SC TO-T/A

x

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE TO/A

(RULE 14d-100)

Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934

(Amendment No. 2)

Jos. A. Bank Clothiers, Inc.

(Name of Subject Company)

Java Corp.

(Offeror)

The Men’s Wearhouse, Inc.

(Parent of Offeror)

(Names of Filing Persons)

COMMON STOCK, $0.01 PAR VALUE

(Including the Associated Preferred Share Purchase Rights)

(Title of Class of Securities)

480838101

(CUSIP Number of Class of Securities)

Jon W. Kimmins

Chief Financial Officer

The Men’s Wearhouse, Inc.

6380 Rogerdale Road

Houston, Texas 77072

(281) 776-7000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)

Copies to:

Steven A. Seidman

Michael A. Schwartz

Laura L. Delanoy

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

(212) 728-8000

CALCULATION OF FILING FEE

Transaction Valuation*	Amount of Filing Fee**
$1,609,332,540.00	$207,282.03

*	Estimated for purposes of calculating the filing fee only. This amount assumes the purchase of 27,988,392 shares of common stock of Jos. A. Bank Clothiers, Inc. (“JOSB”) issued and outstanding as of November 27, 2013 as set forth in JOSB’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission (the “SEC”) on December 5, 2013.
**	The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, by multiplying the transaction valuation by .0001288.
x	Check 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.

Amount Previously Paid:	$207,282.03	Filing Party:	The Men’s Wearhouse, Inc.
			Java Corp.
Form or Registration No.:	Schedule TO-T (File No. 005-55471)	Date Filed:	January 6, 2014

oCheck the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

xthird-party tender offer subject to Rule 14d-1.

oissuer tender offer subject to Rule 13e-4.

ogoing-private transaction subject to Rule 13e-3.

oamendment to Schedule 13D under Rule 13d-2.

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:

oRule 13e-4(i) (Cross-Border Issuer Tender Offer)

oRule 14d-1(d) (Cross-Border Third-Party Tender Offer)

This Amendment No. 2 to Schedule TO (this “Amendment”) is filed by The Men’s Wearhouse, Inc., a Texas corporation (“MW”), and Java Corp. (the “Purchaser”), a Delaware corporation and a wholly owned subsidiary of MW, and amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on January 6, 2014 (together with any amendments and supplements thereto, the “Schedule TO”) by MW and the Purchaser, relating to the offer by the Purchaser to purchase all outstanding shares of common stock, par value $0.01 per share (together with the associated preferred share purchase rights, the “Shares”), of Jos. A. Bank Clothiers, Inc., a Delaware corporation (“JOSB”), at $57.50 per Share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated January 6, 2014 (together with any amendments and supplements thereto, the “Offer to Purchase”), and in the related Letter of Transmittal (together with any amendments and supplements thereto, the “Letter of Transmittal”, and which, together with the Offer to Purchase, collectively constitute the “Offer”).  This Amendment is being filed on behalf of MW and the Purchaser.

The information set forth in the Offer to Purchaser, including Schedule I thereto, is hereby incorporated by reference in answer to Items 1 through 9 and Item 11 of this Amendment, except as otherwise set forth below.  This Amendment should be read together with the Schedule TO.

Items 1 through 11.

The Offer to Purchase is hereby amended and supplemented as follows:

1.Clause (iii) of the second full paragraph on the cover page of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:

“(iii) the board of directors of JOSB (the “JOSB Board”) having approved the Offer under Section 203 of the DGCL or the Purchaser being satisfied, in its reasonable judgment, that Section 203 of the DGCL is inapplicable to the Offer and the merger (the “Proposed Merger”) of JOSB and the Purchaser as described herein (and as contemplated by the definitive merger agreement described above),”

2.In the “Summary Term Sheet,” the paragraph under the caption “What does the Board of Directors of JOSB think of the Offer?” is hereby amended and restated in its entirety to read as follows:

“On January 17, 2014, JOSB issued a press release and filed a Solicitation/Recommendation Statement on Schedule 14d-9 with the SEC in connection with the Offer, announcing the JOSB Board’s recommendation that holders of Shares reject the Offer and not tender any of their Shares pursuant to the Offer.  See “The Offer—Section 11—“Background of the Offer; Other Transactions with JOSB.”

3.In the “Summary Term Sheet,” clause (iii) of the first paragraph under the caption “What are the most significant conditions to the Offer?” is hereby amended and restated in its entirety to read as follows:

“(iii) the board of directors of JOSB (the “JOSB Board”) having approved the Offer under Section 203 of the DGCL or the Purchaser being satisfied, in its reasonable judgment, that Section 203 of the DGCL is inapplicable to the Offer and the merger (the “Proposed Merger”) of JOSB and the Purchaser as described herein (and as contemplated by the definitive merger agreement described above),”

4.In the “Introduction,” clause (iii) of the second full paragraph is hereby amended and restated in its entirety to read as follows:

“(iii) the board of directors of JOSB (the “JOSB Board”) having approved the Offer under Section 203 of the DGCL or the Purchaser being satisfied, in its reasonable judgment, that Section 203 of the DGCL is inapplicable to the Offer and the merger (the “Proposed Merger”) of JOSB and the Purchaser as described herein (and as contemplated by the definitive merger agreement described above) (the “Section 203 Condition”),”

5.The sixth full paragraph in Section 1 “Terms of the Offer” is hereby amended and restated in its entirety to read as follows:

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““Business day” means any day, other than Saturday, Sunday or a federal holiday, and shall consist of the time period from 12:01 a.m. through 12:00 midnight Eastern time.”

6.The following paragraphs are hereby added at the end of the paragraphs under the caption “Background of the Offer” in Section 11 “Background of the Offer; Other Transactions with JOSB.”

“On January 6, 2014, JOSB issued a press release urging its shareholders to take no action with respect to the Offer or the Nominees at that time.”

“On January 17, 2014, JOSB issued a press release and filed a Solicitation/Recommendation Statement on Schedule 14d-9 with the SEC in connection with the Offer, announcing the JOSB Board’s recommendation that holders of Shares reject the Offer and not tender any of their Shares pursuant to the Offer.”

“On January 29, 2014, JOSB filed an amendment to its Solicitation/Recommendation Statement on Schedule 14d-9 with the SEC in connection with the Offer.”

“On January 30, 2014, MW sent a letter to the independent directors on the JOSB Board and issued a press release containing the text of that letter, urging the JOSB Board to form a special committee of independent directors to re-consider the Offer and the JOSB Board’s decision to reject it (without any discussion whatsoever with MW) and indicating that MW is prepared to increase the offer price if JOSB can demonstrate or MW can discover additional value through discussions or limited due diligence.”

7.In Section 14 “Conditions of the Offer”, clause (f) under sub-section (i) is hereby amended and restated in its entirety to read as follows:

“(f) seeking relief that if granted will result in a material diminution in the benefits expected, in our reasonable judgment, to be derived by us or any of our subsidiaries or affiliates as a result of the transactions contemplated by the Offer or any merger or other business combination involving JOSB or”

8.In Section 14 “Conditions of the Offer”, sub-section (iii) is hereby amended and restated in its entirety to read as follows:

“(iii) any change occurs or is threatened (or any development occurs or is threatened involving a prospective change) in the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of JOSB or any of its subsidiaries that, in our reasonable judgment, is or may be materially adverse to JOSB or any of its subsidiaries, we become aware or would reasonably be expected to become aware of any facts that, in our reasonable judgment, have or may have material adverse significance with respect to either the value of JOSB or any of its affiliates or the value of the Shares to us, or we become aware or would reasonably be expected to become aware that any material contractual right or obligation of JOSB or any of its subsidiaries that, in our reasonable judgment, could result in a material decrease in the value of the Shares to us purchased in the Offer;”

9.In Section 14 “Conditions of the Offer”, clause (l) under sub-section (vi) is hereby amended and restated in its entirety to read as follows:

“(l) amended, or authorized or proposed any amendment to, its certificate of incorporation or bylaws (or other similar constituent documents) or we become aware or would reasonably be expected to become aware that JOSB or any of its subsidiaries shall have amended, or authorized or proposed any amendment to any of their respective certificates of incorporation or bylaws (or other similar constituent documents) which has not been previously disclosed;”

10.In Section 14 “Conditions of the Offer”, sub-section (vii) is hereby amended by adding the phrase “or would reasonably be expected to become aware” after the words “we become aware” and before clause (a).

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11.In Section 14 “Conditions of the Offer”, sub-section (viii) is hereby amended and restated in its entirety to read as follows:

“we and JOSB reach any agreement or understanding pursuant to which it is agreed that the Offer will be terminated;”

The Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees is hereby amended and supplemented as follows:

1.Clause (iii) of the second full paragraph on the cover page of the Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees is hereby amended and restated in its entirety to read as follows:

“(iii) the board of directors of JOSB (the “JOSB Board”) having approved the Offer under Section 203 of the DGCL or the Purchaser being satisfied, in its reasonable judgment, that Section 203 of the DGCL is inapplicable to the Offer and the merger (the “Proposed Merger”) of JOSB and the Purchaser as described in the Offer (and as contemplated by the definitive merger agreement described above),”

The Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees is hereby amended and supplemented as follows:

1.Clause (iii) of third numbered bullet on the cover page of the Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees is hereby amended and restated in its entirety to read as follows:

“(iii) the board of directors of JOSB (the “JOSB Board”) having approved the Offer under Section 203 of the DGCL or the Purchaser being satisfied, in its reasonable judgment, that Section 203 of the DGCL is inapplicable to the Offer and the merger (the “Proposed Merger”) of JOSB and the Purchaser as described in the Offer (and as contemplated by the definitive merger agreement described above),”

Items 12.

Item 12 of the Schedule TO is hereby amended and supplemented to add the following exhibit:

(a)(5)(G) Press release issued by MW on January 30, 2014.

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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.

Dated: January 30, 2014

THE MEN’S WEARHOUSE, INC.
By:	/s/ Douglas S. Ewert
Name:	Douglas S. Ewert
Title:	President and Chief Executive Officer
JAVA CORP.
By:	/s/ Douglas S. Ewert
Name:	Douglas S. Ewert
Title:	President and Chief Executive Officer

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EX-99.(A)(5)(G)

Exhibit (a)(5)(G)

Men’s Wearhouse Sends Letter to Jos. A. Bank Independent Directors

Urges Jos. A. Bank Independent Directors to Form a Special Committee to Re-Consider

Men’s Wearhouse Offer and Begin Constructive Negotiations

Men’s Wearhouse is Prepared to Increase Offer Price if Additional Value is Discovered

Through Discussions or Limited Due Diligence

FREMONT, Calif., January 30, 2014 — The Men’s Wearhouse (NYSE: MW) today sent a letter to the independent directors of Jos. A. Bank Clothiers, Inc. (Nasdaq: JOSB) regarding Men’s Wearhouse’s compelling all-cash offer to acquire Jos. A. Bank for $57.50 per share.

The full text of the letter follows:

January 30, 2014

Andrew A. Giordano, Lead Independent Director

Byron L. Bergren, Director

James H. Ferstl, Director

William E. Herron, Director

Sidney H. Ritman, Director

Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, MD 21074

Dear Independent Directors:

We are writing to you, the independent directors of Jos. A. Bank Clothiers, Inc. (“JOSB” or the “Company”), regarding our all-cash $57.50 per share offer to acquire the Company.  As we have made clear, our strong preference is to work collaboratively with the JOSB Board and management to realize the benefits of this combination.  Our offer would provide your shareholders with a substantial premium and immediate and certain value.

As independent directors, each of you has a heightened responsibility to serve the best interests of shareholders, without regard to conflicting personal interests.  As you are no doubt aware, on October 18, 2013, when JOSB proposed to acquire Men’s Wearhouse, Mr. Wildrick articulated a compelling rationale for combining our two companies: “We believe that Men’s Wearhouse and Jos. A. Bank are ideal partners…. By combining our two companies, we can together create the best men’s apparel and sportswear designer, manufacturer and retailer in the U.S.”  At that time, the Company was proposing to acquire Men’s Wearhouse, and Mr. Wildrick was slated to lead the combined business.

Now, when Men’s Wearhouse is proposing to acquire JOSB, and Mr. Wildrick will not be CEO of the combined business, JOSB, rather than engaging in discussions that might lead to that “ideal” combination, is pursuing an alternative transaction, including a material acquisition.  Obviously, in considering Men’s Wearhouse’s offer to acquire the Company, Mr. Wildrick has a

conflict of interest that might naturally make him prefer some other strategic alternative.  Accordingly, we urge you to form a special committee of independent directors to re-consider Men’s Wearhouse’s offer and the JOSB Board’s decision to reject it (without any discussion whatsoever with Men’s Wearhouse).

We are confident that the Men’s Wearhouse offer to acquire the Company delivers significant value to the Company’s shareholders that is superior to what we believe you can reasonably expect to create as a standalone company.  Our offer represents a 52% premium over JOSB’s unaffected enterprise value and a 38% premium over the closing share price on October 8, 2013, the day prior to the Company’s public announcement of its proposal to acquire Men’s Wearhouse.  Further, the transaction represents a 9.4x enterprise value to last twelve months (“LTM”) Adjusted EBITDA(1) multiple (assuming $135 million of LTM Adjusted EBITDA as of November 2, 2013), which is (i) a significant premium to Jos. A. Bank’s proposal to acquire Men’s Wearhouse, (ii) in excess of Jos. A. Bank’s historical average trading multiple and (iii) near the upper end of recent precedent apparel retail transactions.  Moreover, we are prepared to increase our offer price if you can demonstrate or we can discover additional value through discussions or limited due diligence.

We note that the Company’s Solicitation / Recommendation Statement on Schedule 14D-9 attempted to call into question Men’s Wearhouse’s commitment to complete a business combination with the Company.  Please rest assured that we are fully committed to a transaction.  If the fact that we have launched a tender offer at an increased price and nominated two highly qualified independent directors to your Board hasn’t convinced you, we encourage you to engage in discussions with us.  We are quite confident that such a discussion would make it crystal clear how committed we are to making this combination a reality.  Furthermore, the fact that we have said that a combination between our companies faces antitrust risk should in no way be mischaracterized as a lack of determination.  As expected, we received a “second request” from the Federal Trade Commission, and continue to work cooperatively with the FTC to obtain approval of the transaction as soon as possible.

With this compelling offer on the table and our mutual belief in the strategic and financial value of combining our companies, we urge you to do what is right for your shareholders and form a special committee of independent directors and enter constructive negotiations with us immediately.

On Behalf of the Board of Directors

of The Men’s Wearhouse, Inc.,

Douglas S. Ewert
President, Chief Executive Officer and Director

As previously announced on January 6, 2014, Men’s Wearhouse commenced a cash tender offer to acquire all outstanding shares of Jos. A. Bank Clothiers, Inc. (Nasdaq: JOSB) for $57.50 per share.  The tender offer is scheduled to expire at 5:00 p.m., New York City time on Friday, March 28, 2014, unless the offer is extended.  Consummation of the offer is not conditioned upon any financing arrangements or subject to a financing condition.  The full terms, conditions and other details of the tender offer are set

(1)  EBITDA is defined as earnings before interest, taxes, depreciation and amortization.

forth in the offering documents that Men’s Wearhouse have been filed with the Securities and Exchange Commission.

Also as previously announced, Men’s Wearhouse has formally submitted its notice to nominate two independent director candidates, John D. Bowlin and Arthur E. Reiner, for election to the Jos. A. Bank Board of Directors at its 2014 Annual Meeting.

BofA Merrill Lynch and J.P. Morgan Securities LLC are serving as financial advisors to Men’s Wearhouse, Willkie Farr & Gallagher LLP is serving as legal advisor and MacKenzie Partners, Inc., is serving as information agent.

Founded in 1973, Men’s Wearhouse is one of North America’s largest specialty retailers of men’s apparel with 1,133 stores.  The Men’s Wearhouse, Moores and K&G stores carry a full selection of suits, sport coats, furnishings and accessories in exclusive and non-exclusive merchandise brands and Men’s Wearhouse and Tux stores carry a limited selection.  Most K&G stores carry a full selection of women’s apparel.  Tuxedo rentals are available in the Men’s Wearhouse, Moores and Men’s Wearhouse and Tux stores.  Additionally, Men’s Wearhouse operates a global corporate apparel and workwear group consisting of Twin Hill in the United States and Dimensions, Alexandra and Yaffy in the United Kingdom.  Investors can find additional information at http://ir.menswearhouse.com/.

ADDITIONAL INFORMATION

On January 6, 2014, Java Corp. (“Purchaser”), a wholly owned subsidiary of The Men’s Wearhouse, Inc., commenced a cash tender offer for all outstanding shares of common stock of Jos. A. Bank Clothiers, Inc. not already owned by Men’s Wearhouse or any of its subsidiaries, subject to the terms and conditions set forth in the Offer to Purchase dated as of January 6, 2014 (the “Offer to Purchase”). The purchase price to be paid upon the successful closing of the cash tender offer is $57.50 net per share in cash, without interest and less any required withholding tax, subject to the terms and conditions set forth in the Offer to Purchase and the related letter of transmittal that accompanies the Offer to Purchase.  The offer is scheduled to expire at 5:00 p.m., New York City time, on Friday, March 28, 2014, unless further extended in the manner set forth in the Offer to Purchase.

This communication does not constitute an offer to buy or solicitation of an offer to sell any securities. This communication is for informational purposes only.  The tender offer is not being made to, nor will tenders be accepted from, or on behalf of, holders of shares in any jurisdiction in which the making of the tender offer or the acceptance thereof would not comply with the laws of that jurisdiction.  The tender offer is being made pursuant to a tender offer statement on Schedule TO (including the Offer to Purchase, a related letter of transmittal and other offer materials) filed by Men’s Wearhouse and the Purchaser with the U.S. Securities and Exchange Commission (“SEC”) on January 6, 2014. INVESTORS AND SECURITY HOLDERS OF JOS. A. BANK ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER. Investors and security holders can obtain free copies of these documents and other documents filed with the SEC by Men’s Wearhouse through the web site maintained by the SEC at http://www.sec.gov.  The Offer to Purchase Letter of Transmittal and other offering documents may also be obtained for free by contacting the Information Agent for the tender offer, MacKenzie Partners, Inc., at 212-929-5500 or toll-free at 800-322-2885.

Men’s Wearhouse, Inc. intends to file a proxy statement on Schedule 14A and other relevant documents with the SEC in connection with its solicitation of proxies for the 2014 Annual Meeting of Jos. A. Bank Clothiers, Inc. (the “Proxy Statement”).  MEN’S WEARHOUSE STRONGLY ADVISES ALL

INVESTORS AND SECURITY HOLDERS OF JOS. A. BANK TO READ THE PROXY STATEMENT WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN ANY SUCH PROXY SOLICITATION.  SUCH PROXY STATEMENT, WHEN FILED, AND ANY OTHER RELEVANT DOCUMENTS WILL BE AVAILABLE AT NO CHARGE ON THE SEC’S WEBSITE AT HTTP://WWW.SEC.GOV.

In accordance with Rule 14a-12(a)(1)(i) under the Securities Exchange Act of 1934, as amended, the following persons are anticipated to be, or may be deemed to be, participants in any such proxy solicitation: Men’s Wearhouse, Douglas S. Ewert, David H. Edwab, Jon W. Kimmins, John D. Bowlin and Arthur E. Reiner.  Certain of these persons hold direct or indirect interests as follows: Men’s Wearhouse is the record and beneficial holder of 100 shares of common stock of Jos. A. Bank and is seeking to enter into a business combination between it and Jos. A. Bank; and Messrs. Bowlin and Reiner each have an interest in being nominated and elected as a director of Jos. A. Bank.  Other directors and executive officers of Men’s Wearhouse who may in the future be participants in the solicitation of proxies have not been determined as of the date of this press release.  No additional compensation will be paid to such directors and executive officers for such services.  Investors and security holders of Jos. A. Bank can obtain additional information regarding the direct and indirect interests of the nominees and other participants by reading the Proxy Statement when it becomes available.

This press release contains forward-looking information.  Forward-looking statements are not guarantees of future performance and a variety of factors could cause actual results to differ materially from the anticipated or expected results expressed in or suggested by these forward-looking statements.  These forward-looking statements may be significantly impacted by various factors, including, but not limited to: actions by governmental entities, domestic and international economic activity and inflation, success, or lack thereof, in executing our internal operating plans and new store and new market expansion plans, including successful integration of acquisitions, performance issues with key suppliers, disruption in buying trends due to homeland security concerns, severe weather, foreign currency fluctuations, government export and import policies, aggressive advertising or marketing activities of competitors; and legal proceedings. Future results will also be dependent upon our ability to continue to identify and complete successful expansions and penetrations into existing and new markets and our ability to integrate such expansions with our existing operations.  These statements also include assumptions about our offer to acquire Jos. A. Bank (including its benefits, results, effects and timing) that may not be realized.  Risks and uncertainties related to the proposed transaction include, among others: in the event a definitive transaction agreement is executed, the risk that  Jos. A. Bank’s shareholders do not approve the transaction; uncertainties as to the timing of the transaction; the risk that regulatory or other approvals required for the transaction are not obtained,  the risk that the other conditions to the closing of the transaction are not satisfied; and, in the event the transaction is consummated, risks related to the costs and difficulties related to the integration of Jos. A. Bank’s businesses and operations with Men’s Wearhouse’s business and operations; the inability to obtain, or delays in obtaining, cost savings and synergies from the transaction; unexpected costs, charges or expenses resulting from the transaction; litigation relating to the transaction; and the inability to retain key personnel. The forward-looking statements in this press release speak only as of the date hereof. Men’s Wearhouse undertakes no obligation to revise or update publicly any forward-looking statement, except as required by law.  Other factors that may impact the forward-looking statements are described in Men’s Wearhouse’s annual report on Form 10-K for the fiscal year ended February 2, 2013 and Forms 10-Q.  For additional information on Men’s Wearhouse, please visit the Company’s websites at www.menswearhouse.com, www.mooresclothing.com, www.kgstores.com, www.twinhill.com, www.dimensions.co.uk and www.alexandra.co.uk.

Contacts:

Ken Dennard

Dennard · Lascar Associates

(832) 594-4004

ken@dennardlascar.com

http://ir.menswearhouse.com/

Dan Katcher / Tim Lynch / Andrea Rose

Joele Frank, Wilkinson Brimmer Katcher

(212) 355-4449