified
Deferred
Compensation
Earnings
($)
(h)
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All Other
Compensation
($)
(i)
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Total
($)
(j)
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R. Neal Black,
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2011
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783,138
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1,965,414
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1,199,675
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52,288
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4,000,515
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President and Chief
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2010
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762,500
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1,924,950
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1,175,000
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74,613
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50,606
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3,987,669
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Executive Officer
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2009
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750,000
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230,000
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1,500,000
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124,708
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42,210
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2,646,918
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David E. Ullman,
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2011
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467,325
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149,960
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305,273
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41,330
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963,888
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Executive Vice
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2010
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457,500
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149,943
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302,250
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29,581
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34,916
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974,190
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President-Chief Financial Officer
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2009
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450,000
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60,000
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292,500
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32,923
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27,466
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862,889
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Robert B. Hensley,
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2011
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492,450
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149,960
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321,685
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38,756
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1,002,851
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Executive Vice President for
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2010
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482,500
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149,943
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318,500
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32,667
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37,002
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1,020,612
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Human Resources, Real Estate
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2009
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475,000
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50,000
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308,750
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56,584
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30,398
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920,732
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and Loss Prevention
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Gary M. Merry,
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2011
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432,500
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149,960
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302,250
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30,944
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915,654
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Executive Vice President for
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2010
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377,500
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149,943
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260,000
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29,239
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816,682
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Store and Catalog Operations
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2009
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355,000
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125,000
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230,750
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23,922
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734,672
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James W. Thorne,
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2011
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407,500
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149,960
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286,000
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32,504
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875,964
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Executive Vice President for
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2010
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362,500
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149,943
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243,750
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30,380
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786,573
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Merchandising and Chief
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2009
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350,000
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125,000
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227,500
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25,871
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728,371
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Merchandising Officer
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Notes to Summary Compensation Table
Bonus
The amounts reported in column (d) represent discretionary bonuses earned for the applicable fiscal year. The Company paid no discretionary bonuses or other compensation which are reportable as
bonuses as defined under SEC rules to the named executive officers in Fiscal 2011 or Fiscal 2010.
Stock and Option
Awards
In Fiscal 2011, the Company issued to each named executive officer a Performance Restricted Stock Unit Award
Agreement. Mr. Black had the opportunity to earn (and subsequently did earn) 40,341 Performance RSUs and each of the Executive Vice Presidents had the opportunity to earn (and subsequently did earn) 3,078 Performance RSUs.
In Fiscal 2010, the Company issued to each named executive officer a Performance Restricted Stock Unit Award Agreement. Mr. Black
had the opportunity to earn (and subsequently did earn) 48,463 Performance RSUs and each of the Executive Vice Presidents had the opportunity to earn (and subsequently did earn) 3,775 Performance RSUs.
24
The Company issued no stock or option awards to the named executive officers in Fiscal 2009.
Amounts reported in column (e) represent the grant date fair value of restricted stock units issued to the named
executive officers, based on the closing price of the Companys common stock on the date of grant.
Non-Equity
Incentive Plan Compensation
The amounts reported in column (g) reflect amounts earned by, and subsequently paid
to, each named executive officer for the applicable fiscal year under the Companys Cash Incentive Program for that year. The non-equity incentive compensation paid to the named executive officers in Fiscal 2012, Fiscal 2011 and Fiscal 2010 for
performance in Fiscal 2011, Fiscal 2010 and Fiscal 2009, respectively, represented the maximum potential awards that could have been earned under the Cash Incentive Programs for those years.
Changes in Pension Value and Nonqualified Deferred Compensation Earnings
The Company does not maintain a pension plan for which the named executive officers are eligible. The amounts set forth in column
(h) represent the above-market earnings, if any, by the named executive officers on their respective accounts in the Fidelity Deferred Compensation Plan. Under SEC regulations, the market rate of interest is deemed to be 120% of the
applicable federal long-term rate. The above-market earnings credited to the participants in the Fidelity Deferred Compensation Plan were calculated as the difference between the return earned on such participants accounts during the
applicable fiscal year and the interest that would have been earned at a rate equal to 120% of the applicable federal long-term rate. None of the participants in the Fidelity Deferred Compensation Plan had above-market earnings in Fiscal 2011.
All Other Compensation
The tables below set forth the components of the amounts reported as All Other Compensation in column (i). These components are: (a) either an allowance for a car or the use of a Company-leased car;
(b) the incremental cost to the Company of a legal services plan and of insurance for health, prescription drugs, medical expense reimbursement, dental, vision, long-term disability, life, and accidental death and dismemberment; and
(c) amounts contributed by the Company for the named executive officer under the Companys 401(k) plan. Except with respect to Mr. Ullman, the amounts shown in column (a) below are cash allowances and reflect the actual dollar
amounts paid in the applicable fiscal year. With respect to Mr. Ullman, the amount shown in column (a) reflects the value of Mr. Ullmans personal use of a Company-leased car during the applicable fiscal year.
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Named Executive
Officer
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Fiscal 2011 All Other
Compensation
($)
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(a)
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(b)
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(c)
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Total
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R. Neal Black
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19,200
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27,698
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5,390
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52,288
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David E. Ullman
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15,941
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19,999
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5,390
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41,330
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Robert B. Hensley
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9,600
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23,766
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5,390
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38,756
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Gary M. Merry
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9,600
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15,954
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5,390
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30,944
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James W. Thorne
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9,600
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17,514
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5,390
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32,504
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Named Executive
Officer
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Fiscal 2010 All Other
Compensation
($)
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(a)
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(b)
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(c)
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Total
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R. Neal Black
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19,200
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26,261
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5,145
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50,606
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David E. Ullman
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9,946
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19,825
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5,145
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34,916
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|
Robert B. Hensley
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9,600
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22,257
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5,145
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37,002
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Gary M. Merry
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9,600
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14,494
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5,145
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29,239
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James W. Thorne
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9,600
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15,635
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5,145
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30,380
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25
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Named Executive
Officer
|
|
Fiscal 2009 All Other
Compensation
($)
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(a)
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(b)
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(c)
|
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Total
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R. Neal Black
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19,200
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18,582
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4,428
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42,210
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David E. Ullman
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9,068
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13,970
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4,428
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27,466
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Robert B. Hensley
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9,600
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16,370
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4,428
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30,398
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Gary M. Merry
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9,600
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11,876
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2,446
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23,922
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James W. Thorne
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9,600
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11,843
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4,428
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25,871
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F
ISCAL
2011 G
RANTS
OF
P
LAN
-B
ASED
A
WARDS
The following table sets forth information
concerning grants of non-equity and equity awards earned by our named executive officers for Fiscal 2011 under the 2011 Cash Incentive Program and 2011 Equity Incentive Program.
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Grant
Date
(b)
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Estimated Future
Payouts Under
Non-
Equity Incentive Plan Awards
(1)
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Estimated Future
Payouts
Under
Equity Incentive Plan
Awards
(2)
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All Other
Stock
Awards:
Number
of Shares
of Stock
or Units
(3)
(#)
(i)
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All Other
Option
Awards:
Number of
Securities
Underlying
Options
(4)
(#)
(j)
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Exercise
or Base
Price of
Option
Awards
($/sh)
(k)
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Grant
Date Fair
Value of
Stock and
Option
Awards
($)
(l)
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Name
(a)
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Threshold
($)
(c)
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Target
($)
(d)
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Maximum
($)
(e)
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Threshold
(#)
(f)
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Target
(#)
(g)
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Maximum
(#)
(h)
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R. Neal Black
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3/29/2011
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474,765
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1,199,675
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1,199,675
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3,667
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40,341
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40,341
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|
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|
1,965,414
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|
David E. Ullman
|
|
|
3/29/2011
|
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|
46,965
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|
|
|
305,273
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|
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|
305,273
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|
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|
1,026
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|
|
|
3,078
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|
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|
3,078
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
149,960
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|
Robert B. Hensley
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|
|
3/29/2011
|
|
|
|
49,490
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|
|
|
321,685
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|
|
|
321,685
|
|
|
|
1,026
|
|
|
|
3,078
|
|
|
|
3,078
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
149,960
|
|
Gary M. Merry
|
|
|
3/29/2011
|
|
|
|
46,500
|
|
|
|
302,250
|
|
|
|
302,250
|
|
|
|
1,026
|
|
|
|
3,078
|
|
|
|
3,078
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
149,960
|
|
James W. Thorne
|
|
|
3/29/2011
|
|
|
|
44,000
|
|
|
|
286,000
|
|
|
|
286,000
|
|
|
|
1,026
|
|
|
|
3,078
|
|
|
|
3,078
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
149,960
|
|
(1)
|
This column
presents information about potential payouts under the Companys 2011 Cash Incentive Program. The actual non-equity incentive payment for performance in Fiscal 2011 was paid to the named executive officers in March 2012. All such payments are
reflected in the Summary Compensation Table under the column heading Non-Equity Incentive Plan Compensation. For a more detailed description of the 2011 Cash Incentive Program, see the Non-Equity Incentive Compensation
section of the Compensation Discussion and Analysis above. The 2011 Cash Incentive Program does not specify a target amount; therefore the respective amounts in the target column are representative amounts based on the
Companys actual Fiscal 2011 performance. The threshold amount represents the amount payable at the lowest net income level at which any award was payable and the maximum is the amount payable at the highest net income
level. If the Companys Fiscal 2010 financial performance was used in the determination of non-equity incentive compensation for the named executive officers in respect of the performance under the 2011 Cash Incentive Program, the named
executive officers would not have earned non-equity incentive compensation for Fiscal 2011 because the minimum net income threshold established under the 2011 Cash Incentive Program was in excess of Fiscal 2010 net income.
|
(2)
|
This column
presents information about potential payouts under the Companys 2011 Equity Incentive Program. The actual equity incentive payments for performance in Fiscal 2011 were earned by the named executive officers in March 2012. All such payments are
reflected in the Summary Compensation Table under the column heading Stock Awards. For a more detailed description of the 2011 Equity Incentive Program, see the Equity Incentive Compensation section of the Compensation
Discussion and Analysis above. The 2011 Equity Incentive Program does not specify a target amount; therefore the respective amounts in the target column are representative amounts based on the Companys actual Fiscal
2011 performance. The threshold amount is the number of Performance RSUs issuable at the lowest net income level at which any Performance RSUs could be earned and the maximum is the number of Performance RSUs issuable at the
highest net income level. If the Companys Fiscal 2010 financial performance was used in the determination of equity incentive compensation for the named executive officers in respect of the performance under the 2011 Equity Incentive Program,
the named executive officers would not have earned equity incentive compensation for Fiscal 2011 because the minimum net income threshold established under the 2011 Equity Incentive Program was in excess of Fiscal 2010 net income.
|
26
(3)
|
The Company did
not grant any stock awards not otherwise disclosed in Fiscal 2011.
|
(4)
|
The Company did
not grant any option awards in Fiscal 2011.
|
N
ARRATIVE
D
ISCLOSURE
TO
S
UMMARY
C
OMPENSATION
T
ABLE
AND
G
RANTS
OF
P
LAN
-B
ASED
A
WARDS
T
ABLE
Employment Agreements
We had employment agreements with all of our named executive officers during Fiscal 2011. The material terms of each employment agreement
are discussed below. Each named executive officer is entitled to certain payments following the termination of his employment with the Company. Set forth in the section below entitled Potential Payments on Termination or Change in
Control is information regarding potential payments on termination or change in control which may, under certain circumstances, be due to each named executive officer.
R. Neal Black
Mr. Black is employed by the Company pursuant to
an amended and restated employment agreement that expires on January 26, 2013. Mr. Blacks annualized base salary is $791,275. The employment agreement provides for an annual incentive opportunity of up to 400% of base salary based
upon the achievement of annual performance goals. If earned, not less than 150% of base salary is payable in cash as incentive compensation. The balance of the incentive compensation, if any, may be paid in equity. The earned equity incentive
compensation, if any, equal to the first 100% of base salary will vest on the later to occur of (a) the first anniversary of the equity grant date or (b) the date on which the Compensation Committee determines the degree to which the
performance goals have been met. One-half of any additional earned equity bonus will vest on each of the second and third anniversaries of the grant date. The employment agreement also provides for benefits, perquisites, severance and an agreement
not to compete with the Company, each of which is described in this Proxy Statement. Mr. Black was elected to the Board in December 2008 concurrently with his appointment as our Chief Executive Officer. Mr. Blacks employment
agreement provides that he will serve without additional compensation as a director of the Company and, if he should so desire, any of its subsidiaries. Mr. Black has agreed to resign any and all such directorships concurrently with the
expiration or other termination of his employment under the employment agreement.
David E. Ullman, Robert B. Hensley,
Gary M. Merry and James W. Thorne
Each of the Executive Vice Presidents is employed pursuant to an employment
agreement that expires on February 1, 2014. Each of these employment agreements provides for an annual base salary and an annual non-equity incentive opportunity of up to 65% of base salary based upon the achievement of annual performance
goals. Base salary increases and potential equity incentive compensation are in the discretion of the Compensation Committee. Although the base salary levels of the Executive Vice Presidents have historically been adjusted each year, no adjustments
were made for Fiscal 2012. Each of these employment agreements also provides for benefits, perquisites, severance and the executive officers agreement not to compete with the Company, each of which is described in this Proxy Statement.
The Compensation Discussion and Analysis section above includes a detailed description of our non-equity incentive
compensation program and our equity incentive program.
27
Awards under our Non-Equity Incentive Compensation Program and our Equity Incentive
Program
The Compensation Discussion and Analysis section above includes a detailed description of our non-equity
incentive compensation program and our equity incentive program, as well as awards granted thereunder in 2011. Any dividends or other distributions paid to holders of record of the Companys stock will accrue on the Performance RSUs awarded to
the named executive officers and reported in the Grants of Plan-Based Awards Table above from and after the date of grant. These dividends or other distributions will accrue in an amount equal to the product of (i) the amount of such dividend
or distribution paid with respect to one share of the Companys stock and (ii) the number of Performance RSUs granted, divided by the fair market value of one share of stock on the applicable dividend or distribution payment date for the
dividend or other distribution. All accrued amounts will be credited to the named executive officers in the form of additional restricted stock units on such date. These so-called Dividend Equivalents will not be paid to the named
executive officers until settlement of their Performance RSUs in stock of the Company.
O
UTSTANDING
E
QUITY
A
WARDS
AT
F
ISCAL
2011 Y
EAR
-E
ND
The following table reflects option awards and
stock awards outstanding as of January 28, 2012.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
Name
(a)
|
|
Number of
Securities
Underlying
Unexercised
Options
(1)
(#)
Exercisable
(b)
|
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
(c)
|
|
|
Equity
Incentive
Plan Awards:
Number
of
Securities
Underlying
Unexercised
Unearned
Options
(#)
(d)
|
|
|
Option
Exercise Price
($)
(e)
|
|
|
Option
Expiration
Date
(f)
|
|
|
Number
of Shares
or Units
of Stock
that
have not
Vested
(2)
(#)
(g)
|
|
|
Market
Value of
Shares or
Units of
Stock
that
have not
Vested
($)
(h)
|
|
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
that have
not
Vested
(2)
(#)
(i)
|
|
|
Equity
Incentive
Plan
Awards:
Market or
Payout
Value of
Unearned
Shares,
Units
or
Other
Rights
that have
not
Vested
($)
(j)
|
|
R. Neal Black
|
|
|
45,558
|
|
|
|
|
|
|
|
|
|
|
|
6.58
|
|
|
|
3/14/13
|
|
|
|
28,951
|
|
|
|
1,391,385
|
|
|
|
40,341
|
|
|
|
1,938,788
|
|
David E. Ullman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,775
|
|
|
|
181,427
|
|
|
|
3,078
|
|
|
|
147,929
|
|
Robert B. Hensley
|
|
|
27,349
|
|
|
|
|
|
|
|
|
|
|
|
6.58
|
|
|
|
3/14/13
|
|
|
|
3,775
|
|
|
|
181,427
|
|
|
|
3,078
|
|
|
|
147,929
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,775
|
|
|
|
181,427
|
|
|
|
3,078
|
|
|
|
147,929
|
|
James W. Thorne
|
|
|
17,577
|
|
|
|
|
|
|
|
|
|
|
|
6.58
|
|
|
|
3/14/13
|
|
|
|
3,775
|
|
|
|
181,427
|
|
|
|
3,078
|
|
|
|
147,929
|
|
(1)
|
Of the options granted to Messrs. Black and Hensley, 20% vested on March 14, 2003; 40% vested on March 14, 2004; and 40% vested on
March 14, 2005. Of the options granted to Mr. Thorne, one-third vested on March 14 of 2003, 2004 and 2005. Each option expires on the tenth anniversary of its grant date.
|
(2)
|
The Equity Incentive Plan Awards referred to in the above table are the Performance RSUs granted to the named executive officers under the 2010 and
2011 Equity Incentive Programs. Column (g) represents the number of Performance RSUs granted to the named executive officers under the 2010 Equity Incentive Program. These Performance RSUs have been earned based on the satisfaction of the
relevant performance goals, but have not vested because the relevant time-based vesting periods have not yet lapsed. Column (i) represents the number of Performance RSUs granted to the named executive officers under the 2011 Equity Incentive
Program. As of Fiscal 2011 year-end, these Performance RSUs had not been earned. The relevant performance goals were based on Company and personal performance in Fiscal 2011 and the satisfaction of those goals was not certified by the Compensation
Committee until March 2012 (after the effective date of the above-table). Subject to the terms of their respective Performance RSU Award Agreements, the Performance RSUs are scheduled to vest as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010 Grants
|
|
|
|
6/17/2012
|
|
|
6/17/2013
|
|
|
Total
|
|
R. Neal Black
|
|
|
14,476
|
|
|
|
14,475
|
|
|
|
28,951
|
|
David E. Ullman
|
|
|
|
|
|
|
3,775
|
|
|
|
3,775
|
|
Robert B. Hensley
|
|
|
|
|
|
|
3,775
|
|
|
|
3,775
|
|
Gary Merry
|
|
|
|
|
|
|
3,775
|
|
|
|
3,775
|
|
James W. Thorne
|
|
|
|
|
|
|
3,775
|
|
|
|
3,775
|
|
28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2011 Grants
|
|
|
|
3/29/2012
|
|
|
3/29/2013
|
|
|
3/29/2014
|
|
|
Total
|
|
R. Neal Black
|
|
|
16,242
|
|
|
|
12,050
|
|
|
|
12,049
|
|
|
|
40,341
|
|
David E. Ullman
|
|
|
|
|
|
|
|
|
|
|
3,078
|
|
|
|
3,078
|
|
Robert B. Hensley
|
|
|
|
|
|
|
|
|
|
|
3,078
|
|
|
|
3,078
|
|
Gary Merry
|
|
|
|
|
|
|
|
|
|
|
3,078
|
|
|
|
3,078
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
3,078
|
|
|
|
3,078
|
|
F
ISCAL
2011 O
PTION
E
XERCISES
AND
S
TOCK
V
ESTED
The following table
provides information regarding option awards exercised by the named executive officers and stock awards that vested during Fiscal 2011.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
Name (a)
|
|
Number of
Shares
Acquired on
Exercise
(#)
(b)
|
|
|
Value
Realized
on
Exercise
($)
(c)
|
|
|
Number of
Shares
Acquired on
Vesting
(#)
(d)
|
|
|
Value
Realized
on
Vesting
($)
(e)
|
|
R. Neal Black
|
|
|
32,703
|
|
|
|
1,420,373
|
|
|
|
19,512
|
|
|
|
911,210
|
|
David E. Ullman
|
|
|
158,201
|
|
|
|
6,609,506
|
|
|
|
|
|
|
|
|
|
Robert B. Hensley
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes to Fiscal 2011 Option Exercises and Stock Vested Table
Value Realized on Exercise of Option Awards
At the time of exercise of his options, Mr. Black did not sell any of the acquired common stock. The dollar amount realized upon exercise has been determined as the difference between the market
price of the shares at exercise (based on the closing price on the date of exercise) and the exercise price of the options.
Of the 158,201 shares of common stock acquired by Mr. Ullman upon exercise of his options, Mr. Ullman sold 62,810 shares and
held 95,391 shares. As to the 62,810 shares which were sold, the dollar amount realized upon exercise has been determined as the difference between the market price of the shares sold (based on the actual sale prices per share obtained by
Mr. Ullman) and the exercise price of the options. As to the 95,391 shares that Mr. Ullman held, the dollar amount realized upon exercise has been determined as the difference between the market price of the shares at exercise (based on
the closing price on the date of exercise) and the exercise price of the options.
Value Realized on Vesting of Stock
Awards
The value realized on the vesting of Mr. Blacks stock award has been determined as the market price
of the shares at vesting (based on the closing price on the date of vesting) multiplied by the number of shares acquired on vesting.
P
ENSION
B
ENEFITS
The Pension Benefits table is omitted as the Company does not offer pension benefits to the named executive officers.
29
F
ISCAL
2011 N
ONQUALIFIED
D
EFERRED
C
OMPENSATION
The following table shows the nonqualified deferred
compensation benefits for each named executive officer during Fiscal 2011 under the Fidelity Deferred Compensation Plan.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
(a)
|
|
Executive
Contributions
in Last FY
($)
(b)
|
|
|
Registrant
Contributions
in Last FY ($)
(c)
|
|
|
Aggregate
Earnings/(Losses)
in Last FY
($)
(d)
|
|
|
Aggregate
Withdrawals/
Distributions
($)
(e)
|
|
|
Aggregate
Balance
at Last
FYE
($)
(f)
|
|
R. Neal Black
|
|
|
|
|
|
|
|
|
|
|
10,043
|
|
|
|
|
|
|
|
728,283
|
|
David E. Ullman
|
|
|
60,450
|
|
|
|
|
|
|
|
1,229
|
|
|
|
|
|
|
|
375,665
|
|
Robert B. Hensley
|
|
|
31,850
|
|
|
|
|
|
|
|
9,130
|
|
|
|
|
|
|
|
432,248
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The amount reported in column (b) above for Mr. Ullman is included in the amount reported for
Mr. Ullman in the Summary Compensation Table as Non-Equity Incentive Plan Compensation (column (g)) for Fiscal 2010. The amount reported in column (b) above for Mr. Hensley is included in the amount reported for
Mr. Hensley in the Summary Compensation Table as Non-Equity Incentive Plan Compensation (column (g)) for Fiscal 2010. Such non-equity incentive compensation was earned by Messrs. Ullman and Hensley for performance in Fiscal 2010 and
is therefore reported in the Summary Compensation Table as Fiscal 2010 compensation. However, such compensation was payable to, and was therefore deferred by, Messrs. Ullman and Hensley in Fiscal 2011.
The amounts reported in column (d) above represent the aggregate earnings (which include interest, dividends, dividend equivalents
and realized and unrealized gains and losses) on each named executive officers investment in the applicable named executive officers selected funds. Pursuant to SEC regulations, all earnings on nonqualified deferred compensation in
excess of 120% of the applicable federal long-term rate are deemed above market earnings and are reported in column (h) of the Summary Compensation Table.
Included in the amounts reported in column (f) above are amounts reported for Mr. Black, Mr. Ullman and Mr. Hensley in the Summary Compensation Table as Salary (column
(c)), Bonus (column (d)) and/or Non-Equity Incentive Plan Compensation (column (g)). For Mr. Black, the deferred amount was $34,615 for Fiscal 2009. For Mr. Ullman the deferred amounts were $35,212 for Fiscal 2009,
$112,644 for Fiscal 2010 and $60,450 for Fiscal 2011. For Mr. Hensley the deferred amounts were $33,375 for Fiscal 2009, $35,875 for Fiscal 2010 and $31,850 for Fiscal 2011.
The Compensation Discussion and Analysis above includes a detailed description of our deferred compensation plans, including the types of
compensation permitted to be deferred, limitations on deferral and other material terms.
P
OTENTIAL
P
AYMENTS
ON
T
ERMINATION
OR
C
HANGE
IN
C
ONTROL
The table below contains
information concerning potential payments on termination or change in control which may be due under the respective employment agreements with our named executive officers based on the assumption that the event triggering such payments had taken
place on the last day of Fiscal 2011. Non-equity incentive compensation earned by our named executive officers for Fiscal 2011 (award payments under the 2011 Cash Incentive Program) was actually paid in March 2012. If the employment agreements had
terminated on January 28, 2012 (the last day of Fiscal 2011), which they did not, the award payments under the 2011 Cash Incentive Program would still have been paid in March 2012. The 2011 non-equity incentive compensation would not have been
paid twice. Columns (b) through (f) each represent a different circumstance under which
30
payments may potentially be due pursuant to the employment agreements. The Total in any one column for any one named executive officer represents that officers maximum potential
payment under the applicable circumstance. The Totals are independent of one another and not cumulative for any one named executive officer.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
(a)
|
|
Termination
without
Cause by
Company or
for Good
Reason
by
Executive
($)
(b)
|
|
|
Termination
by Company
for Cause
($)
(c)
|
|
|
Termination
by Executive
without Good
Reason or as a
Result of
the
Death or
Disability of
Executive
($)
(d)
|
|
|
Expiration
at the
Election of
Company
($)
(e)
|
|
|
Termination
within 90
Days of a
Change in
Control
(1)
($)
(f)
|
|
R. Neal Black
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination Payment
|
|
|
1,550,000
|
|
|
|
|
|
|
|
|
|
|
|
775,000
|
|
|
|
1,550,000
|
|
2011 Non-Equity Incentive Compensation
|
|
|
1,199,675
|
|
|
|
1,199,675
|
|
|
|
1,199,675
|
|
|
|
1,199,675
|
|
|
|
1,199,675
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
2,749,675
|
|
|
|
1,199,675
|
|
|
|
1,199,675
|
|
|
|
1,974,675
|
|
|
|
2,749,675
|
|
David E. Ullman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
704,475
|
|
|
|
|
|
|
|
|
|
|
|
704,475
|
|
|
|
|
|
2011 Non-Equity Incentive Compensation
|
|
|
305,273
|
|
|
|
305,273
|
|
|
|
305,273
|
|
|
|
305,273
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
1,009,748
|
|
|
|
305,273
|
|
|
|
305,273
|
|
|
|
1,009,748
|
|
|
|
|
|
Robert B. Hensley
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
494,900
|
|
|
|
|
|
|
|
|
|
|
|
494,900
|
|
|
|
|
|
2011 Non-Equity Incentive Compensation
|
|
|
321,685
|
|
|
|
321,685
|
|
|
|
321,685
|
|
|
|
321,685
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
816,585
|
|
|
|
321,685
|
|
|
|
321,685
|
|
|
|
816,585
|
|
|
|
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
465,000
|
|
|
|
|
|
|
|
|
|
|
|
465,000
|
|
|
|
|
|
2011 Non-Equity Incentive Compensation
|
|
|
302,250
|
|
|
|
302,250
|
|
|
|
302,250
|
|
|
|
302,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
767,250
|
|
|
|
302,250
|
|
|
|
302,250
|
|
|
|
767,250
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
440,000
|
|
|
|
|
|
|
|
|
|
|
|
440,000
|
|
|
|
|
|
2011 Non-Equity Incentive Compensation
|
|
|
286,000
|
|
|
|
286,000
|
|
|
|
286,000
|
|
|
|
286,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
726,000
|
|
|
|
286,000
|
|
|
|
286,000
|
|
|
|
726,000
|
|
|
|
|
|
(1)
|
A change in control is not a triggering event for a payment to any of the executive vice presidents under their respective employment agreements. In
the event the employment agreement for one of the executive vice presidents is terminated within 90 days of a change in control, the termination payment would be calculated based upon the circumstances described in the notes to columns (b),
(c) or (d), as applicable.
|
Notes to Potential Payments on Termination or Change in Control
Table
Termination without Cause by Company or for Good Reason by Executive (Column (b))
Under the terms of the respective employment agreements with our named executive officers, if the employment period is terminated by the
Company without cause (as defined below) or by the executive for good reason (as defined below), the Company will be obligated to make a termination payment, in addition to paying the executives base salary through the
date of termination. For Mr. Black, the termination payment is an agreed-upon amount payable in one lump sum on the last day of the employment period. For Messrs. Ullman, Hensley, Merry and Thorne the termination payment is based on the named
executive officers base salary in effect as of the last day of Fiscal 2011 and is payable in equal weekly installments over the term corresponding to the amount due. Mr. Ullman is entitled to 18 months of salary. Messrs. Hensley, Merry
and Thorne are each entitled to 12 months of salary. A named executive officer whose employment period is terminated by the
31
Company without cause or by the executive for good reason will also receive any non-equity incentive compensation which may have been earned through the date of termination. The non-equity
incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for
which such compensation is earned.
Without limiting the terms and conditions of the respective employment agreements between
our named executive officers and the Company, the term cause, as used in the employment agreements, generally means with respect to each named executive officer: (a) the conviction of a felony involving money or other property of
the Company or any other felony or offense involving moral turpitude; (b) the willful commission of an act not approved of or ratified on behalf of the Company involving a material conflict of interest or self-dealing relating to any material
aspect of the Companys business or affairs; (c) the willful commission of any act of fraud or misrepresentation related to the business of the Company which would materially and negatively impact upon the Company; or (d) the willful
and material failure to comply with the lawful orders of the Company, provided such orders are consistent with the duties, responsibilities and/or authority of his office.
Without limiting the terms and conditions of the respective employment agreements between our named executive officers and the Company, the term good reason, as used in the employment
agreements, generally means any material breach by the Company of any provision of the employment agreement which, if susceptible of being cured, is not cured within thirty (30) days after notice. However, the cure period applicable to any
failure timely to pay (or any reduction in) compensation or benefits paid or payable to the named executive officer pursuant to the employment agreement is seven (7) days after delivery of notice thereof to the Company.
Termination by Company for Cause (Column (c))
Under the terms of the respective employment agreements between our named executive officers and the Company, if the employment period is terminated by the Company for cause, the named executive officer
will be paid his base salary through the date of termination and any non-equity incentive compensation earned through the date of termination, but is not entitled to any other payments. The non-equity incentive compensation is payable as and when
such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned.
Termination by Executive without Good Reason or as a Result of the Death or Disability of Executive (Column (d))
Under the terms of the respective employment agreements between our named executive officers and the Company, if the
employment period is terminated by the named executive officer without good reason or as a result of his death or disability, the named executive officer will be paid his base salary through the date of termination and any non-equity incentive
compensation earned through the date of termination, but is not entitled to any other payments. The non-equity incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly
following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned.
Expiration at the Election of Company (Column (e))
Under the terms
of the respective employment agreements between our named executive officers and the Company, in the event the Company elects not to renew the employment agreement or to otherwise extend employment on the then current terms for an additional year,
the named executive officer will be entitled to severance payments. For Mr. Black, the termination payment is an agreed-upon amount payable in one lump sum on the last day of the employment period. For Messrs. Ullman, Hensley, Merry and Thorne
the termination payment is based on the named executive officers base salary in effect as of the last day of Fiscal 2011 and is
32
payable in equal weekly installments over the term corresponding to the amount due. Mr. Ullman is entitled to 18 months of salary. Messrs. Hensley, Merry and Thorne are each entitled to 12
months of salary. A named executive officer whose employment agreement is not being renewed by the Company will also receive any non-equity incentive compensation which may have been earned for the year ending on the stated expiration date of the
employment period. The non-equity incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days
following the end of the year for which such compensation is earned.
Termination within 90 Days of a Change in Control
(Column (f))
Mr. Black may terminate his employment agreement with the Company at any time within 90 days
following a change in control (as defined below) of the Company. In the event of such termination, or if the Company terminates the employment agreement for cause within 90 days following a change in control, the Company will make the
payments to Mr. Black as set forth in the table above. The termination payment is payable on the last day of the employment period. The non-equity incentive compensation is payable as and when such compensation would have been paid had the
employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned. In the event the employment agreement for one of the
executive vice presidents is terminated within 90 days of a change in control, the termination payment would be calculated based upon the circumstances described in the notes to columns (b), (c) or (d), as applicable. A change in control does
not affect the calculation of these termination payments.
Without limiting the terms and conditions of Mr. Blacks
employment agreement with the Company, the term change of control, as used in the employment agreement, generally means (a) the acquisition by any person (as defined in the Exchange Act) of beneficial ownership of 51% or
more of the stock of the Company; (b) the acquisition by any such person of beneficial ownership of 30% or more of the stock of the Company and a change in the majority of the Board; or (c) the merger, consolidation or
liquidation of the Company or the sale or disposition of all or substantially all of the assets of the Company.
Additional Notes Regarding Potential Post-Employment Payments and Obligations
Non-Equity Incentive Compensation
The employment agreements use the word bonus to refer to payments which are designated as non-equity incentive compensation under SEC regulations and in this Proxy Statement. The
employment agreements generally provide that in the event the employment period ends for any reason whatsoever on a day prior to payment of any bonus the named executive officer may have earned for the previous fiscal year, the Company will pay such
bonus to the named executive officer as and when such bonus would otherwise have been paid had the employment period not ended. The employment agreements also generally provide that when and if bonuses are generally paid to employees of the Company
for the fiscal year in which the termination occurs, the Company will pay to the named executive officer a pro-rated bonus based on the number of days the named executive officer was employed by the Company during such fiscal year. For the purpose
of determining eligibility for payment of a pro-rata bonus, it is assumed that all conditions to payment of the bonus which were based upon performance by the named executive officer (e.g., a job performance rating of Effective or
better) were satisfied.
Non-compete Covenants
Following the termination of an employment agreement, the applicable named executive officer is generally subject to non-compete
covenants. The period of time during which such covenants are in effect varies depending upon the circumstances of termination. Generally, the non-competition term is six months. If the named executive officer resigns without good reason, the term
is 12 months. If post-termination payments are being
33
made for longer than the otherwise applicable period, the non-compete covenants will be effective while such payments are being made. If the Company terminates Mr. Blacks employment
agreement for cause, the non-competition term is six months. If the Company elects not to renew Mr. Blacks employment agreement, the non-competition term is one year. If the Company terminates Mr. Blacks employment agreement
without cause or Mr. Black terminates his employment agreement for good reason or within 90 days following a change in control, the non-competition term is two years.
PROPOSALS REQUIRING STOCKHOLDER APPROVAL
PROPOSAL ONE-ELECTION OF DIRECTORS
Effective as of the Annual Meeting, and until the Board shall determine
otherwise, the Board will consist of six members and is divided into three classes. Each class holds office for a term of three years. This years nominees for director, Andrew A. Giordano and William E. Herron (individually, a Director
Nominee and together, the Director Nominees), are currently directors of the Company. Each Director Nominee was nominated by our Nominating and Corporate Governance Committee for reelection to the Board for a term of three years
expiring at the 2015 Annual Meeting of Stockholders. Each director so elected shall hold office until his or her successor shall be duly elected or qualified, or until his or her earlier death, resignation or removal.
If either of the Director Nominees should become unavailable for election at the time of the Annual Meeting, the shares represented by
the proxies solicited for the Annual Meeting will be voted for such substitute nominee(s) as may be determined by the Nominating and Corporate Governance Committee. The Board expects that both of the Director Nominees will be able to serve as
directors if re-elected at the Annual Meeting. In the election of the directors, you may vote FOR, AGAINST or ABSTAIN with respect to either or both of the nominees. Unless a proxy card is marked
AGAINST or ABSTAIN with respect to a Director Nominee, the shares represented by the accompanying proxy will be voted FOR the election of such Director Nominee.
The election of each Director Nominee requires the affirmative vote of a majority of the total votes cast for and against such nominee at
the Annual Meeting.
Certain information concerning the Director Nominees and those directors whose terms of office will
continue following the Annual Meeting is set forth below, including their specific experience, qualifications and skills that led the Board to conclude that each of those individuals should continue to serve as a director. As of January 29,
1994, the Companys stockholders entered into an Amended and Restated Shareholders Agreement (the Shareholders Agreement) pursuant to which Mr. Giordano was elected as the designee of Altus Finance Co. and Mr. Wildrick was
elected as the designee of the majority of the directors then in office. The provisions of the Shareholders Agreement relating to the election of the directors terminated effective upon the closing of the Companys initial public offering of
the Common Stock in May 1994.
R
ECOMMENDATION
OF
THE
B
OARD
O
F
D
IRECTORS
The Board recommends that
the stockholders vote FOR the election of Messers Giordano and Herron.
D
IRECTOR
N
OMINEES
S
TANDING
FOR
E
LECTION
FOR
T
ERMS
E
XPIRING
I
N
2015
Andrew A. Giordano
Andrew A. Giordano has served as one of our directors since 1994 and is chairman of our Nominating and Corporate Governance Committee. He served as our interim Chief Executive Officer from May 1999 to
October 1999. Mr. Giordano also served as Chairman of the Board from May 1999 to December 2008, at which time he became Chairman Emeritus. Mr. Giordano continues to serve as Lead Independent Director, a position he
34
assumed in November 1999. Mr. Giordano has been the principal of The Giordano Group, Limited, a diversified consulting firm, since its founding in February 1993. He also serves as Chairman
of the Compensation Committee of Dale Carnegie, a privately owned provider of personal advancement training, where he has been a Director since 2001. Since January 2009, Mr. Giordano has been a director of Hurd Windows and Doors of Wausau,
Wisconsin, a privately owned manufacturer and retailer. Mr. Giordano retired from his position as CEO, Naval Supply Systems Command and Chief, Navy Supply Corps with the rank of Rear Admiral (Upper Half). He is a former director of the Navy,
Marine Corps Residence Foundation, the Navy Memorial Foundation, the Navy Mutual Aid Association and the Navy Federal Credit Union.
The Board concluded that Mr. Giordano should continue to serve as a director in part due to his extensive knowledge of the Company. Having been a director since 1994, Mr. Giordano brings to the
Board historic knowledge and continuity. In addition, his substantial leadership and organizational skills provide valuable perspective on the complex operations of a multi-location, multi-channel retailer such as the Company.
William E. Herron
William E. Herron has served as one of our directors since April 2005 and is chairman of our Audit Committee. Since January 2002, Mr. Herron has been self-employed as a strategic consultant to
companies seeking to initiate business with the federal government. From 1982 through December 2001, Mr. Herron was a partner in Arthur Andersen, having served in its Accounting and Audit practice from 1982 until 1994 and in its Business
Consulting practice from 1995 until 2001. Among his other duties with Arthur Andersen, Mr. Herron was the Managing Partner of the firms Office of Government Services. Mr. Herron was a licensed CPA for over 30 years and is a current
member of the American Institute of Certified Public Accountants and Pennsylvania Institute of Certified Public Accountants. He has served on the boards of directors of several privately held companies including as chair of an audit committee. He
has been active for over 30 years on boards of civic and charitable institutions. Mr. Herron is a retired Rear Admiral from the U.S. Naval Reserve.
The Board concluded that Mr. Herron should continue to serve as a director in part due to his extensive career in public accounting, which brings to the Board significant auditing and accounting
experience.
D
IRECTORS
W
HOSE
T
ERMS
E
XPIRE
I
N
2014
R. Neal Black
R. Neal Black has served as one of our directors and as our Chief Executive Officer since December 2008. Mr. Black has been our
President since April 2007. He joined the Company in January 2000 and served as Executive Vice President-Merchandising and Marketing from January 2000 to April 2007. In addition, Mr. Black was our Chief Merchandising Officer from January 2000
to December 2008. Mr. Black has spent his entire professional career in the retail industry including: from 1998 to 2000, with McRaes department stores, a division of Saks Incorporated, as Senior Vice President/General Merchandise
Manager; from 1995 to 1998, with Venture Stores, Inc., a publicly traded family value retailer, ending as Senior Vice President of Product Development and General Merchandise Manager; from 1992 to 1995, with Gottschalks Department Stores, a regional
department store headquartered in Fresno, California, ending as Vice President/General Merchandise Manager; from 1983 to 1992, with Design Linens, Inc., a privately-owned specialty retail chain headquartered in Portland, Oregon, ending as President;
and from 1976 to 1983, with Meier & Frank, a division of May Department Stores, ending as a Buyer.
The Board
concluded that Mr. Black should continue to serve as a director in part due to his extensive career in retail. As our CEO, Mr. Black brings to the Board significant industry knowledge, senior leadership and expertise in merchandising,
marketing, sales and finance.
35
Robert N. Wildrick
Robert N. Wildrick has served as one of our directors since 1994 and is chairman of our Executive Committee. He has served as our Chairman
of the Board since December 2008. From November 1999 to December 2008, Mr. Wildrick was our Chief Executive Officer. In addition, he was our President from December 1999 to April 2007 and our Executive Chairman from April 2007 to December 2008.
Mr. Wildrick is the President Pro Tem of the Town Council of Palm Beach, Florida and Chairman of its Finance and Taxation Committee and its Public Safety Committee. From December 2008 through April 17, 2012, Mr. Wildrick was a member
of the Board of Directors of Checkpoint Systems, Inc. (NYSE: CKP). Mr. Wildrick was Director, President and Chief Executive Officer of Venture Stores, Inc., a publicly traded family value retailer, from April 1995 to May 1998 and was Chairman
of its board of directors from January 1996 to May 1998. From 1976 to April 1995, Mr. Wildrick was employed by Belk Stores Services, a retailing company, in various capacities, including Corporate Executive Vice President for Merchandise
and Sales Promotion and Chief Merchandising Officer. Mr. Wildricks former directorships include Goodwill Industries, The Pride of Baltimore, Johns Hopkins Childrens Hospital Advisory Board, The Cystic Fibrosis Foundation and
the Boy Scouts of America where he was a Director in New York and Charlotte, North Carolina. He has been a sponsor and fundraiser for the American Heart Association, various Police Associations and the Boy Scouts where he helped fund scout
camps for children with disabilities.
The Board concluded that Mr. Wildrick should continue to serve as a director in
part due to his extensive knowledge of the Company. Having been a director since 1994, Mr. Wildrick brings to the Board historic knowledge and continuity. In addition, as a result of his extensive career in retail and as our former CEO,
Mr. Wildrick brings to the Board significant industry knowledge and expertise in merchandising, marketing, sales and finance.
D
IRECTORS
W
HOSE
T
ERMS
E
XPIRE
I
N
2013
James H. Ferstl
James H. Ferstl has served as one of our directors since September 2008. Since its founding in 1999, Mr. Ferstl has been the principal of J&M Enterprises, a retail consulting, commercial real
estate and personal financial investment firm. From 1965 to 1999, Mr. Ferstl was employed in various capacities in the retail industry including: from 1995 to 1999, as Executive Vice President, Chief Merchandising Officer and Board member of
Venture Stores, Inc., a publicly traded family value retailer; from 1987 to 1995 Corporate Vice President-General Merchandise Manager (Home and Hard lines) for Gottschalks Department Stores, a regional department store headquartered in Fresno,
California; from 1984 to 1987, as Senior Vice President and General Manager for Platt Electronics Corp., a consumer electronics business based in Torrance, California, with responsibility for its 140 store West coast region; from 1981 to 1984, as
Executive Vice President for Merchandising and Stores Operation and Chief Merchandising Officer for Broadway Southwest Department Stores, a division of Carter Hawley Hale Stores Inc. based in Phoenix, Arizona; and from 1965 to 1981, as Regional Vice
President for Stores for Sanger Harris Department Stores of Dallas, Texas, a Division of Federated Department Stores Inc.
The
Board concluded that Mr. Ferstl should continue to serve as a director in part due to his extensive career in retail, which brings to the Board significant industry knowledge and experience in merchandising, marketing and sales.
Sidney H. Ritman
Sidney H. Ritman has served as one of our directors since July 2005 and is chairman of our Compensation Committee. Mr. Ritman is the Managing Member of Jayne Hall LLC, a sourcing, merchandising and
marketing consulting firm to U.S. and European retailers and importers. Jayne Hall LLC also provides Hong Kong manufacturers with advice regarding merchandising and fashion trends in U. S. markets. Mr. Ritman was the
36
founder, owner and operator of two companies engaged in importing and selling womens apparel- Toni Industries, Inc. from 1990 through November 2011 and Giorgio San Angelo, LLC from December
2007 through November 2009. Mr. Ritman has an extensive background in international sourcing for U.S. and European apparel retailers, including fifteen years in residence in Hong Kong as the Managing Director of Armstrong Industries, Ltd., a
sourcing agent which had offices in seven countries. In 1987, Mr. Ritman organized the sale of Armstrong to Colby Staton Ltd., a Hong Kong-based sourcing company, for which Mr. Ritman served as a consultant and director until 1997.
Mr. Ritman is a former trustee of Rollins College, Winter Park, Florida and The Brunswick School, Greenwich, Connecticut. Mr. Ritman is a former United States Marine Corps officer, having served on active duty and in the Marine Corps
Reserve for nine years.
The Board concluded that Mr. Ritman should continue to serve as a director in part due to his
extensive career in apparel retailing and sourcing, which brings to the Board significant experience in these areas.
PROPOSAL TWO-RATIFICATION OF REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee appointed Deloitte to serve as
our independent registered public accounting firm for Fiscal 2012. The affirmative vote of a majority of the votes cast at the Annual Meeting on Proposal Two, either in person or by proxy, and entitled to vote is required to ratify the selection of
Deloitte. Deloitte has served as the Companys independent registered public accounting firm since 2004. One or more representatives of Deloitte are expected to be present at the Annual Meeting and will be available to respond to appropriate
questions from stockholders and to make such statements as they may desire.
In the event the stockholders fail to ratify the
appointment of Deloitte, the Audit Committee may reconsider its selection. Even if the selection is ratified, the Audit Committee in its discretion may direct the appointment of a different registered public accounting firm at any time during the
year if the Audit Committee believes that such a change would be in our best interests and in the best interests of our stockholders.
R
ECOMMENDATION
OF
THE
B
OARD
OF
D
IRECTORS
The Board recommends that the stockholders vote FOR the ratification of the appointment of Deloitte & Touche LLP to serve as
our registered public accounting firm for Fiscal 2012.
A
UDIT
AND
N
ON
-A
UDIT
F
EES
The fees for services rendered by
Deloitte and its affiliates to the Company for Fiscal 2010 and Fiscal 2011 were as follows:
|
|
|
|
|
|
|
|
|
Type of Fee
|
|
Fiscal 2010
($)
|
|
|
Fiscal 2011
($)
|
|
Audit Fees
(1)
|
|
|
855,900
|
|
|
|
860,500
|
|
Audit-Related Fees
(2)
|
|
|
45,500
|
|
|
|
44,000
|
|
Tax Fees
(3)
|
|
|
382,200
|
|
|
|
45,000
|
|
All Other Fees
(4)
|
|
|
2,200
|
|
|
|
2,200
|
|
|
|
|
|
|
|
|
|
|
Total Fees
|
|
|
1,285,800
|
|
|
|
951,700
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Audit fees
represent the aggregate fees for the stated fiscal year for professional services rendered for the audit of the Companys annual financial statements and the audit of the Companys internal control over financial reporting as required by
Section 404 of the Sarbanes-Oxley Act, review of financial statements included in the Companys Quarterly Reports on Form 10-Q and services that are normally provided by the accountant in connection with certain statutory and regulatory
filings or engagements.
|
(2)
|
Audit-related fees
represent the aggregate fees for a limited scope audit for one retirement plan in each of Fiscal 2010 and Fiscal 2011, fees for a consent in a franchise offering in Fiscal 2011 and fees for consents in Form S-8 filings in Fiscal 2010.
|
37
(3)
|
Tax fees represent
the aggregate fees for the stated fiscal year for tax compliance, tax advice and tax planning.
|
(4)
|
All other fees
include the aggregate fees for the stated fiscal year for products and services provided by the principal accountant other than the services reported above. All other fees for Fiscal 2010 and Fiscal 2011 are subscription fees for access to
Deloittes on-line research database.
|
P
RE
-A
PPROVAL
P
OLICIES
AND
P
ROCEDURES
The Audit Committee pre-approves all auditing services and permitted non-audit services
to be performed for the Company by its registered public accounting firm, subject to the
de minimis
exceptions for non-audit services described in Section 10A(i)(1)(B) of the Exchange Act. The Audit Committee approved all such services
prior to the auditors engagement for such services during Fiscal 2010 and Fiscal 2011.
A
UDIT
C
OMMITTEE
R
EPORT
The Audit Committee oversees the responsibilities of the Board relating to: (a) the integrity of our financial statements;
(b) the qualifications and independence of our registered public accounting firm; (c) the performance of our internal audit functions and our registered public accounting firm; (d) the adequacy of our systems of internal accounting
and financial controls; and (e) our compliance with ethics policies and legal and regulatory requirements.
Deloitte was
the principal accountant engaged to audit the financial statements of the Company for Fiscal 2011. The Audit Committee has reviewed and discussed those audited financial statements with the Companys management and Deloitte. The Audit Committee
has also discussed with Deloitte the matters required to be discussed by Statement on Auditing Standards No. 61, as amended (AICPA, Professional Standards, Vol.1. AU Section 380), as adopted by the Public Company Accounting Oversight Board
(the PCAOB) in Rule 3200T.
The Audit Committee has received the written disclosures and the letter from Deloitte
required by applicable requirements of the PCAOB regarding Deloittes communications with the Audit Committee concerning Deloittes independence, and the Audit Committee has discussed with Deloitte the independence of Deloitte from Jos. A.
Bank.
Based on the foregoing review and discussions, the Audit Committee recommended to the Board that the audited financial
statements be included in the Companys Annual Report on Form 10-K for fiscal 2011 filed with the SEC.
Respectfully
submitted, Audit Committee:
William E. Herron (Chairman)
Andrew A. Giordano
Sidney H. Ritman
PROPOSAL THREE-ADVISORY VOTE TO APPROVE EXECUTIVE COMPENSATION
The Dodd-Frank Wall Street Reform and Consumer
Protection Act, enacted in July 2010, requires that we periodically provide our stockholders with a Say on Pay, i.e., the opportunity to approve, on a nonbinding, advisory basis, the compensation of our named executive officers. Pursuant
to the recommendation of our stockholders as expressed in an advisory vote taken at our 2011 Annual Meeting, the Company will conduct a Say on Pay advisory vote to approve executive compensation on an annual basis, until the next
required stockholder Say When on Pay vote or the Companys Board of Directors determines that a different frequency of Say-on-Pay votes is in the best interest of the Companys stockholders. The Say on
Pay advisory vote is not intended to address any specific item of compensation, but rather the overall compensation of our named executive officers and our compensation philosophy, policies and practices.
38
As described in the Compensation Discussion and Analysis set forth in this Proxy Statement
under the caption Executive Compensation and Related Information, we believe that our Compensation Committee applies a consistent philosophy to compensation for our named executive officers based on the premise that the Companys
achievements are the result of the coordinated efforts of all of our employees working toward common objectives. We strive to achieve those objectives through teamwork that is focused on meeting the expectations of our customers and stockholders and
believe that our compensation program allows us to successfully attract and retain talented employees, enhance stockholder value and foster innovation. We urge you to read the Executive Compensation and Related Information section of
this proxy statement for additional details on our executive compensation, including our compensation philosophy and objectives and the Fiscal 2011 compensation of our named executive officers.
Despite a continuing challenging economic environment, the Companys net income in Fiscal 2011 increased 13.6% to approximately
$97.5 million, as compared with approximately $85.8 million in Fiscal 2010. This result follows a 20.6% increase in net income in Fiscal 2010 and a 21.8% increase in net income in Fiscal 2009. Shareholders have been rewarded with above-average
returns on their investment in the Company relative to other companies in the retail sector. For the Retailing industry group (2550) within the Global Industry Classification System (GICS), the one year median total shareholder return was 5.6%,
compared to the Companys one year total shareholder return of 20.9%; the three year median total shareholder return was 32.0%, compared to the Companys three year total shareholder return of 40.9%; and the five year median total
shareholder return was -1.2%, compared to the Companys five year total shareholder return of 20.0%.
The Companys
compensation policy includes a strict pay for performance incentive system. As more fully set forth above in this Proxy Statement under the captions Non-Equity Incentive Compensation and Equity Incentive Compensation, the
named executive officers have the opportunity to earn cash and equity incentives only if the Companys net income increases on a year-over-year basis. The Companys net income in Fiscal 2011 exceeded the high-end of the eligibility range
set by the Companys Compensation Committee for awards to the named executive officers under the Companys 2011 Cash Incentive Program and 2011 Equity Incentive Program and therefore the named executive officers earned the maximum bonuses
for which they were eligible under those programs. We believe that the compensation paid to our named executive officers in Fiscal 2011 was appropriate due to the Companys achievement of strong operating and financial results and our named
executive officers contribution to our success.
In light of the foregoing considerations, we are asking our
stockholders to indicate their approval, on an advisory basis, of the compensation of our named executive officers as disclosed in this Proxy Statement. This Proposal is required pursuant to Section 14A of the Exchange Act. Accordingly, we ask
that our stockholders vote FOR the following resolution:
RESOLVED, that the compensation paid
to the Companys named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the Compensation Discussion and Analysis, the compensation tables, and the related narrative disclosure set forth under the caption
Executive Compensation and Related Information in this Proxy Statement, is hereby APPROVED.
While our Board
intends to carefully consider the stockholder vote resulting from this proposal when making future decisions regarding our executive compensation programs, the final vote is advisory, which means that it is not binding on the Company, our Board or
the Compensation Committee.
R
ECOMMENDATION
OF
THE
B
OARD
OF
D
IRECTORS
The Board recommends
that the stockholders vote FOR the foregoing resolution approving the compensation of our named executive officers, as disclosed in this Proxy Statement.
39
OTHER MATTERS
TRANSACTIONS WITH RELATED PERSONS
On September 9, 2008, the Company and Mr. Wildrick entered into a Consulting Agreement (the Consulting Agreement) pursuant to which the Company retained Mr. Wildrick to consult
on matters of strategic planning and initiatives for a term of three years commencing February 1, 2009 at a fee of $825,000 per year. On November 30, 2010, those members of the Board who are independent directors in accordance
with the Nasdaq Rules met in executive session and approved an amendment to the Consulting Agreement. As Mr. Wildrick is the Chairman of the Board and the amendment constituted a related party transaction, generally the Audit Committee would
have been responsible for evaluating the transaction. The Board instead met in executive session in order to increase the number of independent directors who participated in the decision. The First Amendment to Consulting Agreement extended the term
of the Consulting Agreement to January 26, 2014. All other terms of the Consulting Agreement were unchanged.
The
Consulting Agreement includes an agreement by Mr. Wildrick not to compete with the Company or to solicit its customers or employees during its term. The Consulting Agreement also provides for the acceleration of payments due thereunder to
Mr. Wildrick in connection with certain termination events. If Mr. Wildricks services are terminated by the Company without cause (as defined below), the Company will be obligated to pay Mr. Wildrick the balance of
amounts due under the Consulting Agreement for its remaining term as and when such payments would otherwise be due. If Mr. Wildricks services are terminated by the Company with cause, the Company will be obligated to pay
Mr. Wildrick the unpaid, prorated amount of the consulting fees payable through the date of termination. For purposes of the Consulting Agreement, cause means: (a) the conviction of Mr. Wildrick of a felony involving money
or other property of the Company or any other felony or offense involving moral turpitude; or (b) the willful commission of any act of fraud or misrepresentation related to the business of the Company which would materially and negatively
impact the Company. If within ninety (90) days following a change of control of the Company (defined consistently with Mr. Blacks employment agreement), Mr. Wildrick exercises his right to terminate the Consulting Agreement or
the Company terminates the Consulting Agreement based on a default thereunder by Mr. Wildrick, the Company will pay Mr. Wildrick a lump sum equal to the balance of amounts due under the Consulting Agreement for its remaining term.
Policies and Procedures for Review and Approval of Transactions with Related Persons
The Companys policy regarding related party transactions is set forth in the Audit Committees charter and in the
Companys Corporate Governance Standards (both of which are available on our website at www.josbank.com). As used herein and therein, related party transactions are transactions that are required to be disclosed pursuant to
Item 404(a) of Regulation S-K of the Securities and Exchange Commission. Item 404(a) generally requires disclosure of transactions in which the Company is a participant, the amount involved exceeds $120,000 and in which any related person
(such as an executive officer, director, director nominee, or 5% stockholder of the Company or any family member of the foregoing) has a direct or indirect material interest. Except as otherwise set forth below, the Audit Committee shall review each
related party transaction to determine whether it is fair and reasonable to the Company. Notwithstanding the foregoing, in lieu of the Committee so doing, the determination of whether a related party transaction is fair and reasonable to the Company
may be made by the members of the Board who are independent directors. The Company will enter into or ratify a related party transaction only if the Committee or the independent directors, as the case may be, determines that it is fair and
reasonable to the Company. In the event a related party transaction is entered into without prior approval as set forth in the Companys related party transaction policy and, after review by the Committee or the independent directors, as the
case may be, such transaction is not determined to be fair and reasonable to the Company, the Company will make all reasonable efforts to cancel or annul such transaction. The First Amendment to Consulting Agreement was ratified by the independent
directors in accordance with the foregoing procedures.
40
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During Fiscal 2011, the Compensation Committee consisted of Messrs. Herron, Homes and Ritman. No member of the
Compensation Committee is a current or was a former officer of employee of the Company. In fiscal 2011, none of our executive officers served on the board of directors or compensation committee of any entity that had one or more of its executive
officers serving on the Board or the Compensation Committee of the Company. The members of the Compensation Committee did not otherwise have any relationships requiring related-party disclosure in this Proxy Statement.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information known to us with respect to the beneficial ownership of our common stock as of April 27,
2012 by (a) each named executive officer; (b) each director; (c) all directors and executive officers as a group; and (d) each person (or group) that beneficially owns more than 5% of our common stock. Unless otherwise indicated,
each of the stockholders can be reached at our principal executive offices located at 500 Hanover Pike, Hampstead, Maryland 21074.
|
|
|
|
|
|
|
|
|
|
|
Shares Beneficially
Owned*
|
|
|
|
Number
|
|
|
Percent
|
|
R. Neal Black
(1)
|
|
|
145,430
|
|
|
|
0.52
|
%
|
James H. Ferstl
(2)
|
|
|
8,500
|
|
|
|
**
|
|
Andrew A. Giordano
(3)
|
|
|
40,960
|
|
|
|
**
|
|
Robert B. Hensley
(4)
|
|
|
51,605
|
|
|
|
0.19
|
%
|
William E. Herron
(5)
|
|
|
21,940
|
|
|
|
**
|
|
Henry Homes, III
(6)
|
|
|
12,900
|
|
|
|
**
|
|
Gary M. Merry
|
|
|
15,000
|
|
|
|
0.05
|
%
|
Sidney H. Ritman
(7)
|
|
|
22,088
|
|
|
|
**
|
|
James W. Thorne
(8)
|
|
|
21,091
|
|
|
|
0.08
|
%
|
David E. Ullman
|
|
|
95,390
|
|
|
|
0.34
|
%
|
Robert N. Wildrick
(9)
|
|
|
51,702
|
|
|
|
**
|
|
Royce & Associates, LLC
(10)
|
|
|
3,583,201
|
|
|
|
12.87
|
%
|
FMR LLC
(11)
|
|
|
3,559,716
|
|
|
|
12.79
|
%
|
BlackRock, Inc.
(12)
|
|
|
2,015,348
|
|
|
|
7.24
|
%
|
The Vanguard Group, Inc.
(13)
|
|
|
1,484,992
|
|
|
|
5.33
|
%
|
All directors and executive officers as a group (11 persons)
(14)
|
|
|
486,606
|
|
|
|
1.74
|
%
|
*
|
If no footnote is indicated, the shares beneficially owned consist exclusively of shares of common stock. If indicated by footnote, the shares beneficially owned
consist of shares of common stock and one or more of the following: currently exercisable options to purchase shares of common stock; shares of common stock deliverable by the Company within 60 days of April 27, 2012 as a result of the vesting
of restricted stock units granted under the 2010 Equity Compensation Plan; and stock units held under the Companys 2010 Deferred Compensation Plan. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting
and/or investment power with respect to shares. Unless otherwise indicated, the persons named in the table have sole voting and sole investment control with respect to all shares beneficially owned. Percentage ownership is calculated based on
27,836,804 shares of our common stock outstanding as of April 27, 2012, plus the number of options exercisable by, and the number of restricted stock units which will vest in, the applicable individual(s) within 60 days of April 27, 2012.
To our knowledge and based on reviews of Forms 4 and Schedules 13D and Schedules 13G filed with the SEC, except as disclosed in this table, no other stockholder beneficially owned more than 5% of our outstanding shares of common stock as of
April 27, 2012.
|
**
|
Represents less than 1%.
|
41
(1)
|
Mr. Blacks shares consist of 85,396 shares of common stock, currently exercisable options to purchase 45,558 shares of common stock and
14,476 shares of common stock deliverable by the Company within 60 days of April 27, 2012 as a result of the vesting of Performance RSUs granted to Mr. Black under the 2010 Equity Compensation Plan.
|
(2)
|
Mr. Ferstls shares consist of 2,500 shares of common stock, 3,750 stock units held for the account of Mr. Ferstl under the
Companys 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of April 27, 2012. Receipt of the shares of common stock underlying the restricted stock units has been deferred until
Mr. Ferstls separation from service as a member of the Board.
|
(3)
|
Mr. Giordanos shares consist of 34,960 shares of common stock, 3,750 stock units held for the account of Mr. Giordano under the
Companys 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of April 27, 2012.
|
(4)
|
Mr. Hensleys shares consist of 24,256 shares of common stock and currently exercisable options to purchase 27,349 shares of common stock.
|
(5)
|
Mr. Herrons shares consist of 8,940 shares of common stock, currently exercisable options to purchase 7,000 shares of common stock, 3,750
stock units held for the account of Mr. Herron under the Companys 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of April 27, 2012. Receipt of the shares of common stock underlying the
restricted stock units has been deferred until Mr. Herrons separation from service as a member of the Board.
|
(6)
|
Mr. Homes shares include (a) 2,100 shares held in trusts for the benefit of his children and of which his wife is a trustee;
(b) 600 shares owned by his wife directly; (c) 3,000 shares held by a family partnership of which Mr. Homes is a beneficiary and over which Mr. Homes has shared voting and investment power; and (d) an indirect beneficial
interest in 1,050 shares of common stock held in a trust of which Mr. Homes is a trustee and beneficiary. Mr. Homes shares also include 150 shares of common stock, 3,750 stock units held for the account of Mr. Homes under the
Companys 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of April 27, 2012. Receipt of the shares of common stock underlying the restricted stock units has been deferred until
Mr. Homes separation from service as a member of the Board.
|
(7)
|
Mr. Ritmans shares consist of 12,049 shares of common stock, 7,789 stock units held for the account of Mr. Ritman under the
Companys 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of April 27, 2012. Receipt of the shares of common stock underlying the restricted stock units has been deferred until
Mr. Ritmans separation from service as a member of the Board.
|
(8)
|
Mr. Thornes shares consist of 3,514 shares of common stock and currently exercisable options to purchase 17,577 shares of common stock.
|
(9)
|
Mr. Wildricks shares consist of 45,702 shares of common stock, 3,750 stock units held for the account of Mr. Wildrick under the
Companys 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of April 27, 2012. Receipt of the shares of common stock underlying the restricted stock units has been deferred until
Mr. Wildricks separation from service as a member of the Board.
|
(1
0
)
|
The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 5) filed with the SEC on January 13, 2012.
Royce & Associates, LLC (Royce) reported sole voting power with respect to 3,583,201 shares, sole dispositive power with respect to 3,583,201 shares, and no shared voting or dispositive power. The address of Royce is 745 Fifth
Avenue, New York, NY 10151.
|
(1
1
)
|
The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 6) filed with the SEC on February14, 2012.
According to the aforementioned Schedule 13G, the reporting persons reported sole voting power with respect to 466,916 shares, sole dispositive power with respect to 3,559,716 shares, and no shared voting or dispositive power. The address of
reporting persons is 82 Devonshire Street, Boston MA 02109.
|
42
(1
2
)
|
The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 2) filed with the SEC on February 13, 2012.
BlackRock, Inc. (BlackRock) reported sole voting power with respect to 2,015,348 shares, sole dispositive power with respect to 2,015,348 shares, and no shared voting or dispositive power. The address of BlackRock is 40 East 52
nd
Street, New York, NY 10022.
|
(1
3
)
|
The information in the table above and in this footnote is based on a Schedule 13G filed with the SEC on February 9, 2012. The Vanguard Group,
Inc. (Vanguard) reported sole voting power with respect to 37,847 shares, no shared voting power, sole dispositive power with respect to 1,447,145 shares, and shared dispositive power with respect to 37,847 shares. The address of
Vanguard is 100 Vanguard Blvd., Malvern, PA 19355.
|
(1
4
)
|
Consists of: R. Neal Black, James H. Ferstl, Andrew A. Giordano, Robert B. Hensley, William E. Herron, Henry Homes, III, Gary M. Merry, Sidney H.
Ritman, James W. Thorne, David E. Ullman and Robert N. Wildrick.
|
SECTION 16(a) BENEFICIAL
OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the Companys officers and
directors, persons who beneficially own more than ten percent of a registered class of the Companys equity securities, and any other person subject to Section 16 to file reports of beneficial ownership of common stock (Forms 3, 4 and 5)
with the SEC. Officers, directors, and greater-than-ten percent stockholders are required to furnish the Company with copies of all such forms that they file.
To the Companys knowledge, based solely on the Companys review of the copies of Section 16 reports, and amendments thereto, received by it during or with respect to Fiscal 2011, all
filings applicable to its officers, directors and greater-than-ten percent stockholders required by Section 16(a) were timely except as previously disclosed and except that (a) on September 1, 2011, Mr. Ritman filed a Form 4
which included a report of the vesting and deferral of receipt of 3,750 restricted stock units. The grant of the restricted stock units had been previously reported; and (b) on May 2, 2012, each of Messrs. Ferstl, Giordano, Herron, Homes
and Wildrick, filed a Form 4 to report the vesting and deferral of receipt of 3,750 restricted stock units. The grants of the restricted stock units had been previously reported.
EQUITY COMPENSATION PLAN INFORMATION
The
table which follows contains information, as of the end of Fiscal 2011, on the Companys equity compensation plans.
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan Category
|
|
Number of
Securities to be
Issued Upon Exercise
of Outstanding
Options,
Warrants
and Rights
(#)
(a)
|
|
|
Weighted-Average
Exercise Price of
Outstanding Options,
Warrants and
Rights
($)
(b)
|
|
|
Number of Securities
Remaining Available for
Future Issuance Under
Equity
Compensation
Plans (Excluding
Securities Reflected in
Column (a))
(#)
(c)
|
|
Equity compensation plans approved by our stockholders
(1)
|
|
|
241,906
|
|
|
|
7.18
|
|
|
|
1,347,784
|
|
Equity compensation plans not approved by our stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
241,906
|
|
|
|
7.18
|
|
|
|
1,347,784
|
|
(1)
|
Restricted Stock Units that may be settled in shares of our common stock are included in column (a) of the table, but are not included in column
(b) for purposes of determining the weighted average exercise price of stock options. The weighted average exercise price in column (b) of the table reflects all such stock options.
|
43
OTHER BUSINESS
Except as described in the accompanying Notice of Meeting, the Board knows of no business that will come before the Annual Meeting for
action. If any business other than as described in the accompanying Notice of Meeting were to come before the Annual Meeting for action, the persons designated as proxies will have discretionary authority to act in their best judgment.
The Board encourages you to have your shares voted at the Annual Meeting by signing and returning the enclosed form of proxy or voting
instruction card. The fact that you will have returned your proxy or voting instruction card in advance will in no way affect your right to vote in person should you attend the Annual Meeting. However, by signing and returning the proxy or voting
instruction card you have assured your representation at the Annual Meeting. Thank you for your cooperation.
Notwithstanding anything to the contrary set forth in any of the Companys previous filings made under the Securities Act of
1933, as amended, or the Exchange Act that might incorporate future filings made by the Company under those statutes, the Compensation Committee Report, the Audit Committee Report and disclosures regarding the Audit Committee charter are not deemed
filed with the Securities and Exchange Commission and shall not be deemed incorporated by reference into any future filings made by the Company under those statutes.
THE BOARD HOPES THAT YOU WILL ATTEND THE ANNUAL MEETING. WHETHER OR NOT YOU PLAN TO ATTEND, YOU ARE URGED TO COMPLETE, DATE, SIGN AND RETURN THE ENCLOSED PROXY OR VOTING INSTRUCTION CARD IN THE
ACCOMPANYING ENVELOPE. YOUR PROMPT RESPONSE WILL GREATLY FACILITATE ARRANGEMENTS FOR THE ANNUAL MEETING. YOUR COOPERATION IS APPRECIATED.
44
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS PORTION ONLY TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date 0 0 0 0 0 0 0 0 0 0 0 0 0000144087_1 R1.0.0.11699 JOS. A. BANK CLOTHIERS, INC. 500
HANOVER PIKE HAMPSTEAD, MD 21074-2095 VOTE BY INTERNET - www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting
date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. Electronic Delivery of Future PROXY MATERIALS If you would like to reduce the
costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the
instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting
instructions up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the
postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. The Board of Directors recommends you vote FOR the following: For Against Abstain 1. Election of Directors Nominees 01
Andrew A. Giordano 02 William E. Herron The Board of Directors recommends you vote FOR proposals 2. and 3. For Against Abstain 2. Ratification of the appointment of Deloitte & Touche LLP as the Companys registered public accounting firm
for the fiscal year ending February 2, 2013. 3. An advisory vote to approve the Companys executive compensation. NOTE: Election of Andrew A. Giordano and William E. Herron as Directors for terms expiring at the Companys 2015 Annual
Meeting of Stockholders, or at such later time as their respective successors have been duly elected and qualified. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please
give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer.
0000144087_2 R1.0.0.11699 Important Notice Regarding the Availability of Proxy
Materials for the Annual Meeting: The Notice & Proxy Statement, and Annual Report on Form 10-K is/are available at www.proxyvote.com . JOS. A. BANK CLOTHIERS, INC. Annual Meeting of Stockholders June 15, 2012 10:00 AM This proxy is solicited by
the Board of Directors The undersigned hereby appoints R. Neal Black and Charles D. Frazer, and each of them, as Proxy or Proxies of the undersigned, each with full power of substitution and resubstitution, to attend and represent the undersigned at
the annual meeting of stockholders of Jos. A. Bank Clothiers, Inc. to be held at the Companys headquarters, 500 Hanover Pike, Hampstead, Maryland 21074, on June 15, 2012 at 10:00 a.m. Eastern Time, or at any adjournments or postponements
thereof, and vote thereat the number of shares of stock of the Company which the undersigned would be entitled to vote if personally present, in accordance with the instructions set forth on this proxy card, and in their discretion (or the
discretion of either of them) on all other matters properly coming before the meeting or any adjournments or postponements thereof. When properly executed, this Proxy will be voted as directed. If no direction is made, this Proxy will be voted
FOR Mr. Giordano and Mr. Herron; FOR the ratification of the appointment of Deloitte & Touche LLP; and FOR the advisory vote to approve the Companys executive compensation. Continued and to be signed on
reverse side
Grafico Azioni Jos. A. Bank Clothiers (NASDAQ:JOSB)
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