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SECURITIES AND EXCHANGE COMMISSION
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WASHINGTON, D.C. 20549
SCHEDULE TO/A
(Amendment No. 2)
(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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¨
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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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¨
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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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¨
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going-private transaction subject to Rule 13e-3.
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¨
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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:
¨
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
¨
Rule
13e-4(i) (Cross-Border Issuer Tender Offer)
¨
Rule
14d-1(d) (Cross-Border Third-Party Tender Offer)
INTRODUCTION
This Amendment No. 2
(this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO originally filed with
the Securities and Exchange Commission on February 19, 2014, as amended and supplemented by Amendment No. 1 to Schedule TO,
filed with the SEC on February 24, 2014 (as amended or supplemented, 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 2, “Purpose of Tender Offer;
Certain Effects of the Tender Offer; Other Plans” is hereby amended and supplemented to add the following paragraph after
the second paragraph of the section entitled “Other Plans”:
“On February 24, 2014,
Men’s Wearhouse revised its previously announced tender offer for our common stock to, among other things, increase the
purchase price to $63.50 per share, net to the seller in cash, without interest and less any required withholding taxes, and
to change the expiration date to 5:00 p.m. New York City time on March 12, 2014, unless extended. The Company issued a press
release announcing that its Board of Directors will review all aspects of the revised tender offer, and will make a
recommendation to stockholders in due course.”
Section 10, “Certain Information Concerning
the Company” is also hereby amended and supplemented to add the above language at the end of the section entitled “Recent
Developments—Men’s Wearhouse Tender Offer.”
Section 13, “Legal Proceedings”
is hereby amended and supplemented to add the following language at the end thereof:
“On February 24, 2014, Men’s
Wearhouse filed a complaint against the Director Defendants, as well the Company, Everest Holdings, Topco LLC and Golden Gate
Private Equity, Inc. in the Delaware Court of Chancery, captioned The Men’s Wearhouse Inc. v. Robert N. Wildrick et al.
C.A. No. 9893, together with a motion for expedited proceedings and a motion for preliminary injunction.
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 Men’s Wearhouse, incorporated by reference as Exhibit (a)(5)(E)
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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(a)(5)(E)
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Complaint in
The Men’s Wearhouse Inc. v. Robert N. Wildrick et al.
, filed by The Men’s Wearhouse in the Court of Chancery of the State of Delaware on February 24, 2014 (incorporated by reference to the Company’s Amendment No. 9 to Schedule 14D-9/A, filed on February 24, 2014).
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(a)(5)(F)
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Press release issued by the Company on February 24, 2014 (incorporated by reference to Exhibit 99.1 to the
Company’s Current Report on Form 8-K, dated February 24, 2014).
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(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
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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
