SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
SCHEDULE TO/A
(Amendment
No. 1)
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
______________________
JOS. A. BANK
CLOTHIERS, INC.
(Name of Subject
Company (Issuer))
JOS. A. BANK CLOTHIERS, INC. (ISSUER)
(Names of Filing Persons (Issuer and Offeror))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
480838101
(CUSIP Number of Class of Securities)
Charles
D. Frazer, ESQ.
Senior
Vice President – General Counsel
JOS. A. BANK CLOTHIERS, INC.
500 HANOVER PIKE
HAMPSTEAD, MD 21074
(410) 239-2700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Paul
T. Schnell, Esq.
Jeremy
D. London, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM,
LLP
FOUR TIMES SQUARE
NEW YORK, NEW YORK 10036
(212) 735-3000
______________________
CALCULATION OF FILING FEE
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TRANSACTION VALUATION
(1)
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AMOUNT OF FILING FEE
(2)
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$300,000,000
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$38,640
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(1)
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Calculated solely for purposes of determining the amount of the filing fee. Pursuant
to Rule 0-11(b)(1) of the Securities Exchange Act of 1934, the transaction valuation was calculated assuming that an aggregate
of $300.0 million in value of the common stock, par value $0.01 per share of Jos. A. Bank Clothiers, Inc. will be purchased pursuant
to the Offer.
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(2)
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The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended, equals $128.80 per million dollars of the value of the transaction.
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x
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: $38,640
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Filing Party: Jos. A. Bank Clothiers, Inc.
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Form or Registration No.: Schedule TO
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Date Filed: February 19, 2014
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o
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Check the box if the filing relates solely to preliminary communications made before
the commencement of a tender offer.
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Check the appropriate boxes to designate any transactions to which the statement relates:
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o
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third-party tender offer subject to Rule 14d-1.
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x
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer:
o
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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o
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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o
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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INTRODUCTION
This Amendment No. 1 (this “Amendment”)
amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on
February 19, 2014 (the “Schedule TO”) relating to the offer by Jos. A. Bank Clothiers, Inc., a Delaware corporation
(the “Company”), to purchase an aggregate of up to $300.0 million in value of shares of its common stock, par value
$0.01 per share (together with the associated preferred share purchase rights, the “Shares”), at a price of $65.00
per Share, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 19,
2014, and in the related Letter of Transmittal, copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule TO,
respectively.
ITEMS 1 THROUGH 11.
The Offer to Purchase is hereby amended
and supplemented as follows:
Section 13, “Legal Proceedings”
is hereby amended and supplemented as set forth below.
The second and third paragraphs of Section
13 are hereby deleted and the following language is hereby added after the first paragraph thereof:
“On February 4, 2014, Eminence filed an
amended complaint that purports to raise both direct claims against the Director Defendants, as well as derivative claims on behalf
of the Company (the “Amended Eminence Complaint”). In addition to the allegations described above, the Amended Eminence
complaint, among other things, alleges that the Director Defendants breached their fiduciary duties by purportedly failing to disclose
all material facts in their recommendation with respect to the Men’s Wearhouse Tender Offer. In addition to the requests
mentioned above, with the exception of the request of the court to enjoin the Director Defendants from entering into any agreement
on behalf of the Company to acquire another Company or other material assets, which was deleted, the Amended Eminence Complaint
also asks the court to: (i) order the Director Defendants to rescind the Rights Agreement; (ii) declare rejecting the Men’s
Wearhouse Tender Offer to be a breach of the Director Defendants’ fiduciary duties of loyalty, due care, and/or disclosure;
(iii) declare that the Director Defendants breached their fiduciary duties by adopting improper defensive measures; and (iv) preliminarily
and permanently enjoin the Director Defendants from accomplishing a business combination with Eddie Bauer, and/or rescinding any
such combination. We filed a motion to dismiss the initial complaint filed by Eminence, an answer and affirmative defenses to the
Amended Eminence Complaint and a motion for judgment on the pleadings seeking dismissal of the Amended Eminence Complaint.
On February 21, 2014, Eminence filed a motion
for leave to file a second amended complaint that purports to raise both direct claims against the Director Defendants, as well
as derivative claims on behalf of the Company (the “Second Amended Eminence Complaint”), together with a motion for
expedited proceedings. In addition to the allegations described above, the Second Amended Eminence Complaint, among other things,
alleges that the Director Defendants breached their fiduciary duties by purportedly failing to disclose all material facts with
respect to the Eddie Bauer Acquisition. In addition to the requests mentioned above, with the exception of modifying the request of
the court to order the Director Defendants to redeem, rather than rescind, the Rights Agreement, the Second Amended Eminence Complaint
also asks the court to issue a declaration that the Directors breached their fiduciary duties of loyalty, due care and/or disclosure
with respect to the Eddie Bauer Acquisition.
The Company and the Board of Directors
believe that the claims lack merit and intend to vigorously defend against such claims.
The foregoing description is qualified
in its entirety by reference to the initial complaint filed by Eminence, incorporated by reference as Exhibit (A)(5)(A) to the
Schedule TO, the Amended Eminence Complaint, incorporated by reference as Exhibit (A)(5)(B) to the Schedule TO and the Second Amended
Eminence Complaint, incorporated by reference as Exhibit (A)(5)(C) to the Schedule TO.”
The following language is hereby added
at the end of Section 13:
“The foregoing description is qualified
in its entirety by reference to the complaint filed by Boston, incorporated by reference as Exhibit (A)(5)(D) to the Schedule TO.”
ITEM 12.
Item 12 is hereby amended and restated
in its entirety as follows:
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(a)(1)(A)*
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Offer to Purchase dated February 19, 2014.
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(a)(1)(B)*
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Letter of Transmittal.
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(a)(1)(C)*
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Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)*
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(F)*
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Press Release, dated February 19, 2014.
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(a)(1)(G)*
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Summary Advertisement.
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(a)(5)(A)
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Complaint in
Eminence Capital, LLC v. Robert N. Wildrick, et al.
, filed by Eminence in the Court of Chancery of the State of Delaware on January 13, 2014 (incorporated by reference to the Company’s Schedule 14D-9, filed on January 17, 2014).
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(a)(5)(B)
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Complaint in
Eminence Capital, LLC v. Robert N. Wildrick, et al.
, filed by Eminence in the Court of Chancery of the State of Delaware on February 4, 2014 (incorporated by reference to the Company’s Amendment No. 4 to Schedule 14D-9/A, filed on February 5, 2014).
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(a)(5)(C)
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Complaint in
Eminence Capital, LLC v. Robert N. Wildrick, et al.
, filed by Eminence in the Court of Chancery of the State of Delaware on February 21, 2014 (incorporated by reference to the Company’s Amendment No. 8 to Schedule 14D-9/A, filed on February 24, 2014).
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(a)(5)(D)
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Complaint in
State-Boston Retirement System v. Wildrick, et al.
, filed by Boston in the Court of Chancery of the State of Delaware on January 29, 2014 (incorporated by reference to the Company’s Amendment No. 2 to Schedule 14D-9/A, filed on January 31, 2014).
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(b)
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Not Applicable.
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(d)(1)
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Rights Agreement, dated as of September 6, 2007, including Exhibit B thereto (the form of Right Certificate) (incorporated by reference to the Company’s Current Report on Form 8-K, dated September 6, 2007).
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(d)(2)
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Amendment No. 1 to Rights Agreement, dated as of January 3, 2014, by and between the Company and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to the Company’s Current Report on Form 8-K, dated January 3, 2014).
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(d)(3)
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Amendment No. 2 to Rights Agreement, dated as of February 13, 2014, by and between the Company and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(d)(4)
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1994 Incentive Plan (incorporated by reference to the Company’s Registration Statement on Form S-1 filed May 3, 1994).
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(d)(5)
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Amendments, dated as of October 6, 1997, to Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 1998).
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(d)(6)
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Summary of 2012 and 2013 Cash and Equity Incentive Programs (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
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(d)(7)
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2002 Long-Term Incentive Plan (incorporated by reference to the Company’s Definitive Proxy Statement on Schedule 14(A) filed May 20, 2002).
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(d)(8)
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Form of stock option agreement under the 2002 Long-Term Incentive Plan (incorporated by reference to the Company’s Current Report on Form 8-K, dated April 7, 2005).
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(d)(9)
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Jos. A. Bank Clothiers, Inc. Executive Management Incentive Plan (as amended) (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 18, 2009).
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(d)(10)
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Amendment to Jos. A. Bank Clothiers, Inc. Executive Management Incentive Plan. (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(d)(11)
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Jos. A. Bank Clothiers, Inc. 2010 Deferred Compensation Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(d)(12)
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Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
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(d)(13)
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Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan – CEO Performance Restricted Stock Unit Award Agreement, dated June 17, 2010, by and between JoS. A. Bank Clothiers, Inc. and R. Neal Black (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(d)(14)
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Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan – EVP Performance Restricted Stock Unit Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(d)(15)
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Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan – Non-Employee Director Restricted Stock Unit 2010 Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(d)(16)
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Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan – Non-Employee Director Restricted Stock Unit Annual Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(d)(17)
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Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan – Non-Employee Director Restricted Stock Unit Inaugural Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
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(d)(18)
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Membership Interest Purchase Agreement, dated as of February 13, 2014, by and among Everest Topco LLC, Everest Holdings LLC and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(d)(19)
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Standstill and Stockholder Agreement, dated as of February 13, 2014, by and between the Company and Everest Topco LLC (incorporated by reference to the Company’s Current Report on Form 8-K, dated February 14, 2014).
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(g)
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Not applicable.
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(h)
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Not applicable.
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______
* Previously Filed
SIGNATURE
After due inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: February 24, 2014
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JOS A. BANK CLOTHIERS, INC.
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By:
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/s/ Charles D. Frazer
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Name: Charles D. Frazer
Title: Senior Vice President – General Counsel
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Grafico Azioni Jos. A. Bank Clothiers (NASDAQ:JOSB)
Storico
Da Giu 2024 a Lug 2024
Grafico Azioni Jos. A. Bank Clothiers (NASDAQ:JOSB)
Storico
Da Lug 2023 a Lug 2024
