-----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, MMPsr56uHUULywP3JJFqKn4s2fJ02k6Y6wK0w343Cp9mKMo6rkFYak+3WsjfDnsE oIH8ACwXiLGGTxxu4TG6pw== 0000928385-02-002326.txt : 20020618 0000928385-02-002326.hdr.sgml : 20020618 20020618125553 ACCESSION NUMBER: 0000928385-02-002326 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20020504 FILED AS OF DATE: 20020618 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: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 033-14657 FILM NUMBER: 02681293 BUSINESS ADDRESS: STREET 1: 500 HANOVER PIKE CITY: HAMPSTEAD STATE: MD ZIP: 21074 BUSINESS PHONE: 4102392700 10-Q 1 d10q.txt FORM 10-Q United States Securities and Exchange Commission Washington, DC 20549 FORM 10-Q [x] Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended May 4, 2002 ----------- Or Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Commission File Number 0-23874 ------- Jos. A. Bank Clothiers, Inc. Delaware 5611 36-3189198 -------- ---- ---------- (State incorporation) (Primary Standard (I.R.S. Employer Industrial Classification Identification Code Number) Number) 500 Hanover Pike, Hampstead, MD 21074-2095 - ------------------------------- ---------- None ---- (Former name or former address, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or if such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [x] No [_] Indicate the number of shares of each of the issuer's classes of common stock, as of the latest practicable date: Class Outstanding as of June 13, 2002 ----- ------------------------------- Common Stock, $.01 par value 6,169,472 --------- Jos. A. Bank Clothiers, Inc. Index -----
Part I. Financial Information Page No. Item 1. Financial Statements Condensed Consolidated Statements 3 of Operations - Three Months ended May 4, 2002 and May 5, 2001 Condensed Consolidated Balance 4 Sheets - as of May 4, 2002 and February 2, 2002 Condensed Consolidated Statements 5 of Cash Flows - Three Months ended May 4, 2002 and May 5, 2001 Notes to Condensed Consolidated Financial Statements 6-9 Item 2. Management's Discussion and Analysis of Results of Operations and Financial Condition 9-12 Item 3. Quantitative and Qualitative Disclosures about Market Risk 13 Part II. Other Information Item 6. Exhibits and Reports on Form 8-K 13 Signatures 14
2 PART I. FINANCIAL INFORMATION Item 1. Condensed Consolidated Financial Statements JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES Condensed Consolidated Statements of Operations (In Thousands except per share data) (Unaudited) Three Months Ended ------------------ May 5, May 4, 2001 2002 ---- ---- Net sales $ 47,406 $ 55,760 ------ ------ Costs and expenses: Cost of goods sold 23,896 26,411 General and administrative 4,553 5,849 Sales and marketing 17,656 20,342 Store opening costs 69 27 One-time charge 210 -- ------ ------ 46,384 52,629 ------ ------ Operating income 1,022 3,131 Interest expense, net 219 293 ------ ------ Income before provision for income taxes 803 2,838 Provision for income taxes 297 1,107 ------ ------ Net income $ 506 $ 1,731 ====== ====== Earnings per share: Net income: Basic $ 0.08 $ 0.29 Diluted $ 0.08 $ 0.25 Weighted average shares outstanding: Basic 5,956 6,045 Diluted 6,210 6,819 See accompanying notes 3 JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES Condensed Consolidated Balance Sheets (In Thousands)
February 2, May 4, 2002 2002 ---- ---- (Unaudited) ASSETS Current Assets: Cash and cash equivalents $ 827 $ 1,182 Accounts receivable 2,364 3,599 Inventories: Raw materials 5,018 4,668 Finished goods 59,624 59,270 --------- --------- Total inventories 64,642 63,938 --------- --------- Prepaid expenses and other current assets 6,532 5,770 Deferred income taxes 594 594 --------- --------- Total current assets 74,959 75,083 --------- --------- Property, plant and equipment, at cost 64,559 67,107 Accumulated depreciation and amortization (32,018) (33,292) --------- --------- Net property, plant and equipment 32,541 33,815 Other assets 117 109 Deferred income taxes 840 840 --------- --------- Total assets $ 108,457 $ 109,847 ========= ========= LIABILITIES AND SHAREHOLDERS' EQUITY Current Liabilities: Accounts payable $ 16,528 $ 18,276 Accrued expenses 19,930 19,305 Current portion of long-term debt 744 710 --------- --------- Total current liabilities 37,202 38,291 Noncurrent Liabilities: Long-term debt 15,894 12,528 Deferred rent 3,109 3,094 --------- --------- Total liabilities 56,205 53,913 --------- --------- Shareholders' equity: Common stock 71 73 Additional paid-in capital 56,558 58,507 Retained earnings 681 2,412 --------- --------- 57,310 60,992 Less treasury stock (5,058) (5,058) --------- --------- Total shareholders' equity 52,252 55,934 --------- --------- Total liabilities and shareholders' equity $ 108,457 $ 109,847 ========= =========
See accompanying notes 4 JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES Condensed Consolidated Statements of Cash Flows (In Thousands) (Unaudited) Three Months Ended ------------------ May 5, May 4, 2001 2002 ---- ---- Cash flows from operating activities: Net income $ 506 $ 1,731 Adjustments to reconcile net income to net cash (used in) provided by operating activities: Increase in deferred taxes (566) -- Depreciation and amortization 1,089 1,300 Net (increase) decrease in operating working capital (8,674) 1,347 ------- -------- Net cash (used in) provided by operating activities (7,645) 4,378 ------- -------- Cash flows from investing activities: Capital expenditures (1,984) (2,574) ------- -------- Net cash used in investing activities (1,984) (2,574) ------- -------- Cash flows from financing activities: Borrowings under long-term Credit Agreement 17,136 14,968 Repayments under long-term Credit Agreement (15,482) (18,184) Borrowing of other long-term debt 5,500 -- Repayment of other long-term debt (130) (184) Net proceeds from issuance of common stock -- 1,951 ------- -------- Net cash provided by (used in) financing activities 7,024 (1,449) ------- -------- Net (decrease) increase in cash and cash equivalents (2,605) 355 Cash and cash equivalents - beginning of period 3,126 827 ------- -------- Cash and cash equivalents - end of period $ 521 $ 1,182 ======= ======== See accompanying notes 5 Jos. A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS ---------------------------------------------------- (Unaudited) 1. BASIS OF PRESENTATION Jos. A. Bank Clothiers, Inc. (the "Company") is a nationwide retailer of classic men's clothing through conventional retail stores and catalog and internet direct marketing. The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. The results of operations for the interim periods shown in this report are not necessarily indicative of results to be expected for the fiscal year. In the opinion of management, the information contained herein reflects all adjustments necessary to make the results of operations for the interim periods a fair statement of such operations. These adjustments are of a normal recurring nature. Certain notes and other information have been condensed or omitted from the interim financial statements presented in this Quarterly Report on Form 10-Q. Therefore, these financial statements should be read in conjunction with the Company's February 2, 2002 Annual Report on Form 10-K. 2. SIGNIFICANT ACCOUNTING POLICIES Inventories are stated at the lower of first-in, first-out, cost or market. The Company capitalizes into inventory certain warehousing and delivery costs associated with shipping its merchandise to the point of sale. Costs related to mail order catalogs and promotional materials are included in prepaid expenses and other current assets. These costs are amortized over the expected periods of benefit, not to exceed six months. The Company accounts for income taxes in accordance with Statement of Financial Accounting Standards No. 109 - Accounting for Income Taxes (SFAS 109). This standard requires, among other things, recognition of future tax benefits, measured by enacted tax rates attributable to deductible temporary differences between financial statement and income tax basis of assets and liabilities and to tax net operating loss carry forwards, to the extent that realization of such benefits is more likely than not. Reclassifications - Certain reclassifications have been made to the May 5, 2001 financial statements in order to conform with the May 4, 2002 presentation. 6 Jos. A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 3. WORKING CAPITAL The net change in operating working capital is composed of the following: Three Months Ended May 5, May 4, 2001 2002 ---- ------ Increase in accounts receivable $ (540) $(1,235) (Increase) decrease in inventories (8,453) 704 (Increase) decrease in prepaids and other assets (252) 770 Increase in accounts payable 1,861 1,748 Decrease in accrued expenses and other liabilities (1,290) (640) ------- ------- Net (increase) decrease in operating working capital $(8,674) $ 1,347 ======= ======= 4. EARNINGS PER SHARE Earnings Per Share (EPS) - Statement of Financial Accounting Standards (SFAS) No. 128 requires presentation of basic earnings per share and diluted earnings per share. The weighted average shares used to calculate basic and diluted earnings per share in accordance with SFAS No. 128 is as follows: Three Months Ended ------------------ May 5, May 4, 2001 2002 ------ ------- Weighted average shares outstanding for basic EPS 5,956 6,045 Dilutive effect of common stock equivalents 254 774 ------ ------- Weighted average shares outstanding for diluted EPS 6,210 6,819 ====== ======= Weighted average shares outstanding for calculating dilutive EPS include basic shares outstanding, plus shares issuable upon the exercise of stock options, using the treasury stock method. 7 Jos. A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 5. SEGMENT REPORTING The Company has two reportable segments: full line stores and catalog/internet direct marketing. While each segment offers a similar mix of men's clothing to the retail customer, the full line stores also provide alterations. The accounting policies of the segments are the same as those described in the Company's February 2, 2002 Annual Report on Form 10-K. The Company evaluates performance of the segments based on "four wall" contribution which excludes any allocation of "management company" costs, distribution center costs (except order fulfillment costs which are allocated to catalog/internet), interest and income taxes. The Company's segments are strategic business units that offer similar products to the retail customer by two distinctively different methods. In full line stores the typical customer travels to the store and purchases men's clothing and/or alterations and takes their purchases with them. The catalog/internet direct marketing customer receives a catalog in his or her home, office and/or visits our web page via the internet and either calls, mails, faxes or places an order on-line. The merchandise is then shipped to the customer. The detail segment data is presented in the following table:
Quarter ended May 4, 2002 Full line Catalog/Internet (in thousands) Stores Direct Marketing Other Total ------ ---------------- ----- ----- Net sales $ 47,489 $ 6,109 $ 2,162 (a) $ 55,760 Depreciation and amortization 950 15 335 1,300 Operating income (loss) (b) 8,316 1,354 (6,539) 3,131 Identifiable assets (c) 66,168 13,979 29,700 109,847 Capital expenditures (d) 835 -- 1,739 2,574 Quarter ended May 5, 2001 Full line Catalog/Internet (in thousands) Stores Direct Marketing Other Total ------ ---------------- ----- ----- Net sales $ 41,024 $ 4,891 $ 1,491 (a) $ 47,406 Depreciation and amortization 791 15 283 1,089 Operating income (loss) (b) 5,851 310 (5,139) 1,022 Identifiable assets (c) 59,975 11,453 25,627 97,055 Capital expenditures (d) 777 390 817 1,984
(a) Net sales from segments below the quantitative thresholds are attributable primarily to four operating segments of the Company. Those segments include factory stores, outlet stores, franchise and regional tailor shops. None of these segments has ever met any of the quantitative thresholds for determining reportable segments. (b) Operating income represents profit before allocations of overhead from "management company" and the distribution center, interest and income taxes. (c) Identifiable assets include cash, accounts receivable, inventories, prepaid expenses and fixed assets residing in or related to the reportable segments. Assets included in Other are primarily fixed assets associated with the corporate office and distribution center, deferred tax assets, and inventory which has not been assigned to one of the reportable segments. (d) Capital expenditures include purchases of property, plant and equipment made for the reportable segment. 8 Jos. A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 6. ONE-TIME CHARGE During the first quarter of fiscal 2001, the Company recorded a one-time charge of $.2 million. The one-time charge primarily represents professional fees incurred in the first quarter of fiscal 2001 in connection with a strategic action considered by the Board of Directors. Item 2. Management's Discussion and Analysis of Results of Operations and Financial Condition The following discussion should be read in conjunction with the attached condensed consolidated financial statements and notes thereto and with the Company's audited financial statements and notes thereto for the fiscal year ended February 2, 2002. Overview - For the first quarter of fiscal 2002, the Company earned $.25 per share compared with $.08 per share in fiscal 2001. As such, earnings per share was more than triple compared with the prior year. The earnings per share of $.25 represents the third consecutive quarter of record earnings for the Company. The Company generated increased profits in both the stores and catalog/internet segments driven by increased sales and gross profit margins. The Company's gross profit percent increased 300 basis points in the first quarter of fiscal 2002 as the Company continued to improve its sourcing of merchandise. The Company had $12.1 million of total debt outstanding as of the end of the quarter (excluding cash) compared with $13.4 million at the same time last year. Total debt decreased $3.8 million in the first quarter of fiscal 2002 whereas last year total debt increased $9.6 million in the first quarter. The Company had $32.7 million of additional availability in the bank line of credit as of June 7, 2002, compared with $32.3 million at the same time last year. The Company expects to open 23 to 25 new stores in fiscal 2002, mostly in existing markets. Two of the new stores were opened in the first quarter, 6 to 10 are scheduled to open in the second quarter, 6 to10 are scheduled to open in the third quarter, with the remainder opening in the fourth quarter. The Company also expects to open at least 30 stores next year, which will be evaluated as the year progresses. 9 Jos.A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 Inventories at the end of the first quarter of fiscal 2002 were approximately $64 million, or $5 million (9%) higher than last year. The increase relates almost entirely to the new stores that were opened since the end of the first quarter of fiscal 2001. The Company expects to increase inventories in the second half of fiscal 2002 to support new stores and anticipated sales growth.
Percentage of Net Sales Three Months Ended ------------------ May 5, May 4, 2001 2002 ---- ---- Net sales ............................................. 100.0% 100.0% Cost of goods sold .................................... 50.4 47.4 ---- ---- Gross profit .......................................... 49.6 52.6 General and administrative expenses ................... 9.6 10.5 Sales and marketing expenses .......................... 37.2 36.5 Store opening costs ................................... 0.1 -- One-time charge ....................................... 0.4 -- ---- ---- Operating income ...................................... 2.2 5.6 Interest expense, net ................................. 0.5 0.5 ---- ---- Income before provision for income taxes .............. 1.7 5.1 Provision for income taxes ............................ 0.6 2.0 ---- ---- Net income ............................................ 1.1% 3.1% ==== ====
Net sales - Net sales increased 17.7% or $8.4 million to $55.8 million in the first quarter of fiscal 2002 compared with $47.4 million in fiscal 2001. The sales increase was primarily related to a 15.7% increase in store sales in both new and existing stores and a 24.9% increase in combined catalog/internet sales. The sales increases were across the Company's broad range of products. The following table summarizes store opening and closing activity during the respective periods.
For the Three Months Ended -------------------------- May 5, May 4, 2001 2002 ---- ---- Stores open at the beginning of the period 116 135 Opened 3 2 Closed 1 -- ----- ----- Stores open at the end of the period 118 137 ===== =====
Gross profit - Gross profit (net sales less cost of goods sold) increased $5.8 million to $29.3 million in the first quarter of fiscal 2002 compared to $23.5 million in fiscal 2001. Gross profit as a percent of sales increased 300 basis points to 52.6% primarily due to the continued improvement in sourcing of merchandise. 10 Jos.A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 General and Administrative Expenses - General and administrative expenses increased $1.3 million to $5.8 million in fiscal 2002 compared with $4.6 million in fiscal 2001. The increase was due primarily to higher accrued incentive compensation expense and other expenses such as professional fees, recruitment costs and travel related to business expansion. Sales and Marketing Expenses - Sales and marketing expenses increased $2.7 million to $20.3 million, or 36.5% of net sales, in the first quarter of fiscal 2002 from $17.7 million, or 37.2% of net sales in the first quarter of fiscal 2001. The increased sales and marketing expense primarily represents occupancy, payroll and advertising for the 20 new stores opened since the end of the first quarter of fiscal 2001. The decrease in expense as a percentage of sales relates to increased leverage of store expenses on the higher store sales. Store Opening Costs - Store opening costs decreased to $27 thousand during the first quarter of fiscal 2002 from $69 thousand in the prior year as the Company opened two new stores in the first quarter of fiscal 2002 and three new stores in the first quarter of fiscal 2001. The decrease per store relates primarily to lower store opening advertising costs for the new stores. Interest Expense - Interest expense increased in the first quarter of fiscal 2002 compared with the prior year due primarily to the higher average outstanding debt balance in the current year. One-Time Charge - The one-time charge in the prior year primarily represents professional fees incurred in the first quarter of fiscal 2001 in connection with a strategic action considered by the Board of Directors. Income Taxes - The first quarter of fiscal 2002 effective income tax rate is 39.0% compared with 37.0% in fiscal 2001. The increase resulted from higher effective state tax rates for the first quarter of fiscal 2002. The Company operates in 29 states with varying tax rates. Liquidity and Capital Resources - The Company has significant availability under its current $60 million Credit Agreement which expires April 30, 2005. At May 4, 2002 the Company had outstanding borrowings of $4.0 million and $34.4 million of availability under its Credit Agreement compared with borrowings of $3.4 million and availability of $35.1 million at the end of the first quarter last year. The Company also has $6.6 million of term debt due over the next 11 years. The Company had $12.1 million of total debt outstanding as of the end of the quarter (excluding cash) compared with $13.4 million at the same time last year. Total debt decreased $3.8 million in the first quarter of fiscal 2002 whereas last year total debt increased $9.6 million in the first quarter. The Company had $32.7 million of additional availability in the bank line of credit as of June 7, 2002, compared with $32.3 million at the same time last year. 11 Jos.A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 The following table summarizes the Company's sources and uses of funds as reflected in the condensed consolidated statements of cash flows:
Three Months Ended ------------------ May 5, May 4, 2001 2002 ---- ---- Cash provided by (used in): Operating activities $(7,645) $ 4,378 Investing activities (1,984) (2,574) Financing activities 7,024 (1,449) ------- ------- Net increase (decrease) in cash and cash equivalents $(2,605) $ 355 ======= =======
Cash provided by operating activities was primarily due to earnings, an increase in accounts payable and depreciation. Cash used in investing activities primarily relates to the purchase of a corporate aircraft and opening new stores. Cash used in financing activities is primarily from repayments under the Credit Agreement. In the remaining three quarters of fiscal 2002, the Company expects to spend between $6 million and $8 million on capital expenditures primarily to open the remaining 23 to 25 new stores to be opened in fiscal 2002 and to renovate several stores. The capital expenditures will be financed through operations, the Credit Agreement and additional term debt. The Company believes that its current liquidity, Credit Agreement and term loans will be adequate to support its current working capital and capital expenditure needs. The Company's plans and beliefs concerning future operations contained herein are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those forecast due to a variety of factors that can adversely affect the Company's operating results, liquidity and financial condition such as risks associated with economic, weather and other factors affecting consumer spending, the ability of the Company to finance its expansion plans, mix of goods sold, pricing, availability of lease sites for new stores, the ability to source the product from its global supplier base and other competitive factors. Many of the risks are described in the Company's reports filed with the Securities and Exchange Commission, which should be carefully reviewed before any investment decision. Critical Accounting Policies - The Company believes the following critical accounting policy affects management's significant judgments and estimates used in the preparation of the Consolidated Financial Statements. For a detailed discussion on the application of this and other accounting policies, see Note 1 in the Consolidated Financial Statements in the Company's February 2, 2002 Annual Report on Form 10K. Inventory. The Company records inventory at the lower of cost or market. The estimated market value is based on assumptions for future demand and related pricing. If actual market conditions are less favorable than those projected by management, reductions in the value of inventory may be required. 12 Jos. A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 Item 3. Quantitative and Qualitative Disclosures about Market Risk At May 4, 2002, there were no derivative financial instruments. In addition, the Company does not believe it is materially at risk for changes in market interest rates or foreign currency fluctuations. The Company's interest on borrowings under its Credit Agreement is at a variable rate based on the prime rate or a spread over the LIBOR. PART II. OTHER INFORMATION Item 6. Exhibits and reports on Form 8-K (a) Exhibits Exhibit 10.8(b) -- Amended and Restated Employment Agreement dated May 15, 2002 between David E. Ullman and Jos. A. Bank Clothiers, Inc., filed herewith (Contract renewal) Exhibit 10.13(b) -- Amended and Restated Employment Agreement dated May 15, 2002 between Charles D. Frazer and Jos. A. Bank Clothiers, Inc., filed herewith (Contract renewal) Exhibit 10.17(d) -- Fourth Amendment to Employment Agreement dated May 28, 2002 between Robert Hensley and Jos. A. Bank Clothiers, Inc., filed herewith Exhibit 10.18(c) -- Third Amendment to Employment Agreement dated May 29, 2002 between R. Neal Black and Jos. A. Bank Clothiers, Inc., filed herewith Exhibit 10.21 -- Employment Offer Letter dated September 18, 2000 between Gary Merry and Jos. A. Bank Clothiers, Inc., filed herewith
(b) Reports on Form 8-K On May 8, 2002 the Company filed a report on Form 8-K related to the termination of Arthur Andersen LLP and the engagement of KPMG LLP to serve as the Company's independent public accountants. 13 Jos. A. Bank Clothiers, Inc. S.E.C. Form 10-Q, 5/4/02 Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Dated: June 18, 2002 Jos. A. Bank Clothiers, Inc. --------- (Registrant) /s/ David E. Ullman ------------------------------- David E. Ullman Executive Vice President, Chief Financial Officer 14 EX-10.8 3 dex108.txt EXHIBIT 10.8 EXHIBIT 10.8(b) AMENDED AND RESTATED EMPLOYMENT AGREEMENT THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of the 15/th/ day of May 2002, by and between DAVID E. ULLMAN ("Employee") and JOS. A. BANK CLOTHIERS, INC. ("Employer" or "Company"). FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, Employer hereby agrees to employ Employee as an Executive Vice President, and Employee hereby agrees to be and remain in the employ of Employer, upon the terms and conditions hereinafter set forth: 1. EMPLOYMENT PERIOD. Subject to earlier termination as set forth in this Agreement, the period of employment under this Agreement (the "Employment Period") shall be for approximately two years beginning February 3, 2002 (the "Start Date") and ending January 31, 2004. 2. DUTIES AND RESPONSIBILITIES. 2.1 General. During the Employment Period, Executive shall (i) have the title of Chief Financial Officer- Executive Vice President and (ii) devote substantially all of his business time and expend his best efforts, energies and skills to the business of the Company. Executive shall perform such duties, consistent with his status as Executive Vice President, as he may be assigned from time to time by Employer's Chief Executive Officer (the "Chief Executive Officer"). 2.2 Location of Executive Office. The Company will maintain its principal executive offices at a location in the Baltimore, Maryland metropolitan area. Executive shall not be required to perform services for the Company at any other location, except for services rendered in connection with reasonably required travel on Company business. 3. COMPENSATION AND RELATED MATTERS 3.1 Base Salary. Employer shall pay to Executive during the Employment Period an annual base salary (the "Base Salary") of $225,000. The Base Salary for each year shall be payable in installments in accordance with the Company's policy on payment to executives in effect from time to time. 3.2 Annual Bonus. For fiscal year 2002 (ending on or about January 31, 2003) and for each other fiscal year that begins during the Employment Period (each such fiscal year, a "Bonus Year"), Executive shall be eligible to receive a bonus of up to 50% of Base Salary (each, a "Bonus") conditioned upon the satisfaction of (a) Company performance goals established by the Compensation Committee of the Board of Directors of the Company (the "Committee") for such Bonus Year and (b) personal performance goals submitted by the Executive to, and approved by, the Chief Executive Officer and the Committee for such Bonus Year. Company and personal performance goals are herein referred to collectively as the "Performance Goals". The Performance Goals for each Bonus Year shall be established as soon as possible following the beginning of such Bonus Year. The Bonus earned for any Bonus Year shall be payable promptly following the determination thereof, but in no event later than 90 days following the end of each Bonus Year. If (a) the Employment Period shall expire or terminate and (b) Employee is entitled to payment of a bonus pursuant to Section 5 hereof, the Bonus payable for the Bonus Year in which the Employment Period terminates or expires shall equal the Bonus that would have been paid had the Employment Period not so terminated or expired, multiplied by a fraction, the numerator of which shall be the number of days of the Employment Period within the Bonus Year and the denominator of which shall be 365. For the purposes of determining the amount of Bonus payable pursuant to the immediately preceding sentence, it shall be assumed that all conditions to payment based upon performance by the Executive (e.g. personal performance goals) have been satisfied. Notwithstanding anything to the contrary contained herein or in the Employer's Bonus Plan, in the event (y) the Employment Period shall end for any reason whatsoever on a day prior to payment to Executive of a Bonus for the last full Bonus Year contained within the Employment Period, and (z) Executive would have been entitled to receive a Bonus for such last full Bonus Year had the Employment Period not ended - then, Employer shall pay to Executive the Bonus for such last full Bonus Year as and when such Bonus would have been paid had the Employment Period not ended. 3.3 Other Benefits. During the Employment Period, subject to, and to the extent Executive is eligible under their respective terms, Executive shall be entitled to receive such fringe benefits as are, or are from time to time hereafter, generally provided by Employer to Employer's senior management employees (other than those provided under or pursuant to separately negotiated employment agreements or arrangements). 3.4 Vacation. Executive shall be entitled to 20 days of vacation during each 12-month vacation accrual period, which days shall accrue in accordance with the Company's vacation policy in effect from time to time for its senior executive officers. Vacations shall be taken at such time or times as shall not unreasonably interfere with Executive's performance of his duties under this Agreement. The number of vacation days shall be prorated for any 12-month vacation accrual period not wholly within the Employment Period. Upon termination of Executive's employment pursuant to Section 4 for any reason whatsoever, Employer shall pay Executive, in addition to any termination compensation provided for under Section 5, an amount equivalent to Executive's per diem compensation at the then-current Base Salary rate multiplied by the number of unused vacation days, including any carry-over, accrued by Executive as of the date of termination. 3.5 Car. In addition to such other compensation as may be due and payable hereunder, Employer shall lease for the use of Executive a car with payments not less than those in effect on the date hereof and shall be responsible for the cost of operating, insuring and maintaining such car. 4. TERMINATION OF EMPLOYEMNT PERIOD. 2 4.1. Termination without Cause or Good Reason. Employer or Employee may terminate the Employment Period at any time without cause or without good reason upon 60 days notice. Notwithstanding the forgoing, Employer shall have the right to terminate the Employment Period without cause upon less than 60 days notice by paying to Executive, in addition to such other termination compensation as may be payable pursuant to Section 5.1, an amount equal to Executive's then-current per diem Base Salary multiplied by the difference between 60 and the number of days notice given. 4.2 Termination by Employer for Cause. Employer may terminate the Employment Period in accordance with this Section 4.2 at any time for cause. For the purpose of this Section 4.2, "cause" shall mean any of the following: a) the conviction of Executive in a court of competent jurisdiction of a crime constituting a felony in such jurisdiction involving money or other property of the Company or any of its affiliates or any other felony or offense involving moral turpitude; b) the willful commission of an act not approved of or ratified by the Chief Executive Officer involving a material conflict of interest or self-dealing relating to any material aspect of the Company's business or affairs; c) the willful commission of any act of fraud or misrepresentation (including the omission of material facts) provided that such act relates to the business of the Company and would materially and negatively impact upon the Company; or d) the willful and material failure of Executive to comply with the lawful orders of the Chief Executive Officer, provided such orders are consistent with Executive's duties, responsibilities and/or authority as Executive Vice President of the Company. In the event Employer shall elect to pursue a termination for cause, Employer shall deliver to Executive a written notice from the Chief Executive Officer setting forth with reasonable particularity the grounds upon which the Chief Executive Officer has found cause for termination. In the event such grounds are predicated upon acts or omissions as set forth in paragraphs (b), (c) or (d) above, Executive shall have thirty (30) days, or such longer period as may be necessary provided Executive has commenced and is diligently proceeding, to cure or eliminate the cause for termination. In the event Executive has failed to timely cure or eliminate the cause for termination as set forth in the immediately preceding sentence, or in the event the grounds for termination are predicated upon conviction of Executive as set forth in paragraph (a) above, the Company, acting by and through the Chief Executive Officer, shall have the right to immediate terminate Executive for cause. 4.3. Termination by Employee for Good Reason. Executive may, at any time during the Employment Period by notice to Employer, terminate the Employment Period effective immediately for "good reason". For the purposes hereof, "good reason" means any material breach by Employer of any provision of this Agreement which, if susceptible of being cured, is not cured within 30 days of delivery of notice thereof to Employer by Executive; it being agreed, 3 however, that the foregoing 30 day cure period shall not be applicable to any failure to pay timely (or any reduction in) compensation or benefits paid or payable to Executive pursuant to the provisions of Section 3 hereof. Without limitation of the generality of the foregoing, each of the following shall be deemed to be a material breach of this Agreement by Employer: (x) any failure to pay timely (or any reduction in) compensation (including benefits) paid or payable to Executive pursuant to the provisions of Section 3 hereof; (y) any reduction in the duties, responsibilities or perquisites of Executive as provided in this Agreement and (z) any transfer of the Company's principal executive offices outside the geographic area described in Section 2.2 hereof or requirement that Executive principally perform his duties outside such geographic area. 4.4 Disability. During the Employment Period, if, as a result of physical or mental incapacity or infirmity (including alcoholism or drug addiction), Executive shall be unable to perform his material duties under this Agreement for (i) a continuous period of at least 180 days, or (ii) periods aggregating at least 270 days during any period of 12 consecutive months (each a "Disability Period"), and at the end of the Disability Period there is no reasonable probability that Executive can promptly resume his material duties hereunder pursuant hereto, Executive shall be deemed disabled (the "Disability") and Employer, by notice to Executive, shall have the right to terminate the Employment Period for Disability at, as of or after the end of the Disability Period. The existence of the Disability shall be determined by a reputable, licensed physician mutually selected by Employer and Executive, whose determination shall be final and binding on the parties, provided, that if Employer and Executive cannot agree upon such physician, such physician shall be designated by the then acting President of the Baltimore City Medical Society, and if for any reason such President shall fail or refuse to designate such physician, such physician shall, at the request of either party, be designated by the American Arbitration Association. Executive shall cooperate in all reasonable respects to enable an examination to be made by such physician. 4.5 Death. The Employment Period shall end on the date of Executive's death. 5. TERMINATION COMPENSATION; NON-COMPETE 5.1 Termination Without Cause by Employer or for Good Reason by Executive. If the Employment Period is terminated by Employer pursuant to the provisions of Section 4.1 hereof or by Executive pursuant to the provisions of Section 4.3 hereof, Employer will pay to Executive (a) Base Salary for a period of eighteen (18) months following the date of termination (calculated at the Base Salary rate in effect as of the date of termination) payable in equal installments at the times Base Salary would have been paid had the Employment Period not been terminated; (b) when and if due pursuant to the provisions of Section 3.2 hereof, the prorated Bonus for the then current Bonus Year and (c) if applicable, the Bonus for the last full Bonus Year pursuant to Section 3.2. Employer shall have no obligation to continue any other benefits provided for in Section 3 past the date of termination, except as provided in Section 3.4. 5.2 Certain Other Terminations. If the Employment Period is terminated by Employer pursuant to the provisions of Section 4.2, by Executive pursuant to Section 4.1, for Disability pursuant to the provisions of Section 4.4 or as a result of the death of Executive as set forth in Section 4.5, Employer shall pay to Executive (a) Base Salary through the date of termination, (b) in the case of termination as a result of a Disability or the death of Executive, when and if due 4 pursuant to provisions of Section 3.2, the prorated Bonus for the Bonus Year in which the date of termination occurred and (c) if applicable, the Bonus for the last full Bonus Year pursuant to Section 3.2. Employer shall have no obligation to continue any other benefits provided for in Section 3 past the date of termination, except as provided in Section 3.4. 5.3 Expiration at Election of Employer. If the Employment Period expires on its then stated expiration date without Employer having offered to Executive at least a one year renewal or extension of the Employment Period on its then current terms, Employer shall pay to Executive (a) Base Salary for the eighteen (18) month period following the date of termination (calculated at the Base Salary rate in effect as of the date of termination), payable in equal installments at the times Base Salary would have been paid had the Employment Period not been terminated, (b) when and if due pursuant to the provisions of Section 3.2, the Bonus for the Bonus Year in which the Employment Period expired prorated as provided in said Section 3.2 and (c) if applicable, the Bonus for the last full Bonus Year pursuant to Section 3.2. Employer shall have no obligation to continue any other benefits provided for in Section 3 past the date of termination, except as provided in Section 3.4. 5.4 No Other Termination Compensation. Executive shall not, except as set forth in this Section 5 and in Section 3.4, be entitled to any compensation following termination of the Employment Period, except as otherwise provided in any stock options granted by Employer to Executive. 5.5 Mitigation. Executive shall not be required to mitigate the amount of any payments or benefits provided for hereunder upon termination of the Employment Period by seeking employment with any other person, or otherwise, nor shall the amount of any such payments or benefits be reduced by any compensation, benefit or other amount earned by, accrued for or paid to Executive as the result of Executive's employment by or consultancy or other association with any other person. Without any obligation of Employer to provide any benefits to Executive after termination of the Employment Period except as specifically set forth herein, any medical, dental or hospitalization insurance or other benefits provided to Executive with his employment by or consultancy with an unaffiliated person shall be primary to any benefits provided to Executive pursuant to this Agreement for the purposes of coordination of benefits. 5.6 Non-Compete. For the 6 month period following the termination or expiration of the Employment Period for any reason whatsoever (other than a termination by Executive pursuant to Section 4.1, in which case the applicable period shall be one year), and for so long as Employer is making and the Executive is accepting the payments required to be made to Executive pursuant to this Section 5, Executive shall not, directly or indirectly, (i) engage in any activities that are in competition with the Company in any geographic area within 50 miles of the location of any Company store (owned or franchised) as of the date of termination of the Employment Period (provided that the foregoing geographic limitation shall also be construed to prohibit Executive from engaging in any catalogue business that focuses on the sale of men's clothing), (ii) solicit any customer of the Company or (iii) solicit any person who is then employed by the Company or was employed by the Company within one year of such solicitation to (a) terminate his or her employment with the Company, (b) accept employment with anyone other than the Company, or (c) in any manner interfere with the business of the 5 Company. Executive acknowledges and agrees that in the event of any violation or threatened violation by Executive of his obligations under the preceding, Employer shall be entitled to injunctive relief without any necessity to post bond. Executive acknowledges and agrees that the Company's catalogue business is competitive with retail store business offering similar product lines. Without limiting the generality of the foregoing, a business shall be considered to be "in competition with the Company" if such business (y) is a retailer which derives more than 35% of its gross revenue from the sale of men's apparel (e.g. Brooks Brothers, Men's Wearhouse); or (z) distributes anywhere in the United States a catalog which derives more than 35% of its gross revenue from the sale of men's apparel. A department store shall not be considered to be "in competition with the Company" for the purposes of this Agreement. 6. Indemnification The Company shall indemnify and hold Executive harmless from and against any expenses (including attorneys' fees of the attorneys selected by Executive to represent him, which shall be advanced as incurred), judgements, 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, whether civil, criminal, administrative or investigative, by reason of any act or omission to act by Executive during the Employment Period or otherwise by reason of the fact that he is or was a director or officer of Employer or any subsidiary or affiliate included as a part of the Company, to the fullest extent and in the manner set forth and permitted by the General Corporation Law of the State of Delaware and any other applicable law as from time to time in effect. The provisions of this Section 6 shall survive any termination of the Employment Period or any deemed termination of this Agreement. 7. Miscellaneous 7.1 Notices. Any notice, consent or authorization required or permitted to be given pursuant to this Agreement shall be in writing and sent to the party for or to whom intended, at the address of such party set forth below, be registered or certified mail, postage paid (deemed given five days after deposit in the U.S. mails) or personally or by facsimile transmission (deemed given upon receipt), or at such other address as either party shall designate by notice given to the other in the manner provided herein. If to Employer: Jos. A. Bank Clothiers, Inc. 500 Hanover Pike Hampstead, Maryland 21074-2095 Attn: Secretary If to Executive: Mr. David E. Ullman Jos. A. Bank Clothiers, Inc. 500 Hanover Pike Hampstead, Maryland 21074-2095 6 7.2 Legal Fees. The Company shall pay the reasonable legal fees and expenses incurred by Executive in connection with any amendment or modification hereof or enforcement of Executive's rights hereunder. 7.3 Taxes. Employer is authorized to withhold from any compensation or benefits payable hereunder to Executive such amounts for income tax, social security, unemployment compensation and other taxes as shall be necessary or appropriate in the reasonable judgement of Employer to comply with applicable laws and regulations. 7.4 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland applicable to agreements made and to be performed therein. 7.5 Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Baltimore, Maryland in accordance with the rules of the American Arbitration Association then in effect. Judgement may be entered on the arbitration award in any court having jurisdiction; provided, however, that Executive shall be entitled to seek specific performance of his right to be paid until expiration of the Employment Period during the pendency of any arbitration. 7.6 Headings. All descriptive headings in this Agreement are inserted for convenience only and shall be disregarded in construing or applying any provision of this Agreement. 7.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 7.8 Severability. If any provision of this Agreement, or any part thereof, is held to be unenforceable, the remainder of such provision and this Agreement, as the case may be, shall nevertheless remain in full force and effect. 7.9 Entire Agreement and Representation. This Agreement contains the entire agreement and understanding between Employer and Executive with respect to the subject matter hereof. No representations or warranties of any kind or nature relating to the Company or its several businesses, or relating to the Company's assets, liabilities, operations, future plans or prospects have been made by or on behalf of Employer to Executive. This Agreement supersedes any prior agreement between the parties relating to the subject matter hereof. 7.10 Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, heirs (in the case of Executive) and assigns. 7.11 Prior Agreement. This Agreement is an amendment and restatement of the certain Amended and Restated EmploymentAgreement, dated as of September 19, 1997, which prior 7 employment agreement is superceded in its entirety hereby and is not longer of any force or effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. JOS. A. BANK CLOTHIERS, INC. By: /s/: Robert N. Wildrick /s/: David E. Ullman -------------------------------- ---------------------- Robert N. Wildrick, DAVID E. ULLMAN Chief Executive Officer 8 EX-10.13 4 dex1013.txt EXHIBIT 10.13 EXHIBIT 10.13(b) AMENDED AND RESTATED EMPLOYMENT AGREEMENT THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of the 15/th/ day of May 2002, by and between CHARLES D. FRAZER ("Employee") and JOS. A. BANK CLOTHIERS, INC. ("Employer" or "Company"). FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, Employer hereby agrees to employ Employee as a Senior Vice President, and Employee hereby agrees to be and remain in the employ of Employer, upon the terms and conditions hereinafter set forth: 1. EMPLOYMENT PERIOD. Subject to earlier termination as set forth in this Agreement, the period of employment under this Agreement (the "Employment Period") shall be for approximately two years beginning February 3, 2002 (the "Start Date") and ending January 31, 2002. 2. DUTIES AND RESPONSIBILITIES. 2.1 General. During the Employment Period, Executive shall (i) have the title of General Counsel- Senior Vice President and (ii) devote substantially all of his business time and expend his best efforts, energies and skills to the business of the Company. Executive shall perform such duties, consistent with his status as Executive Vice President, as he may be assigned from time to time by Employer's Chief Executive Officer (the "Chief Executive Officer"). 2.2 Location of Executive Office. The Company will maintain its principal executive offices at a location in the Baltimore, Maryland metropolitan area. Executive shall not be required to perform services for the Company at any other location, except for services rendered in connection with reasonably required travel on Company business. 3. COMPENSATION AND RELATED MATTERS 3.1 Base Salary. Employer shall pay to Executive during the Employment Period an annual base salary (the "Base Salary") of $175,000. The Base Salary for each year shall be payable in installments in accordance with the Company's policy on payment to executives in effect from time to time. 3.2 Annual Bonus. For fiscal year 2002 (ending on or about January 31, 2003) and for each other fiscal year that begins during the Employment Period (each such fiscal year, a "Bonus Year"), Executive shall be eligible to receive a bonus of up to 40% of Base Salary (each, a "Bonus") conditioned upon the satisfaction of (a) Company performance goals established by the Compensation Committee of the Board of Directors of the Company (the "Committee") for such Bonus Year and (b) personal performance goals submitted by the Executive to, and approved by, the Chief Executive Officer and the Committee for such Bonus Year. Company and personal performance goals are herein referred to collectively as the "Performance Goals". The Performance Goals for each Bonus Year shall be established as soon as possible following the beginning of such Bonus Year. The Bonus earned for any Bonus Year shall be payable promptly following the determination thereof, but in no event later than 90 days following the end of each Bonus Year. If (a) the Employment Period shall expire or terminate and (b) Employee is entitled to payment of a bonus pursuant to Section 5 hereof, the Bonus payable for the Bonus Year in which the Employment Period terminates or expires shall equal the Bonus that would have been paid had the Employment Period not so terminated or expired, multiplied by a fraction, the numerator of which shall be the number of days of the Employment Period within the Bonus Year and the denominator of which shall be 365. For the purposes of determining the amount of Bonus payable pursuant to the immediately preceding sentence, it shall be assumed that all conditions to payment based upon performance by the Executive (e.g. personal performance goals) have been satisfied. Notwithstanding anything to the contrary contained herein or in the Employer's Bonus Plan, in the event (y) the Employment Period shall end for any reason whatsoever on a day prior to payment to Executive of a Bonus for the last full Bonus Year contained within the Employment Period, and (z) Executive would have been entitled to receive a Bonus for such last full Bonus Year had the Employment Period not ended - then, Employer shall pay to Executive the Bonus for such last full Bonus Year as and when such Bonus would have been paid had the Employment Period not ended. 3.3 Other Benefits. During the Employment Period, subject to, and to the extent Executive is eligible under their respective terms, Executive shall be entitled to receive such fringe benefits as are, or are from time to time hereafter, generally provided by Employer to Employer's senior management employees (other than those provided under or pursuant to separately negotiated employment agreements or arrangements). 3.4 Vacation. Executive shall be entitled to 20 days of vacation during each 12-month vacation accrual period, which days shall accrue in accordance with the Company's vacation policy in effect from time to time for its senior executive officers. Vacations shall be taken at such time or times as shall not unreasonably interfere with Executive's performance of his duties under this Agreement. The number of vacation days shall be prorated for any 12-month vacation accrual period not wholly within the Employment Period. Upon termination of Executive's employment pursuant to Section 4 for any reason whatsoever, Employer shall pay Executive, in addition to any termination compensation provided for under Section 5, an amount equivalent to Executive's per diem compensation at the then-current Base Salary rate multiplied by the number of unused vacation days, including any carry-over, accrued by Executive as of the date of termination. 3.5 Car Allowance. In addition to such other compensation as may be due and payable hereunder, Employer shall lease for the use of Executive a car with payments not less than those in effect on the date hereof and shall be responsible for the cost of operating, insuring and maintaining such car. 4. TERMINATION OF EMPLOYEMNT PERIOD. 4.1. Termination without Cause or Good Reason. Employer or Employee may terminate the Employment Period at any time without cause or without good reason upon 60 days notice. 2 Notwithstanding the forgoing, Employer shall have the right to terminate the Employment Period without cause upon less than 60 days notice by paying to Executive, in addition to such other termination compensation as may be payable pursuant to Section 5.1, an amount equal to Executive's then-current per diem Base Salary multiplied by the difference between 60 and the number of days notice given. 4.2 Termination by Employer for Cause. Employer may terminate the Employment Period in accordance with this Section 4.2 at any time for cause. For the purpose of this Section 4.2, "cause" shall mean any of the following: a) the conviction of Executive in a court of competent jurisdiction of a crime constituting a felony in such jurisdiction involving money or other property of the Company or any of its affiliates or any other felony or offense involving moral turpitude; b) the willful commission of an act not approved of or ratified by the Chief Executive Officer involving a material conflict of interest or self-dealing relating to any material aspect of the Company's business or affairs; c) the willful commission of any act of fraud or misrepresentation (including the omission of material facts) provided that such act relates to the business of the Company and would materially and negatively impact upon the Company; or d) the willful and material failure of Executive to comply with the lawful orders of the Chief Executive Officer, provided such orders are consistent with Executive's duties, responsibilities and/or authority as Executive Vice President of the Company. In the event Employer shall elect to pursue a termination for cause, Employer shall deliver to Executive a written notice from the Chief Executive Officer setting forth with reasonable particularity the grounds upon which the Chief Executive Officer has found cause for termination. In the event such grounds are predicated upon acts or omissions as set forth in paragraphs (b), (c) or (d) above, Executive shall have thirty (30) days, or such longer period as may be necessary provided Executive has commenced and is diligently proceeding, to cure or eliminate the cause for termination. In the event Executive has failed to timely cure or eliminate the cause for termination as set forth in the immediately preceding sentence, or in the event the grounds for termination are predicated upon conviction of Executive as set forth in paragraph (a) above, the Company, acting by and through the Chief Executive Officer, shall have the right to immediate terminate Executive for cause. 4.3. Termination by Employee for Good Reason. Executive may, at any time during the Employment Period by notice to Employer, terminate the Employment Period effective immediately for "good reason". For the purposes hereof, "good reason" means any material breach by Employer of any provision of this Agreement which, if susceptible of being cured, is not cured within 30 days of delivery of notice thereof to Employer by Executive; it being agreed, however, that the foregoing 30 day cure period shall not be applicable to any failure to pay timely (or any reduction in) compensation or benefits paid or payable to Executive pursuant to 3 the provisions of Section 3 hereof. Without limitation of the generality of the foregoing, each of the following shall be deemed to be a material breach of this Agreement by Employer: (x) any failure to pay timely (or any reduction in) compensation (including benefits) paid or payable to Executive pursuant to the provisions of Section 3 hereof; (y) any reduction in the duties, responsibilities or perquisites of Executive as provided in this Agreement and (z) any transfer of the Company's principal executive offices outside the geographic area described in Section 2.2 hereof or requirement that Executive principally perform his duties outside such geographic area. 4.4 Disability. During the Employment Period, if, as a result of physical or mental incapacity or infirmity (including alcoholism or drug addiction), Executive shall be unable to perform his material duties under this Agreement for (i) a continuous period of at least 180 days, or (ii) periods aggregating at least 270 days during any period of 12 consecutive months (each a "Disability Period"), and at the end of the Disability Period there is no reasonable probability that Executive can promptly resume his material duties hereunder pursuant hereto, Executive shall be deemed disabled (the "Disability") and Employer, by notice to Executive, shall have the right to terminate the Employment Period for Disability at, as of or after the end of the Disability Period. The existence of the Disability shall be determined by a reputable, licensed physician mutually selected by Employer and Executive, whose determination shall be final and binding on the parties, provided, that if Employer and Executive cannot agree upon such physician, such physician shall be designated by the then acting President of the Baltimore City Medical Society, and if for any reason such President shall fail or refuse to designate such physician, such physician shall, at the request of either party, be designated by the American Arbitration Association. Executive shall cooperate in all reasonable respects to enable an examination to be made by such physician. 4.5 Death. The Employment Period shall end on the date of Executive's death. 5. TERMINATION COMPENSATION; NON-COMPETE 5.1 Termination Without Cause by Employer or for Good Reason by Executive. If the Employment Period is terminated by Employer pursuant to the provisions of Section 4.1 hereof or by Executive pursuant to the provisions of Section 4.3 hereof, Employer will pay to Executive (a) Base Salary for a period of twelve (12) months following the date of termination (calculated at the Base Salary rate in effect as of the date of termination) payable in equal installments at the times Base Salary would have been paid had the Employment Period not been terminated; (b) when and if due pursuant to the provisions of Section 3.2 hereof, the prorated Bonus for the then current Bonus Year and (c) if applicable, the Bonus for the last full Bonus Year pursuant to Section 3.2. Employer shall have no obligation to continue any other benefits provided for in Section 3 past the date of termination, except as provided in Section 3.4. 5.2 Certain Other Terminations. If the Employment Period is terminated by Employer pursuant to the provisions of Section 4.2, by Executive pursuant to Section 4.1, for Disability pursuant to the provisions of Section 4.4 or as a result of the death of Executive as set forth in Section 4.5, Employer shall pay to Executive (a) Base Salary through the date of termination, (b) in the case of termination as a result of a Disability or the death of Executive, when and if due pursuant to provisions of Section 3.2, the prorated Bonus for the Bonus Year in which the date of termination occurred and (c) if applicable, the Bonus for the last full Bonus Year pursuant to 4 Section 3.2. Employer shall have no obligation to continue any other benefits provided for in Section 3 past the date of termination, except as provided in Section 3.4. 5.3 Expiration at Election of Employer. If the Employment Period expires on its then stated expiration date without Employer having offered to Executive at least a one year renewal or extension of the Employment Period on its then current terms, Employer shall pay to Executive (a) Base Salary for the twelve (12) month period following the date of termination (calculated at the Base Salary rate in effect as of the date of termination), payable in equal installments at the times Base Salary would have been paid had the Employment Period not been terminated, (b) when and if due pursuant to the provisions of Section 3.2, the Bonus for the Bonus Year in which the Employment Period expired prorated as provided in said Section 3.2 and (c) if applicable, the Bonus for the last full Bonus Year pursuant to Section 3.2. Employer shall have no obligation to continue any other benefits provided for in Section 3 past the date of termination, except as provided in Section 3.4. 5.4 No Other Termination Compensation. Executive shall not, except as set forth in this Section 5 and in Section 3.4, be entitled to any compensation following termination of the Employment Period, except as otherwise provided in any stock options granted by Employer to Executive. 5.5 Mitigation. Executive shall not be required to mitigate the amount of any payments or benefits provided for hereunder upon termination of the Employment Period by seeking employment with any other person, or otherwise, nor shall the amount of any such payments or benefits be reduced by any compensation, benefit or other amount earned by, accrued for or paid to Executive as the result of Executive's employment by or consultancy or other association with any other person. Without any obligation of Employer to provide any benefits to Executive after termination of the Employment Period except as specifically set forth herein, any medical, dental or hospitalization insurance or other benefits provided to Executive with his employment by or consultancy with an unaffiliated person shall be primary to any benefits provided to Executive pursuant to this Agreement for the purposes of coordination of benefits. 5.6 Non-Compete. For the 6 month period following the termination or expiration of the Employment Period for any reason whatsoever (other than a termination by Executive pursuant to Section 4.1, in which case the applicable period shall be one year), and for so long as Employer is making and the Executive is accepting the payments required to be made to Executive pursuant to this Section 5, Executive shall not, directly or indirectly, (i) engage in any activities that are in competition with the Company in any geographic area within 50 miles of the location of any Company store (owned or franchised) as of the date of termination of the Employment Period (provided that the foregoing geographic limitation shall also be construed to prohibit Executive from engaging in any catalogue business that focuses on the sale of men's clothing), (ii) solicit any customer of the Company or (iii) solicit any person who is then employed by the Company or was employed by the Company within one year of such solicitation to (a) terminate his or her employment with the Company, (b) accept employment with anyone other than the Company, or (c) in any manner interfere with the business of the Company. Executive acknowledges and agrees that in the event of any violation or threatened violation by Executive of his obligations under the preceding, Employer shall be entitled to 5 injunctive relief without any necessity to post bond. Executive acknowledges and agrees that the Company's catalogue business is competitive with retail store business offering similar product lines. Without limiting the generality of the foregoing, a business shall be considered to be "in competition with the Company" if such business (y) is a retailer which derives more than 35% of its gross revenue from the sale of men's apparel (e.g. Brooks Brothers, Men's Wearhouse); or (z) distributes anywhere in the United States a catalog which derives more than 35% of its gross revenue from the sale of men's apparel. A department store shall not be considered to be "in competition with the Company" for the purposes of this Agreement. 6. INDEMNIFICATION The Company shall indemnify and hold Executive harmless from and against any expenses (including attorneys' fees of the attorneys selected by Executive to represent him, which shall be advanced as incurred), judgements, 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, whether civil, criminal, administrative or investigative, by reason of any act or omission to act by Executive during the Employment Period or otherwise by reason of the fact that he is or was a director or officer of Employer or any subsidiary or affiliate included as a part of the Company, to the fullest extent and in the manner set forth and permitted by the General Corporation Law of the State of Delaware and any other applicable law as from time to time in effect. The provisions of this Section 6 shall survive any termination of the Employment Period or any deemed termination of this Agreement. 7. MISCELLANEOUS 7.1 Notices. Any notice, consent or authorization required or permitted to be given pursuant to this Agreement shall be in writing and sent to the party for or to whom intended, at the address of such party set forth below, be registered or certified mail, postage paid (deemed given five days after deposit in the U.S. mails) or personally or by facsimile transmission (deemed given upon receipt), or at such other address as either party shall designate by notice given to the other in the manner provided herein. If to Employer: Jos. A. Bank Clothiers, Inc. 500 Hanover Pike Hampstead, Maryland 21074-2095 Attn: Secretary If to Executive: Mr. Charles D. Frazer Jos. A. Bank Clothiers, Inc. 500 Hanover Pike Hampstead, Maryland 21074-2095 7.2 Legal Fees. The Company shall pay the reasonable legal fees and expenses incurred by Executive in connection with any amendment or modification hereof or enforcement of Executive's rights hereunder. 6 7.3 Taxes. Employer is authorized to withhold from any compensation or benefits payable hereunder to Executive such amounts for income tax, social security, unemployment compensation and other taxes as shall be necessary or appropriate in the reasonable judgement of Employer to comply with applicable laws and regulations. 7.4 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland applicable to agreements made and to be performed therein. 7.5 Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Baltimore, Maryland in accordance with the rules of the American Arbitration Association then in effect. Judgement may be entered on the arbitration award in any court having jurisdiction; provided, however, that Executive shall be entitled to seek specific performance of his right to be paid until expiration of the Employment Period during the pendency of any arbitration. 7.6 Headings. All descriptive headings in this Agreement are inserted for convenience only and shall be disregarded in construing or applying any provision of this Agreement. 7.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 7.8 Severability. If any provision of this Agreement, or any part thereof, is held to be unenforceable, the remainder of such provision and this Agreement, as the case may be, shall nevertheless remain in full force and effect. 7.9 Entire Agreement and Representation. This Agreement contains the entire agreement and understanding between Employer and Executive with respect to the subject matter hereof. No representations or warranties of any kind or nature relating to the Company or its several businesses, or relating to the Company's assets, liabilities, operations, future plans or prospects have been made by or on behalf of Employer to Executive. This Agreement supersedes any prior agreement between the parties relating to the subject matter hereof. 7.10 Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, heirs (in the case of Executive) and assigns. 7.11 Prior Agreement. This Agreement is an amendment and restatement of the certain Employment Agreement, dated September 19, 1997, as amendment, which prior employment agreement is superceded in its entirety hereby and is not longer of any force or effect. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. JOS. A. BANK CLOTHIERS, INC. By: /s/: Robert N. Wildrick /s/ Charles D. Frazer ---------------------------- ------------------------------- Robert N. Wildrick, CHARLES D. FRAZER Chief Executive Officer 8 EX-10.17 5 dex1017.txt EXHIBIT 10.17 EXHIBIT 10.17(d) FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT THIS FOURTH AMENDMENT (this "Amendment") is made as of this 28/th/ day of May, 2002 to that certain EMPLOYMENT AGREEMENT, dated as of November 30, 1999 (as heretofore amended, the "Employment Agreement"), by and between ROBERT HENSLEY ("Employee") and JOS. A. BANK CLOTHIERS, INC. ("Employer"). FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, Employer and Employee, being the sole parties to the Employment Agreement, hereby amend the Employment Agreement and agree that the Bonus to which Executive may be entitled upon satisfaction of the Performance Goals is hereby increased to 50% of Base Salary. Except as specifically amended hereby, the Employment Agreement shall remain in full force and effect according to its terms. To the extent of any conflict between the terms of this Amendment and the terms of the remainder of the Employment Agreement, the terms of this Amendment shall control and prevail. Capitalized terms used but not defined herein shall have those respective meanings attributed to them in the Employment Agreement. This Amendment shall hereafter be deemed a part of the Employment Agreement for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. JOS. A. BANK CLOTHIERS, INC. By: /s/: Robert N. Wildrick /s/: Robert Hensley ------------------------------------- ----------------------------------- Robert N. Wildrick, ROBERT HENSLEY Chief Executive Officer EX-10.18 6 dex1018.txt EXHIBIT 10.18 EXHIBIT 10.18(c) THIRD AMENDMENT TO EMPLOYMENT AGREEMENT THIS THIRD AMENDMENT (this "Amendment") is made as of this 29 day of May, 2002 to that certain EMPLOYMENT AGREEMENT, dated as of December 21, 1999 (as heretofore amended, the "Employment Agreement"), by and between R. NEAL BLACK ("Employee") and JOS. A. BANK CLOTHIERS, INC. ("Employer"). FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, Employer and Employee, being the sole parties to the Employment Agreement, hereby amend the Employment Agreement and agree that the Bonus to which Executive may be entitled upon satisfaction of the Performance Goals is hereby increased to 50% of Base Salary. Except as specifically amended hereby, the Employment Agreement shall remain in full force and effect according to its terms. To the extent of any conflict between the terms of this Amendment and the terms of the remainder of the Employment Agreement, the terms of this Amendment shall control and prevail. Capitalized terms used but not defined herein shall have those respective meanings attributed to them in the Employment Agreement. This Amendment shall hereafter be deemed a part of the Employment Agreement for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. JOS. A. BANK CLOTHIERS, INC. By: /s/: Robert N. Wildrick /s/: Neal Black ------------------------------- ------------------------------- Robert N. Wildrick, R. NEAL BLACK Chief Executive Officer EX-10.21 7 dex1021.txt EXHIBIT 10.21 EXHIBIT 10.21 September 18, 2000 Mr. Gary Merry 3513 Sandhurt Drive Flowermound, Texas 75022 Dear Gary, I would like to extend to you an offer for the position of Vice President, Special Assistant in Charge of Technology with Jos. A. Bank Clothiers reporting to David Ullman, with a salary of $125,000 per year at a weekly rate of $2,403.85. Within 90 days of the date of acceptance of this letter you will be promoted to position of Vice President, Chief Information Officer. In addition to your base compensation you will be eligible to participate in the company's Executive Bonus Program. If the company's financial goals are realized, and you achieve your personal goals, you will be eligible for a bonus of up to thirty (30%) percent of your actual base earnings for the period. You will be entitled to three weeks of vacation to be accrued throughout your first year of employment. Relocation assistance of up to $45,000 will be extended to you for all expenses within policy guidelines associated with moving including any gross up amount necessary for tax purposes. Included in the relocation cap of $45,000 will be a gross payment of $5,000 to help defray any additional moving expenses. In addition, you will be entitled to all company benefits listed on the enclosed benefit summary sheet, generally effective on the first day of the month following 60 days of employment. We will pay for any COBRA premiums you incur prior to eligibility in our health plan. As is our practice, we would like you to understand that this letter in no way constitutes an employment contract, and that you are aware that your employment may be terminated by either you or the company. However, you will be eligible for salary continuance for up to six months in the event your employment with the company is terminated by the company without cause. Salary continuation will cease in the event you accept other employment during the six months severance period. In addition, we reserve the right to alter our benefit plans at any time. Please let me know if you have any questions. I look forward to speaking to you in the near future. Sincerely, /s/: Bob Hensley Bob Hensley Executive Vice President - Operations -----END PRIVACY-ENHANCED MESSAGE-----