-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WAwYkj3OEWlmF4kwUPgXWKQFFtcGLDdV408VbAXbOtxFJ5la90jkKRl1VUk4aN3z 5iNYKPvUtyXF6OUx0kRMiw== 0000928385-02-001320.txt : 20020415 0000928385-02-001320.hdr.sgml : 20020415 ACCESSION NUMBER: 0000928385-02-001320 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020403 EFFECTIVENESS DATE: 20020403 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANK JOS A CLOTHIERS INC /DE/ CENTRAL INDEX KEY: 0000920033 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-APPAREL & ACCESSORY STORES [5600] IRS NUMBER: 363189198 STATE OF INCORPORATION: DE FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-85426 FILM NUMBER: 02600738 BUSINESS ADDRESS: STREET 1: 500 HANOVER PIKE CITY: HAMPSTEAD STATE: MD ZIP: 21074 BUSINESS PHONE: 4102392700 S-8 1 ds8.txt FORM S-8 Registration Statement No.33__________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Jos. A. Bank Clothiers, Inc. (Exact name of issuer as specified in its charter) Delaware 36-3189198 --------------- -------------------- (State or other jurisdiction incorporation or organization) (I.R.S. Employer Identification No.)
500 Hanover Pike, Hampstead, Maryland 21074 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Jos. A. Bank Clothiers, Inc. Stock Option Plan for Henry C. Schwartz - -------------------------------------------------------------------------------- (Full title of the plan) Charles D. Frazer, Vice President and General Counsel Jos. A. Bank Clothiers, Inc. 500 Hanover Pike Hampstead, Maryland 21074-2095 - -------------------------------------------------------------------------------- (Name and address of agent for service) (410) 239-2700 - ------------------------------------------------------------------------------- (Telephone number, including area code, of agent for service) With a copy to: Ralph J. Sutcliffe, Esq. Kronish Lieb Weiner & Hellman LLP 1114 Avenue of the Americas New York, NY 10036-7798 - --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------------- Title of Securities to Amount to be Offering Aggregate Amount of be Registered Registered Price per Offering Registration Share (1) Price Fee - ---------------------------------------------------------------------------------------------------------------------- Common Stock, 95,959 $9.17 $879,944 $80.96 $.01 par value - ----------------------------------------------------------------------------------------------------------------------
(1) Exercise price of the options granted under the Plan, pursuant to Rule 457(h). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference ----------------------------------------------- The following documents, which have been filed by Jos. A. Bank Clothiers, Inc. (the "Company" or "registrant") with the Securities and Exchange Commission (the "SEC"), are incorporated by reference in this Registration Statement as of their respective dates: (a) The Company's Annual Report on Form 10-K for the fiscal year ended February 3, 2001; (b) The Company's quarterly reports on Form 10-Q for the periods ended May 5, 2001, August 4, 2001 and November 3, 2001; and (c) The description of the Company's capital stock contained in the Company's Registration Statement on Form 8-A (No. 0-23874) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), declared effective May 3, 1994. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 5. Interests of Named Experts and Counsel -------------------------------------- Ralph J. Sutcliffe, a partner of Kronish Lieb Weiner & Hellman LLP and counsel to the Company, beneficially owns 10,500 shares of the Company's common stock. Item 6. Indemnification of Directors and Officers ----------------------------------------- The Company's Restated Certificate of Incorporation provides that the Company will, to the fullest extent permitted by the General Corporation Law of the State of Delaware, as amended from time to time (the "GCL"), indemnify all persons whom it may indemnify pursuant thereto. The Company's Bylaws, as amended, contain a similar provision requiring indemnification of the Company's directors and officers to the fullest extent authorized by the GCL. The GCL permits a corporation to indemnify its directors and officers (among others) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought (or threatened to be brought) by third parties, if such directors or officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. In a derivative action (i.e., one by or in the right of the corporation), indemnification may be made for expenses (including attorneys' fees) actually and reasonably incurred by directors and officers in connection with the defense or settlement of such action if they had acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged liable to the Company unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses. The GCL further provides that, to the 2 extent any director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in this paragraph, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. In addition, the Company's Certificate of Incorporation contains a provision limiting the personal liability of the Company's directors for monetary damages for certain breaches of their fiduciary duty. The Company has indemnification insurance under which directors and officers are insured against certain liability that may occur in their capacity as such. The Company has entered into an employment agreement with Robert N. Wildrick dated as of November 1, 1999 (as amended, the "Employment Agreement"). Under the terms of the Employment Agreement, the Company has agreed to indemnify Robert N. Wildrick from and against any expenses (including attorneys' fees), judgments, fines and amounts paid in settlement incurred by him by reason of his being made a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, by reason of any act or omission to act during or before the term of the Employment Agreement or otherwise by reason of the fact that Robert N. Wildrick is or was a director or officer of the Company or any subsidiary or affiliate of the Company, to the fullest extent permitted by the GCL. Item 8. Exhibits. -------- 4.1 Form of Common Stock certificate, previously filed with the SEC as an exhibit to the Company's Registration Statement on Form 8-A (No. 0-23874) under the Exchange Act, declared effective May 3, 1994, and incorporated herein by reference. 5.1 Opinion of counsel as to legality of the shares of common stock covered by this Registration Statement. 23.1 Consent of independent accountants 23.2 Consent of counsel (included within Exhibit 5.1) Item 9. Undertakings. ------------ A. Post-Effective Amendments ------------------------- The registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; 3 provided, however, that subparagraphs (i) and (ii) above will not apply if the - -------- ------- information required to be included in a post-effective amendment by those subparagraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. Subsequent Documents Incorporated by Reference ---------------------------------------------- The registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Claims for Indemnification -------------------------- Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hampstead, State of Maryland, on the 2nd day of April, 2002. Jos. A. Bank Clothiers, Inc. (Registrant) By: /s/ Robert N. Wildrick ------------------------------------ Robert N. Wildrick Chief Executive Officer and Director Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in all capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert N. Wildrick Chief Executive Officer and Director April 2, 2002 - ---------------------- Robert N. Wildrick /s/ David E. Ullman Executive Vice President and Chief April 2, 2002 - --------------------- Financial Officer David E. Ullman /s/ Richard E. Pitts Treasurer April 2, 2002 - --------------------- Richard E. Pitts /s/ Andrew A. Giordano Chairman of the Board and Director April 2, 2002 - ---------------------- Andrew A. Giordano /s/ Gary S. Gladstein Director April 2, 2002 - --------------------- Gary S. Gladstein /s/ David A. Preiser Director April 3, 2002 - --------------------- David A. Preiser
5 EXHIBIT INDEX Exhibit 4.1 Form of Common Stock certificate, previously filed with the SEC as an exhibit to the Company's Registration Statement on Form 8-A (No. 0-23874) under the Exchange Act, declared effective May 3, 1994, and incorporated herein by reference. 5.1 Opinion of counsel as to legality of the shares of common stock covered by this Registration Statement. 23.1 Consent of independent accountants 23.2 Consent of counsel (included within Exhibit 5.1) 6 EX-5.1 3 dex51.txt EXHIBIT 5.1 Exhibit 5.1 [Kronish Lieb Weiner & Hellman LLP Letterhead] April 2, 2002 Jos. A. Bank Clothiers, Inc. 500 Hanover Pike Hampstead, Maryland 21074 Gentlemen: We have acted as counsel for Jos. A. Bank Clothiers, Inc., a Delaware corporation (the "Company"), in connection with the registration, pursuant to a Registration Statement on Form S-8 (the "Registration Statement") by the Company under the Securities Act of 1933, as amended (the "Act"), of 95,959 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), to be offered for sale by the Company from time to time to Henry C. Schwartz ("Executive") pursuant to the terms and conditions of that certain Option Agreement, dated as of January 29, 1994 between Executive and the Company (the "Plan"). We have examined the Company's Restated Certificate of Incorporation and Bylaws, as amended, and minute books and such other documents and records as we have deemed necessary and relevant as a basis for our opinions hereinafter set forth. For the purposes of this letter, we have assumed the genuineness of all signatures and the conformity to original documents of all instruments furnished to us for review or examination as copies. Based on the foregoing and having regard to such legal considerations as we have deemed relevant, it is our opinion that: 1. The Company is a corporation duly organized under the laws of the State of Delaware. 2. The Common Stock covered by the Registration Statement has been validly authorized. 3. When (i) the Common Stock has been duly registered under the Act, (ii) certificates for the Common Stock have been duly delivered, and (iii) the Company has received the consideration to be received by it pursuant to and upon exercise of the related options awarded under the Plan, the Common Stock will be validly issued, fully paid and non-assessable by the Company, with no personal liability attaching to ownership thereof. We hereby consent to the inclusion of this opinion in the Registration Statement and to the references to this firm contained therein. Very truly yours, /s/ Kronish Lieb Weiner & Hellman LLP KRONISH LIEB WEINER & HELLMAN LLP EX-23.1 4 dex231.txt EXHIBIT 23.1 EXHIBIT 23.1 [Arthur Andersen LLP Logo] CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our report dated March 5, 2001 (except with respect to the matter discussed in Note 14 therein, as to which the date is March 27, 2001) included in Jos. A. Bank Clothiers, Inc. and subsidiaries' Form 10-K for the year ended February 3, 2001, and to all references to our Firm included in this Registration Statement. /s/ Arthur Andersen LLP Baltimore, Maryland April 3, 2002 -----END PRIVACY-ENHANCED MESSAGE-----