SC 14D9

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 14D-9
(Rule 14d-101)

SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934

JOS. A. BANK CLOTHIERS, INC.

(Name of Subject Company)

JOS. A. BANK CLOTHIERS, INC.

(Name of Person(s) Filing Statement)

COMMON STOCK, $0.01 PAR VALUE

(Title of Class of Securities)

480838101

(CUSIP Number of Class of Securities)

Charles D. Frazer
Senior Vice President – General Counsel
500 Hanover Pike
Hampstead, Maryland 21074
(410) 239-5730

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

With copies to:

Paul T. Schnell, Esq.
Jeremy D. London, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
(212) 735-3000 Jim J. Shoemake, Esq.
Guilfoil Petzall & Shoemake, L.L.C.
100 South Fourth Street, Suite 500
St. Louis, Missouri 63102
(314) 266-3014

☐

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

Item 1.

• Subject Company Information

Name and Address

The name of the subject company to which this Solicitation/Recommendation Statement on Schedule 14D-9 (together with any exhibits and annexes attached hereto, this “Statement”) relates is Jos. A. Bank Clothiers, Inc., a Delaware corporation (“Jos. A. Bank” or the “Company”). The Company’s principal executive offices are located at 500 Hanover Pike, Hampstead, Maryland 21074. The Company’s telephone number at this address is (410) 239-2700.

Securities

The title of the class of equity securities to which this Statement relates is the Company’s common stock, par value $0.01 per share (such securities, together with the associated preferred share purchase rights, the “Shares”). As of November 27, 2013 there were 27,988,392 Shares outstanding (28,140,202 on a fully diluted basis).

Item 2.

• Identity and Background of Filing Person

Name and Address

The name, business address and business telephone number of the Company, which is the subject company and the person filing this Statement, are set forth in “Item 1. Subject Company Information” above. The Company’s website address is www.josbank.com. The information on the Company’s website should not be considered a part of this Statement or incorporated herein by reference.

Tender Offer

This Statement relates to the unsolicited tender offer by Java Corp. (the “Offeror”), a Delaware corporation, which, according to the Schedule TO (as defined below), is a wholly owned subsidiary of The Men’s Wearhouse, Inc., (“MW”), a Texas corporation, and by MW as co-bidder, pursuant to which the Offeror has offered to acquire all of the outstanding Shares at a price of $57.50 per Share in cash, without interest and less any required withholding taxes. The value of the consideration offered, together with all of the terms and conditions applicable to the tender offer, is referred to in this Statement as the “Offer.” The Offer is subject to the terms and conditions set forth in the Tender Offer Statement on Schedule TO (together with all exhibits thereto, as may be amended from time to time, the “Schedule TO”) filed by the Offeror and MW with the Securities and Exchange Commission (the “SEC”) on January 6, 2014.

According to the Schedule TO, the purpose of the Offer is to acquire control of, and ultimately the entire equity interest in, the Company. MW has stated that if the Offer is consummated, MW and the Offeror intend to complete a second-step merger (the “MW Proposed Merger”) with the Company in which the Company will become a wholly owned subsidiary of MW and all outstanding shares that are not purchased in the Offer (other than shares held by MW and its subsidiaries or stockholders who perfect their appraisal rights) will be exchanged for an amount in cash per Share equal to the highest price paid per Share pursuant to the Offer. The Offer currently is scheduled to expire at 5:00 p.m., New York City time, on March 28, 2014 (the “Expiration Date”). MW has stated that MW may, in its sole discretion, extend the Offer from time to time for any reason.

MW has also stated that it plans to deliver notice to the Company of its intention to nominate independent director candidates to the Company’s Board of Directors (the “Board”) and to file a proxy statement and other relevant documents with the SEC in connection with MW’s solicitation of proxies for the Company’s 2014 Annual Meeting. On January 14, 2014, MW sent to the Company a notice of nomination of persons for election to the Board. The Company is in the process of reviewing the nominations for compliance with its governance documents and applicable law.

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The Schedule TO provides that the Offer is subject to numerous conditions, which include the following, among others:

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• The “Minimum Tender Condition”— there being validly tendered and not withdrawn before the expiration of the Offer a number of Shares which, together with the Shares then owned by MW and its subsidiaries, represents at least a majority of the total number of Shares outstanding on a fully diluted basis;

•

• The “Merger Agreement Condition” — MW, the Offeror and the Company having entered into a definitive merger agreement with respect to the acquisition of the Company by MW providing for a second-step merger pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), with the Company surviving as a wholly owned subsidiary of MW, without the requirement for approval of any stockholder of the Company, to be effected as soon as practicable following the consummation of the Offer;

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• The “Section 203 Condition” — the Board having approved the Offer under Section 203 of the DGCL or the Offeror being satisfied, in its sole discretion, that Section 203 of the DGCL is inapplicable to the Offer and the MW Proposed Merger;

•

• The “Rights Condition” — the Board having redeemed the Rights (as defined below) associated with the Shares or the Offeror being satisfied, in its sole discretion, that such Rights have been invalidated or are otherwise inapplicable to the Offer and the MW Proposed Merger;

•

• The “Antitrust Condition” — the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any necessary approvals or waiting periods under the laws of any foreign jurisdictions applicable to the purchase of Shares pursuant to the Offer having expired or been terminated or obtained, as applicable, without any actions or proceedings having been threatened or commenced by any federal, state or foreign government, governmental authority or agency seeking to challenge the Offer or the MW Proposed Merger on antitrust grounds;

•

• The “Impairment Condition” — the Company not being a party to any agreement or transaction having the effect of impairing, in the reasonable judgment of the Offeror, the Offeror’s or MW’s ability to acquire the Shares or the Company or otherwise diminishing the expected value to MW of the acquisition of the Company; and

•

• The “Diligence Condition” — no change having occurred or been threatened (or any development having occurred or been threatened involving a prospective change) in the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of the Company or any of its subsidiaries that, in MW’s reasonable judgment, is or may be materially adverse to the Company or any of its subsidiaries, MW becomes aware of any facts that, in MW’s reasonable judgment, have or may have material adverse significance with respect to either the value of the Company or any of its affiliates or the value of the Shares to MW, or that any material contractual right or obligation of the Company or any of its subsidiaries that, in MW’s reasonable judgment, could result in a material decrease in the value of the Shares to MW purchased in the Offer.

In addition, the Offer provides that MW is not required to accept for payment, or subject to any applicable rules and regulations of the SEC, including Rule 14d-1(c) under the Securities Exchange Act of 1934 (the “Exchange Act”), pay for any shares, and may terminate or amend the Offer, if at any time on or after the date of the Schedule TO and before the time of payment for such Shares (whether or not any Shares have therefore been accepted for payment pursuant to the Offer), any of the following conditions exists:

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• there is threatened, instituted or pending any claim, action or proceeding by any government, governmental authority or agency or any other person, domestic, state, federal, foreign or supranational, (a) challenging or seeking to, or which is reasonably likely to, make illegal, delay or otherwise, directly or indirectly, restrain or prohibit the making of the Offer, the acceptance for payment of or payment for some or all of the Shares by MW or any of its subsidiaries or affiliates

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or the consummation by MW or any of its subsidiaries or affiliates of a merger or other similar business combination involving the Company, (b) seeking to obtain material damages in connection with, or otherwise directly or indirectly relating to, the transactions contemplated by the Offer or any such merger or other similar business combination, (c) seeking to restrain or prohibit the exercise of MW’s full rights of ownership or operation by MW or any of its subsidiaries or affiliates of all or any portion of MW’s business or assets or those of the Company or any of MW or the Company’s respective subsidiaries or affiliates or to compel MW or any of MW’s subsidiaries or affiliates to dispose of or hold separate all or any portion of MW’s business or assets or those of the Company or any of MW’s or the Company’s respective subsidiaries or affiliates or seeking to impose any limitation on MW’s or any of MW’s subsidiaries’ or affiliates’ ability to conduct such businesses or own such assets, (d) seeking to impose or confirm limitations on MW’s ability or that of any of MW’s subsidiaries or affiliates effectively to retain and exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by MW or any of MW’s subsidiaries or affiliates on all matters properly presented to the Company’s stockholders, (e) seeking to require divestiture or sale by MW or any of MW’s subsidiaries or affiliates of any Shares, (f) seeking relief that if granted will result in a material diminution in the benefits expected to be derived by MW or any of MW’s subsidiaries or affiliates as a result of the transactions contemplated by the Offer or any merger or other business combination involving the Company or (g) that otherwise, in MW’s reasonable judgment, has or may have material adverse significance with respect to either the value of the Company or any of its subsidiaries or affiliates or the value of the Shares to MW or any of MW’s subsidiaries or affiliates;

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• any action is taken, or any statute, rule, regulation, interpretation, judgment, injunction, order or decree is proposed, enacted, enforced, promulgated, amended, issued or deemed applicable to MW, the Offeror or any of their subsidiaries or affiliates, the Offer, the acceptance for payment of or payment for Shares, or any merger or other business combination involving the Company, by any court, government or governmental authority or agency, domestic, foreign or supranational (other than the application of the waiting period provisions of any antitrust laws to the Offer or to any such merger or other business combination), that, in MW’s reasonable judgment, does or may, directly or indirectly, result in any of the consequences referred to in clauses (a) through (g) of the paragraph immediately above;

•

• there occurs (a) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market, (b) any decline in either the Dow Jones Industrial Average, the Standard and Poor’s Index of 500 Industrial Companies or the NASDAQ-100 Index by an amount in excess of 15%, measured from the close of business on January 3, 2014, (c) any change in the general political, market, economic or financial conditions in the United States or elsewhere that, in MW’s reasonable judgment, could have a material adverse effect on the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of the Company and its subsidiaries, taken as a whole, (d) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (e) any material adverse change (or development or threatened development involving a prospective material adverse change) in United States dollars or any other currency exchange rates or a suspension of, or a limitation on, the markets therefor, (f) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States or any attack on or outbreak or act of terrorism involving the United States, (g) any limitation (whether or not mandatory) by any governmental authority or agency on, or any other event that, in MW’s reasonable judgment, may adversely affect, the extension of credit by banks or other financial institutions or (h) in the case of any of the foregoing existing at the time of commencement of the Offer, a material acceleration or worsening thereof;

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• (a) a tender or exchange offer for some or all of the Shares has been publicly proposed to be made or has been made by another person (including the Company or any of its subsidiaries or affiliates), or has been publicly disclosed, or MW otherwise learns that any person or “group” (as defined in Section 13(d)(3) of the Exchange Act) has acquired or proposes to acquire beneficial ownership of more than five percent (5%) of any class or series of capital stock of the Company

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(including the Shares), through the acquisition of stock, the formation of a group or otherwise, or is granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than five percent (5%) of any class or series of capital stock of the Company (including the Shares) other than acquisitions for bona fide arbitrage purposes only and other than as disclosed in a Schedule 13D or 13G on file with the SEC on January 6, 2014, (b) any such person or group which, prior to January 6, 2014, had filed such a Schedule with the SEC has acquired or proposes to acquire beneficial ownership of additional shares of any class or series of capital stock of the Company, through the acquisition of stock, the formation of a group or otherwise, constituting one percent (1%) or more of any such class or series, or is granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of additional shares of any class or series of capital stock of the Company constituting one percent (1%) or more of any such class or series, (c) any person or group has entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender or exchange offer or a merger, consolidation or other business combination with or involving the Company or (d) any person has filed a Notification and Report Form under the HSR Act or made a public announcement reflecting an intent to acquire the Company or any assets or securities of the Company;

•

• the Company or any of its subsidiaries has (a) split, combined or otherwise changed, or authorized or proposed the split, combination or other change of, the Shares or its capitalization, (b) acquired or otherwise caused a reduction in the number of, or authorized or proposed the acquisition or other reduction in the number of, outstanding Shares or other securities, (c) issued or sold, or authorized or proposed the issuance or sale of, any additional Shares, shares of any other class or series of capital stock, other voting securities or any securities convertible into, or options, rights or warrants, conditional or otherwise, to acquire, any of the foregoing (other than the issuance of Shares pursuant to and in accordance with the publicly disclosed terms in effect prior to commencement of the Offer of employee stock options outstanding prior to such date), or any other securities or rights in respect of, in lieu of, or in substitution or exchange for any shares of its capital stock, (d) permitted the issuance or sale of any shares of any class of capital stock or other securities of any subsidiary of the Company, (e) declared, paid or proposed to declare or pay any dividend or other distribution on any shares of capital stock of the Company, including without limitation any distribution of shares of any class or any other securities or warrants or rights, (f) altered or proposed to alter any material term of any outstanding security, issued or sold, or authorized or proposed the issuance or sale of, any debt securities or otherwise incurred or authorized or proposed the incurrence of any debt other than in the ordinary course of business, (g) authorized, recommended, proposed or announced its intent to enter into or entered into an agreement with respect to or effected any merger, consolidation, liquidation, dissolution, business combination, acquisition of assets, disposition of assets or relinquishment of any material contract or other right of the Company or any of its subsidiaries or any comparable event not in the ordinary course of business, (h) authorized, recommended, proposed or announced its intent to enter into or entered into any agreement or arrangement with any person or group that, in MW’s reasonable judgment, has or may have material adverse significance with respect to either the value of the Company or any of its subsidiaries or affiliates or the value of the Shares to MW or any of MW’s subsidiaries or affiliates, (i) adopted, entered into or amended any employment, severance, change of control, retention or other similar agreement, arrangement or plan with or for the benefit of any of its officers, directors, employees or consultants or made grants or awards thereunder, in each case other than in the ordinary course of business, or adopted, entered into or amended any such agreements, arrangements or plans so as to provide for increased benefits to officers, directors, employees or consultants as a result of or in connection with the making of the Offer, the acceptance for payment of or payment for some of or all the Shares by MW or MW’s consummation of any merger or other similar business combination involving the Company (including, in each case, in combination with any other event such as termination of employment or service), (j) except as may be required by law, taken any action to terminate or amend or materially increase liability under any employee benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974) of the Company or any of its subsidiaries, or MW shall have become aware of any such action which was not previously announced, (k) transferred into escrow (or other similar arrangement) any amounts

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required to fund any existing benefit, employment, severance, change of control or other similar agreement, in each case other than in the ordinary course of business, or (l) amended, or authorized or proposed any amendment to, its certificate of incorporation or bylaws (or other similar constituent documents) or MW becomes aware that the Company or any of its subsidiaries shall have amended, or authorized or proposed any amendment to any of their respective certificates of incorporation or bylaws (or other similar constituent documents) which has not been previously disclosed;

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• MW becomes aware (a) that any material contractual right of the Company or any of its subsidiaries has been impaired or otherwise adversely affected or that any material amount of indebtedness of the Company or any of its subsidiaries (other than indebtedness under its existing indentures) has been accelerated or has otherwise become due or become subject to acceleration prior to its stated due date, in each case with or without notice or the lapse of time or both, as a result of or in connection with the Offer or the consummation by MW or any of its subsidiaries or affiliates of a merger or other similar business combination involving the Company or (b) of any covenant, term or condition in any instrument or agreement of the Company or any of its subsidiaries that, in MW’s reasonable judgment, has or may have material adverse significance with respect to either the value of the Company or any of its affiliates or the value of the Shares to MW or any of MW’s affiliates (including any event of default that may ensue as a result of or in connection with the Offer, the acceptance for payment of or payment for some or all of the Shares by MW or MW’s consummation of a merger or other similar business combination involving the Company);

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• MW or any of its affiliates enters into a definitive agreement or announces an agreement in principle with the Company providing for a merger or other similar business combination with the Company or any of its subsidiaries or the purchase of securities or assets of the Company or any of its subsidiaries, or MW and the Company reach any other agreement or understanding pursuant to which it is agreed that the Offer will be terminated;

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• the Company or any of its subsidiaries shall have (a) granted to any person proposing a merger or other business combination with or involving the Company or any of its subsidiaries or the purchase of securities or assets of the Company or any of its subsidiaries any type of option, warrant or right which, in MW’s reasonable judgment, constitutes a “lock-up” device (including a right to acquire or receive any Shares or other securities, assets or business of the Company or any of its subsidiaries) or (b) paid or agreed to pay any cash or other consideration to any party in connection with or in any way related to any such business combination or purchase; or

•

• any required approval, permit, authorization, extension, action or non-action, waiver or consent of any governmental authority or agency (including the other matters described or referred to in the Section of the Offer titled: “The Offer — Section 15 — Certain Legal Matters; Regulatory Approvals; Appraisal Rights”) shall not have been obtained on terms satisfactory to MW and the Purchaser or any waiting period or extension thereof imposed by any government or governmental authority or agency with respect to the Offer shall not have expired.

According to the Schedule TO, all of the conditions to the Offer are for the sole benefit of MW, the Offeror and their affiliates and may be asserted by MW, the Offeror or their affiliates in their discretion regardless of the circumstances giving rise to any such conditions or may be waived by MW, the Offeror or their affiliates in their discretion in whole or in part at any time or from time to time before the Expiration Date. MW has stated that it expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer. MW has stated that its failure at any time to exercise its rights under any of the foregoing conditions shall not be deemed a waiver of any such right and that the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances. MW has further stated that each such right shall be deemed an ongoing right which may be asserted at any time or from time to time.

According to the Schedule TO, the principal business addresses of the Offeror are 6380 Rogerdale Road, Houston, Texas 77072-1624 (telephone number (281) 776-7000) and 6100 Stevenson Blvd., Fremont, California 94538 (telephone number (510) 657-9821).

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With respect to all information described in this Statement contained in the Schedule TO and any exhibits, amendments or supplements thereto, including information concerning the Offeror, MW or their respective affiliates, officers or directors, or actions or events with respect to any of them, the Company takes no responsibility for the accuracy or completeness of such information or for any failure by MW or the Offeror to disclose any events or circumstances that may have occurred and may affect the significance, completeness or accuracy of any such information.

Item 3.

• Past Contacts, Transactions, Negotiations and Agreements

Except as described in this Statement or in the excerpts from the Company’s Definitive Proxy Statement on Schedule 14A, dated and filed with the SEC on May 17, 2013 (the “2013 Proxy Statement”), relating to the Company’s 2013 annual meeting of stockholders, which excerpts are set forth as Exhibit (e)(1) hereto and incorporated herein by reference, as of the date of this Statement there are no material agreements, arrangements or understandings, nor any actual or potential conflicts of interest, between the Company or any of its affiliates, on the one hand, and (i) the Company or any of its executive officers, directors, or affiliates, or (ii) MW, the Offeror or any of their respective executive officers, directors, or affiliates, on the other hand. Exhibit (e)(1) is incorporated herein by reference and includes the following sections from the 2013 Proxy Statement: “Information Regarding our Board of Directors — Non-Employee Director Compensation,” “Executive Compensation and Related Information — Compensation Discussion and Analysis,” “Executive Compensation and Related Information — Compensation Tables,” “Other Matters — Transactions with Related Persons,” and “Other Matters — Security Ownership of Certain Beneficial Owners and Management.”

Any information contained in the pages from the 2013 Proxy Statement incorporated by reference herein shall be deemed modified or superseded for purposes of this Statement to the extent that any information contained herein modifies or supersedes such information.

Arrangements with Current Executive Officers and Directors of the Company

Shares Held by Non-Employee Directors and Executive Officers of the Company

As a group, the non-employee directors and executive officers of the Company hold an aggregate of approximately 370,743 Shares as of January 7, 2014. If the Company’s non-employee directors and executive officers were to tender any Shares they own for purchase pursuant to the Offer, then they would receive the same cash consideration per Share on the same terms and conditions as the other stockholders of the Company who tender their Shares. If the non-employee directors and executive officers were to tender all of the 370,743 Shares owned by them for purchase pursuant to the Offer and those Shares were purchased by the Offeror for $57.50 per Share, then the non-employee directors and executive officers would collectively receive an aggregate amount of approximately $21,317,722.50 in cash. To the knowledge of the Company, none of the Company’s non-employee directors or executive officers currently intends to tender any of their Shares pursuant to the Offer.

Equity-Based Awards Held by Non-Employee Directors and Executive Officers of the Company

Set forth below is a discussion of the treatment in connection with the Offer of equity incentive compensation awards held by the Company’s non-employee directors and executive officers. For purposes of valuing the amount of benefits that could be realized by the non-employee directors and executive officers in respect of such awards in connection with the Offer, the discussion below assumes that the non-employee directors and executive officers will receive, with respect to the shares subject to such awards, the same $57.50 per Share consideration being offered to all other stockholders of the Company in connection with the Offer. The Offer, if consummated according to its terms without a waiver by MW ofthe Minimum Tender Condition, would constitute a change in control of the Company as defined in the plans under which the awards were granted.

Treatment of Restricted Stock Units

The Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan provides for awards to non-employee directors. Unless the Company’s Compensation Committee determines otherwise, on June 1 of each year, each person then serving as a non-employee director receives an annual award of 2,250 restricted stock

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units. Unless the Company’s Compensation Committee determines otherwise, each person who first becomes a non-employee director receives an inaugural award of 1,500 restricted stock units upon election to the Board. These restricted stock units vest approximately (but not less than) twelve months following the date of grant.

The following table summarizes, with respect to each non-employee director, the estimated cash value, based on the Offer price of $57.50 per Share, in respect of the unvested restricted stock units as of January 17, 2014 if the vesting of such restricted stock units were to be accelerated in connection with the Offer.

Directors	Number of Unvested Restricted Stock Units (#)	Value of Unvested Restricted Stock Units ($)
Byron Bergren	1,500	86,250
James H. Ferstl	2,250	129,375
Andrew A. Giordano	2,250	129,375
William E. Herron	2,250	129,375
Sidney H. Ritman	2,250	129,375
Robert N. Wildrick	2,250	129,375

Treatment of Performance Restricted Stock Units

The Company has granted performance restricted stock units to its executive officers under the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan. Under this plan and the related award agreements, effective upon a change in control of the Company (which would occur if the Offer is consummated in accordance with its terms without a waiver by MW of the Minimum Tender Condition), such awards will be subject to accelerated vesting; the extent of such vesting depends on the timing of the change in control in relation to the award’s vesting schedule.

If the change in control occurs after the end of the performance period but prior to the certification date, the participant will be credited with the number of shares earned based on actual achievement of performance goals (to the extent that the Compensation Committee cannot make this determination, the award will be calculated based on maximum performance achievement). If the change in control occurs following certification, the accelerated award is based on actual achievement of the performance metric. The following table summarizes, with respect to each executive officer of the Company, the estimated cash value, based on the Offer price of $57.50 per Share, in respect of unvested performance restricted stock units subject to performance periods that were complete as of January 17, 2014.

Executive Officers	Number of Performance Restricted Stock Units (#)	Value of Performance Restricted Stock Units ($)
R. Neal Black	12,049	692,818
Robert B. Hensley	3,078	176,985
Gary M. Merry	3,078	176,985
James W. Thorne	3,078	176,985
David E. Ullman	3,078	176,985

If the change in control occurs prior to the end of the performance period, the award will be calculated assuming maximum performance with respect to all performance goals pro-rated for the number of days elapsed in the performance period. The following table summarizes, with respect to each executive officer of the Company, the estimated cash value, based on the Offer price of $57.50 per Share, in respect of unvested performance restricted stock units subject to performance periods that were not complete as of January 17, 2014.

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Executive Officers	Number of Performance Restricted Stock Units (#)	Value of Performance Restricted Stock Units ($)
R. Neal Black	51,167	2,942,103
Robert B. Hensley	3,828	220,110
Gary M. Merry	3,828	220,110
James W. Thorne	3,828	220,110
David E. Ullman	3,828	220,110

No Other Equity-Based Awards

Other than the restricted stock units and performance restricted stock units described above, there are no stock options or other equity or equity-based awards held by the Company’s executive officers or non-employee directors.

Other Potential Severance Benefits for Executive Officers

Employment Agreements

The Company is party to employment agreements with each of R. Neal Black, Robert B. Hensley, Gary M. Merry, James W. Thorne and David E. Ullman.

Under the terms of the employment agreement with R. Neal Black, in the event that Mr. Black terminates his employment within 90 days following a change in control (which would occur if the Offer is consummated in accordance with its terms without a waiver by MW of the Minimum Tender Condition), Mr. Black terminates his employment for good reason (as defined below) or the Company terminates Mr. Black’s employment without cause (as defined below), the Company will be obligated to pay Mr. Black a severance payment of $1,550,000 (as a lump sum) and any earned but unpaid cash bonus for the last full bonus year in the employment period, if applicable.

Under the terms of the employment agreements with each of Robert B. Hensley, Gary M. Merry, James W. Thorne and David E. Ullman, in the event that the applicable executive terminates his employment for good reason (as defined below) or the Company terminates his employment without cause (as defined below), the Company will be obligated to make a termination payment equal to the executive’s base salary as in effect on the date of termination for a period of months, payable in equal weekly installments over the term corresponding to the amount due (for Mr. Ullman: 18 months; for Mr. Hensley, Mr. Merry and Mr. Thorne: 12 months) and any non-equity incentive compensation which may have been earned through the date of termination.

The employment agreements with Messrs. Black, Hensley, Merry, Thorne and Ullman each generally define “good reason” as: (i) material breach by the Company of any provision of the employment agreement which is not cured within 30 days of delivery of notice; (ii) failure to timely pay compensation (including benefits) paid or payable pursuant to the applicable provisions; (iii) reduction in duties, responsibilities or perquisites as provided in the applicable provisions; or (iv) transfer of the Company’s principal executive offices outside the geographic area described in the applicable provisions or requirement that the executive principally perform his duties in other than such office.

The employment agreements with Messrs. Black, Hensley, Merry, Thorne and Ullman each generally define “cause” as: (i) conviction in a court of competent jurisdiction of a crime constituting a felony involving money or other property of the employer or any of its affiliates or any other offense involving moral turpitude; (ii) willful commission of an act not approved of or ratified by the Board (or, with respect to Messrs. Hensley, Merry, Thorne and Ullman, 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; (iii) willful commission of an act of fraud or misrepresentation (including the omission of material facts), provided that such acts relate to the business of the Company and would materially and negatively impact the Company; or (iv) willful and material failure to obey directions of the Board that are consistent with the applicable executive’s status.

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The following table sets forth the estimated cash severance termination payments and value of earned cash incentive compensation, assuming a qualifying termination on January 17, 2014.

Executive Officers	Cash Severance Termination Payment ($)	Value of Earned Cash Incentive Compensation ($)(1)	Total ($)
R. Neal Black	1,550,000	1,223,668	2,773,668
Robert B. Hensley	494,900	321,685	816,585
Gary M. Merry	465,000	302,250	767,250
James W. Thorne	440,000	286,000	726,000
David E. Ullman	704,475	305,273	1,009,748

(1)

• Assumes fiscal year 2013 cash bonus amounts earned at maximum level but unpaid at time of termination.

Director Compensation

The Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan provides for awards to non-employee directors, as described above in “Item 3. Arrangements with Current Executive Officers and Directors of the Company — Treatment of Restricted Stock Units.”

Wildrick Consulting Agreement

The Company is party to a consulting agreement with Robert N. Wildrick, dated as of September 9, 2008 (as amended, the “Wildrick Consulting Agreement”). Under the terms of the Wildrick Consulting Agreement, in the event that the consulting agreement is terminated under certain circumstances in connection with a change in control, the Company will be obligated to pay Mr. Wildrick the consulting fee for the remainder of the term of the agreement which would have constituted the consulting period absent termination. Mr. Wildrick’s consulting period is scheduled to expire on January 30, 2016. In the event of a qualifying termination on January 17, 2014, Mr. Wildrick would be entitled to a payment of approximately $1,650,000.

Indemnification of Directors and Officers; Limitation on Liability of Directors

Section 145 of the DGCL provides that a corporation may indemnify directors, officers, employees and agents of the corporation, as well as other individuals who are or were serving at the request of the corporation as directors, officers, employees and agents of other entities, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by them in connection with specified actions, suits, or proceedings, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation — a “derivative action”), if they 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 proceedings, had no reasonable cause to believe their conduct was unlawful.

A similar standard is applicable in the case of derivative actions, except where the person seeking indemnification has been adjudged liable to the corporation, the statute requires a court determination that such person is fairly and reasonably entitled to indemnity before there can be any indemnification.

The Company’s Amended Certificate of Incorporation includes a provision that eliminates the personal liability of directors for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability is not permitted by the DGCL.

The Company’s Amended Certificate of Incorporation further provides that any person made, 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 the fact that he, his testator or intestate is or was a director, officer, employee or agent of the Company, or is or was acting at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including, without limitation, as a fiduciary of, or otherwise rendering services to, any employee benefit plan of or relating to the Company, shall be indemnified by the Company to the fullest extent

9

provided by the DGCL, as amended from time to time, which right to indemnification shall include the right to be paid by the Company the expenses incurred in defending any proceeding for which such right to indemnification is applicable in advance of its final disposition to the extent permitted by Delaware law.

Article V of the Company’s Amended and Restated Bylaws generally provides that, subject to certain limitations, the Company may indemnify:

(i) any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that such person is or was a director or officer of the Company or an employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other entity or enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interest of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; and

(ii) any person who was or is a party or is threatened to be made a party to any threatened or pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Company or an employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other entity or enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interest of the Company and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery of Delaware 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 which such Court of Chancery of Delaware or such other court shall deem proper.

Both Section 145 of the DGCL and Article V of the Company’s Amended and Restated Bylaws specifically state that their indemnification provisions shall not be deemed exclusive of any other indemnity rights those seeking indemnification may have. The Company has entered into indemnification agreements with each of its directors (other than Mr. Bergren, which is in the process of being finalized since his appointment to the Board on September 4, 2013) and certain executive officers that are intended to assure the directors that they will be indemnified to the fullest extent permitted by Delaware law.

Section 145 of the DGCL permits a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another entity, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such. Under an insurance policy maintained by the Company, the Company is insured for certain amounts that it may be obligated to pay directors and officers by way of indemnity, and each such director and officer is insured against certain losses that he may incur by reason of his being a director or officer and for which he is not indemnified by the Company.

On December 18, 2013, the Company and Mr. Wildrick, entered into the Third Amendment to the Wildrick Consulting Agreement (the “Consulting Agreement Third Amendment”), pursuant to which the Company has agreed to indemnify Mr. Wildrick in his capacity as a consultant to the Company and to obtain reasonable insurance in connection therewith. The foregoing summary of the Consulting Agreement Third Amendment is qualified in its entirety by reference to the terms and provisions of the Consulting Agreement Third Amendment a copy of which is set forth on Exhibit (e)(65) hereto and which is incorporated herein by reference.

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Treatment of Deferred Compensation

The Company maintains the Jos. A. Bank Clothiers, Inc. 2010 Deferred Compensation Plan and a nonqualified deferred compensation plan administered by Fidelity Management Trust Company. Under each of these plans, shares are distributed upon a change in control of the Company, regardless of the otherwise applicable payment election.

The following table sets forth the estimated account balances as of January 13, 2014.

Executive Officers	Share Balance	Value of Payout of Deferred Shares ($)	Non-Share Deferred Compensation Value ($)	Total ($)
R. Neal Black	0	0	952,828.89	952,828.89
Robert B. Hensley	0	0	551,426.35	551,426.35
Gary M. Merry	0	0	0	0
James W. Thorne	3,775	217,062.50	0	217,062.50
David E. Ullman	3,775	217,062.50	542,485.57	759,548.07
Directors
Byron Bergren	0	0	0	0
James H. Ferstl	6,000	345,000	0	345,000
Andrew A. Giordano	3,750	215,625	0	215,625
William E. Herron	8,250	474,375	0	474,375
Sidney H. Ritman	14,420.31	829,167.83	0	829,167.83
Robert N. Wildrick	8,250	474,375	0	474,375

Item 4.

• The Solicitation or Recommendation

Solicitation/Recommendation

The Board has reviewed the Offer with the assistance of the Company’s management and financial and legal advisors. After careful consideration, the Board has determined that the Offer is inadequate, significantly undervalues the Company and is not in the best interests of the Company and its stockholders. Accordingly, and for the reasons described in more detail below, the Board of Directors of the Company recommends that you REJECT the Offer and NOT TENDER your Shares pursuant to the Offer.

If you have tendered any of your Shares, you can withdraw them. For assistance in withdrawing your Shares, you can contact your broker or the Company’s information agent, Innisfree M&A Incorporated (“Innisfree”), at the contact information below:

Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Stockholders May Call Toll-Free: (877) 750-9499
Banks & Brokers May Call Collect: (212) 750-5833

A copy of a letter to stockholders communicating the Board’s recommendation and a form of press release announcing such recommendation are set forth as Exhibits (a)(5) and (a)(4) hereto, respectively, and are incorporated herein by reference.

Background of the Offer; Reasons for Recommendation

Background

As part of the ongoing evaluation of the Company’s business, members of the Company’s senior management and the Board frequently review and assess the Company’s operations, financial performance and industry conditions as each may impact the Company’s long-term strategic goals and plans, including a review of potential opportunities to maximize stockholder value through business combinations,

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acquisitions, and other financial and strategic alternatives. In furtherance of this evaluation, the Company has been actively considering acquisition opportunities since the beginning of 2012. The Company has selectively sought potential acquisitions that are strategically sound, accretive and value enhancing in the long run for the Company and its stockholders.

On February 1, 2012, the Company retained Financo, LLC (“Financo”), an investment banking firm, to assist the Company in its evaluation of strategic alternatives.

On October 1, 2012, R. Neal Black, the Company’s President and Chief Executive Officer, emailed a list of potential acquisition targets to Robert N. Wildrick, Chairman of the Board, which list included MW, among others.

In or about June of 2013, Mr. Wildrich began discussing a potential proposal to acquire MW (the “Potential Proposal to MW”) with the Company’s senior management, Financo and Goldman, Sachs, & Co. (“Goldman Sachs”).

During June and July 2013, representatives of the Company met with representatives of Golden Gate Capital, a private equity firm (“Golden Gate”), to discuss a number of potential acquisition opportunities including the Potential Proposal to MW.

During June, July and August 2013, the Company executed non-disclosure agreements and met with several private equity firms to discuss potential financing for the Potential Proposal to MW.

On June 21, 2013, the Company issued a press release publicly confirming that the Company has been and is considering strategic opportunities to enhance stockholder value, including seeking potential acquisitions to facilitate additional growth.

On July 29, 2013, the Executive Committee of the Board discussed the Potential Proposal to MW.

On August 9, 2013, the Company retained Guilfoil Petzall & Shoemake, L.L.C. (“Guilfoil”) as legal advisor in connection with the Potential Proposal to MW.

On August 20, 2013, representatives of the Company, Financo, and Golden Gate met to discuss the Potential Proposal to MW.

On that same day, the Company retained Kekst and Company (“Kekst”) as corporate communications advisor in connection with the Potential Proposal to MW.

On August 28, 2013, the Company retained Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”) as legal advisor in connection with the Potential Proposal to MW.

On September 3, 2013, the Company retained Goldman Sachsas financial advisor in connection with the Potential Proposal to MW.

On September 4, 2013, the Company held a Board meeting in Palm Beach, Florida at which representatives of Financo, Goldman Sachs, Skadden, and Guilfoil were present. The Board reviewed and discussed the Potential Proposal to MW, including potential pricing and terms.

On September 17, 2013, the Company and Golden Gate executed a non-binding term sheet specifying the terms of an equity investment by Golden Gate in the Company to provide financing for the Potential Proposal to MW.

On September 18, 2013, Mr. Wildrick contacted Douglas S. Ewert, president and chief executive officer of MW, by telephone and presented the Company’s non-binding proposal to acquire all outstanding shares of MW at a price of $48 per share in cash (the “Initial Proposal to MW”), and requested that MW respond to the Initial Proposal to MW by October 4, 2013. Mr. Wildrick also emailed Mr. Ewert a letter summarizing the Initial Proposal to MW.

On October 2, 2013, Mr. Ewert telephoned Mr. Wildrick to discuss the timing of MW’s response to the Initial Proposal to MW. Later that day, Mr. Ewert advised Mr. Wildrick by email that MW’s board of directors would need additional time to respond to the Initial Proposal to MW.

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On October 3, 2013, Mr. Wildrick sent Mr. Ewert an email stating that the Company would extend the deadline for MW to respond to the Initial Proposal to MW until October 10, 2013.

On October 8, 2013, the Company was informed by its advisors that the Wall Street Journal planned to issue an article regarding the Initial Proposal to MW. Mr. Wildrick contacted Mr. Ewert by telephone regarding this information. At approximately 8:15 PM ET The Wall Street Journal — online editionreported that the Company had approached MW about a combination of the two companies.

On October 9, 2013, the Company issued a press release confirming that it had made a non-binding proposal to acquire all of the outstanding shares of MW at a price of $48 per share in cash, representing a total equity value of approximately $2.3 billion, in a negotiated transaction. That same day, the Company filed such press release with the SEC on a Current Report on Form 8-K.

Later on October 9, 2013, MW issued a press release in which it rejected the Initial Proposal to MW, stating, among other things, that the Initial Proposal to MW significantly undervalued MW and its strong prospects for continued growth and value creation, that it was not in the best interests of MW or its shareholders and that it could raise significant antitrust concerns.

Also on October 9, 2013, MW adopted a shareholder rights plan and amended and restated its bylaws to increase the voting standard for approval of shareholder amendments to MW’s bylaws from a majority to two-thirds, revise the advance notice provision to require earlier advance notice of intended shareholder nominations of directors to MW’s board of directors and require persons seeking to make nominations to provide more information about themselves and their nominees.

On October 14, 2013, Mr. Wildrick sent an email to Mr. Ewert, expressing the Company’s continued interest in discussing the Initial Proposal to MW with MW. On October 31, 2013, the Company sent a letter informing MW that the Company was willing to consider raising its proposed price of $48 per MW share if the Company was given the opportunity to conduct limited due diligence in order to determine that such an increase would be justified. This letter also stated that the Initial Proposal to MW would terminate on November 14, 2013 if MW had not engaged with the Company prior to such time.

On November 4, 2013, MW issued a press release rejecting the Company’s request for access to due diligence to explore a potential acquisition of MW at a price higher than $48 per MW share.

On that same day, the Company publicly responded to MW’s rejection, expressing disappointment with this rejection and reiterating that the Company would leave the Initial Proposal to MW open for MW’s consideration until November 14, 2013.

On November 7, 2013, Eminence Capital, LLC (“Eminence”) and certain of its affiliates (together with Eminence, the “Eminence Shareholders”) filed a Schedule 13D with the SEC, indicating that the Eminence Shareholders had acquired beneficial ownership of 4,684,200 shares of MW’s common stock, constituting approximately 9.8% of MW’s outstanding common stock as of November 7, 2013.

On November 15, 2013, the Company sent and publicly disclosed a letter to MW stating it was terminating the Initial Proposal to MW in order to consider other strategic alternatives which the Company had been investigating, but that in the future, if the Company was invited by MW’s board to discuss the Company’s acquisition of MW, or if circumstances were otherwise to change, the Company may consider whether a new proposal to acquire MW would be warranted.

On November 26, 2013, MW publicly announced an unsolicited, non-binding proposal to acquire all of the outstanding Shares at a price of $55 per share (the “MW November 26 Proposal”). Mr. Ewert telephoned and emailed Mr. Wildrick communicating the MW November 26 Proposal.

On December 3, 2013, the Board held a meeting in Palm Beach, Florida at which representatives of Financo, Skadden, and Guilfoil were present. The Board discussed and considered the MW November 26 Proposal.

At various times in December 2013 and January 2014, the Company’s advisors held telephonic meetings with the Eminence Shareholders’ advisors, during which the advisors explored the possibility of the Company pursuing an acquisition of MW.

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On December 18, 2013, the Company held a Board meeting in Palm Beach, Florida at which representatives of Financo, Goldman Sachs, Skadden, and Guilfoil were present. Among other things, the Board reviewed and discussed the MW November 26 Proposal.

On December 23, 2013, the Board held a telephonic meeting at which representatives of Financo, Goldman Sachs, Skadden, and Guilfoil participated. The Board continued its consideration of various factors relating to the MW November 26 Proposal. After extended presentations from the Company’s advisors and extensive discussion among the directors and with the advisors, the Board unanimously determined that the price proposed by MW significantly undervalued the Company and its near and long-term potential and was not in the best interest of the Company’s stockholders. At this meeting, the Board also discussed the possibility of amending the Company’s shareholder rights plan to, among other things, decrease the beneficial ownership threshold for activating the preferred share purchase rights issued pursuant to the rights plan from 20% to 10%. The Board asked its financial and legal advisors to analyze such an amendment and prepare documentation for the Board’s further consideration.

On December 23, 2013, Mr. Wildrick delivered to Mr. Ewert the Company’s response to the MW November 26 Proposal, stating that after thorough consideration by the Board, with the assistance of its financial and legal advisors, the Company had unanimously rejected the MW November 26 Proposal. The Company publicly disclosed such response.

On January 3, 2014, the Board held a telephonic meeting at which representatives of Financo, Goldman Sachs, and Skadden participated. After extended presentations from the Company’s advisors and extensive discussion among the directors and with the advisors, the Board unanimously, with one director not participating in the meeting, approved an amendment to the Company’s shareholder rights plan, which, among other things, (i) decreased the beneficial ownership threshold for activating the preferred share purchase rights from 20% to 10%; (ii) included provisions in respect of certain derivative or synthetic arrangements having characteristics of a long position in the Shares in the definition of securities which a person or entity would be deemed to beneficially own; (iii) increased the purchase price for the exercise of rights under the Company’s stockholder rights plan from $200 to $250; and (iv) allowed the Board to redeem the rights for any reason at any time prior to the close of business on the Distribution Date (as defined below). On January 3, 2014, the Company and the Rights Agent (as defined below) entered into Amendment No. 1 (as defined below). After discussion, the Board unanimously, with one director not participating in the meeting, approved a technical clarification to the Company’s Amended and Restated Bylaws in order to conform the Company’s Amended and Restated Bylaws to the Company’s Certificate of Incorporation which provides that the number of directors constituting the whole Board shall be determined by resolutions of the Board.

On January 6, 2014, the Offeror commenced the Offer.

On January 13, 2014, Eminence delivered a letter to the Board stating that Eminence intended to deliver a notice to nominate directors to the Board. Eminence delivered notice of proposed director nominees to the Company on January 17, 2014. The Company is in the process of reviewing the nominations for compliance with its governance documents and applicable law.

On January 14, 2014, MW sent to the Company a notice of nomination of persons for election to the Board. The Company is in the process of reviewing the nominations for compliance with its governance documents and applicable law.

On January 17, 2014, the Board held a meeting in Palm Beach, Florida at which representatives of Financo, Goldman Sachs, Skadden, and Guilfoil were present. The Board discussed and considered the Offer with the assistance of the Company’s management and financial and legal advisors. At such meeting, Goldman Sachs rendered an oral opinion to the Board, subsequently confirmed in writing, that as of January 17, 2014 and based upon and subject to the factors and assumptions set forth in its written opinion, the consideration proposed to be paid to the holders (other than the Offeror and any of its affiliates) of Shares pursuant to the Offer was inadequate from a financial point of view to such holders. After extensive presentations from the Company’s advisors and extensive discussion among the directors and with the advisors, the Board unanimously, with one director not participating in the meeting,determined that the Offer is inadequate and significantly undervalues the Company and recommended that

14

the Company’s stockholders reject the Offer and not tender their Shares into the Offer. At this meeting, the Board also resolved to postpone the Distribution Date (as defined below) pursuant to the Rights Agreement (as defined below), which otherwise would occur on the tenth business day after the date of commencement of the Offer, until such date as may be subsequently determined by the Board by resolution.

The full text of the written opinion of Goldman Sachs, dated January 17, 2014, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with such opinion, is attached as Annex A hereto. Goldman Sachs provided its opinion for the information and assistance of the Board in connection with its consideration of the Offer, and the opinion is not a recommendation as to whether or not any holder of Shares should tender such Shares in connection with the Offer or any other matter.

On January 17, 2014, the Company issued a press release announcing the Board’s recommendation that stockholders reject the Offer and not tender their Shares into the Offer.

Reasons for the Recommendation

In reaching the conclusions and in making the recommendation described above, the Board considered, in consultation with the Company’s financial and legal advisors, numerous factors, including but not limited to those described below.

The Offer significantly undervalues the Company.

The Board has determined that the Offer price is inadequate and significantly undervalues the Company and its near- and long-term potential.

The Offer is opportunistic, does not reflect the Company’s improving financial performance and results of operations or the Company’s strategy and future prospects.

The Company’s Board and management remain entirely focused on generating maximum value for stockholders. The Board believes, after consultation with the Company’s senior management and its financial advisors, that implementation of the Company’s stand-alone plan will generate greater value for stockholders than the Offer price. There are good reasons for the Board’s belief. For well over a decade, the Company has been among the leaders in the industry in driving exceptionally strong rates of revenue and net income growth. The Company believes it has a strategy in place to continue to increase revenue, substantially improve margins and deliver enhanced returns to stockholders. Since the Company’s current management team started in November 1999, the Company has an exceptional track record of generating long-term growth and stockholder value. From January 3, 2000 through January 3, 2014, the Company has generated approximately 5,786% total share price growth (compared to only 170% at MW). Moreover, the Company has an attractive balance sheet with approximately $340 million in cash, cash equivalents and short-term investments and zero debt, in each case as of November 2, 2013, the date of the Company’s last publicly disclosed balance sheet.

The Board believes the Offer is opportunistic and timed to acquire the Company while the Company’s operations are strengthening. The Offer price does not reflect the significant progress the Company has made in recent quarters and its improved financial performance and results of operations, evidenced in the Board’s view by the Company’s strong performance in the most recent fiscal quarter, ended November 2, 2013. The Board of Directors believes that the Company has identified a clear, stronger path forward.

By tendering into the Offer, stockholders would give up the opportunity to participate in the upside benefits and expanding margins that the Board believes the Company is in an excellent position to deliver.

The Company is continuing to explore strategic acquisitions and other alternatives.

As the Company has stated publicly, the Company is continuing its process, which has been ongoing for some time, to consider and evaluate strategic alternatives, including acquisitions. The Board remains committed to exploring select acquisition candidates that will maximize stockholder value. The Board believes that its and management’s deep industry experience and knowledge and track record of creating stockholder value enables it to identify and execute acquisition transactions that will create value in excess

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of the Offer price. As the Company previously disclosed, the Company will continue to carefully review acquisition opportunities that would represent a strong strategic fit with the Company and provide an opportunity to leverage its core competencies to drive meaningful growth, synergies and substantial value creation over the long term.

The Company has received an inadequacy opinion from its financial advisor.

The Board considered the fact that Goldman Sachs rendered an opinion to the Board, subsequently confirmed in writing, that as of January 17, 2014, and based upon and subject to the factors and assumptions set forth in the written opinion, the consideration proposed to be paid to the holders (other than the Offeror and any of its affiliates) of Shares pursuant to the Offer was inadequate from a financial point of view to such holders.

The full text of the written opinion of Goldman Sachs, dated January 17, 2014, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with such opinion, is attached as Annex A. Goldman Sachs provided its opinion for the information and assistance of the Board in connection with its consideration of the Offer. The opinion of Goldman Sachs is not a recommendation as to whether or not any holder of Shares should tender such Shares in connection with the Offer or any other matter.

The Offer fails to appropriately compensate the Company’s stockholders for the significant synergies that MW claims would be created by a business combination between MW and the Company.

As noted in its Investor Presentation filed as Exhibit 99.1 to MW’s Current Report on Form 8-K filed on November 26, 2013, MW believes that a combination of the companies could yield significant synergies, including $100 – $150 million of run rate synergies to be realized in the first three years following a business combination. If MW’s estimates are accurate, the Offer does not come close to adequately compensating the Company’s stockholders for this purported significant synergy value.

For example, using MW’s publicly disclosed estimates of synergies ($100 – $150 million) and assuming $340 million of the Company’s cash and investment grade debt financing that may be available to MW under current market conditions to finance a transaction, the Board believes a transaction at the Offer price would be between approximately 30% and 38% accretive to MW’s 2014 estimated earnings per share (IBES). This level of accretion is large for a potential acquirer and the Board does not support a transaction that fails to ensure its stockholders are adequately compensated for this significant synergy value.Additionally, the Company expects its cash balance for the fiscal year ending  February 1, 2014 will be approximately $90 million higher than the cash balance at the fiscal quarter ended  November 2, 2013.

The Offer’s conditions create significant uncertainty and risk, raising significant doubts about whether it will ever be completed.

The Offer is highly conditional, and includes at least one condition that MW has itself said is problematic. According to the Schedule TO, the Offer is subject to 16 broadly drafted conditions, many with numerous subparts, some of which are of questionable relevance to the Company and its business. All of the conditions to the Offer are for the sole benefit of MW and its affiliates and may be asserted by MW in its sole discretion regardless of the circumstances giving rise to any such conditions or may be waived by MW in its sole discretion in whole or in part at any time or from time to time before the Expiration Date. Included in the express conditions to which the Offer is subject are the following conditions:

•

• Diligence Condition;

•

• Minimum Tender Condition;

•

• Merger Agreement Condition;

•

• Section 203 Condition;

•

• Rights Condition;

•

• Antitrust Condition;

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•

• Impairment Condition;

•

• No “market” material adverse effect condition;

•

• No competing offer or agreement to acquire the Company condition; and

•

• No material adverse change condition.

The Company’s stockholders have no assurance that the Offer will ever be completed. Many of the conditions to the Offer are subject to MW’s discretion and many establish a de minimis materiality standard, making it easy for MW to claim that a condition is not satisfied and terminate the Offer. The Board notes that MW has included a condition relating to antitrust approvals, a condition which MW’s prior statements indicate MW thinks would be difficult to satisfy. On October 9, 2013, in rejecting the Company’s Initial Proposal to MW, MW stated that a business combination between the Company and MW “raises significant antitrust concerns.” Moreover, if the Company determines to negotiate with MW, MW has afforded themselves a broad termination right, based on any findings in a due diligence process, which in MW’s reasonable judgment could have material adverse significance or decrease to the value to MW of the Shares.

MW has discretion to extend the Offer indefinitely.

MW has stated that it may, in MW’s sole discretion, subject to any applicable rules and regulations of the SEC, extend the Offer from time to time for any reason. The Company’s stockholders have no assurance that they will ever receive payment for shares tendered in a timely fashion. MW has given itself broad discretion to disrupt the Company’s business indefinitely without any assurance as to when it may provide value to stockholders, even the inadequate value MW has offered.

MW’s true motives are unclear and its commitment to the Offer is not credible.

When MW rejected the Initial Proposal to MW, one commentator noted that it brought to mind “the shrill ‘just say no’ defenses of the 1980s.”1 MW also took the highly unusual step of publicly stating that the combination of the two companies “[r]aises significant antitrust concerns.” Both the Board and market observers took MW’s response and subsequent actions to mean that in addition to rejecting the price of the Initial Proposal, MW was dismissive of the idea of any combination of the two companies. The Schedule TO states that MW’s board of directors considered making a proposal to acquire the Company on multiple occasions. However, the Board noted that MW made its proposal to acquire the Company only after its largest shareholder, Eminence, threatened MW’s board of directors that, unless it pursued a combination with the Company, Eminence would seek to call a special meeting of shareholders to, among other things, amend MW’s bylaws to permit the removal of its entire board of directors. After MW made the Offer, Eminence then terminated its proxy solicitation threatening the removal of MW’s board of directors. MW has not explained its inconsistent behavior and the Board believes MW’s actions to date create doubt as to MW’s intentions and motivations in making its highly conditional Offer.

*    *    *    *

1

• Source: New York Times Dealbook article by Steven M. Davidoff, published October 11, 2013.

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ACCORDINGLY, BASED ON THE FOREGOING, THE BOARD RECOMMENDS THAT HOLDERS OF SHARES REJECT THE OFFER AND NOT TENDER ANY OF THEIR SHARES PURSUANT TO THE OFFER.

The foregoing discussion of the information and factors considered by the Board is not meant to be exhaustive, but includes the material information, factors, and analyses considered by the Board in reaching its conclusions and recommendations. The members of the Board evaluated the various factors listed above in light of their knowledge of the business, financial condition, and prospects of the Company and considered the advice of the Board’s financial and legal advisors. In light of the number and variety of factors that the Board considered, the members of the Board did not find it practicable to assign relative weights to the foregoing factors. However, the recommendation of the Board was made after considering the totality of the information and factors involved. In addition, individual members of the Board may have given different weight to different factors.

In light of the factors described above, the Board has determined that the Offer is not in the best interests of the Company’s stockholders. Therefore, the Board recommends that the stockholders reject the Offer and not tender any of their Shares to the Offeror for purchase pursuant to the Offer.

Intent to Tender

To the Company’s knowledge, after making reasonable inquiry, none of the Company’s executive officers, directors, affiliates, or subsidiaries intends to tender any Shares he, she, or it holds of record or beneficially owns for purchase pursuant to the Offer.

Item 5.

• Persons/Assets, Retained, Employed, Compensated or Used

The Company has retained Goldman Sachs and Financo as its financial advisors in connection with the Company’s consideration of the Offer and other matters. The Company has agreed to pay Goldman Sachs and Financo for their services, including a transaction fee payable upon consummation of the Offer or certain other transactions.The Company has agreed to reimburse Goldman Sachs and Financo for theirexpenses and indemnify Goldman Sachs and Financo against certain liabilities that may arise out of theirengagement.

The Company has engaged Innisfree to assist it in connection with the Company’s communications with its stockholders in connection with the Offer. The Company has agreed to pay customary compensation to Innisfree for such services. In addition, the Company has agreed to reimburse Innisfree for its reasonable out-of-pocket expenses and to indemnify it and certain related persons against certain liabilities relating to or arising out of its engagement.

The Company has also retained Kekst as its public relations advisor in connection with the Offer. The Company has agreed to pay Kekst customary compensation for such services. In addition, the Company has agreed to reimburse Kekst for its out-of-pocket expenses and to indemnify it against certain liabilities relating to or arising out of its engagement.

Except as set forth above, neither the Company nor any person acting on its behalf has or currently intends to employ, retain or compensate any person to make solicitations or recommendations to the Company’s stockholders with respect to the Offer.

Item 6.

• Interest in Securities of the Subject Company

Other than in the ordinary course of business in connection with the Company’s employee benefit plans, no transactions with respect to the Shares have been effected by the Company or, to the knowledge of the Company, by any of its executive officers, directors, affiliates or subsidiaries during the past 60 days.

Item 7.

• Purposes of the Transaction and Plans or Proposals

The Company continues to explore a number of strategic alternatives, including, without limitation, potential acquisitions of strategically sound and value enhancing businesses or assets from third parties, a potential acquisition of MW and the continued implementation of the Company’s stand-alone plan, including potential return of capital to stockholders.

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The Company has been and is continuing to engage in preliminary negotiations that could result in an extraordinary transaction, including the acquisition of a business or assets from a third party that would be material to the Company. There can be no assurance that such negotiations will result in an agreement being reached.

The Board is of the opinion that disclosure with respect to the parties and the possible terms of any such transaction would jeopardize the continuation of such negotiations. Therefore, the Company does not intend to disclose additional information with respect to such negotiations in the future unless an agreement related to any such transaction has been reached or except as otherwise required by law.

Except as described above and as otherwise set forth in this Statement, the Company does not have any knowledge of any negotiations being undertaken or engaged in by the Company in response to the Offer that relate to or would result in (a) a tender offer for or other acquisition of the Company’s Shares by the Company, any subsidiary of the Company, or any other person; (b) any extraordinary transaction, such as a merger, reorganization, or liquidation, involving the Company or any subsidiary of the Company; (c) any purchase, sale, or transfer of a material amount of assets of the Company or any subsidiary of the Company; or (d) any material change in the present dividend rate or policy, indebtedness, or capitalization of the Company. Except as otherwise set forth in this Statement, to the knowledge of the Company, there are no transactions, resolutions of the Board, agreements in principle, or signed contracts in response to the Offer that relate to one or more of the events referred to in this paragraph.

Item 8.

• Additional Information

Golden Parachute Compensation

The following table sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation for the Company’s named executive officers that is based on or otherwise relates to the Offer, assuming that the Offer was consummated on March 31, 2014 and that the named executive officers experienced a qualifying termination on the same day.

Golden Parachute Compensation

	Cash ($)(1)	Equity ($)(2)	Total ($)
Named Executive Officers
R. Neal Black	1,550,000	3,634,920	5,184,920
Robert B. Hensley	494,900	397,095	891,995
Gary M. Merry	465,000	397,095	862,095
James W. Thorne	440,000	397,095	837,095
David E. Ullman	704,475	397,095	1,101,570

(1)

• Each named executive officer is party to an employment agreement with the Company. Under the terms of the employment agreement with Mr. Black (as described above in “Item 3. Arrangements with Current Executive Officers and Directors of the Company — Other Potential Severance Benefits for Executive Officers”), in the event that Mr. Black terminates his employment within 90 days following a change in control (which would occur if the Offer is consummated in accordance with its terms without a waiver by MW of the Minimum Tender Condition), Mr. Black terminates his employment for good reason or the Company terminates Mr. Black’s employment without cause, the Company will be obligated to pay Mr. Black a severance payment of $1,550,000 and, if applicable, any earned but unpaid cash bonus for the last full bonus year in the employment period. Under the terms of the employment agreements with Messrs. Hensley, Merry, Thorne and Ullman (as described above in “Item 3. Arrangements with Current Executive Officers and Directors of the Company — Other Potential Severance Benefits for Executive Officers”), in the event of termination by the Company without cause or by the executive for good reason, the executive will receive a payment equal to the executive’s monthly base salary as in effect on the date of termination multiplied by a number of

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months (for Mr. Ullman: 18 months; for Mr. Hensley, Mr. Merry and Mr. Thorne: 12 months) and any non-equity incentive compensation which may have been earned through the date of termination. These severance payments are not varied based upon whether the termination occurs in connection with a change in control.

(2)

• The amounts in this column are calculated assuming that all earned, but unvested performance restricted stock units will vest on the date of the change in control and that all granted performance restricted stock units related to a performance period which has not yet been evaluated will also vest on the date of the change in control. These amounts are based on an assumed change in control occurring on March 31, 2014 at the Offer price of $57.50. These are “single trigger” payments, which would be triggered by a change in control of the Company without regard to whether the executive’s employment is also terminated.

Narrative to Golden Parachute Compensation Table

Each of the named executive officers holds unvested performance restricted stock units under the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan. The Offer, if consummated according to its terms without a waiver by MW of the Minimum Tender Condition, would constitute a change in control of the Company as defined in the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan. Each of the named executive officers is also a party to an employment agreement, under which the named executive officer would become entitled to a cash termination payment and other payments upon a qualifying termination. For more information relating to these arrangements, see “Item 3. Past Contracts, Transactions, Negotiations and Agreements” (which is incorporated into this Item 8 by reference).

State Anti-Takeover Laws — Delaware Business Combination Statute

The Company is subject to the provisions of Section 203 of the DGCL, which imposes certain restrictions upon business combinations involving the Company. The following description is not complete and is qualified in its entirety by reference to the provisions of Section 203 of the DGCL. In general, Section 203 of the DGCL prevents a Delaware corporation such as the Company from engaging in a “business combination” (which is defined to include a variety of transactions, including mergers such as the MW Proposed Merger) with an “interested stockholder” for a period of three years following the time such person became an interested stockholder unless:

•

• prior to such time the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

•

• upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85 percent of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

•

• at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66​2∕3 percent of the outstanding voting stock which is not owned by the interested stockholder.

For purposes of Section 203 of the DGCL, the term “interested stockholder” generally means any person (other than the corporation and any direct or indirect majority-owned subsidiary of the corporation) that (i) is the owner of 15 percent or more of the outstanding voting stock of the corporation or (ii) is an affiliate or associate of the corporation and was the owner of 15 percent or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder, and the affiliates and associates of such person. A Delaware corporation may elect not to be covered by Section 203 of the DGCL in its original certificate of incorporation or through an amendment to its certificate of

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incorporation or bylaws approved by its stockholders. An amendment electing not to be governed by Section 203 of the DGCL is not effective until 12 months after the adoption of such amendment and does not apply to any business combination between a Delaware corporation and any person who became an interested stockholder of such corporation on or prior to such adoption.

Neither the Company’s Amended Certificate of Incorporation nor Amended and Restated Bylaws exclude the Company from the coverage of Section 203 of the DGCL. Unless MW’s acquisition of 15 percent or more of the Shares is approved by the Board before the Offer closes, Section 203 of the DGCL will prohibit consummation of the MW Proposed Merger (or any other business combination with MW) for a period of three years following consummation of the Offer unless each such business combination (including the MW Proposed Merger) is approved by the Board and holders of 66​2∕3 percent of the Shares, excluding MW, or unless MW acquires at least 85 percent of the Shares in the Offer. The provisions of Section 203 of the DGCL would be satisfied if, prior to the consummation of the Offer, the Board approves the Offer.

State Anti-Takeover Laws — Other

A number of states have adopted laws and regulations that purport to apply to attempts to acquire corporations that are incorporated in such states, or whose business operations have substantial economic effects in such states, or which have substantial assets, security holders, employees, principal executive offices or principal places of business in such states. The Offeror has stated in its Offer that it has not made efforts to comply with state takeover statutes in connection with the Offer. In the event that it is asserted that one or more state takeover statutes apply to the Offer, and it is not determined by an appropriate court that such statute or statutes do not apply or are invalid as applied to the Offer, as applicable, the Offeror may be required to file certain documents with, or receive approvals from, the relevant state authorities, and according to the Offer, the Offeror might be unable to accept for payment or pay for Shares tendered pursuant to the Offer or be delayed in consummating the Offer. In such case, according to the Offer, the Offeror may not be obligated to accept for payment, or pay for, any Shares tendered in the Offer.

Appraisal Rights

Holders of Shares do not have appraisal rights as a result of the Offer. However, if the MW Proposed Merger is consummated and, in the case of consummation pursuant to Section 251(h) or 253 of the DGCL, all of the stock of the Company is not owned by the Offeror immediately prior to such merger, stockholders who receive cash compensation for their Shares in connection with the MW Proposed Merger will have certain rights pursuant to the provisions of Section 262 of the DGCL to dissent and demand appraisal of their Shares. Under Section 262, dissenting stockholders who comply with the applicable statutory procedures will be entitled to receive a judicial determination of the fair value of their Shares (exclusive of any element of value arising from the accomplishment or expectation of the proposed merger) and to receive payment of such fair value in cash, together with a fair rate of interest, if any. Any such judicial determination of the fair value of the Shares could be based upon factors other than, or in addition to, the price per share to be paid in the proposed merger or the market value of the Shares. The value so determined could be more or less than the price per Share to be paid in the MW Proposed Merger.

Rights Agreement

On September 5, 2007, the Board declared a dividend of one preferred share purchase right (a “Right”) for each outstanding Share. The dividend was paid on September 20, 2007 (the “Rights Record Date”) to the stockholders of record on that date. Each Right entitles the registered holder to purchase from the Company one one-hundredth of a share of Series A Junior Participating Preferred Stock, par value $1.00 per share (the “Preferred Shares”), at a price of $200 per one one-hundredth of a Preferred Share (the “Rights Purchase Price”), subject to adjustment and amendment. Each one one-hundredth of a Preferred Share has designations and powers, preferences and rights, and the qualifications, limitations and restrictions which make its value approximately equal to the value of a Share. The description and terms of the Rights are set forth in a Rights Agreement, dated as of September 6, 2007, entered into between the Company and Continental Stock Transfer & Trust Company, as rights agent (the “Rights Agent”) (as amended by Amendment No. 1 (as defined below), (the “Rights Agreement”)).

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On January 3, 2014 (the “Rights Agreement Amendment Date”), the Rights Agreement was modified, pursuant to Amendment No. 1 to Rights Agreement (“Amendment No. 1”), to, among other things: (i) decrease from 20% to 10% the beneficial ownership threshold by which any person or entity (together with all affiliates and associates of such person or entity) becomes an Acquiring Person (as defined below) as contemplated by the Rights Agreement (subject to certain exceptions as set forth therein); (ii) include provisions in respect of certain derivative or synthetic arrangements having characteristics of a long position in the Shares in the definition of securities which a person or entity would be deemed to beneficially own; (iii) increase the Rights Purchase Price to $250; and (iv) allow the Board to redeem the Rights for any reason at any time prior to the close of business on the Distribution Date (as defined below).

Until the earlier to occur of (i) 10 days following a public announcement that a person, entity or group of affiliated or associated persons has acquired beneficial ownership (as defined in the Rights Agreement) of 10% or more of the outstanding Shares (such person, entity or group, an “Acquiring Person”) or (ii) 10 business days (or such later date as may be determined by action of the Board prior to such time as any person or entity becomes an Acquiring Person) following the commencement of, or announcement of an intention to commence, a tender offer or exchange offer the consummation of which would result in any person, entity or group becoming an Acquiring Person (the earlier of such dates being called the “Distribution Date”), the Rights will be evidenced, with respect to any of the Share certificates outstanding as of the Rights Record Date, by such Share certificate.

Until the Distribution Date, the Rights will be transferable with and only with the Shares. Until the Distribution Date (or earlier redemption or expiration of the Rights), new Share certificates issued after the Rights Record Date, upon transfer or new issuance of Shares, will contain a notation incorporating the Rights Agreement by reference. Until the Distribution Date (or earlier redemption or expiration of the Rights), the surrender or transfer of any Share certificates outstanding as of the Rights Record Date will also constitute the transfer of the Rights associated with the Shares represented by such certificate. As soon as practicable following the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) will be mailed to holders of record of the Shares as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence the Rights.

The Rights are not exercisable until the Distribution Date. The Rights will expire on September 20, 2017 (the “Rights Final Expiration Date”), unless the Rights are earlier redeemed or exchanged by the Company, in each case as described below.

The number of outstanding Rights and the fraction of a Preferred Share issuable upon exercise of each Right are also subject to adjustment in the event of a stock split of the Shares or a stock dividend on the Shares payable in Shares or subdivisions, consolidation or combinations of the Shares occurring, in any case, prior to the Distribution Date. The Rights Purchase Price payable, and the number of Preferred Shares or other securities or other property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution as described in the Rights Agreement.

Preferred Shares purchasable upon exercise of the Rights will not be redeemable. Each Preferred Share will be entitled to a minimum preferential quarterly dividend payment of $1.00 per share, when, as and if declared by the Board, but will be entitled to an aggregate dividend of 100 times any dividend declared per Share. In the event of liquidation, the holders of the Preferred Shares would be entitled to a minimum preferential liquidation payment of $100.00 per share, but would be entitled to receive an aggregate payment equal to 100 times the payment made per Share. Each Preferred Share will have 100 votes, voting together with the Shares. Finally, in the event of any merger, consolidation or other transaction in which Shares are exchanged, each Preferred Share will be entitled to receive 100 times the amount of consideration received per Share. The Rights are protected by customary anti-dilution provisions. The Preferred Shares would rank junior to any other series of the Company’s preferred stock.

In the event that any person, entity or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right, other than Rights beneficially owned by the Acquiring Person and its associates and affiliates (which will thereafter be void), will have the right to receive upon exercise that number of Shares having a market value of two times the Rights Purchase Price (or, if such number of shares is not and cannot be authorized, the Company may issue Preferred Shares, cash, debt, stock or a combination thereof in exchange for the Rights).

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Generally, under the Rights Agreement, an “Acquiring Person” will not be deemed to include (A) the Company, (B) a subsidiary of the Company, (C) any employee benefit or compensation plan of the Company or any subsidiary of the Company, or (D) any entity holding Shares for or pursuant to the terms of any such employee benefit or compensation plan of the Company or any subsidiary of the Company. In addition, except in certain circumstances as set forth in the Rights Agreement, (i) no person will become an Acquiring Person as the result of an acquisition of Shares by the Company which, by reducing the number of Shares issued and outstanding, increases the percentage of Shares beneficially owned by such person to 10% or more of the Shares then outstanding, (ii) no person will become an Acquiring Person as the result of the acquisition of Shares directly from the Company; unless, in the case of either subsection (i) and (ii), such person thereafter acquires additional Shares without the Company’s prior written consent, (iii) no person will become an Acquiring Person if the Board determines in good faith that such person who would otherwise be an Acquiring Person, became an Acquiring Person inadvertently and such person divests enough shares to fall below the 10% beneficial ownership threshold following written notice from the Company; provided that, such person will be deemed to be an Acquiring Person if he or she subsequently increases the percentage of Shares beneficially owned to 10% or more, (iv) FMR LLC and its affiliates and associates (“FMR”) shall not be an Acquiring Person provided that FMR is not (and does not become) the beneficial owner of a percentage of the Shares outstanding that is greater (by more than one percent of the Shares then outstanding) than (1) the percentage of the Shares outstanding as to which FMR had beneficial ownership on the Rights Agreement Amendment Date, or (2) such lesser percentage as to which FMR has beneficial ownership following any transfer of the Company’s securities by FMR after the Rights Agreement Amendment Date, (v) no person who beneficially owned 9% or more, but no greater than 19.99% of the Shares issued and outstanding as of the Rights Agreement Amendment Date shall be deemed an Acquiring Person so long as such person does not become the owner of a percentage of Shares outstanding that is greater (by more than one percent of the Shares then outstanding) than (1) the percentage of Shares outstanding as to which such person had beneficial ownership on the Rights Agreement Amendment Date or (2) such lesser percentage as to which such person has beneficial ownership following any transfer of the Company’s securities by such person after the Rights Agreement Amendment Date; provided further that subsections (iv) and (v) shall apply to such person only until the first time, following the Rights Agreement Amendment Date, as such person beneficially owns less than 9% of the Shares then issued and outstanding and (vi) no person will become an Acquiring Person who or which otherwise would be an Acquiring Person as of the Rights Agreement Amendment Date solely as a result of giving effect to the amendment in the definition of securities which a person or entity would be deemed to beneficially own in respect of certain derivative or synthetic arrangements having characteristics of a long position in the Shares pursuant to Amendment No. 1; provided that such person shall become an Acquiring Person if, following the close of business on the Rights Agreement Amendment Date, such person, together with all affiliates and associates of such Person, acquires beneficial ownership (after giving to the amendment to the definition of securities which a person or entity would be deemed to beneficially own pursuant to Amendment No. 1) of additional Shares representing one percent or more of the Shares.

In the event that the Company is acquired in a merger or other business combination transaction or 50% or more of its consolidated assets or earning power are sold to an Acquiring Person, its associates or affiliates or certain other persons, proper provision will be made so that each holder of a Right will thereafter have the right to receive, upon the exercise thereof at the then current Rights Purchase Price, that number of shares of common stock of the acquiring company which at the time of such transaction will have a market value of two times the Rights Purchase Price.

At any time after a person becomes an Acquiring Person and prior to the acquisition by such Acquiring Person of 50% or more of the outstanding Shares, the Company may exchange the Rights (other than Rights owned by such Acquiring Person or group which have become void), in whole or in part, at an exchange ratio of one Share per Right (or, at the election of the Company, the Company may issue cash, debt, stock or a combination thereof in exchange for the Rights), subject to adjustment.

With certain exceptions, no adjustment in the Rights Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Rights Purchase Price. No fractional Preferred Shares will be issued (other than fractions which are integral multiples of the number of one

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one-hundredths of a Preferred Share issuable upon the exercise of one Right, which may, at the Company’s election, be evidenced by depositary receipts), and in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred Shares on the last trading day prior to the date of exercise.

At any time prior to the earlier of the close of business on (i) the Distribution Date or (ii) the Rights Final Expiration Date, the Company may redeem all, but not less than all, of the outstanding Rights at a price of $0.01 per Right (the “Rights Redemption Price”). The Rights may also be redeemed at certain other times as described in the Rights Agreement. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Rights Redemption Price.

The terms of the Rights may be amended by the Board without the consent of the holders of the Rights, except that from and after the Distribution Date no such amendment may adversely affect the interest of the holders of the Rights other than the interests of an Acquiring Person or its affiliates or associates.

The Rights have certain anti-takeover effects. The Rights will cause substantial dilution to a person or group that attempts to acquire the Company on terms not approved by the Board. The Rights should not interfere with any merger or other business combination approved by the Board since the Rights may be amended to permit such acquisition or redeemed by the Company at the Rights Redemption Price.

The foregoing description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement and Amendment No. 1 set forth as Exhibits (e)(2) and (e)(66) hereto, respectively.

United States Antitrust Clearance

Under the HSR Act and the rules that have been promulgated thereunder by the Federal Trade Commission (the “FTC”) and the Antitrust Division of the U.S. Department of Justice (the “DOJ”), certain acquisition transactions may not be consummated unless certain information has been furnished to the DOJ and the FTC and certain waiting period requirements have been satisfied. The purchase of Shares pursuant to the Offer is subject to such requirements. See “Item 4 — The Solicitation or Recommendation: Reasons for Recommendation: The Offer’s conditions create significant uncertainty and risk, raising significant doubts about whether it will ever be completed.” According to the Schedule TO, MW intends to file a Notification and Report Form with respect to the Offer with the FTC and the DOJ. On January 10, 2014, MW’s counsel informed the Company that MW planned to file such notification on January 13, 2014. The Company will be required to submit a responsive Notification and Report Form with the FTC and the DOJ within 10 calendar days of such filing.

Under the provisions of the HSR Act applicable to the purchase of Shares pursuant to the Offer, such purchase may not be made until the expiration of a 15-calendar day waiting period following the required filing of a Notification and Report Form under the HSR Act by the Offeror.

As a result, the waiting period applicable to the purchase of Shares pursuant to the Offer will expire at 11:59 p.m., New York City time, 15 calendar days following the Offeror’s HSR Act filing, unless early termination of the waiting period is granted by the FTC or the Offeror receives a request for additional information or documentary material prior thereto. If such a request is made to the Offeror, the waiting period will be extended until 11:59 p.m., New York City time, 10 calendar days after the Offeror’s substantial compliance with such request, unless terminated earlier by the FTC. If such a request is issued, the purchase of and payment for Shares pursuant to the Offer will be deferred until the additional waiting period expires or is terminated.

According to the Schedule TO, Shares will not be accepted for payment or paid for pursuant to the Offer until the expiration or earlier termination of the applicable waiting period under the HSR Act. Subject to certain circumstances described in the Offer, any extension of the waiting period will not give rise to any withdrawal rights not otherwise provided for by applicable law. If the Offeror’s acquisition of Shares is delayed pursuant to a formal request by the DOJ or the FTC for additional information and documentary material pursuant to the HSR Act, the Offer may, but need not, be extended.

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At any time before or after the consummation of the Offer, the DOJ or the FTC could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares pursuant to the Offer or seeking actions under the antitrust laws to enjoin consummation of the Offer. Private parties who may be adversely affected by the Offer and transactions proposed to be consummated in connection therewith and individual states may also bring legal actions under the antitrust laws. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made, or, if such a challenge is made, what the result will be.

Foreign Antitrust Considerations

The Company conducts business in a number of countries outside of the United States as a result of its international sourcing of merchandising and its international sale of merchandise through the Internet. In connection with the purchase of Shares pursuant to the Offer, the laws of certain of these foreign countries may require the filing of information with, or the obtaining of approval of, governmental authorities therein. Competition authorities in certain of these foreign countries may refuse to grant required approvals or clearances, bring legal action under applicable foreign antitrust laws seeking to enjoin the purchase of Shares pursuant to the Offer or seek the divestiture of Shares acquired by the Offeror or the divestiture of substantial assets of the Company. There can be no assurance that MW, the Offeror and the Company will obtain all required foreign antitrust approvals or clearances or that a challenge to MW or the Offer by foreign competition authorities will not be made, or, if such a challenge is made, the result thereof.

If any applicable waiting period has not expired or been terminated or any approval or exemption required to consummate the Offer has not been obtained, the Offeror may not be obligated to accept for payment or pay for any tendered Shares unless and until such approval has been obtained or such applicable waiting period has expired or exemption been obtained.

Litigation

On January 13, 2014, Eminence, a purported Company stockholder, filed a complaint against certain of the Company’s officers and directors (collectively, “Directors” or “Director Defendants”), and the Company (collectively, “Defendants”), in the Delaware Court of Chancery, captioned Eminence Capital, LLC v. Robert N. Wildrick, et al., C.A. No. 9241 — VCL. The complaint alleges that Defendants breached their fiduciary duties in connection with MW’s Offer. Specifically, the complaint alleges that the Director Defendants violated their fiduciary duties by allegedly refusing to consider MW’s Offer, refusing to engage in any discussions with MW about the Offer, amending the Rights Agreement, and preparing to launch an imminent acquisition of a company misaligned with the Company’s core business. In its complaint, Eminence asks the court to: (i) issue a declaration that the Directors breached their fiduciary duties of loyalty and due care; (ii) preliminarily and permanently enjoin the Directors from committing any further breaches of their fiduciary duties; (iii) enjoin the Defendants from entering into any agreement on behalf of the Company to acquire another company or other material assets; (iv) award money damages arising from the Directors’ alleged breaches of their fiduciary duties; and (v) grant such other relief as the Court deems just and proper.

The Company and the Board believe that the claims lack merit and intend to vigorously defend against such claims. The Company is filing a motion to dismiss in due course.

The foregoing description is qualified in its entirety by reference to the complaint, filed as Exhibit (a)(6) herewith.

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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

This Schedule contains forward-looking statements that are based on currently available information and current expectations, estimates and projections about Jos. A. Bank Clothiers, Inc.’s business. The forward looking statements include assumptions about our operations, such as cost controls, market conditions, liquidity and financial condition. Risks and uncertainties that may affect our business or future financial results include, among others, risks associated with domestic and international economic activity, weather, public health and other factors affecting consumer spending (including negative changes to consumer confidence and other recessionary pressures), higher energy and security costs, the successful implementation of our growth strategy (including our ability to finance our expansion plans), the mix and pricing of goods sold, the effectiveness and profitability of new concepts, the market price of key raw materials (such as wool and cotton) and other production inputs (such as labor costs), seasonality, merchandise trends and changing consumer preferences, the effectiveness of our marketing programs (including compliance with relevant legal requirements), the availability of suitable lease sites for new stores, doing business on an international basis, the ability to source product from our global supplier base, legal and regulatory matters and other competitive factors. Additional factors that could cause future results or events to differ from those we expect are those risks discussed under Item 1A, “Risk Factors,” in Jos. A. Bank’s Annual Report on Form 10-K for the fiscal year ended February 2, 2013, Jos. A. Bank’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2013, Jos. A. Bank’s Quarterly Report on Form 10-Q for the quarter ended August 3, 2013, Jos. A. Bank’s Quarterly Report on Form 10-Q for the quarter ended November 2, 2013, and other reports filed by Jos. A. Bank with the Securities and Exchange Commission (SEC). Please read the “Risk Factors” and other cautionary statements contained in these filings. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, the occurrence of certain events or otherwise. As a result of these risks and others, actual results could vary significantly from those anticipated in this Schedule, and our financial condition and results of operations could be materially adversely affected.

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Item 9.   Exhibits

The following exhibits are filed with this Statement:

Exhibit No.	Description
(a)(1)	Press release issued by the Company on November 26, 2013 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on November 26, 2013).
(a)(2)	Press release issued by the Company on December 23, 2013 (incorporated  by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed on December 23, 2013).
(a)(3)	Press release issued by the Company on January 6, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed January 6, 2014).
(a)(4)	Press release issued by the Company on January 17,2013.
(a)(5)	Letter to the Company’s Stockholders.*
(a)(6)	Complaint in Eminence Capital, LLC v. Robert N. Wildrick, et al., filed by Eminence in the Court of Chancery of the State of Delaware on January 13, 2014.
(e)(1)	Excerpts from the Company’s Definitive Proxy Statement on Schedule 14A, filed on May 17, 2013.
(e)(2)	The Company’s 2007 Rights Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated September 6, 2007).
(e)(3)	The Company’s 1994 Incentive Plan (incorporated by reference to the Company’s Registration Statement on Form S-1, filed on May 3, 1994).
(e)(4)	Amendments, dated as of October 6, 1997, to the Company’s 1994 Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 1998).
(e)(5)	Summary of the Company’s 2012 and 2013 Cash and Equity Incentive Programs (incorporated by reference to Exhibit 10.2 to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(6)	Amended and Restated Employment Agreement, dated as of May 15, 2002, between David E. Ullman and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2002).
(e)(7)	Fifth Amendment, dated as of April 9, 2008, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended February 2, 2008).
(e)(8)	Sixth Amendment, dated as of April 7, 2009, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
(e)(9)	Seventh Amendment, dated as of March 30, 2010, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
(e)(10)	Eighth Amendment, dated as of December 28, 2010, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).

27

Exhibit No.	Description
(e)(11)	Ninth Amendment, dated as of March 29, 2011, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
(e)(12)	Tenth Amendment, dated as of March 27, 2012, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
(e)(13)	Eleventh Amendment, dated as of April 2, 2013, to Amended and Restated Employment Agreement, dated as of May 15, 2002, by and between David E. Ullman and the Company (incorporated by reference to Exhibit 10.3(g) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(14)	The Company’s Nonqualified Deferred Compensation Trust Agreement, dated January 20, 2004 (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2005).
(e)(15)	Employment Agreement, dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
(e)(16)	First Amendment, dated as of March 30, 2010, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
(e)(17)	Second Amendment, dated as of December 28, 2010, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).
(e)(18)	Third Amendment, dated as of March 29, 2011, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
(e)(19)	Fourth Amendment, dated as of March 27, 2012, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
(e)(20)	Fifth Amendment, dated as of April 2, 2013, to Employment Agreement dated as of January 30, 2009, between James W. Thorne and the Company (incorporated by reference to Exhibit 10.5(e) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(21)	Amended and Restated Employment Agreement, dated May 15, 2002, by and between Charles D. Frazer and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2002).
(e)(22)	Consulting Agreement, dated as of September 9, 2008, between Robert N. Wildrick and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated September 9, 2008).
(e)(23)	First Amendment, dated as of November 30, 2010, to Consulting Agreement, dated as of September 9, 2008, between Robert N. Wildrick and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 30, 2010).
(e)(24)	Second Amendment, dated as of April 2, 2013, to Consulting Agreement, dated as of September 9, 2008, between Robert N. Wildrick and the Company (incorporated by reference to Exhibit 10.7(d) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(25)	Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 30, 1999).

28

Exhibit No.	Description
(e)(26)	First Amendment, dated as of January 1, 2000, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 1998).
(e)(27)	Fourth Amendment, dated as of May 28, 2002, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 4, 2002).
(e)(28)	Ninth Amendment, dated as of April 9, 2008, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended February 2, 2008).
(e)(29)	Tenth Amendment, dated as of April 7, 2009, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
(e)(30)	Eleventh Amendment, dated as of March 30, 2010, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company. (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
(e)(31)	Twelfth Amendment, dated as of December 28, 2010, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company. (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).
(e)(32)	Thirteenth Amendment, dated as of March 29, 2011, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
(e)(33)	Fourteenth Amendment, dated as of March 27, 2012, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
(e)(34)	Fifteenth Amendment, dated as of April 2, 2013, to Employment Agreement, dated as of November 30, 1999, by and between Robert Hensley and the Company (incorporated by reference to Exhibit 10.8(i) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(35)	Amended and Restated Employment Agreement, dated as of August 30, 2010, by and between R. Neal Black and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended July 31, 2010).
(e)(36)	First Amendment, dated as of April 2, 2013 to Amended and Restated Employment Agreement, dated as of August 30, 2010, by and between R. Neal Black and the Company (incorporated by reference to Exhibit 10.9(a) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(37)	Employment Agreement, dated as of June 3, 2008, between Gary Merry and the Company (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 3, 2008).
(e)(38)	First Amendment, dated as of April 7, 2009 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
(e)(39)	Second Amendment, dated as of March 30, 2010 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 31, 2009).
(e)(40)	Third Amendment, dated as of December 28, 2010 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Current Report on Form 8-K, dated December 28, 2010).

29

Exhibit No.	Description
(e)(41)	Fourth Amendment, dated as of March 29, 2011 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 29, 2011).
(e)(42)	Fifth Amendment, dated as of March 27, 2012 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 28, 2012).
(e)(43)	Sixth Amendment, dated as of April 2, 2013 to Employment Agreement, dated as of June 3, 2008, by and between Gary Merry and the Company (incorporated by reference to Exhibit 10.11(f) to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(44)	The Company’s 2002 Long-Term Incentive Plan (incorporated by reference to the Company’s Definitive Proxy Statement on Schedule 14(A) filed May 20, 2002).
(e)(45)	Form of stock option agreement under the Company’s 2002 Long-Term Incentive Plan (incorporated by reference to the Company’s Current Report on Form 8-K, dated April 7, 2005).
(e)(46)	Collective Bargaining Agreement, dated May 1, 2012, by and between Joseph A. Bank Mfg. Co., Inc. and Mid-Atlantic Regional Joint Board, Local 806 (incorporated by reference to Exhibit 10.14 to the Company’s Annual Report on Form 10-K for the year ended February 2, 2013).
(e)(47)	Form of Officer and Director Indemnification Agreement (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(48)	Indemnification Agreement dated September 1, 2009 between the Company and Robert N. Wildrick (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(49)	Indemnification Agreement dated September 1, 2009 between the Company and Andrew A. Giordano (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(50)	Indemnification Agreement dated September 1, 2009 between the Company and R. Neal Black (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(51)	Indemnification Agreement dated September 1, 2009 between the Company and James H. Ferstl (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(52)	Indemnification Agreement dated September 1, 2009 between the Company and William E. Herron (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(53)	Indemnification Agreement dated September 1, 2009 between the Company and Sidney H. Ritman (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(54)	Indemnification Agreement dated September 1, 2009 between the Company and David E. Ullman (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(55)	Indemnification Agreement dated August 30, 2010 between the Company and Robert Hensley (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended August 1, 2009).
(e)(56)	The Company’s Executive Management Incentive Plan (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 18, 2009).
(e)(57)	Amendment to the Company’s Executive Management Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).

30

Exhibit No.	Description
(e)(58)	The Company’s 2010 Deferred Compensation Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
(e)(59)	The Company’s 2010 Equity Incentive Plan (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended January 30, 2010).
(e)(60)	The Company’s 2010 Equity Incentive Plan — CEO Performance Restricted Stock Unit Award Agreement, dated June 17, 2010, by and between the Company and R. Neal Black (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
(e)(61)	The Company’s 2010 Equity Incentive Plan — EVP Performance Restricted Stock Unit Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
(e)(62)	The Company’s 2010 Equity Incentive Plan — Non-Employee Director Restricted Stock Unit 2010 Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
(e)(63)	The Company’s 2010 Equity Incentive Plan — Non-Employee Director Restricted Stock Unit Annual Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
(e)(64)	The Company’s 2010 Equity Incentive Plan — Non-Employee Director Restricted Stock Unit Inaugural Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K, dated June 17, 2010).
(e)(65)	Third Amendment to Consulting Agreement between the Company and Robert N. Wildrick (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated December 20, 2013).
(e)(66)	Amendment to the 2007 Rights Agreement, dated January 3, 2014 between the Company and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated January 3, 2014).

*

• Included in copy of Solicitation/Recommendation Statement on Schedule 14D-9 mailed to stockholders.

31

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.

JOS. A. BANK CLOTHIERS, INC.

By:

• /s/ Charles D. FrazerName: Charles D. Frazer
  Title: Senior Vice President — General Counsel

Dated: January 17, 2014

32

ANNEX A

[Goldman, Sachs & Co. Letterhead]

PERSONAL AND CONFIDENTIAL

January 17, 2014

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

Gentlemen:

You have requested our opinion as to the adequacy from a financial point of view to the holders (other than the Offeror (as defined below) and any of its affiliates) of the outstanding shares of common stock, par value $0.01 (together with the associated rights to purchase shares of Series A Junior Participating Preferred Shares, the “Shares”), of Jos. A. Bank Clothiers, Inc. (the “Company”) of the $57.50 in cash per Share (the “Consideration”) proposed to be paid to such holders in the Offer (as defined below). The terms of the offer to purchase (the “Offer to Purchase”) and related letter of transmittal (which, together with the Offer to Purchase, constitutes the “Offer”) contained in the Tender Offer Statement on Schedule TO filed by The Men’s Wearhouse, Inc. (“Parent”) and Java Corp., a wholly owned subsidiary of Parent (the “Offeror”), with the Securities and Exchange Commission on January 6, 2014 (the “Schedule TO”), provide for an offer for all of the Shares pursuant to which, subject to the satisfaction or waiver of certain conditions set forth in the Offer, the Offeror will pay the Consideration for each Share accepted. We note that the Offer to Purchase provides that, following consummation of the Offer, the Offeror intends to consummate a merger with the Company (the “Merger” and, together with the Offer, the “Transactions”) in which all remaining public stockholders of the Company would receive the highest price paid per Share pursuant to the Offer, without interest.

Goldman, Sachs & Co. and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment management and other financial and non-financial activities and services for various persons and entities. Goldman, Sachs & Co. and its affiliates and employees, and funds or other entities in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of the Company, Parent, any of their respective affiliates and third parties, or any currency or commodity that may be involved in the Transactions for the accounts of Goldman, Sachs & Co. and its affiliates and employees and their customers. We are acting as financial advisor to the Company in connection with its consideration of the Offer and other matters pursuant to our engagement by the Company. We expect to receive fees for our services in connection with our engagement, including a transaction fee payable upon consummation of the Offer or certain other transactions. The Company has agreed to reimburse our expenses arising, and indemnify us against certain liabilities that may arise, out of our engagement. We have provided certain investment banking services to the Company and its affiliates from time to time. We may also in the future provide investment banking services to the Company, Parent and their respective affiliates for which our Investment Banking Division may receive compensation.

Board of Directors
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, MD 21074
Page Two

In connection with this opinion, we have reviewed, among other things, the Schedule TO, including the Offer to Purchase and related letter of transmittal contained therein; the Solicitation/Recommendation Statement of the Company to be filed on Schedule 14D-9 with the Securities and Exchange Commission on January 17, 2014, in the form approved by you on January 17, 2014; annual reports to stockholders and Annual Reports on Form 10-K of the Company and Parent for the five fiscal years ended February 2, 2013; certain interim reports to stockholders and Quarterly Reports on Form 10-Q of the Company and Parent; certain other communications from the Company and Parent to their respective stockholders; certain publicly available research analyst reports for the Company and Parent; and certain internal financial analyses and forecasts for the Company, as prepared by the management of the Company and approved for our use by the Company (the “Forecasts”). We also have held discussions with members of the senior management of the Company regarding their assessment of the strategic rationale of Parent for, and the potential benefits for Parent of, the Transactions and the past and current business operations, financial condition and future prospects of the Company; reviewed the reported price and trading activity for the Shares; compared certain financial and stock market information for the Company with similar information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the specialty retail industry and in other industries; and performed such other studies and analyses, and considered such other factors, as we deemed appropriate.

For purposes of rendering this opinion, we have, with your consent, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by, us, without assuming any responsibility for independent verification thereof. In that regard, we have assumed with your consent that the Forecasts have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company. We have not made an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance-sheet assets and liabilities) of the Company, Parent or any of their respective subsidiaries and we have not been furnished with any such evaluation or appraisal.

Our opinion does not address the relative merits of the Transactions as compared to any strategic alternatives that may be available to the Company; nor does it address any legal, regulatory, tax or accounting matters. This opinion addresses only the adequacy from a financial point of view to the holders (other than the Offeror and any of its affiliates), as of the date hereof, of the Consideration proposed to be paid to such holders of Shares pursuant to the Offer. We do not express any view on, and our opinion does not address, the fairness, from a financial point of view, of the Consideration or any other term or aspect of the Transactions. We do not express any view on, and our opinion does not address, the adequacy or fairness of the Consideration or any other term or aspect of the Transactions, to, or any consideration received in connection therewith by, the Offeror and any of its affiliates, the holders of any other class of securities, creditors, or other constituencies of the Company; nor as to the adequacy or fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of the Company, or class of such persons, in connection with the Transactions, whether relative to the Consideration proposed to be paid to the holders of Shares pursuant to the Offer or otherwise. We are not expressing any opinion as to the prices at which Shares will trade at any time. Our opinion is necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to us as of, the date hereof and we assume no responsibility for updating, revising or reaffirming this opinion based on circumstances, developments or events occurring after the date hereof. Our advisory services and the opinion expressed herein are provided for the information and assistance of the Board of Directors of the Company in connection with its consideration of the Offer and such opinion does not constitute a recommendation as to whether or not any holder of Shares should tender such Shares in connection with the Offer or any other matter. This opinion has been approved by a fairness committee of Goldman, Sachs & Co.

Board of Directors
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, MD 21074
Page Three

Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Consideration proposed to be paid to the holders (other than the Offeror and any of its affiliates) of Shares pursuant to the Offer is inadequate from a financial point of view to such holders.

Very truly yours,/s/ Goldman, Sachs & Co.
(GOLDMAN, SACHS & CO.)

EX-99.(A)(4)

Exhibit (a)(4)

JOS. A. BANK BOARD OF DIRECTORS REJECTS UNSOLICITED TENDER

OFFER FROM MEN'S WEARHOUSE

Determines Men's Wearhouse Offer Substantially Undervalues Jos. A. Bank

Urges Stockholders Not to Tender Shares

HAMPSTEAD, Md. – January 17, 2014 – (GLOBE NEWSWIRE) – Jos. A. Bank Clothiers, Inc. (Nasdaq:JOSB) (the "Company" or "Jos. A. Bank") today announced that its Board of Directors (the "Board"), after careful consideration and discussions with its financial and legal advisors, determined that the unsolicited, highly conditional tender offer from The Men's Wearhouse, Inc. (NYSE:MW) ("Men's Wearhouse") to acquire all outstanding common shares of the Company at a price of $57.50 per share in cash (the "Offer") is inadequate from a financial point of view and not in the best interest of Jos. A. Bank's stockholders. Accordingly, the Board recommends that Jos. A. Bank’s stockholders reject the Offer and not tender their shares into the Offer.

The reasons for the Board's recommendation are set forth in a Schedule 14D-9 being filed by the Company today with the Securities and Exchange Commission ("SEC"), which is also being disseminated to stockholders.

Robert N. Wildrick, Chairman of Jos. A. Bank, said, "Our Board of Directors firmly believes that the Men's Wearhouse offer is inadequate and significantly undervalues Jos. A. Bank and its near- and long-term potential."

He continued, "Our Board and the Company's management team are committed to acting in the best interests of all of our stockholders, and continuing to deliver value for them. For well over a decade, Jos. A. Bank has been among the leaders in the industry in driving exceptionally strong revenue and net income growth. At this time, the Company has a well-developed strategy in place to continue to increase revenue, substantially improve margins and deliver enhanced returns to stockholders. The Jos. A. Bank Board strongly urges stockholders to reject the Offer and not tender their shares."

In reaching the conclusions and in making the recommendation described above, the Board considered numerous factors, including but not limited to the following:

The Offer is Inadequate and Opportunistic

• The Offer significantly undervalues Jos. A. Bank, and its future prospects. The Board has determined that the Offer does not reflect the value inherent in the Company's future prospects and its track record in creating stockholder value. The Board is confident that the Company's stand-alone plan will deliver greater value to its stockholders than would be obtained under the Offer.

• The Company has received an inadequacy opinion from its financial advisor. Goldman, Sachs & Co. (“Goldman Sachs”), financial advisor to the Company, rendered an opinion to the Board that as of January 17, 2014, and based upon and subject to the factors and assumptions set forth in the written opinion, the consideration proposed to be paid to the holders (other than the Offeror and any of its affiliates) of the Company’s shares pursuant to the offer was inadequate from a financial point of view to such holders. The full text of the written opinion of Goldman Sachs, dated January 17, 2014, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with such opinion, is attached to the Company’s 14D-9 filing as Annex A. Goldman Sachs provided its opinion for the information and assistance of the Company’s Board in connection with its consideration of the Offer, and it is not a recommendation as to whether or not any holder of the Company’s shares should tender such shares in connection with the Offer or any other matter.

• The Offer is opportunistic and does not reflect the Company's improving financial performance, as reflected in recent quarters. The Offer is opportunistic and timed to acquire the Company while the Company's operations are strengthening. The Offer does not reflect the significant progress the Company has made in recent quarters and its improved financial performance and results of operations.

• The Offer does not properly reflect the Company's strategy and future prospects – based on Jos. A. Bank's track record of industry-leading performance. The Board believes that implementation of the Company's stand-alone plan will generate greater value for stockholders than the Offer price, with support from the Company's performance history. For example, from January 3, 2000 through January 3, 2014, the Company has generated approximately 5,786% total share price growth (compared to only 170% at Men's Wearhouse).

• The Offer fails to appropriately compensate the Company's stockholders for the significant synergies that Men's Wearhouse claims would be created by a business combination between the two companies. Men's Wearhouse has publicly disclosed its estimate that a combination of the companies could yield $100 - $150 million of run rate synergies to be realized in the first three years. If this estimate is accurate, the Offer does not come close to adequately compensating the Company's stockholders for this purported significant synergy value.

• Jos. A. Bank is exploring strategic acquisitions and other alternatives. As the Company has stated publicly, Jos. A. Bank is continuing to consider strategic alternatives, including acquisitions, which will maximize stockholder value. The Board believes that its and management's deep industry experience, core competencies and track record enable it to identify and execute acquisition transactions that will create value in excess of the Offer price.

Men's Wearhouse's Intentions are Unclear; Its Commitment is Not Credible

• Men's Wearhouse's true motives are unclear and its commitment to the Offer is not credible. When Men's Wearhouse rejected the Company's initial proposal to combine the two companies, it listed a litany of reasons, including stating that the combination of the two companies "[r]aises significant antitrust concerns." Men's Wearhouse only then made its proposal to combine the two companies through its acquisition Offer after its largest shareholder, Eminence Capital, LLC (“Eminence”), threatened the Board of Men’s Wearhouse that, unless it pursued a combination with the Company, Eminence would seek, through a proxy solicitation, to call a special meeting of shareholders to, among other things, amend Men's Wearhouse's bylaws to permit the removal of its entire Board of Directors. After Men’s Wearhouse made its offer to acquire the Company, Eminence then terminated its proxy solicitation threatening the removal of the Men’s Wearhouse Board.

• The Offer's conditions create significant uncertainty and risk. The Offer is subject to 16 broadly drafted conditions, with numerous subparts, some of which are of questionable relevance to the Company and its business. Moreover, many of these conditions may be asserted by Men's Wearhouse in its sole discretion to terminate the Offer.

• The Offer is highly uncertain and any payments made to Company stockholders could be considerably deferred. Men's Wearhouse has stated that it may, subject to any applicable rules and regulations of the Securities and Exchange Commission, extend the Offer from time to time for any reason. The Company's stockholders have no assurance that they will ever receive payment for shares tendered in a timely fashion.

The Company's 14D-9 filing is available on the SEC’s website, www.sec.gov, and in the "Company Information" section of the Company's website at www.josbank.com, or through the following web address:

http://phx.corporate-ir.net/phoenix.zhtml?c=113815&p=irol-IRHome.

Goldman, Sachs & Co. and Financo, LLC are serving as financial advisors to the Company; Skadden, Arps, Slate, Meagher & Flom LLP and Guilfoil Petzall & Shoemake, L.L.C. are serving as legal advisors to the Company and Innisfree M&A Incorporated is serving as proxy solicitor.

Company Rights Plan

At its meeting on January 17, 2014, the Board took action, as permitted by the Rights Agreement dated as of September 6, 2007, between the Company and Continental Stock Transfer & Trust Company, as rights agent (as amended, the "Rights Agreement") to postpone the Distribution Date (as defined in the Rights Agreement), which otherwise would occur on the tenth business day after the date of commencement of the Offer, until such date as may be subsequently determined by the Board by resolution. A copy of the original Rights Agreement and the First Amendment to the original Rights Agreement have been filed with the SEC as Exhibit 4.1 to the Company's Current Report on Form 8-K filed September 7, 2007 and Exhibit 4.1 to the Company's Current Report on Form 8-K filed on January 6, 2014, respectively.

About Jos. A. Bank

Jos. A. Bank Clothiers, Inc., established in 1905, is one of the nation's leading designers, manufacturers and retailers of men's classically-styled tailored and casual clothing, sportswear, footwear and accessories. The Company sells its full product line through 628 stores in 44 states and the District of Columbia, a nationwide catalog and an e-commerce website that can be accessed at www.josbank.com. The Company is headquartered in Hampstead, MD, and its common stock is listed on the NASDAQ under the symbol "JOSB."

CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS This communication contains forward-looking statements that are based on currently available information and current expectations, estimates and projections about Jos. A. Bank Clothiers, Inc.'s business. The forward looking statements include assumptions about our operations, such as cost controls, market conditions, liquidity and financial condition. Risks and uncertainties that may affect our business or future financial results include, among others, risks associated with domestic and international economic activity, weather, public health and other factors affecting consumer spending (including negative changes to consumer confidence and other recessionary pressures), higher energy and security costs, the successful implementation of our growth strategy (including our ability to finance our expansion plans), the mix and pricing of goods sold, the effectiveness and profitability of new concepts, the market price of key raw materials (such as wool and cotton) and other production inputs (such as labor costs), seasonality, merchandise trends and changing consumer preferences, the effectiveness of our marketing programs (including compliance with relevant legal requirements), the availability of suitable lease sites for new stores, doing business on an international basis, the ability to source product from our global supplier base, legal and regulatory matters and other competitive factors. Additional factors that could cause future results or events to differ from those we expect are those risks discussed under Item 1A, "Risk Factors," in Jos. A. Bank's Annual Report on Form 10-K for the fiscal year ended February 2, 2013, Jos. A. Bank's Quarterly Report on Form 10-Q for the quarter ended May 4, 2013, Jos. A. Bank's Quarterly Report on Form 10-Q for the quarter ended August 3, 2013, Jos. A. Bank's Quarterly Report on Form 10-Q for the quarter ended November 2, 2013, and other reports filed by Jos. A. Bank with the Securities and Exchange Commission (SEC). Please read the "Risk Factors" and other cautionary statements contained in these filings. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, the occurrence of certain events or otherwise. As a result of these risks and others, actual results could vary significantly from those anticipated in this release, and our financial condition and results of operations could be materially adversely affected.

IMPORTANT INFORMATION FOR INVESTORS AND STOCKHOLDERS

This communication does not constitute an offer to buy or solicitation of an offer to sell any securities. In response to the tender offer for the shares of the Company commenced by The Men's Wearhouse, Inc. and Java Corp., the Company has filed a solicitation/recommendation statement on Schedule 14D-9 with the U.S. Securities and Exchange Commission ("SEC"). Any solicitation/recommendation statement filed by the Company that is required to be mailed to stockholders will be mailed to stockholders of the Company. INVESTORS AND STOCKHOLDERS OF THE COMPANY ARE URGED TO READ THE SOLICITATION / RECOMMENDATION STATEMENT AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and stockholders may obtain free copies of the solicitation/recommendation statement and other documents (when available) filed with the SEC by the Company free of charge through the website maintained by the SEC at www.sec.gov. In addition, the solicitation/recommendation statement and other materials related to Men's Wearhouse's unsolicited proposal may be obtained from the Company free of charge by directing a request to the Company's Investor Relations Department, Jos. A. Bank Clothiers, Inc., 500 Hanover Pike, Hampstead, MD 21074, 410.239.5900.

CONTACT: For Jos. A. Bank - Media:

Thomas Davies/Molly Morse

Kekst and Company

212-521-4800

thomas-davies@kekst.com

molly-morse@kekst.com

For Jos. A. Bank - Investment Community:

David E. Ullman

EVP/CFO

410-239-5900

EX-99.(A)(5)

Exhibit (a)(5)

 

January 17, 2014

YOUR BOARD OF DIRECTORS RECOMMENDS THAT YOU REJECT
MEN’S WEARHOUSE’S OFFER AND NOT TENDER YOUR SHARES

Dear Fellow Shareholders:

On January 3, 2014, a wholly owned subsidiary of The Men’s Wearhouse, Inc. (“MW”) commenced an unsolicited tender offer to acquire your shares of Jos. A. Bank Clothiers, Inc. (the “Company”) at a price of $57.50 per share, in cash.

After careful consideration, including a thorough review of MW’s offer with our financial and legal advisors, the Company’s Board of Directors (your “Board”) determined that MW’s offer is not in the best interests of the Company’s stockholders. Your Board recommends that the Company’s stockholders REJECT MW’s offer and NOT TENDER their shares into the offer.

In reaching its recommendation, your Board considered a number of factors that are described in the enclosed Schedule 14D-9. First and foremost, MW’s offer is inadequate and significantly undervalues the Company and its near- and long-term potential, and is highly conditional.

The offer is opportunistic, does not reflect the Company’s improving financial performance and results of operations or the Company’s strategy and future prospects. For well over a decade, the Company has been among the leaders in the industry in driving exceptionally strong rates of revenue and net income growth. The Company’s Board and management remain entirely focused on generating maximum value for stockholders. Your Board believes MW’s offer is opportunistic and timed to acquire the Company while the Company’s operations are strengthening. The offer price does not reflect the significant progress the Company has made in recent quarters and its improved financial performance and results of operations.

The Company is continuing to explore strategic acquisitions and other alternatives. As the Company has stated publicly, the Company is continuing its process, which has been ongoing for some time, to consider and evaluate strategic alternatives, including acquisitions. Your Board believes that its and management’s deep industry experience and knowledge and track record of creating stockholder value can enable it to identify and execute acquisition transactions that will create value in excess of the offer price.

The Company has received an inadequacy opinion from Goldman, Sachs & Co. (“Goldman Sachs”), its financial advisor. Goldman Sachs rendered an opinion to your Board that as of January 17, 2014, and based upon and subject to the factors and assumptions set forth in the written opinion, the consideration proposed to be paid to the holders (other than the Offeror and any of its affiliates) of the Company’s shares pursuant to the offer was inadequate from a financial point of view to such holders. The full text of the written opinion of Goldman Sachs, dated January 17, 2014, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with such opinion, is attached to the Company’s 14D-9 filing as Annex A. Goldman Sachs provided its opinion for the information and assistance of your Board in connection with its consideration of the offer, and it is not a recommendation as to whether or not any holder of the Company’s shares should tender such shares in connection with the offer or any other matter.

The offer fails to appropriately compensate you for the significant synergies that MW claims would be created by a business combination between MW and the Company. MW has publicly disclosed that a combination of the Company and MW could yield significant synergies of between $100 – $150 million of run rate synergies to be realized in the first three years following a business combination. If MW’s estimates regarding these synergies are accurate, MW’s offer does not come close to adequately compensating you for this purported significant synergy value.

The offer’s conditions create significant uncertainty and risk, raising significant doubts about whether it will ever be completed. MW’s offer is highly conditional, and includes at least one condition that MW has itself said is problematic. According to MW’s Schedule TO, MW’s offer is subject to 16 broadly drafted conditions, many with numerous subparts, some of which are of questionable relevance to the Company and its business. All of these conditions are for the sole benefit of MW and its affiliates and may be asserted by MW in its sole discretion regardless of the circumstances giving rise to any such conditions or may be waived by MW in its sole discretion in whole or in part at any time or from time to time before the expiration date. Thus, the Company’s stockholders have no assurance that MW’s offer will ever be completed. We note that MW has included a condition relating to antitrust approvals, a condition which MW’s prior statements indicate MW thinks could be difficult to satisfy.

MW’s true motives are unclear and its commitment to the offer is not credible. Your Board has noted that MW made its proposal to acquire the Company only after its largest shareholder, Eminence Capital,LLC (‘‘Eminence’’), threatened MW’s Board that, unless it pursued a combination with the Company, Eminence would seek to call a special meeting of shareholders to, among other things, amend MW’s bylaws to permit the removal of the entire MW board of directors. After MW made the Offer, Eminence then terminated its proxy solicitation threatening the removal of MW’s board of directors. Your Board believes MW’s actions to date create doubt as to MW’s intentions and motivations in making its highly conditional offer.

A complete discussion of the significant factors contributing to your Board’s recommendation is included in the enclosed Schedule 14D-9. We urge you to read the Schedule 14D-9 carefully and in its entirety so that you will be fully informed. The Schedule 14D-9 is available on the SEC’s website, www.sec.gov. In addition, the Schedule 14D-9 and other materials related to MW’s unsolicited proposal are available in the “Investor Relations” section of the Company’s website at www.josbank.com. If you have any questions concerning the Company’s Schedule 14D-9 or need additional copies of the Company’s publicly-filed materials, please contact the Company’s information agent, Innisfree M&A Incorporated, at (877) 750-9499 (toll-free).

Your Board is committed to, and will continue to act in the best interests of, all of the Company’s stockholders as we work to protect your investment and create value for stockholders. We appreciate your loyal support.

Sincerely,

 
Robert N. Wildrick
Chairman of the Board

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EX-99.(A)(6)

Exhibit (a)(6)

EFiled:Jan13201408:30AMEST
TransactionID54831702
CaseNo.9241-

INTHE COURTOF CHANCERY OFTHE STATEOFDELAWARE

EMINENCECAPITAL,LLC,	)
	)
Plaintiff,	)
	)
	)
v.	)
	)	C.A. No.
ROBERTN.WILDRICK,ANDREWA.	)
GIORDANO,BYRONL.BERGREN,R.NEAL	)
BLACK,JAMESH.FERSTL,WILLIAME.	)
HERRON,SIDNEYH.RITMAN,JOS.A.BANK	)
CLOTHIERS,INC.,	)
Defendants.	)
	)

VERIFIED COMPLAINT

PlaintiffEminenceCapital,LLC(“Plaintiff”or “EminenceCapital”),byandthroughits attorneys,brings thisaction forinjunctivereliefagainst Robert N.Wildrick,AndrewA. Giordano, ByronL.Bergren,R.NealBlack, James H.Ferstl, WilliamE.Herron,SidneyH. Ritman(collectively, “Directors”or“DirectorDefendants”), andJos.A.BankClothiers, Inc. (“Jos. A.Bank,”“JOSB,” orthe“Company”)(collectively, “Defendants”). Byandforits Complaint,Plaintiffallegesasfollows:

INTRODUCTION

1.           Plaintiff,theholderofapproximately5%oftheoutstandingcommonstockofJos. A.Bank,bringsthisactiontoholdthemembersof theCompany’sboardof directors(the “Board”) accountableforbreachingtheirfiduciaryduties. TheDirectorDefendantsarepoisedto launchanimminentscorched-earth defensive tacticdesignedtoentrenchthemselves andfendoff anattractive acquisitionproposal andtenderofferby theCompany’slargerrival,TheMen’s Wearhouse,Inc. (“Men’sWearhouse”). AbsentthisCourt’s exerciseofitsequitable powers, the membersoftheJos.A.BankBoardwillsucceedinkillingahighlyattractive business

combination,destroyingthevalueofJos.A.Bank’ssharesthroughanill-advisedacquisition, andentrenchingthemselves.

2.           Formonths,Men’sWearhouseandJos.ABankhavebeenpursuingabusiness combination—eachsidewishingtobethe“acquirer”ratherthanthe“acquired.”Jos.A.Bank startedtheprocess when it madeanunsolicitedoffertoacquireMen’sWearhouseinSeptember 2013. Although JOSB wastheproposedacquirerinthisscenario, RobertN.Wildrick, Jos.A. Bank’s Chairman,saidinan interview atthetimethattheCompany wouldbe“receptiveto being boughtinstead if Men’sWearhouseoffered thesame42%premium”thatJOSB was offering. Thefollowing month, Men’sWearhouserejected thatoffer. But thenit didjustwhat Jos.A.Bank’s Chairmansuggested: it madeitsownunsolicitedoffertoacquireJos.A.Bank, thesmaller rival. Afewweekslater,Men’sWearhousefollowed theinitialofferwithan increased cashtenderoffertoJos.A.Bankstockholders. Thecashtenderofferthatiscurrently onthetablevaluesJos.A.Bankata38%premiumabove itsclosing price before thebidding war hadbegun—precisely in therangethatMr.Wildrick said,afewmonths ago,theCompany wouldbe“receptive”toaccepting.

3.           TheMen’sWearhouseproposalishighlyattractiveandoffersclearvaluethatthe stockholdersofbothcompanieswouldachievethroughacombinationofthesetworetailers—a viewthatisvirtuallyunanimousamongsttheinvestmentcommunity. Yet despitetheseclear benefits,anddespiteMr.Wildrick’sownwordsjustafewmonthsago,the Boardhasmadeclear that it hasnointention ofsellingJos.A.Bankto Men’sWearhouse. Notonly hastheJos.A. BankBoardrefusedtonegotiatewithMen’sWearhouse,it hasadoptedand isonthecuspof adoptingadditional improper defensivemeasuresdesigned tothwartanytakeoverbyMen’s Wearhousefromhappening.

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4.          Mostalarming,theJos.A.BankBoardisnowpoisedtosabotageanypotential acquisitionbyMen’sWearhousebyengaginginaseparatetransactionwithanotherretailer. Anysuch proposedacquisitiontarget,particularlyifit isoutsidethecorebusinessofJos.A. Bank,woulddevastate thevalueofJos.A.Bank’sshares,which arenowvaluedbasedonthe market’s expectationthatadeal withMen’sWearhousewill infact happen. Ifthis separate transaction—which Jos.A.Bankhas made clearinpublicstatements it is pursuing inearnest— occurs,theDirectorswill get exactlywhattheynowwant: tofendoff theMen’sWearhouse takeoverproposaland enablethemselvestoretaintheirlucrativeand prestigiousseatsonthe BoardofJos.A.Bank, awell-knownand respectedretailer.

5.           ThisconductbytheentrenchedJos.A.BankBoardmustbestopped.The membersofthe Boardareactingintheirowninterestandignoringtheinterestsofthe stockholderstheyareduty-boundtoprotect. Absentinjunctiverelief,theBoardwillcloseona disastroustransactionthatwillcauseincalculableandirreparableharmtoJos.A.Bank stockholdersbydrivingawayahighly desirabletransactionwithMen’sWearhouse—a transaction thattheJos.A.BankBoardhasmadeclear it isonlywillingtopursueifJos.A.Bank itself istheacquirer,nottheother wayaround.

6.           ThisimproperobjectivebytheJos.A.BankBoardisapparentfromthepublic statementsoftheCompany’sownChairman,RobertN.Wildrick.WhenJos.A.Bankmadeits proposaltoacquireMen’sWearhouse,Mr.Wildricktrumpetedthevalueof apotentialbusiness combinationofthetworetailers,sayingthat Jos.A.Bankand itsDirectorshave“alwaysadmired Men’sWearhouseand believethesetwogreatcompanies,whencombined,will createcontinued growthand sustainablevaluefor our shareholders,greatlyenhancedbenefitsfor our customers, and exciting opportunities for our employees.”

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7.           ButnowthatJos.A.Bankisthetargetratherthantheacquirer,andnowthatMr. WildrickandtherestoftheJos.A.BankBoardmembersandseniorexecutivescouldlose their positionsifthebusinesscombinationoccursthroughaMen’sWearhouse-ledacquisition, Mr. Wildrickissingingafardifferenttune. Henowsaysthatacombinationis“simply notinthe bestinterestofourshareholders” andthatthe Boardwill,asaresultoftheMen’sWearhouse offer,“continuetoreview[other]acquisition opportunities.” R.NealBlack,theCEO,added that,althoughJos. A.Bankwaspreviouslypoisedtocreatethelargestmen’sclothingretailerin theUnitedStates(ifit hadmergedwithMen’sWearhouse),it isnowlookingpotentiallyto combine withretailers“outsidethemen’sapparelbusiness.” Thistwo-facedapproachbyJos.A. Bank’sChairmanandCEObetraysanuglytruth: theDirectorsprefertoprotecttheir own positionsbyoverwhelming theCompany withdebtandanon-corebusinessasatactictosubvert theMen’sWearhouseproposal,ratherthantogeneratevalueforJos.A.Bank’sstockholders.

8.           Therefore,PlaintiffseeksinjunctivereliefinordertopreventtheDirectorsfrom continuingtobreachtheirfiduciarydutiesby refusingtonegotiatewithMen’sWearhouseand by attemptingtokillanyacquisitionby Men’sWearhouseby pursuinganimminentalternative transactionthat,if consummated,woulddestroythevalueofJos.A.Bank’s sharesanddrive Men’sWearhouse away.

PARTIES

9.          PlaintiffEminenceCapital,LLC,isaNewYorklimitedliabilitycompanywithits principalplaceofbusinessat65East55thStreet,25thFloor,NewYork,NewYork10022. Plaintiff is,andat alltimesrelevantheretocontinuouslyhasbeen,astockholderoftheCompany. Plaintiffcurrentlyholdsapproximately 5%oftheoutstanding commonstockofJos.A.Bank.

10.         DefendantRobertN.Wildrickisandat alltimesrelevantheretohasbeena DirectorandChairmanoftheBoard.Mr.WildrickservedastheCompany’sChief Executive

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Officer from1999to2008, andhas beenontheBoardsince1994.Mr. Wildrick received total compensation of$1,143,092infiscal year 2012from theCompany

11.         Defendant R.Neal Black isand at all timesrelevant heretohasbeen adirector of Jos.A.Bankand isthe Company’s President and Chief Executive Officer. Mr.Black joined the Company in2000,andjoined theBoard in2008. Mr. Black received total compensation of $2,901,229infiscal year 2012.

12.         DefendantAndrewA.Giordanoisandat alltimesrelevantheretohasbeen Lead IndependentDirectorand ChairmanEmeritusoftheBoardofJos.A.Bank.Healsoservesas chairman oftheNominatingandCorporateGovernanceCommittee.Mr.Giordanohasbeen on theBoardsince1994, andservedasChairmanof theBoardfrom1999 to2008, atwhichpointhe becametheLead IndependentDirector. HealsoservedasinterimChief ExecutiveOfficer for severalmonthsin2009. Hereceivedtotalcompensationof$253,105infiscalyear2012.

13.         Defendant Byron L.Bergren isand at all timesrelevant hereto hasbeen adirector ofJos.A.Bank.Mr.Bergren joined the Board in September 2013.Underthecurrent non-employee director compensation guidelines, Mr.Bergren willreceive anannual retainer of $40,000,aswellasfees forattending each boardand committee meeting, anadditional retainer if elected chairman ofthe boardoracommittee, and expense reimbursements.

14.         DefendantJamesH.Ferstlisandat alltimesrelevantheretohasbeenadirectorof Jos.A.Bank.Mr.Ferstlreceivedtotalcompensationof$147,355infiscalyear2012.

15.         DefendantWilliamE.Herronisandat alltimesrelevantheretohasbeena directorofJos.A.Bank.HealsoservesaschairmanoftheAuditCommittee.Mr.Herron receivedtotalcompensationof$181,855infiscalyear2012.

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16.         DefendantSidneyH.Ritmanisandat alltimesrelevantheretohasbeenadirector ofJos.A.Bank.Mr.Ritmanreceivedtotalcompensationof$195,355infiscalyear2012.

17.         DefendantJos.A.BankClothiers,Inc.isapubliclytradedcorporation incorporatedinDelawareandheadquarteredinHampstead,Maryland. TheCompany’s corporate officesarelocatedat500Hanover Drive,Hampstead,Maryland21074.

FACTUALALLEGATIONS

18.         Foundedin1905,Jos.ABanktodayisoneofthenation’sleadingmen’sapparel retailcompanies.TheCompanyoperatesmorethan600storesthroughouttheUnitedStates,and maintains ane-commerce and catalogbusiness.

19.         Foundedin1973byGeorgeZimmer—whoseguaranteesofsartorialsatisfaction aresynonymouswiththe companyitself—Men’sWearhouseisoneofthelargestspecialty retailersofmen’s clothinginNorthAmerica.It has over1,100storesintheUnitedStatesand Canadaand ownsanumberofotherbrands,including K&G FashionSuperstores,TwinHill(for corporateapparel),and Moores(in Canada).

TheBoardProposesaTransactionwithMen’sWearhouse

20.         OnSeptember18,2013,Jos.A.Bankmadeanunsolicitedproposaltoacquire Men’sWearhousefor$48pershare.

21.         Laterthatday,Jos.A.Bank’sChairman,Mr.Wildrick,calledMen’sWearhouse CEO,DouglasEwert,andsentafollow-upletterwiththedetailsoftheCompany’sinitial proposal. Uponannouncing thetransaction,Mr.Wildrickstatedthat“[w]ehavealwaysadmired Men’sWearhouseandbelievethesetwogreatcompanies,whencombined,willcreate continued growthandsustainable valueforourshareholders,greatly enhancedbenefitsforourcustomers, andexcitingopportunities foremployees.”

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22.         Themarketimmediatelyrecognizedthevalueintheproposedtransaction.On September17,2013—theday before JOSB’s proposal—Men’s Wearhouse stockclosedat $33.71 pershare. OnOctober 9,2013,afterJOSB’s proposal hadbeenmadepublic, thestock jumped, closingat$45.03 pershare,reflectingthemarket’s perceptionthatacombination ofthe twocompanieswouldcreate significantvalue.

23.         OnOctober9,2013,Men’sWearhouserejectedJOSB’sofferasinadequate.

24.         Thatsameday,Jos.A.Bank’sChairman,Mr.Wildrick,notedinaninterviewthat Jos.A.BankwouldbereceptivetobeingboughtinsteadbyMen’sWearhouseifMen’s Wearhouseofferedthesame42%premiumtoJos.A.Bank.

25.         OnNovember15,2013,JOSBissuedapressreleaseannouncingthatit had terminateditsacquisitionproposal.Thepressreleasepublishedaletterfrom JOSB’sCEOto Mr. Ewert,whichstatedthatthe Company was “terminating ourproposalinordertoconsider otherstrategicalternativeswhichwe havebeeninvestigating.”

26.         Despitethiswarning,JOSBalsoindicatedthatiftheMen’sWearhouseBoard changeditsmindanddecidedtoengageJOSBindiscussionsaboutapotentialtransaction,JOSB was opentomakinganotherproposal.According totheletterfromJOSB’sCEO,“[w]econtinue tobelievethatatransactionbetweenourtwocompanies couldbeinthebestinterestofour respectiveshareholders.”

Men’sWearhouseEngagesWiththeJOSBProposal

27.         OnNovember26,2013,Men’sWearhouseconfirmedwhatthemarketalready recognized—thatabusinesscombinationofthetwomen’sretailerswouldcreatesubstantial valueforthestockholdersofbothcompanies.On thatday,Men’sWearhousemadeaproposal toacquirealloftheoutstanding JOSBcommonstock at$55pershare. Thisrepresented a45%

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premiumovertheCompany’senterprisevalueanda32%premiumovertheCompany’sshare pricepriortothepublicannouncementofJOSB’soriginalacquisitionproposal.

28.         Inconnectionwiththeproposal,Men’sWearhouse’sLeadDirector,WilliamB. Sechrest,saidthatacombinationwithJOSB“hasstrategiclogicandthepotentialtodeliver substantialbenefitstoourrespectiveshareholders,employeesandcustomers”andthattheMen’s WearhouseBoardwas“readytoengage”withtheDirectorDefendants. He alsonotedthatthe “experienced [Men’sWearhouse]managementteamisbestpositionedtoexecutetheintegration ofourcompaniesandachievethesynergiesthatwouldresult.” Mr.Ewert, theMen’sWearhouse CEO,highlightedthattheproposal,ifaccepted,wouldleadtosignificantearnings“inyearone.” Further,incontrasttoJOSB’soriginalproposal,theMen’sWearhouseofferwasnotconditioned onoutsidefinancing,becauseMen’sWearhousehad(andhas)a“balancesheetwiththe operationalflexibility”toachievethe dealand executeonacombinedstrategicplan.

29.         According toMen’s Wearhouse, itsproposal wouldbring $100to$150millionof annualsynergies through improved purchasing efficiencies, optimized customer service and marketing practices, and streamlined corporate functions. Thecombined company would become thefourth largest UnitedStates men’s apparel retailer, withmore than 1,700total stores. Inaddition,Men’s Wearhouse notedthat it has a“proven track record ofsuccessful acquisitions,” whichwouldhelpit integrate Jos.A.Bankand driveimmediate valuetostockholders.

30.         Mr.EwertmadeclearthatMen’sWearhousewaspreparedtonegotiatewiththe Jos.A.BankBoard.HestressedthatMen’sWearhousehada“strongpreference...towork with[Jos.A.Bank]tonegotiate amutually acceptabletransactionandavoidunnecessary costs.”

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AndduringaDecember12thearningscall,Mr.EwertreiteratedthatMen’sWearhousewas “readytoengagewiththeJos.A.Bankboardimmediately.”

TheValueoftheTransactionBecomesApparent

31.         Industryanalystshavewidelychampionedabusinesscombinationbetweenthese tworetailers.

32.         AccordingtoBrianSozzi,ananalystatBelusCapital,“[a]nybodywhofollows corporateAmericacan seethat thesetwocompanieshavetobe joined.” Anotheranalyst predicted that “Christmashas comeearly”afterMen’sWearhouse’scounter-offer.

33.         StifelanalystRichardJaffeconcludedthattheproposalwouldgenerate$100to $150millionincostsavingsoverthreeyears,while“greaterbenefitsremaintoberealized over time.”Mr.Jaffealsorecognizedthatthecombination would“dramatically improve profitability” of acombinedentity.

34.         Othercommentatorsnotedthatthisstrengthwouldallowthecombinedcompany tocompetewithdepartmentstores.Alongtheselines,

[t]hejoiningofretailforcesbetweenMen’sWearhouseandJos.A.Bankcan createaformidablecompetitorinmen’sapparelthat’sbetterequippedtohandle the currentlychallengingretailsectoranditsvalue-focused consumers. Men's Wearhousegains greaterscalewithadditionalstoresandotheroperating efficiencies. Jos.A.Bank getsamuch-neededcashboostandrewardsits investorsbyjoiningamoresuccessfulrival.

Othersnotedthatacombinedentitywouldalsobenefitfromthedifferingdemographicsof Men’sWearhouseandJOSBcustomers.JOSBcustomersaretypically“higher-spending-and-earningcustomerdemographic coulddrawnewattention toMen’sWearhouse goods,while Men’sWearhouse standstoprovide abroader,younger maledemographic forthesmaller retailer.”

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35.         Commentatorsarguedthatthe“mostbeneficial[courseforJOSB]istodoadeal withMen’sWearhouse.”AnarticleinWomen’sWearDailyconcludedthattheMen’s Wearhouse offerisattractivebecause it doesnotrequireoutsidefinancing andbecause Men’s Wearhouse hasexperience withsuccessfully acquiring othercompanies.

36.         Thus,investors,analysts,andindustrycommentatorsare almostuniversallyofthe viewthataMen’sWearhouse/Jos.A.Bankcombination isanobviousmatchthatshouldhappen, andwhenit does,willaddtremendous valuetothe combinedcompany’s stockholders.

DirectorDefendantsRejecttheMen’sWearhouseProposal

37.         DespitethesignificantpremiumthattheMen’sWearhouseofferwouldprovideto Jos.A.Bankstockholders,despitethepubliccommentsbyJos.A.Bank’sChairmanthatthe Company wouldbe receptivetoanacquisition proposalfromMen’sWearhouse, anddespitethe nearunanimous praiseforabusinesscombinationfromtheinvestmentcommunity andindustry commentators, Jos.A.Bankquicklycooled totheideaofamergerifJos.A.Bankwerethe targetinsteadofthe acquirer. DuringaDecember5,2013earningscall,forexample,Jos.A. Bank’sCEO,Mr.Black,notedthat “Men’sWearhouseisnottheonlypotentialopportunity for us.” TheBoard,according toMr. Black,hadbeen“surveyingthemarketplaceforacquisitions forsometime,”and “[a]saresult, thereareseveralpotentialacquisition candidatesweare evaluatingthatcouldmeetourcriteria,”including,remarkably,makinganacquisition “outside themen’sapparelbusiness.” Jos.A.Bankhasnooperationsorexperienceoutsideofmen’s apparel.

38.         RatherthanengagetheMen’sWearhouseBoardtonegotiateamutuallyagreeable mergerthatwouldgeneratevalueforJos.A.Bankstockholders,theJos.A.BankBoardthumbed itsnoseatthepremiumoffermadebyMen’sWearhouse andrejectedit outright. TheDirector

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Defendantsassertedtheproposal“significantlyundervalued”theCompany—eventhoughthe proposalofferedasignificantpremiumovertheunaffected stockprice.

39.         Instead,theDirectorDefendantsagainstatedthattheywere“reviewingall alternativesregardingpotentialstrategicacquisitionopportunities.”AndMr.Wildrick concurred that“wecontinuetoreviewacquisitionopportunities.”

40.         Men’sWearhouseexpresseditssurpriseattheDirectorDefendants’outright refusaltonegotiateapotentialdeal,“[g]ivenJos.A.Bank’srepeatedexpressionsofinterestin engaging in goodfaithdiscussionsaboutapossiblecombination.”Initspressreleaseissuedon December 23,2013,Men’sWearhousere-committed itselftoatransactionwithJos.A.Bank, statingit was“continuing tocarefully considerallofouroptionstomakethiscombinationa reality.”

DirectorDefendantsAmendThePoisonPillandMen’sWearhouseLaunchesATenderOffer

41.         TheDirectorshavenotonlysummarilyrejectedavalue-generatingtransaction withMen’sWearhouse,butalsoadopteddefensivemeasuresdesignedtothwartanypossible acquisition by Men’sWearhouse and tosalvagetheirBoardpositions. These measureswere designedtoprotecttheDirectors,nottofurther thebest interestsoftheCompany or its stockholders.

42.         Specifically,inthefaceoftheMen’sWearhousepremiumacquisitionproposal, theDirectorDefendantsamendedtheCompany’spoisonpilltoreducethetriggerfrom20%to 10%.Theintentand effectwere clear: topreventMen’sWearhousefromacquiringthe Company withouttheconsentoftheJos.A.BankBoard.

43.         AffirmingitsinterestincombiningwithJos.A.Bank,andinresponsetothe amendmentofthepoisonpillbytheJos.A.BankBoard,onJanuary6,2014,theMen’s WearhouseBoardannouncedacashtenderofferforthesharesofJos.A.Bankat$57.50per

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share,upfromtheinitialproposalof$55pershare.ThisoffervaluedJos.A.Bankat$1.61 billion,evenhigherthantheinitialMen’sWearhouseacquisitionproposal.Men’sWearhouse alsoannouncedthat it wouldnominatetwoindependentdirectorstoJos.A.Bank’sBoardatthe Company’s2014annualmeeting.

44.          Mr.EwertagainreiteratedthatMen’sWearhousehada“strongpreferencetowork collaborativelywithJos.A.Banktorealizethebenefitsofthistransaction”andwas“committed to thiscombination.”BecauseJos.A.Bankhadrefusedeventonegotiate apotentialcombination whenJos.A.Bankwasthetargetratherthantheacquirer,however,Men’s Wearhouse saidthatitwasforcedto“tak[e][its]offerdirectly toshareholders.”

Jos.A.BankThreatensToPursueAlternativeTransactions

45.           EversinceJos.A.BankandMen’sWearhousebegancontemplatinga combination,Jos.ABankhasbeenholdingoutthethreatofpursuinganalternativetransaction. Therationaleisperplexing. Sincethestart,Mr.Wildrickhasacknowledged, correctly,thata combinationbetweenthetwocompanies isinthebestinterestofbothcompanies’stockholders. Hehasevensaid inaninterviewthatJOSB isopentobeing acquiredby Men’sWearhouse, statinginunequivocaltermsthattheJos.A.BankBoardwouldbereceptive toanacquisition proposal fromMen’sWearhouseatvirtuallythesamepremiumnowoffered intheMen’s Wearhousetenderoffer. YetJos.A.Bankhascontinuallythreatened topursue analternative transactionthatwouldonlyservetodrive away atransactionthatvirtuallyeveryone (including, atonetime,theJos.A.BankBoard) has acknowledgedwouldbeinthebestinterestofthe stockholdersofbothJos.A.BankandMen’sWearhouse. Forexample:

a. InitsForm8-KdatedOctober31,2013,Jos.A.Banknotedthat,“If[the Men’sWearhouse]boardhasnotengagedingoodfaithdiscussionswith

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usbyNovember14,2013,wewillterminateourproposalinorderto considerotherstrategicalternativeswhichwehavebeeninvestigating.”

b. Similarly, in a Form 8-K dated November 15, 2013, Jos. A. Bank concluded that, “We are therefore terminating our proposal in order to consider other strategic alternatives which we have been investigating.”

c. The rhetoric became more strident after Men’s Wearhouse’s initial acquisition proposal. In a December 5, 2013, earnings call, Mr. Black said, “It is important to be aware that Men's Wearhouse is not the only potential opportunity for us. Under the leadership of our Chairman, Bob Wildrick, we have been surveying the marketplace for acquisitions for some time. As a result, there are several potential acquisition candidates we are evaluating that could meet our criteria.” In response to a question, Mr.Blacksaid,forthe firsttime,thattheCompany’s“corecompetencies .. .. canbe appliedtocompaniesthatareoutsideof themen’sapparel space.”

d. In a Form 8-K dated December 23, 2013, attaching a press release, the Company noted, “Further, as the Company has said previously, it is reviewing all alternatives regarding potential strategic acquisition opportunities . . . .”

46.          These assertions flyinthe faceofthestatements Mr.Wildrick madejustweeks earlier. Jos.A.Bankhad longmaintained thatacombination ofthetwocompanies wouldbein thebestinterests ofboth companies’ stockholders. Yetthere wasalways aveiled threat: ifthe dealdoes nothappen onJos.A.Bank’s terms—with theCompany asthe acquirer—the

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Companywouldpursue“otherstrategicalternatives.”Despitethenear-unanimousconsensusof analystsand both companiesthat acombination isthebest optionfor allinvolved,theDirectors arethreatening theimminentacquisition ofanothercompany,whichwouldlikelysaddleJos.A. Bank withdebt and,inanyevent,makeJos.A.Bank anunattractive acquisition targettoMen’s Wearhouse.

47.          Thisalternativetransaction—whichJos.A.Bankhasindicatedmayinvolvea companyoutsideitscorecompetencyofmen’sretail—would torpedo any businesscombination withMen’sWearhouse. The principalreasonfor any alternativetransactionissimple: the Directors, afterbeing spurnedasthepotential acquirer,donotwanttoselltheCompanyandlose theirseats ontheCompany’s board ofdirectors andtheirroles asseniorexecutives ofa household namebrand men’sretailer.

48.          NowthatthetableshaveturnedandJos.A.Bankisnolongertheacquirer,the Directorshavehad aboutofamnesiaandforgottenthat,justthreemonthsago,Jos.A.Bankwas trumpetingthesignificantvaluethatwouldbecreatedthroughacombinationofthetworetailers. InordertoderailanypotentialsaletoMen’sWearhouse andensurethatMen’sWearhouseloses interestinJos.A.Bank,theCompany’s Boardispoisedtothrowmoneyatanill-advised acquisition, theeffectof whichwillonlydrivedownthevalue ofJos.A.Bankandignorethe stockholderstheBoardisboundtoprotect.

THEDIRECTORSARENOTDISINTERESTED

49.          UnderDelawarelaw,adirectorowesthecorporationdutiesofloyaltyand care. Thedutyofloyaltyprohibitsadirectorfromfailingtoactinthebest interestsofthecorporation and itsstockholdersby, amongotherthings,puttingthedirector’sinterestsaheadofthe corporationand stockholdersthedirectorisentrustedtoserve.

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50.         Here,theDirectorshaveforthrightlyrejectedapremiumacquisitionproposal,and failedtotakethenecessarystepseventoattempttonegotiate ahigheracquisitionproposal from Men’sWearhouse. Instead,theyareonthecuspofanacquisitionthatwouldseriouslydepress theCompany’svalueand makeit anunattractive acquisitiontarget.

51.         TheonlyconclusionthatmaybedrawnisthattheDirectorsare actingtofurther theirowninterestincontinuingtoserveontheBoardofawell-knownand highlyrespected corporation, and receivethesignificantcompensation andprestigethatcomesfromthose positions.

52.         The Directors arehandsomely rewarded fortheir boardservice and wouldprefer to maintain thestatus quo.Eachindependent director receives approximately $150,000to $250,000peryear forhis boardservice. Mr. Black, theCompany’s CEO,received approximately $2.9millioninfiscal year 2013. AndMr. Wildrick, thenon-executive Chairman, received aremarkable $1.1million forhis service ontheBoard—an eye-popping figure thatis outoflinewith typical director pay,andwhich explains hisdesire toremain entrenched onthe Jos. A.BankBoard.

53.         Afundamental principle underlying the compensation structure ofmostcompany boardsis thatdirectors shouldbecompensated inways thatalign their own economic interests withthe interests ofthestockholders theyserve. Thus,publiccompany directors often receive as compensation fortheir boardservice, orotherwise hold,asignificant amount ofcompany stock. That isnotthecase forthe Jos.ABankBoard. TheDirectors collectively ownjustone percentof theCompany, compared to3.3%among peercompanies’ non-employee directors. TheDirectors, in other words,together ownjustonepercent ofthecompany asa

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whole,andthushaveverylittle“skininthegame.”(Bycontrast,Plaintiffownscloseto5%of theCompany).

54.         BecausetheDirectorsholdsolittlestock,theyhavelittlefinancialincentivetoact inthebestinterestsoftheCompanyanditsstockholders.Thus,thereisasignificantriskthat the Directorswillact—and,indeed,nowhaveacted—intheirownself-interest, ratherthanseekto maximizethevalueoftheCompany’sstock.

55.         ThepossibilitythattheincumbentDirectorsmaybedisplacedinapossible businesscombinationcreatesaninherentconflictbetweentheinterestsofstockholdersandthe Directors. Here, giventheintransigence oftheDirectorsandtheirunwillingness toengage seriously inaprocessof possibly sellingtheCompany andlosingtheirseatsontheBoard, and giventhe extreme defensive measuresthathave beenorwillsoonbeadoptedbytheDirectorsin responsetowhatwasinitiallyafriendly acquisition proposal,theonly conclusion thatmaybe drawn isthattheDirectors aremotivated bythepossibilitythatatakeover couldhave anegative effectontheirpersonalreputations, bottom lines,andcareers. Inotherwords, thestockholders’ bestinterestsaresecondaryat bestandirrelevant atworst. Thesemotivations donotexcusea director’sfailuretoactinthebestinterest ofthecorporation andstockholderstheyserve.

THECOMPANYWILLBEIRREPARABLYHARMED
ABSENTINJUNCTIVERELIEF

56.         Asexplainedabove,Jos.A.Bankhasbeenthreateningtoacquireanother company.Thesethreatshavecontinued—and, indeed,escalated—after Men’sWearhouse made andsubsequently increased itsoffertoacquireJos.A.Bank. Jos.A.Bankisnowonthecuspof effectinganalternative acquisition thatwoulddecreasethevalueofJos.A.Bankanddriveaway Men’sWearhousefromcontinuing topursueitsattempttocombinethetwocompanies.

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57.         Thesethreatserectabarriertomaximizingstockholdervalue.Men’sWearhouse hasatenderofferpendingtothestockholdersofJos.ABank. IfJos.A.Bank,whilethatofferis pending,acquiresanothercompany—particularlyonethatisnotalignedwithitscorestrengths ofmen’sretailasJos.A.Bankhasindicated it willdo—the Company willbecome amuchless attractiveacquisitiontarget.

58.         Plaintiffhasnoadequateremedyatlaw.OnlythroughthisCourt’sequitable powerstoentertherequestedinjunctive reliefwilltheCompany beprotectedfromthe immediate, ongoing,and irreparable injury theDirectorshave inflictedand areinflicting. Their conductinrefusingtonegotiateapossibletransaction withMen’s Wearhouseandpreparing imminently to erectimproperdefensivemeasures inresponsetotheMen’sWearhouseproposal areimproperandunlawful.

COUNTI
(Breachof FiduciaryDuty)

59.         Plaintiffrepeatsand reallegestheallegationssetforthinParagraphs1through58 asif fullysetforthherein.

60.         DirectorDefendantsBergren,Black,Ferstl,Herron,Giordano,Ritman,and Wildrickwereat alltimesrelevantheretodirectorsoftheCompany.Asdirectors,theyowethe Company anditsstockholders thedutiesofutmostloyalty andduecare.

61.         DirectorDefendantsBergren,Black,Ferstl,Herron,Giordano,Ritman,and WildrickhaverepeatedlyputtheirowninterestsaheadofthebestinterestoftheCompanyand itsstockholders: theyhaverefusedeven toenter intodiscussionswithMen’sWearhouse regardingitsproposal;summarily rejectedMen’sWearhouse’s acquisitionproposal;amended theCompany’spoisonpilleffectively toprecludeanacquisitionwithouttheDirectors’approval;

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andarepoisedtoacquireanothercompanysothatJos.A.Bankbecomesa muchlessattractive acquisitiontargetanddrivesaway Men’sWearhouse.

62.         RatherthanactinthebestinterestoftheCompany,DirectorDefendantsBergren, Black,Ferstl,Herron,Giordano,Ritman,andWildrickhaveactedtoentrenchthemselves and preventtheCompanyfromengaginginor evenattempting tonegotiateavalue-maximizing transactioninwhichMen’sWearhouse—rather thanJos.A.Bank—istheacquirer.

63.         TheactionsofDirectorDefendantsBergren,Black,Ferstl,Herron,Giordano, Ritman,andWildrickinrefusingtoconsidertheMen’sWearhouseproposal,refusingtoengage inany discussionswithMen’sWearhouseaboutthatproposal,amendingthepoisonpill,and preparingtolaunchanimminentacquisitionofacompany misalignedwithJos.A.Bank’score businessdemonstrate that theDirectorsareputtingtheirinterestsaheadof theCompany’s,and areunfairtotheCompanyanditsstockholders.

64.         Therefore,DirectorDefendantsBergren,Black,Ferstl,Herron,Giordano,Ritman, andWildrickhavebreachedtheirfiduciarydutiestoJos.A.Bankanditsstockholders.

PRAYERFORRELIEF

WHEREFORE,PlaintiffrequestsjudgmentinitsfavorandagainstDefendants:

A.          DeclaringthattheDirectorsbreachedtheirfiduciarydutiesofloyaltyanddue care;

B.          PreliminarilyandpermanentlyenjoiningtheDirectorsfromcommittingany furtherbreachesoftheirfiduciary duties ofloyaltyorduecare;

C.           Enjoining the Defendants from entering into any agreement on behalf of the Company to acquire another company or other material assets;

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D.          Awarding Plaintiff money damages arising from the Directors’ breaches of their fiduciary duties, in an amount to be proven at trial, including pre-judgment and post-judgment interest thereon; and

E.           Granting such other and further relief as the Court deems just and proper. 

/s/Raymond J. DiCamillo

RaymondJ.DiCamillo(#3188)

SusanM.Hannigan(#5342)

RachelE.Horn(#5906)

Richards,Layton&Finger,P.A.

920N.KingStreet

Wilmington,Delaware19801

(302)651-7700

AttorneysforPlaintiffEminenceCapital,LLC

OFCOUNSEL:

BrianM. Lutz

GoutamU.Jois

Gibson,Dunn&CrutcherLLP

200ParkAvenue

NewYork,NewYork10166

(212)351-4000

Dated:January13,2014

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EX-99.(E)(1)

Exhibit (e)(1)

Excerpts from the Company’s Definitive Proxy Statement on Schedule 14A relating to the 2013 Annual Meeting of Shareholders as filed with the Securities and Exchange Commission on May 17, 2013.

INFORMATION REGARDING OUR BOARD OF DIRECTORS

NON-EMPLOYEE DIRECTOR COMPENSATION

Each of our directors other than Mr. Black (“Non-Employee Directors”) is entitled to compensation for board service as set by the Compensation Committee. As an officer of the Company, Mr. Black is not entitled to compensation for his services as a director. Management assists the Compensation Committee with the compensation setting process as needed.

Each Non-Employee Director receives an annual retainer of $40,000. Additional annual retainers are paid as follows: Chairman of the Board-$150,000; Lead Independent Director-$60,000; and the Chairmen of each of the Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee-$30,000. No fee is paid for the chairmanship of the Executive Committee. Each Non-Employee Director also receives attendance fees of $3,000 per Board meeting and $1,500 per committee meeting. One-half of the usual meeting attendance fee (i.e., $1,500 and $750, respectively) is paid to each Non-Employee Director for participation in each telephonic Board or committee meeting. All directors are reimbursed for actual out-of-pocket expenses incurred by them in connection with attending meetings of the Board or of a Committee.

The Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan (the “2010 Equity Incentive Plan” or “Original Equity Incentive Plan”) provides for certain automatic awards to Non-Employee Directors. Unless the Compensation Committee determines in its discretion to make a lesser award or no award, (a) on each June 1 (or the next business day thereafter if June 1 is not a business day), each person then serving as a Non-Employee Director shall receive an annual award of 2,250 restricted stock units and (b) any person who first becomes a Non-Employee Director after June 17, 2010, shall receive an inaugural award of 1,500 restricted stock units upon his or her election to the Board. All such restricted stock units will vest approximately (but not less than) twelve months following the date of grant.

EXECUTIVE COMPENSATION AND RELATED INFORMATION

COMPENSATION DISCUSSION AND ANALYSIS

 The following discussion and analysis discusses the principles underlying the Company’s compensation policies and decisions and the most important factors relevant to an analysis of these policies and decisions. This discussion focuses on the compensation of our named executive officers. This discussion and analysis provides qualitative information regarding the manner and context in which compensation is awarded to and earned by our named executive officers and is intended to place in perspective the data presented in the tables and narratives that follow.

Process of Determining Executive Compensation

Our Compensation Committee determines the compensation of our named executive officers and may advise the Board, or take other action, on other matters of compensation. At the 2012 Annual Meeting of Stockholders, over 96% of the votes cast were in favor of the advisory proposal to approve our executive compensation (“Say on Pay”). The Compensation Committee reviewed the voting results and believes that this favorable outcome conveys our stockholders’ support of the Compensation Committee’s decisions and the existing executive compensation programs. Therefore, the Compensation Committee did not make any material changes to our executive compensation program or objectives in response to the vote.

Management provides the Compensation Committee with material for review concerning the compensation of the named executive officers, including a history of salary and other compensation paid to each named executive officer. Our Chief Executive Officer presents to the Compensation Committee an annual review of executive and management compensation and recommendations for base salary increases and equity and non-equity incentive compensation for our named executive officers. Our Chief Executive Officer was present during, but did not participate in, the deliberations of the Compensation Committee. The final determination of all compensation matters for our named executive officers is in the sole discretion of the Compensation Committee. Charles D. Frazer, our corporate Secretary, acts as Secretary to the Compensation Committee and is usually present during general, but not executive, sessions of the Compensation Committee. Mr. Frazer does not participate in the deliberations of the Compensation Committee. The Compensation Committee reviews the performance of each named executive officer against the established criteria for payment of incentive compensation for performance in the prior year and determines whether and in what amount incentive compensation should be paid. The Compensation Committee also considers compensation matters applicable to the current fiscal year and, when appropriate, authorizes employment agreements, agreement extensions, base salary increases and equity and non-equity incentive compensation targets.

Objectives of the Compensation Program

Our Compensation Committee applies a consistent philosophy to compensation for our named executive officers. This philosophy is based on the premise that the Company’s achievements are the result of the coordinated efforts of all of our employees working toward common objectives. We strive to achieve those objectives through teamwork that is focused on meeting the expectations of our customers and stockholders. The primary objectives of the compensation program are to:

· align compensation with our corporate performance, strategies and business objectives;

· enable the Company to attract, retain and reward senior managers who contribute to the long-term success of the Company; and

· promote the achievement of key financial performance measures by linking compensation to the achievement of measurable corporate performance goals.

We believe that this compensation program allows us to successfully attract and retain talented individuals, enhance stockholder value and foster innovation.

To achieve these objectives, our Compensation Committee has established the following principles to guide the development of our compensation program and to provide a framework for all compensation decisions: (a) provide a total compensation package that will attract the best talent to the Company, motivate individuals to perform at their highest levels, reward outstanding performance and retain executives whose skills are critical for building long-term stockholder value and (b) establish performance-based incentives that are directly tied to the overall financial results of the Company.

Components of Our Executive Compensation Program

The primary elements of our executive compensation program are:

· Base salary;

· Non-equity performance-based incentive compensation (in the form of cash bonuses);

· Equity performance-based incentive compensation (in the form of restricted stock units); and

· Other employee benefits and non-cash perquisites.

In order to permit us to retain our named executive officers and to provide sufficient incentives for their highest possible level of performance, salaries and incentive compensation of such officers are reviewed at least annually and are usually adjusted after taking into account market conditions, individual responsibilities, experience, performance and other factors (including, where applicable, the terms of their employment agreements). Each named executive officer is employed by the Company pursuant to an employment agreement which sets forth, among other matters, the executive officer’s annualized cash base salary and non-equity incentive compensation opportunity (expressed as a percentage of base salary). Mr. Black’s agreement also sets forth his equity incentive compensation opportunity (expressed as a percentage of base salary).

These agreements with our named executive officers provide for certain potential payments upon termination for a variety of reasons, including, for Mr. Black only, following a change in control of the Company. We have provided more detailed information about these benefits, along with estimates of their values under certain circumstances, below under the title “Potential Payments on Termination or Change in Control.” We believe these benefits help us compete for the services of talented individuals in a manner which is responsible and in the best interests of our Company and stockholders.

Substantially all of the incentive compensation paid or granted to our named executive officers is intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue Code. Our compensation-setting process consists of establishing for each named executive officer a targeted overall compensation level intended to permit us to retain that officer and provide sufficient incentive for his highest possible level of performance. The targeted compensation level is then allocated between base salary; non-equity incentive compensation (in the form of cash bonuses); and equity incentive compensation (in the form of restricted stock units). Unless otherwise provided in the employment agreement for a particular named executive officer, neither the targeted compensation nor the allocation thereof is fixed by formula. Rather, they are determined based on many factors including performance, internal pay equity, external market factors, reasonable employee expectations and pay history.

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Base Salary

We pay a base salary to attract talented executives and provide them with a secure base of cash compensation. The Compensation Committee typically reviews compensation for the named executive officers at a time proximate to the filing of our Annual Report on Form 10-K for the prior fiscal year. Annual increases are not assured. In Fiscal 2012, the Compensation Committee did not approve base salary increases for our named executive officers. Generally, in deciding whether, and to what extent, to make an adjustment to the respective base salaries of the named executive officers (other than the Chief Executive Officer), an important factor considered by the Compensation Committee is the Chief Executive Officer’s evaluation of the individual performance of each Executive Vice President. Generally, the Chief Executive Officer makes his recommendation based upon his evaluation of each other named executive officer’s individual contribution to the performance of the Company and such other factors as he may deem relevant.

Pursuant to his employment agreement, in the event the Company grants base salary increases generally for other employees of the Company, Mr. Black is entitled to a base salary increase of not less than the annual percentage increase in the consumer price index. The Compensation Committee approved for Mr. Black a 2% base salary increase to $807,100, contingent upon the Company authorizing base salary increases generally for other employees in Fiscal 2013. Such increases, if any, are not scheduled to be effective earlier than August 4, 2013. The Compensation Committee has not approved base salary increases for our Executive Vice Presidents for Fiscal 2013. In the event general base salary increases are granted to other employees of the Company at some later date this year, the Compensation Committee may re-consider its decision with respect to base salary increases for the Executive Vice Presidents. The following table sets forth the current annualized base salary for each of the named executive officers:

Named Executive Officer	Current Fiscal 2013 Annualized Base Salary ($)
R. Neal Black	791,275
Robert B. Hensley	494,900
Gary M. Merry	465,000
James W. Thorne	440,000
David E. Ullman	469,650

Non-Equity Incentive Compensation

If approved by the Compensation Committee, non-equity incentive compensation to the named executive officers is generally paid under the Jos. A. Bank Clothiers, Inc. Executive Management Incentive Plan (the “Cash Incentive Plan”). The Cash Incentive Plan is intended to permit award payments that may qualify as “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code, thereby preserving the Company’s ability to receive federal income tax deductions for those awards to the extent that they in fact comply with that Code section. For each of Fiscal 2012 and Fiscal 2013, the Compensation Committee established under the Cash Incentive Plan cash incentive programs designed to reward Company-wide performance through tying the payment of non-equity incentive compensation primarily to, among other things, the earning by the Company of certain net income goals. Such cash incentive programs are referred to herein respectively as the “2012 Cash Incentive Program” and the “2013 Cash Incentive Program” and collectively as the “Cash Incentive Programs.” For purposes of the Cash Incentive Programs, “net income” is the reported net income of the Company for the applicable fiscal year and is therefore determined after deduction for all incentive plan and other compensation expenses. If Awards had been authorized under the 2012 Cash Incentive Program (which they were not), they would have been paid in cash. Any Awards which may be authorized under the 2013 Cash Incentive Program are expected to be paid in cash.

The key performance goal under each of the Cash Incentive Programs is the Company earning net income within or above a specified range (the “Eligibility Range”) for the applicable fiscal year. One Eligibility Range is established for our Chief Executive Officer and one Eligibility Range is established for our Executive Vice Presidents. Within each Eligibility Range is a series of discrete net income levels. If the Company’s net income is below the Eligibility Range for a particular Cash Incentive Program, an award payment cannot be authorized under that program. If the Company’s net income is within the Eligibility Range, the percentage of the award target which each named executive officer is eligible to earn increases at each new net income level. Awards are not prorated between income levels. If the Company’s net income is at or above the highest level of net income within the Eligibility Range, each named executive officer is eligible to earn his maximum award target. As net income is a key factor in determining a company’s overall financial success, the Compensation Committee believes that using Eligibility Ranges based on net income is an appropriate basis for establishing incentive compensation goals.

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The Company earning net income within or above the applicable Eligibility Range is the only performance goal under each of the Cash Incentive Programs for Mr. Black, our Chief Executive Officer. With respect to Messrs. Hensley, Merry, Thorne and Ullman, our Executive Vice Presidents (who are the only other named executive officers), the following goals (the “Personal Goals”) may also be considered and utilized by the Compensation Committee in its exercise of negative discretion to reduce the amount of an award that would otherwise have been payable at any particular level of net income achieved by the Company: (a) the participant receiving an overall job performance rating of “Effective” or better (the equivalent of 3 out of 5); (b) the participant complying with the Company’s Code of Conduct, Associate Handbook and other rules, regulations and policies and not engaging in any dishonest acts or other acts that are or may be detrimental to customers, fellow associates or the Company; and (c) the participant achieving specific goals for departmental or individual performance. The Personal Goals, together with the Company earning net income within or above the Eligibility Range, are collectively referred to as the “Performance Goals.”

The Compensation Committee has historically set the Cash Incentive Plan Eligibility Ranges for a current year so that the Company must earn at least 10% more in the current year than it earned in the immediately prior year in order for the named executive officers to be eligible to earn their maximum cash awards. If the Compensation Committee had applied that general rule in Fiscal 2013, the named executive officers could have earned their maximum cash awards for Fiscal 2013 without the Company exceeding our Fiscal 2011 net income level. The Compensation Committee did not believe that such a result would be equitable and therefore determined that it would be in the best interests of our Company and stockholders to require a greater-than-ten percent increase in net income for Fiscal 2013 in order for the named executive officers to be eligible to earn their maximum cash awards. The maximum net income in each of the Eligibility Ranges for the 2013 Cash Incentive Program represents at least a 25% increase over the Company’s 2012 net income. For the 2013 Cash Incentive Program, the Compensation Committee established for Mr. Black an Eligibility Range of $91.0 million to $100.2 million of net income and for the Executive Vice Presidents an Eligibility Range of $91.5 million to $101.1 million of net income. If the Company earns net income below the low end of the Eligibility Range, the applicable participant will not receive an award payment under the 2013 Cash Incentive Program. At $91.0 million of net income, Mr. Black will be eligible to receive up to 60% of his base salary; at $91.5 million of net income Messrs. Hensley, Merry, Thorne and Ullman will each be eligible to receive up to 10% of their respective base salaries. At or above $100.2 million of net income (a 25.7% increase over our Fiscal 2012 net income), Mr. Black will be eligible to receive up to approximately 151.6% of his base salary; at or above $101.1 million of net income (a 26.9% increase over our Fiscal 2012 net income), Messrs. Hensley, Merry, Thorne and Ullman will each be eligible to receive up to 65% of their respective base salaries. Between the low and high ends of the Eligibility Ranges, the percentage of base salary which each participant will be eligible to receive will increase at each new net income level.

For the 2012 Cash Incentive Program, the Compensation Committee established for Mr. Black an Eligibility Range of $97.5 million to $107.3 million of net income and for the Executive Vice Presidents an Eligibility Range of $100.9 million to $108.7 million of net income. If the Company had earned net income below the low end of the Eligibility Range, the applicable participant would not have received an award payment under the 2012 Cash Incentive Program. At $97.5 million of net income, Mr. Black would have been eligible to receive up to 60% of his base salary; at $100.9 million of net income Messrs. Hensley, Merry, Thorne and Ullman would each have been eligible to receive up to 10% of their respective base salaries. At or above $107.3 million of net income, Mr. Black would have been eligible to receive up to approximately 151.6% of his base salary; at or above $108.7 million of net income, Messrs. Hensley, Merry, Thorne and Ullman would each have been eligible to receive up to 65% of their respective base salaries. Between the low and high ends of the Eligibility Ranges, the percentage of base salary which each participant would have been eligible to receive would have increased at each new net income level.

The Company’s Fiscal 2012 net income was below the lowest levels of net income in the Eligibility Ranges for the 2012 Cash Incentive Program. Therefore, no award payments could be, or were, authorized for or paid to any of the named executive officers under such program.

Equity Incentive Compensation

If approved by the Compensation Committee, equity incentive compensation may be granted to the named executive officers under the 2010 Equity Incentive Plan. The principal purposes of the 2010 Equity Incentive Plan are to promote the interests of the Company and our stockholders by providing our employees, directors and consultants with appropriate incentives and rewards to encourage them to enter into and continue in the employ or service of the Company or its subsidiaries, to acquire a proprietary interest in the long-term success of the Company and to reward the performance of individuals in fulfilling their personal responsibilities for long-range and annual achievements. The 2010 Equity Incentive Plan is intended to permit the grant of “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code, thereby preserving the Company’s ability to receive federal income tax deductions for those awards to the extent that they in fact comply with that Code section.

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For each of Fiscal 2012 and Fiscal 2013, the Compensation Committee established under the 2010 Equity Incentive Plan restricted stock unit programs designed to reward Company-wide performance through tying the earning of equity incentive compensation primarily to, among other things, the earning by the Company of certain net income goals. Such equity incentive programs are referred to herein respectively as the “2012 Equity Incentive Program” and the “2013 Equity Incentive Program” and collectively as the “Equity Incentive Programs.” For purposes of the Equity Incentive Programs, “net income” is the reported net income of the Company for the applicable fiscal year and is therefore determined after deduction for all incentive plan and other compensation expenses. If Awards had been authorized under the 2012 Equity Incentive Program (which they were not), they would have been paid in performance restricted stock units (“Performance RSUs”). Any Awards which may be authorized under the 2013 Equity Incentive Program are expected to be paid in Performance RSUs.

The performance goals under each of the Equity Incentive Programs are qualitatively the same as the Performance Goals under the Cash Incentive Programs, i.e., such goals are based upon the Company earning net income within or above an Eligibility Range for the applicable fiscal year and, with respect to the Executive Vice Presidents, the Personal Goals as set forth above under “Non-Equity Incentive Compensation.” However, the levels of net income within the Eligibility Ranges for the Equity Incentive Programs are higher than those established under the Cash Incentive Programs. As net income is a key factor in determining a company’s overall financial success, the Compensation Committee believes that using an Eligibility Range based on net income is an appropriate basis for establishing incentive compensation goals.

If the Company’s net income is below the Eligibility Range for a particular Equity Incentive Program, no Performance RSUs can be earned under that program. If the Company’s net income is within the Eligibility Range, the number of Performance RSUs which the named executive officers are eligible to earn increases at each new net income level. Awards are not prorated between income levels. If the Company’s net income is at or above the highest level of net income within the Eligibility Range, each named executive officer is eligible to earn his maximum award target.

The Company earning net income within or above the applicable Eligibility Range is the only performance goal under each of the Equity Incentive Programs for Mr. Black. With respect to Messrs. Hensley, Merry, Thorne and Ullman, the same Personal Goals applicable to the Cash Incentive Programs are also applicable to the Equity Incentive Programs.

The Compensation Committee has historically set the 2010 Equity Incentive Plan Eligibility Ranges for a current year so that the Company must earn at least 10% more in the current year than it earned in the immediately prior year in order for the named executive officers to be eligible to earn their maximum equity awards. If the Compensation Committee had applied that general rule in Fiscal 2013, the named executive officers could have earned their maximum cash awards for Fiscal 2013 without the Company exceeding our Fiscal 2011 net income level. The Compensation Committee did not believe that such a result would be equitable and therefore determined that it would be in the best interests of our Company and stockholders to require a greater-than-ten percent increase in net income for Fiscal 2013 in order for the named executive officers to be eligible to earn their maximum cash awards. The maximum net income in each of the Eligibility Ranges for the 2013 Equity Incentive Program represents at least a 25% increase over the Company’s 2012 net income. For the 2013 Equity Incentive Program, the Compensation Committee established for Mr. Black an Eligibility Range of $92.8 million to $100.2 million of net income and for the Executive Vice Presidents an Eligibility Range of $99.8 million to $102.0 million of net income. If the Company earns net income below the low end of the Eligibility Range, the applicable participant will not receive an award payment under the 2013 Equity Incentive Program. At $92.8 million of net income, Mr. Black will be eligible to earn a number of Performance RSUs having a value of up to $182,248; at $99.8 million of net income Messrs. Hensley, Merry, Thorne and Ullman will each be eligible to earn a number of Performance RSUs having a value of up to $50,000. At or above $100.2 million of net income (a 25.7% increase over our Fiscal 2012 net income), Mr. Black will be eligible to earn a number of Performance RSUs having a value of up to $2,004,732; at or above $102.0 million of net income (a 28.0% increase over our Fiscal 2012 net income), Messrs. Hensley, Merry, Thorne and Ullman will each be eligible to earn a number of Performance RSUs having a value of up to $150,000. Between the low and high ends of the Eligibility Ranges, the number of Performance RSUs which each participant will be eligible to earn will increase at each new net income level. The number of Performance RSUs granted was determined based on $39.18 per unit, the equivalent of the closing price of a share of common stock on April 2, 2013, the date of grant under the 2013 Equity Incentive Program.

For the 2012 Equity Incentive Program, the Compensation Committee established for Mr. Black an Eligibility Range of $99.5 million to $107.3 million of net income and for the Executive Vice Presidents an Eligibility Range of $107.7 million to $109.7 million of net income. If the Company had earned net income below the low end of the Eligibility Range, the applicable participant could not have earned Performance RSUs under 2012 Equity Incentive Program. If net income had been $99.5 million, Mr. Black would have been eligible to earn a number of Performance RSUs having a value of up to $178,675; if net income had been $107.7 million, each of the Executive Vice Presidents would have been eligible to earn a number of Performance RSUs having a value of up to $50,000. If net income had been at or above $107.3 million of net income, Mr. Black would have been eligible to earn a number of Performance RSUs having a value of up to $1,965,425; if net income had been at or above $109.7 million, each of the Executive Vice Presidents would have been eligible to earn a number of Performance RSUs having a value of up to $150,000. Between the low and high ends of the Eligibility Ranges, the number of Performance RSUs which each participant would have been eligible to earn would have increased at each new net income level. The number of Performance RSUs granted was determined based on $54.48 per unit, the equivalent of the closing price of a share of common stock on March 27, 2012, the date of grant under the 2012 Equity Incentive Program.

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The Company’s Fiscal 2012 net income was below the lowest levels of net income in the Eligibility Ranges for the 2012 Equity Incentive Program. Therefore, no awards could be, or were, earned by any of the named executive officers under such program.

One of the proposals to be considered at the Annual Meeting is the amendment and restatement of the 2010 Equity Incentive Plan. For details regarding such proposal, see “Proposal Number Four-Approval of the Amendment and Restatement of the Jos. A. Bank 2010 Equity Incentive Plan.”

Negative Discretion

For each of the Incentive Programs (i.e., the 2012 Cash Incentive Program, the 2012 Equity Incentive Program, the 2013 Cash Incentive Program and the 2013 Equity Incentive Program), the Compensation Committee was or is entitled to exercise negative discretion to reduce the amount of a cash award that otherwise would have been payable to, or to reduce the number of Performance RSUs that would otherwise have been earned by, a named executive officer at any particular level of net income achieved by the Company, even if the Company’s net income is within or above the applicable Eligibility Range or level.

In deciding whether, and to what extent, to pay a cash award to, or to certify the earning of Performance RSUs by, an Executive Vice President, an important factor which may also be considered by the Compensation Committee in exercising its negative discretion is Mr. Black’s evaluation of the individual performance of each Executive Vice President. Mr. Black shall make a recommendation to the Compensation Committee for a cash and/or equity award to each Executive Vice President at or below the applicable bonus potential based upon his evaluation of the Executive Vice President’s satisfaction of the applicable Performance Goals, the Executive Vice President’s contribution to the performance of the Company and such other factors as Mr. Black may deem relevant.

The final determination of the amount of a cash award that will be paid to, or the number of Performance RSUs that will be earned by, each named executive officer is made by the Compensation Committee; however, the Compensation Committee may not increase the cash award payable to, or the number of Performance RSUs which will be earned by, a named executive officer above the amount or number that is otherwise applicable at any particular level of net income achieved by the Company. The Incentive Programs do not confer any right or entitlement to the receipt of any cash or equity award.

Other Employee Benefits and Non-Cash Compensation

In addition to the compensation described above, certain perquisites and benefits are provided to our named executive officers in cash, in-kind or through direct payment to third party providers. The Company believes these perquisites and benefits help us to be competitive in attracting and retaining senior management and are commensurate with the experience and skill of our named executive officers. In Fiscal 2012, the total value of these perquisites and benefits for the named executive officers ranged from approximately 6.7% to approximately 8.5% of base salary of the applicable named executive officer.

Certain perquisites are provided in accordance with the respective employment agreements of the named executive officers. Messrs. Black, Hensley, Merry and Thorne each receive a car allowance. Mr. Ullman receives the use of a Company-leased car.

Certain benefits are made available by the Company under broad-based programs offered to most of our employees, including the named executive officers. Such benefits include insurance for medical, prescription drugs, dental, vision, longterm disability, life and accidental death and dismemberment and a legal services plan. For each of the named executive officers, the Company pays for these insurance benefits, as well as insurance for up to $2,500 of medical expense reimbursement. The Company also sponsors a 401(k) plan. The Company has generally elected, from year to year, to make a discretionary contribution to employees’ 401(k) accounts. In the event the Company elects to make a discretionary contribution, the named executive officers would be eligible to participate on the same basis as all other eligible employees; provided, however, that the contribution for certain executives may be limited by IRS rules.

In March 2010, the Board adopted the 2010 Deferred Compensation Plan, which is a nonqualified, unfunded plan designed to provide a select group of the Company’s senior management (which includes each of the named executive officers), highly compensated employees and non-employee directors with the opportunity to accumulate capital by deferring compensation on a pre-tax basis. The 2010 Deferred Compensation Plan strengthens the ability of the Company to attract, reward and retain eligible employees and non-employee directors by providing them with a means to defer receipt of cash and shares of common stock associated with future grants of restricted stock units, performance share awards and certain other cash- and stock-based awards.

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Employees who participate in the 2010 Deferred Compensation Plan may defer either all or none of any restricted stock unit awards and any performance share awards and up to 15% of base salary and up to 25% of cash bonuses and incentive awards. Non-employee directors who participate in the 2010 Deferred Compensation Plan may defer all or none of any restricted stock unit awards and any other incentive compensation and all or none of their annual retainer fees, committee chairman fees, lead director fees and meeting fees.

All cash and awards that are to be deferred under the 2010 Deferred Compensation Plan will be deemed invested in Company common stock equivalent units. In the case of stock-based awards that are deferred, the number of common stock equivalent units credited to a participant’s account will be based on the number of shares underlying those awards. In the case of cash deferrals, the number of common stock equivalent units credited to a participant’s account will be based on the Company’s share price on the date of the deemed investment. If stock-based awards are subject to a vesting condition, the investment in stock unit equivalents will be deemed to occur on the date that the award vests.

In general (and subject to certain exceptions set forth in the 2010 Deferred Compensation Plan), elections to defer compensation must be made in the tax year prior to the year in which the compensation would otherwise be earned. At the time that an employee makes each deferral election, he or she may choose between a distribution upon separation from service (subject to a 6-month delay applicable to certain officers) or payment at a scheduled future date of 5 years or 10 years following the end of the year in which that election becomes irrevocable. Regardless of election, distributions to employees will be made upon the first to occur of (a) separation from service (subject to a 6-month delay applicable to certain officers); (b) occurrence of the 5 or 10 year scheduled distribution date, as applicable; (c) a change in control of the Company; or (d) the employee’s death. Distributions to Non-Employee Directors will be made upon the first to occur of (x) separation from service; (y) change in control of the Company; or (z) death. Distributions under the 2010 Deferred Compensation Plan will generally be paid in shares of Company common stock, with fractional shares paid in cash. However, the Company’s Compensation Committee has the discretion to make a determination that distributions be paid in cash or a combination of cash and shares. In the event of an unforeseeable emergency, a participant will be permitted, subject to plan rules, to elect a hardship distribution from his or her account prior to the otherwise applicable payment date.

The Company also maintains a nonqualified deferred compensation plan (the “Fidelity Deferred Compensation Plan”) that is administered by Fidelity Management Trust Company (“Fidelity”). Under the Fidelity Deferred Compensation Plan, certain executives, including the named executive officers, are entitled to defer up to 15% of their base salary and up to 25% of their annual non-equity incentive compensation. Effective salary deferral elections must be made by eligible executives prior to the end of the calendar year with respect to salary amounts to be earned in the following year and effective non-equity incentive compensation deferral elections must be made no later than six months prior to the end of the applicable performance period. Participants in the Fidelity Deferred Compensation Plan are entitled to direct the investment of the deferred amounts by selecting one or more permissible investment alternatives offered under the plan. Under the Fidelity Deferred Compensation Plan, participants are entitled to change their investment selection by contacting Fidelity. The Company does not restrict the frequency of changes in the investment selection. Fidelity maintains an excessive trading policy which generally prohibits exchanges in and then out of a fund option within 30 days (a “roundtrip”). Under Fidelity’s excessive trading policy, participants are limited to one roundtrip transaction per fund within any rolling 90-day period, subject to an overall limit of four roundtrip transactions across all funds over a rolling 12-month period. The value of the participant’s investment is based directly on the performance of the underlying mutual funds selected by the participants.

Under the Fidelity Deferred Compensation Plan, a participant is entitled to elect to receive distributions, either in a lump sum or in a series of substantially equal payments, either at separation of service or at the earlier of separation of service or reaching a pre-selected age. Regardless of any such election made by the participant, a lump sum distribution will automatically be made upon the earlier to occur of (a) separation of service prior to age 62; (b) the participant’s death; or (c) a change in control of the Company.

We do not contribute to the Fidelity Deferred Compensation Plan or guarantee or supplement deemed investment returns on the participants’ accounts. The Fidelity Deferred Compensation Plan essentially operates as an uninsured, tax-advantaged personal brokerage account of the participant. Participation in this plan does not affect the participant’s base salary or annual incentive compensation. Amounts deferred under the Fidelity Deferred Compensation Plan are held in trust for payment of benefits under the plan, subject to the claims of the Company’s general creditors.

The 2010 Deferred Compensation Plan and the Fidelity Deferred Compensation Plan provide an opportunity for the participants to save for future financial needs at little cost to the Company. Providing these nonqualified deferred compensation plans contributes to the Company’s attractiveness as an employer by providing the Company with a method of rewarding and retaining these individuals.

For a more detailed discussion of the amounts earned in Fiscal 2012 under the Fidelity Deferred Compensation Plan by our named executive officers, see the Nonqualified Deferred Compensation table and accompanying narrative below.

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TAX AND ACCOUNTING CONSIDERATIONS

Section 162(m) of the Internal Revenue Code imposes a $1 million limit on the tax deductibility of nonperformance-based compensation that is paid to a “covered employee”. Compensation that qualifies as “performance-based compensation” is excluded from the $1 million deductibility cap, and therefore remains fully deductible by the Company. In making compensation design and award decisions, the Company takes Section 162(m) into account in determining the total compensation cost which may be incurred by the Company. If, consistent with our business needs and without violating contractual obligations, we are able to structure compensation arrangements to eliminate the negative effects of Section 162 (m), we will do so. If, however, the Company’s business needs dictate hiring or making compensation decisions which may result in the Company incurring non-deductible compensation expense, the Company will take such actions as may be necessary to meet those needs. For example, a much sought-after candidate for employment may be able to command in the marketplace compensation arrangements which do not meet the exceptions to the deductibility limitations under Section 162 (m). In Fiscal 2012 and Fiscal 2011, substantially all compensation paid by the Company was deductible without limitation under Section 162(m). We were limited under Section 162(m) in prior years and may be limited in future years. To mitigate the impact of Section 162(m), the Company adopted the Cash Incentive Plan and the 2010 Equity Incentive Plan.

In Fiscal 2006, the Company adopted the Statement of Financial Accounting Standards No. 123R, now codified as FASB ASC Topic 718 — Stock Compensation (“FASB ASC 718”), which generally requires a public entity to measure the cost of employee services received for an award of equity instruments based on the grant-date fair value of the award. The adoption of FASB ASC 718 had no material effect on our financial statements, because, at the time of the adoption, all options issued under our previous equity incentive plans were fully vested. FASB ASC 718 will govern the expense to the Company associated with any equity that may be issued under the 2010 Equity Incentive Plan. Generally, such equity will be expensed over the associated vesting period established pursuant to an equity award.

EXECUTIVE COMPENSATION AND RELATED INFORMATION

COMPENSATION TABLES

The following tables, narrative and footnotes discuss the compensation of our named executive officers for Fiscal 2012, Fiscal 2011 and Fiscal 2010. We follow the National Retail Federation’s “4-5-4” retail calendar, whereby for each fiscal quarter, the first month contains four weeks, the second month contains five weeks and the third month contains four weeks (each week containing the seven days from Sunday through Saturday). Dividing the retail calendar into 52 weeks of seven days each, or 364 days, leaves an extra day each year to be accounted for in a future fiscal period. As a result every five to six years a week is added to the fiscal calendar. Fiscal 2012 was a 53 week year. Fiscal 2011 and Fiscal 2010 were both 52 week years.

Summary Compensation Table

The following table sets forth information concerning compensation earned by our named executive officers for Fiscal 2012, Fiscal 2011 and Fiscal 2010.

Name and Principal Position(a)	Year(b)	Salary ($)(c)	Bonus ($)(d)	Stock Awards ($)(e)	Option Awards ($)(f)	Non-Equity Incentive Plan Compensation ($)(g)	Change in Pension Value and Nonqualified Deferred Compensation Earnings ($)(h)	All Other Compensation ($)(i)	Total ($)(j)
R. Neal Black,	2012	806,492	—	1,965,420	—	—	75,631	53,686	2,901,229
President and Chief	2011	783,138	—	1,965,414	—	1,199,675	—	52,288	4,000,515
Executive Officer	2010	762,500	—	1,924,950	—	1,175,000	74,613	50,606	3,987,669
David E. Ullman,	2012	478,682	—	149,983	—	—	36,679	40,858	706,202
Executive Vice	2011	467,325	—	149,960	—	305,273	—	41,330	963,888
President-Chief Financial Officer	2010	457,500	—	149,943	—	302,250	29,581	34,916	974,190
Robert B. Hensley,	2012	504,417	—	149,983	—	—	29,765	40,596	724,761
Executive Vice President for	2011	492,450	—	149,960	—	321,685	—	38,756	1,002,851
Human Resources, Real Estate and Loss Prevention	2010	482,500	—	149,943	—	318,500	32,667	37,002	1,020,612
Gary M. Merry,	2012	473,942	—	149,983	—	—	—	33,121	657,046
Executive Vice President for	2011	432,500	—	149,960	—	302,250	—	30,944	915,654
Store and Catalog Operations	2010	377,500	—	149,943	—	260,000	—	29,239	816,682
James W. Thorne,	2012	448,462	—	149,983	—	—	—	33,763	632,208
Executive Vice President for	2011	407,500	—	149,960	—	286,000	—	32,504	875,964
Merchandising and Chief Merchandising Officer	2010	362,500	—	149,943	—	243,750	—	30,380	786,573

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Notes to Summary Compensation Table

Stock Awards

In Fiscal 2012, the Company issued to each named executive officer a Performance Restricted Stock Unit Award Agreement. Mr. Black had the opportunity to earn a maximum of 36,076 Performance RSUs having a grant date fair value of $1,965,420 and each of the Executive Vice Presidents had the opportunity to earn a maximum of 2,753 Performance RSUs having a grant date fair value of $149,983. As the Company’s Fiscal 2012 net income was below the lowest levels of net income in the Eligibility Ranges for the 2012 Equity Incentive Program, no awards could be, or were, earned by any of the named executive officers under such program.

In Fiscal 2011, the Company issued to each named executive officer a Performance Restricted Stock Unit Award Agreement under the 2011 Basic Equity Incentive Program. Mr. Black had the maximum opportunity to earn (and subsequently did earn) 40,341 Performance RSUs at a grant date fair value of $1,965,414 and each of the Executive Vice Presidents had the maximum opportunity to earn (and subsequently did earn) 3,078 Performance RSUs at a grant date fair value of $149,960. Also in Fiscal 2011, the Company issued to each named executive officer a Performance Restricted Stock Unit Award Agreement under the 2011 Supplemental Equity Incentive Program. Mr. Black had the maximum opportunity to earn 5,131 Performance RSUs at a grant date fair value of $249,982 and each of the Executive Vice Presidents had the maximum opportunity to earn 2,052 Performance RSUs at a grant date fair value of $99,973. None of such Performance RSUs under the supplemental program were earned by any of the named executive officers.

In Fiscal 2010, the Company issued to each named executive officer a Performance Restricted Stock Unit Award Agreement. Mr. Black had the maximum opportunity to earn (and subsequently did earn) 48,463 Performance RSUs at a grant date fair value of $1,924,950 and each of the Executive Vice Presidents had the maximum opportunity to earn (and subsequently did earn) 3,775 Performance RSUs at a grant date fair value of $149,943.

Amounts reported in column (e) represent the grant date fair value of restricted stock units issued to the named executive officers, based on the closing price of the Company’s common stock on the date of grant.

Non-Equity Incentive Plan Compensation

The amounts reported in column (g) reflect amounts earned by, and subsequently paid to, each named executive officer for the applicable fiscal year under the Company’s Cash Incentive Program for that year. No non-equity incentive compensation was paid to the named executive officers in Fiscal 2013 for performance in Fiscal 2012. The non-equity incentive compensation paid to the named executive officers in Fiscal 2012 for performance in Fiscal 2011 and in Fiscal 2011 for performance in Fiscal 2010 each represented the maximum potential awards that could have been earned under the Cash Incentive Programs for those performance years.

Changes in Pension Value and Nonqualified Deferred Compensation Earnings

The Company does not maintain a pension plan for which the named executive officers are eligible. The amounts set forth in column (h) represent the above-market earnings, if any, by the named executive officers on their respective accounts in the Fidelity Deferred Compensation Plan. Under SEC regulations, the “market rate” of interest is deemed to be 120% of the applicable federal long-term rate. The above-market earnings credited to the participants in the Fidelity Deferred Compensation Plan were calculated as the difference between the return earned on such participants’ accounts during the applicable fiscal year and the interest that would have been earned at a rate equal to 120% of the applicable federal long-term rate.

All Other Compensation

The tables below set forth the components of the amounts reported as All Other Compensation in column (i). These components are: (a) either an allowance for a car or the use of a Company-leased car; (b) the incremental cost to the Company of a legal services plan and of insurance for health, prescription drugs, medical expense reimbursement, dental, vision, long-term disability, life, and accidental death and dismemberment; and (c) amounts contributed by the Company for the named executive officer under the Company’s 401(k) plan. Except with respect to Mr. Ullman, the amounts shown in column (a) below are cash allowances and reflect the actual dollar amounts paid in the applicable fiscal year. With respect to Mr. Ullman, the amount shown in column (a) reflects the value of Mr. Ullman’s personal use of a Company-leased car during the applicable fiscal year determined in accordance with applicable IRS regulations.

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Named Executive Officer	Fiscal 2012 All Other Compensation ($)
	(a)	(b)	(c)	Total
R. Neal Black	19,570	29,216	4,900	53,686
David E. Ullman	15,736	20,222	4,900	40,858
Robert B. Hensley	9,785	25,911	4,900	40,596
Gary M. Merry	9,785	18,436	4,900	33,121
James W. Thorne	9,785	19,078	4,900	33,763

Named Executive Officer	Fiscal 2011 All Other Compensation ($)
	(a)	(b)	(c)	Total
R. Neal Black	19,200	27,698	5,390	52,288
David E. Ullman	15,941	19,999	5,390	41,330
Robert B. Hensley	9,600	23,766	5,390	38,756
Gary M. Merry	9,600	15,954	5,390	30,944
James W. Thorne	9,600	17,514	5,390	32,504

Named Executive Officer	Fiscal 2010 All Other Compensation ($)
	(a)	(b)	(c)	Total
R. Neal Black	19,200	26,261	5,145	50,606
David E. Ullman	9,946	19,825	5,145	34,916
Robert B. Hensley	9,600	22,257	5,145	37,002
Gary M. Merry	9,600	14,494	5,145	29,239
James W. Thorne	9,600	15,635	5,145	30,380

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FISCAL 2012 GRANTS OF PLAN-BASED AWARDS

The following table sets forth information concerning grants of non-equity and equity awards to our named executive officers in Fiscal 2012 under the 2012 Cash Incentive Program and 2012 Equity Incentive Program.

	Grant Date (b)		Estimated Future Payouts Under Non- Equity Incentive Plan Awards(1)						Estimated Future Payouts Under Equity Incentive  Plan Awards(2)						All  Other Stock Awards: Number of Shares of Stock or Units(3) (#) (i)		All  Other Option Awards: Number  of Securities Underlying Options(4) (#) (j)		Exercise or Base Price of Option Awards ($/sh) (k)		Grant Date Fair Value of Stock and Option Awards ($) (l)
Name (a)			Threshold ($) (c)		Target ($) (d)		Maximum ($) (e)		Threshold (#) (f)		Target (#) (g)		Maximum (#) (h)
R. Neal Black		3/27/2012		474,765		—		1,199,675		3,279		—		36,076		—		—		—		1,965,420
David E. Ullman		3/27/2012		46,965		—		305,273		917		—		2,753		—		—		—		149,983
Robert B. Hensley		3/27/2012		49,490		—		321,685		917		—		2,753		—		—		—		149,983
Gary M. Merry		3/27/2012		46,500		—		302,250		917		—		2,753		—		—		—		149,983
James W. Thorne		3/27/2012		44,000		—		286,000		917		—		2,753		—		—		—		149,983

(1)	This column presents information about potential awards under the Company’s 2012 Cash Incentive Program. No actual payments were made. For a more detailed description of the 2012 Cash Incentive Program, see the “Non-Equity Incentive Compensation” section of the Compensation Discussion and Analysis above. The 2012 Cash Incentive Program does not specify a “target” amount; therefore the respective amounts in the “target” column are representative amounts based on the Company’s actual Fiscal 2012 performance. As the Company’s Fiscal 2012 net income was below the lowest levels of net income in the Eligibility Ranges for the 2012 Cash Incentive Program, no awards could be, or were, earned by any of the named executive officers under such program. The “threshold” amount represents the amount payable at the lowest net income level at which any award was payable and the “maximum” is the amount payable at the highest net income level.
(2)	This column presents information about potential awards under the Company’s 2012 Equity Incentive Program. No awards were actually earned. For a more detailed description of the 2012 Equity Incentive Program, see the “Equity Incentive Compensation” section of the Compensation Discussion and Analysis above. The 2012 Equity Incentive Program does not specify a “target” amount; therefore the respective amounts in the “target” column are representative amounts based on the Company’s actual Fiscal 2012 performance. As the Company’s Fiscal 2012 net income was below the lowest levels of net income in the Eligibility Ranges for the 2012 Equity Incentive Program, no awards could be, or were, earned by any of the named executive officers under such program. The “threshold” amount is the number of Performance RSUs issuable at the lowest net income level at which any Performance RSUs could be earned and the “maximum” is the number of Performance RSUs issuable at the highest net income level.
(3)	The Company did not grant any stock awards not otherwise disclosed in Fiscal 2012.
(4)	The Company did not grant any option awards in Fiscal 2012.

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NARRATIVE DISCLOSURE TO SUMMARY COMPENSATION TABLE AND GRANTS OF PLAN-BASED AWARDS TABLE

Employment Agreements

We had employment agreements with all of our named executive officers during Fiscal 2012. The material terms of each employment agreement are discussed below. Each named executive officer is entitled to certain payments following the termination of his employment with the Company. Set forth in the section below entitled “Potential Payments on Termination or Change in Control” is information regarding potential payments on termination or change in control which may be due to each named executive officer under certain circumstances.

R. Neal Black

Mr. Black is employed by the Company pursuant to an amended and restated employment agreement that expires on January 31, 2015. The employment agreement provides for an annual base salary, annual increases of not less than the percentage increase in the Consumer Price Index (in the event the Company grants base salary increases generally for other employees of the Company) and incentive compensation. Mr. Black’s current annualized base salary is $791,275 and may increase to $807,100, contingent upon the Company authorizing base salary increases generally for other employees. Such increases, if any, are not scheduled to be effective earlier than August 4, 2013. The employment agreement provides for an annual incentive opportunity of up to 400% of base salary based upon the achievement of annual performance goals. If such incentive compensation is earned, not less than 150% of base salary is payable in cash and the balance, if any, may be paid in equity. The earned equity incentive compensation, if any, equal to the first 100% of base salary will vest on the later to occur of (a) the first anniversary of the equity grant date or (b) the date on which the Compensation Committee determines the degree to which the performance goals have been met. One-half of any additional earned equity bonus will vest on each of the second and third anniversaries of the grant date. The employment agreement also provides for benefits, perquisites, severance and an agreement not to compete with the Company, each of which is described in this Proxy Statement. Mr. Black was elected to the Board in December 2008 concurrently with his appointment as our Chief Executive Officer. Mr. Black’s employment agreement provides that he will serve without additional compensation as a director of the Company and, if he should so desire, any of its subsidiaries. Mr. Black has agreed to resign any and all such directorships concurrently with the expiration or other termination of his employment under the employment agreement.

David E. Ullman, Robert B. Hensley, Gary M. Merry and James W. Thorne

Each of the Executive Vice Presidents is employed pursuant to an employment agreement that expires on January 31, 2015. Each of these employment agreements provides for an annual base salary and an annual non-equity incentive opportunity of up to 65% of base salary based upon the achievement of annual performance goals. Base salary increases and potential equity incentive compensation are in the discretion of the Compensation Committee. Although the base salary levels of the Executive Vice Presidents have historically been adjusted each year, no adjustments were made for Fiscal 2013 or Fiscal 2012. Each of these employment agreements also provides for benefits, perquisites, severance and the executive officer’s agreement not to compete with the Company, each of which is described in this Proxy Statement.

The Compensation Discussion and Analysis section above includes a detailed description of our non-equity incentive compensation program and our equity incentive program.

Awards under our Non-Equity Incentive Compensation Program and our Equity Incentive Program

The Compensation Discussion and Analysis section above includes a detailed description of our non-equity incentive compensation program and our equity incentive program, as well as awards granted thereunder in 2012. Any dividends or other distributions paid to holders of record of the Company’s stock will accrue on the Performance RSUs awarded to the named executive officers. These dividends or other distributions will accrue in an amount equal to the product of (i) the amount of such dividend or distribution paid with respect to one share of the Company’s stock and (ii) the number of Performance RSUs granted, divided by the fair market value of one share of stock on the applicable dividend or distribution payment date for the dividend or other distribution. All accrued amounts will be credited to the named executive officers in the form of additional restricted stock units on such date. These so-called “dividend equivalents” will not be paid to the named executive officers until settlement of their Performance RSUs in stock of the Company.

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OUTSTANDING EQUITY AWARDS AT FISCAL 2012 YEAR-END

The following table reflects option awards and stock awards outstanding as of February 2, 2013.

	Option Awards										Stock Awards
Name (a)	Number of Securities Underlying Unexercised Options (#) Exercisable (b)		Number of Securities Underlying Unexercised Options (#) Unexercisable (c)		Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) (d)		Option Exercise  Price ($) (e)		Option Expiration Date (f)		Number of  Shares or Units of Stock that have not Vested(1) (#) (g)		Market Value of Shares or Units of Stock that have not Vested ($) (h)		Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights that have not Vested(2) (#) (i)		Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights that have not Vested ($) (j)
R. Neal Black		—		—		—		—		—		38,574		1,578,834		3,279		134,209
David E. Ullman		—		—		—		—		—		6,853		280,493		917		37,533
Robert B. Hensley		—		—		—		—		—		6,853		280,493		917		37,533
Gary M. Merry		—		—		—		—		—		6,853		280,493		917		37,533
James W. Thorne		—		—		—		—		—		6,853		280,493		917		37,533

(1) Column (g) represents the number of Performance RSUs granted to the named executive officers under the 2010 Equity Incentive Program and the 2011 Equity Incentive Program. Based on the satisfaction of the relevant performance goals, these Performance RSUs have been earned. They have not, however, vested because the relevant time-based vesting periods have not yet lapsed. Subject to the terms of their respective Performance RSU Award Agreements, the Performance RSUs are scheduled to vest as follows:

2010 Grants
	6/17/2013	Total
R. Neal Black	14,475	14,475
David E. Ullman	3,775	3,775
Robert B. Hensley	3,775	3,775
Gary M. Merry	3,775	3,775
James W. Thorne	3,775	3,775

2011 Grants
	3/29/2013	3/29/2014	Total
R. Neal Black	12,050	12,049	24,099
David E. Ullman	—	3,078	3,078
Robert B. Hensley	—	3,078	3,078
Gary M. Merry	—	3,078	3,078
James W. Thorne	—	3,078	3,078

(2) Column (i) represents the number of Performance RSUs issuable at the lowest net income level at which any Performance RSUs could be earned by the named executive officers under the 2012 Equity Incentive Program. As the Company’s Fiscal 2012 net income was below the lowest level of net income for the 2012 Equity Incentive Program, no awards were earned by any of the named executive officers under such program.

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FISCAL 2012 OPTION EXERCISES AND STOCK VESTED

The following table provides information regarding option awards exercised by the named executive officers and stock awards that vested during Fiscal 2012.

	Option Awards		Stock Awards
Name (a)	Number  of Shares Acquired  on Exercise (#) (b)	Value Realized on Exercise ($) (c)	Number  of Shares Acquired  on Vesting (#) (d)	Value Realized  on Vesting ($) (e)
R. Neal Black	45,558	1,738,279	30,718	1,416,099
David E. Ullman	—	—	—	—
Robert B. Hensley	27,349	945,600	—	—
Gary M. Merry	—	—	—	—
James W. Thorne	17,577	641,050	—	—

Notes to Fiscal 2012 Option Exercises and Stock Vested Table

Value Realized on Exercise of Option Awards

At the time of exercise of his options, Mr. Black did not sell any of the acquired common stock. The dollar amount realized upon exercise has been determined as the difference between the market price of the shares at exercise (based on the closing price on the date of exercise) and the exercise price of the options.

At the time of exercise of his options, Mr. Hensley did not sell any of the acquired common stock. The dollar amount realized upon exercise has been determined as the difference between the market price of the shares at exercise (based on the closing price on the date of exercise) and the exercise price of the options.

Of the 17,577 shares of common stock acquired by Mr. Thorne upon exercise of his options, Mr. Thorne sold 12,944 shares and held 4,633 shares. As to the 12,944 shares which were sold, the dollar amount realized upon exercise has been determined as the difference between the market price of the shares sold (based on the actual sale prices per share obtained by Mr. Thorne) and the exercise price of the options. As to the 4,633 shares that Mr. Thorne held, the dollar amount realized upon exercise has been determined as the difference between the market price of the shares at exercise (based on the closing price on the date of exercise) and the exercise price of the options.

Value Realized on Vesting of Stock Awards

The value realized on the vesting of Mr. Black’s stock award has been determined as the market price of the shares at vesting (based on the closing price on the date of vesting) multiplied by the number of shares acquired on vesting.

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PENSION BENEFITS

The Pension Benefits table is omitted as the Company does not offer pension benefits to the named executive officers.

FISCAL 2012 NONQUALIFIED DEFERRED COMPENSATION

The following table shows the nonqualified deferred compensation benefits for each named executive officer during Fiscal 2012 under the Fidelity Deferred Compensation Plan.

Name (a)	Executive Contributions in Last FY ($) (b)	Registrant Contributions in Last FY ($) (c)	Aggregate Earnings/(Losses) in Last FY ($) (d)	Aggregate Withdrawals/ Distributions ($) (e)	Aggregate Balance at Last FYE ($) (f)
R. Neal Black	—	—	97,232	—	825,515
David E. Ullman	61,055	—	49,325	—	486,045
Robert B. Hensley	32,169	—	43,378	—	507,795
Gary M. Merry	—	—	—	—	—
James W. Thorne	—	—	—	—	—

The amount reported in column (b) above for Mr. Ullman is included in the amount reported for Mr. Ullman in the Summary Compensation Table as “Non-Equity Incentive Plan Compensation” (column (g)) for Fiscal 2011. The amount reported in column (b) above for Mr. Hensley is included in the amount reported for Mr. Hensley in the Summary Compensation Table as “Non-Equity Incentive Plan Compensation” (column (g)) for Fiscal 2011. Such non-equity incentive compensation was earned by Messrs. Ullman and Hensley for performance in Fiscal 2011 and is therefore reported in the Summary Compensation Table as Fiscal 2011 compensation. However, such compensation was payable to, and was therefore deferred by, Messrs. Ullman and Hensley in Fiscal 2012.

The amounts reported in column (d) above represent the aggregate earnings (which include interest, dividends, dividend equivalents and realized and unrealized gains and losses) on each named executive officer’s investment in the applicable named executive officer’s selected funds. Pursuant to SEC regulations, all earnings on nonqualified deferred compensation in excess of 120% of the applicable federal long-term rate are deemed “above market” earnings and are reported in column (h) of the Summary Compensation Table.

Included in the amounts reported in column (f) above are amounts reported for Mr. Ullman and Mr. Hensley in the Summary Compensation Table as “Salary” (column (c)), “Bonus” (column (d)) and/or “Non-Equity Incentive Plan Compensation” (column (g)). For Mr. Ullman the deferred amounts were $112,644 for Fiscal 2010, $60,450 for Fiscal 2011 and $61,055 for Fiscal 2012. For Mr. Hensley the deferred amounts were $35,875 for Fiscal 2010, $31,850 for Fiscal 2011 and $32,169 for Fiscal 2012.

The Compensation Discussion and Analysis above includes a detailed description of our deferred compensation plans, including the types of compensation permitted to be deferred, limitations on deferral and other material terms.

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POTENTIAL PAYMENTS ON TERMINATION OR CHANGE IN CONTROL

The table below contains information concerning potential payments on termination or change in control which may be due under the respective employment agreements with our named executive officers based on the assumption that the event triggering such payments had taken place on the last day of Fiscal 2012.

Name (a)	Termination without Cause by Company or for Good Reason by Executive ($) (b)		Termination by Company for Cause ($) (c)		Termination by Executive without Good Reason or as a Result of the Death or Disability of Executive ($) (d)		Expiration at the Election of Company ($) (e)		Termination within 90 Days of a Change in Control(1) ($) (f)
R. Neal Black		1,550,000		—		—		775,000		1,550,000
David E. Ullman		704,475		—		—		704,475		—
Robert B. Hensley		494,900		—		—		494,900		—
Gary M. Merry		465,000		—		—		465,000		—
James W. Thorne		440,000		—		—		440,000		—

⁽¹⁾  A change in control is not a triggering event for a payment to any of the Executive Vice Presidents under their respective employment agreements. In the event the employment agreement for one of the Executive Vice Presidents is terminated within 90 days of a change in control, the termination payment would be calculated based upon the circumstances described in the notes to columns (b), (c) or (d), as applicable.

Notes to Potential Payments on Termination or Change in Control Table

Termination without Cause by Company or for Good Reason by Executive (Column (b))

Under the terms of the respective employment agreements with our named executive officers, if the employment period is terminated by the Company without “cause” (as defined below) or by the executive for “good reason” (as defined below), the Company will be obligated to make a termination payment, in addition to paying the executive’s base salary through the date of termination. For Mr. Black, the termination payment is an agreed-upon amount payable in one lump sum on the last day of the employment period. For Messrs. Ullman, Hensley, Merry and Thorne the termination payment is based on the named executive officer’s base salary in effect as of the last day of Fiscal 2012 and is payable in equal weekly installments over the term corresponding to the amount due. Mr. Ullman is entitled to 18 months of salary. Messrs. Hensley, Merry and Thorne are each entitled to 12 months of salary. A named executive officer whose employment period is terminated by the Company without cause or by the executive for good reason will also receive any non-equity incentive compensation which may have been earned through the date of termination. The non-equity incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned. No such non-equity incentive compensation is shown in the table above because no non-equity incentive compensation was earned by our named executive officers for Fiscal 2012.

Without limiting the terms and conditions of the respective employment agreements between our named executive officers and the Company, the term “cause,” as used in the employment agreements, generally means with respect to each named executive officer: (a) the conviction of a felony involving money or other property of the Company or any other felony or offense involving moral turpitude; (b) the willful commission of an act not approved of or ratified on behalf of the Company 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 related to the business of the Company which would materially and negatively impact upon the Company; or (d) the willful and material failure to comply with the lawful orders of the Company, provided such orders are consistent with the duties, responsibilities and/or authority of his office.

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Without limiting the terms and conditions of the respective employment agreements between our named executive officers and the Company, the term “good reason,” as used in the employment agreements, generally means any material breach by the Company of any provision of the employment agreement which, if susceptible of being cured, is not cured within thirty (30) days after notice. However, the cure period applicable to any failure timely to pay (or any reduction in) compensation or benefits paid or payable to the named executive officer pursuant to the employment agreement is seven (7) days after delivery of notice thereof to the Company.

Termination by Company for Cause (Column (c))

Under the terms of the respective employment agreements between our named executive officers and the Company, if the employment period is terminated by the Company for cause, the named executive officer will be paid his base salary through the date of termination and any non-equity incentive compensation earned through the date of termination, but is not entitled to any other payments. The non-equity incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned. No such non-equity incentive compensation is shown in the table above because no non-equity incentive compensation was earned by our named executive officers for Fiscal 2012.

Termination by Executive without Good Reason or as a Result of the Death or Disability of Executive (Column (d))

Under the terms of the respective employment agreements between our named executive officers and the Company, if the employment period is terminated by the named executive officer without good reason or as a result of his death or disability, the named executive officer will be paid his base salary through the date of termination and any non-equity incentive compensation earned through the date of termination, but is not entitled to any other payments. The non-equity incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned. No such non-equity incentive compensation is shown in the table above because no non-equity incentive compensation was earned by our named executive officers for Fiscal 2012.

Expiration at the Election of Company (Column (e))

Under the terms of the respective employment agreements between our named executive officers and the Company, in the event the Company elects not to renew the employment agreement or to otherwise extend employment on the then current terms for an additional year, the named executive officer will be entitled to severance payments. For Mr. Black, the termination payment is an agreed-upon amount payable in one lump sum on the last day of the employment period. For Messrs. Ullman, Hensley, Merry and Thorne the termination payment is based on the named executive officer’s base salary in effect as of the last day of Fiscal 2012 and is payable in equal weekly installments over the term corresponding to the amount due. Mr. Ullman is entitled to 18 months of salary. Messrs. Hensley, Merry and Thorne are each entitled to 12 months of salary. A named executive officer whose employment agreement is not being renewed by the Company will also receive any non-equity incentive compensation which may have been earned for the year ending on the stated expiration date of the employment period. The non-equity incentive compensation is payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned. No such non-equity incentive compensation is shown in the table above because no non-equity incentive compensation was earned by our named executive officers for Fiscal 2012.

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Termination within 90 Days of a Change in Control (Column (f))

Mr. Black may terminate his employment agreement with the Company at any time within 90 days following a “change in control” (as defined below) of the Company. In the event of such termination, or if the Company terminates the employment agreement for cause within 90 days following a change in control, the Company will make a payment to Mr. Black as set forth in the table above. The termination payment is payable on the last day of the employment period. Upon termination for a change in control, Mr. Black is also entitled to any non-equity incentive compensation which may be payable as and when such compensation would have been paid had the employment period not ended, i.e., promptly following the determination thereof, but in no event later than 90 days following the end of the year for which such compensation is earned. No such non-equity incentive compensation is shown in the table above because no non-equity incentive compensation was earned by Mr. Black for Fiscal 2012. In the event the employment agreement for one of the executive vice presidents is terminated within 90 days of a change in control, the termination payment would be calculated based upon the circumstances described in the notes to columns (b), (c) or (d), as applicable. A change in control does not affect the calculation of these termination payments.

Without limiting the terms and conditions of Mr. Black’s employment agreement with the Company, the term “change of control,” as used in the employment agreement, generally means (a) the acquisition by any “person” (as defined in the Exchange Act) of beneficial ownership of 51% or more of the stock of the Company; (b) the acquisition by any such “person” of beneficial ownership of 30% or more of the stock of the Company and a change in the majority of the Board; or (c) the merger, consolidation or liquidation of the Company or the sale or disposition of all or substantially all of the assets of the Company.

Additional Notes Regarding Potential Post-Employment Payments and Obligations

Non-Equity Incentive Compensation

The employment agreements use the word “bonus” or “cash bonus” to refer to payments which are designated as “non-equity incentive compensation” under SEC regulations and in this Proxy Statement. The employment agreements generally provide that in the event the employment period ends for any reason whatsoever on a day prior to payment of any bonus the named executive officer may have earned for the previous fiscal year, the Company will pay such bonus to the named executive officer as and when such bonus would otherwise have been paid had the employment period not ended. The employment agreements also generally provide that when and if bonuses are generally paid to employees of the Company for the fiscal year in which the termination occurs, the Company will pay to the named executive officer a pro-rated bonus based on the number of days the named executive officer was employed by the Company during such fiscal year. For the purpose of determining eligibility for payment of a pro-rata bonus, it is assumed that all conditions to payment of the bonus which were based upon performance by the named executive officer (e.g., a job performance rating of “Effective” or better) were satisfied.

Non-compete Covenants

Following the termination of an employment agreement, the applicable named executive officer is generally subject to non-compete covenants. The period of time during which such covenants are in effect varies depending upon the circumstances of termination. Generally, the non-competition term is six months. If the named executive officer terminates his employment without good reason, the term is 12 months. If post-termination payments are being made for longer than the otherwise applicable period, the non-compete covenants will be effective while such payments are being made. If the Company terminates Mr. Black’s employment agreement for cause, the non-competition term is six months. If the Company elects not to renew Mr. Black’s employment agreement, the non-competition term is one year. If the Company terminates Mr. Black’s employment agreement without cause or Mr. Black terminates his employment agreement for good reason or within 90 days following a change in control, the non-competition term is two years.

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OTHER MATTERS

TRANSACTIONS WITH RELATED PERSONS

On September 9, 2008, the Company and Mr. Wildrick, Chairman of the Board, entered into a Consulting Agreement (the “Consulting Agreement”) pursuant to which the Company retained Mr. Wildrick to consult on matters of strategic planning and initiatives for a consulting period from February 1, 2009 through January 31, 2012 at a fee of $825,000 per year. Pursuant to that certain First Amendment to Consulting Agreement, dated November 30, 2010, the consulting period was extended through January 26, 2014. Pursuant to that certain Second Amendment to Consulting Agreement, dated April 2, 2013, the consulting period was extended through January 30, 2016. Except for the extensions of the consulting period, neither of the amendments changed any of the terms or conditions of the Consulting Agreement. In accordance with the Company’s policy regarding related party transactions described below, the First Amendment was approved by the independent members of the Board of Directors and the Second Amendment was approved by the Audit Committee.

The Consulting Agreement includes an agreement by Mr. Wildrick not to compete with the Company or to solicit its customers or employees during its term. The Consulting Agreement also provides for the acceleration of payments due thereunder to Mr. Wildrick in connection with certain termination events. If Mr. Wildrick’s services are terminated by the Company without “cause” (as defined below), the Company will be obligated to pay Mr. Wildrick the balance of amounts due under the Consulting Agreement for its remaining term as and when such payments would otherwise be due. If Mr. Wildrick’s services are terminated by the Company with “cause,” the Company will be obligated to pay Mr. Wildrick the unpaid, prorated amount of the consulting fees payable through the date of termination. For purposes of the Consulting Agreement, “cause” means: (a) the conviction of Mr. Wildrick of a felony involving money or other property of the Company or any other felony or offense involving moral turpitude; or (b) the willful commission of any act of fraud or misrepresentation related to the business of the Company which would materially and negatively impact the Company. If within ninety (90) days following a change of control of the Company (defined consistently with Mr. Black’s employment agreement), Mr. Wildrick exercises his right to terminate the Consulting Agreement or the Company terminates the Consulting Agreement based on a default thereunder by Mr. Wildrick, the Company will pay Mr. Wildrick a lump sum equal to the balance of amounts due under the Consulting Agreement for its remaining term.

Policies and Procedures for Review and Approval of Transactions with Related Persons

The Company’s policy regarding related party transactions is set forth in the Audit Committee’s charter and in the Company’s Corporate Governance Standards (both of which are available on our website at www.josbank.com). As used herein and therein, “related party transactions” are transactions that are required to be disclosed pursuant to Item 404(a) of Regulation S-K of the Securities and Exchange Commission. Item 404(a) generally requires disclosure of transactions in which the Company is a participant, the amount involved exceeds $120,000 and in which any related person (such as an executive officer, director, director nominee, or 5% stockholder of the Company or any family member of the foregoing) has a direct or indirect material interest. Except as otherwise set forth below, the Audit Committee shall review each related party transaction to determine whether it is fair and reasonable to the Company. Notwithstanding the foregoing, in lieu of the Committee so doing, the determination of whether a related party transaction is fair and reasonable to the Company may be made by the members of the Board who are independent directors. The Company will enter into or ratify a related party transaction only if the Committee or the independent directors, as the case may be, determines that it is fair and reasonable to the Company. In the event a related party transaction is entered into without prior approval as set forth in the Company’s related party transaction policy and, after review by the Committee or the independent directors, as the case may be, such transaction is not determined to be fair and reasonable to the Company, the Company will make all reasonable efforts to cancel or annul such transaction.

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth information known to us with respect to the beneficial ownership of our common stock as of May 8, 2013 by (a) each named executive officer; (b) each director; (c) all directors and executive officers as a group; and (d) each person (or group) that beneficially owns more than 5% of our common stock. Unless otherwise indicated, each of the stockholders can be reached at our principal executive offices located at 500 Hanover Pike, Hampstead, Maryland 21074.

	Shares Beneficially Owned*
	Number	Percent
R. Neal Black(1)	146,142	0.52%
James H. Ferstl(2)	10,750	**
Andrew A. Giordano(3)	43,210	**
Robert B. Hensley(4)	40,380	0.14%
William E. Herron(5)	21,690	**
Gary M. Merry(6)	18,775	0.07%
Sidney H. Ritman(7)	26,469	**
James W. Thorne(8)	11,922	0.04%
David E. Ullman(9)	53,775	0.19%
Robert N. Wildrick(10)	53,952	**
FMR LLC(11)	4,191,700	14.99%
Royce & Associates, LLC(12)	2,997,137	10.72%
BlackRock, Inc.(13)	2,187,533	7.82%
The Vanguard Group, Inc.(14)	1,665,161	5.95%
TimeSquare Capital Management, LLC(15)	1,545,849	5.53%
All directors and executive officers as a group (10 persons)(16)	427,065	1.52%

* Unless otherwise indicated by footnote, the shares beneficially owned consist exclusively of shares of common stock. If indicated by footnote, the shares beneficially owned consist of shares of common stock and one or both of the following: (a) shares of common stock deliverable by the Company within 60 days of May 8, 2013 as a result of the vesting of restricted stock units granted under the 2010 Equity Compensation Plan; and (b) stock units held under the Company’s 2010 Deferred Compensation Plan. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting and/or investment power with respect to shares. Unless otherwise indicated, the persons named in the table have sole voting and sole investment control with respect to all shares beneficially owned. Percentage ownership is calculated based on 27,969,969 shares of our common stock outstanding as of May 8, 2013, plus the number of stock units held for the account of the applicable individual(s) under the Company’s 2010 Deferred Compensation Plan and the number of restricted stock units which will vest in the applicable individual(s) within 60 days of May 8, 2013. To our knowledge and based on reviews of Schedules 13D and Schedules 13G filed with the SEC, except as disclosed in this table, no other stockholder beneficially owned more than 5% of our outstanding shares of common stock as of May 8, 2013.

** Represents less than 1%.

(1) Mr. Black’s shares consist of 131,667 shares of common stock and 14,475 shares of common stock deliverable by the Company within 60 days of May 8, 2013 as a result of the vesting of Performance RSUs granted to Mr. Black under the 2010 Equity Compensation Plan.

(2) Mr. Ferstl’s shares consist of 2,500 shares of common stock, 6,000 stock units held for the account of Mr. Ferstl under the Company’s 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of May 8, 2013.

(3) Mr. Giordano’s shares consist of 37,210 shares of common stock, 3,750 stock units held for the account of Mr. Giordano under the Company’s 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of May 8, 2013.

(4) Mr. Hensley’s shares consist of 36,605 shares of common stock and 3,775 restricted stock units which will vest within 60 days of May 8, 2013.

(5) Mr. Herron’s shares consist of 13,440 shares of common stock, 6,000 stock units held for the account of Mr. Herron under the Company’s 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of May 8, 2013. Receipt of the shares of common stock underlying the restricted stock units has been deferred until Mr. Herron’s separation from service as a member of the Board.

(6) Mr. Merry’s shares consist of 15,000 shares of common stock and 3,775 restricted stock units which will vest within 60 days of May 8, 2013.

(7) Mr. Ritman’s shares consist of 12,049 shares of common stock, 12,170 stock units held for the account of Mr. Ritman under the Company’s 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of May 8, 2013. Receipt of the shares of common stock underlying the restricted stock units has been deferred until Mr. Ritman’s separation from service as a member of the Board.

(8) Mr. Thorne’s shares consist of 8,147 shares of common stock and 3,775 restricted stock units which will vest within 60 days of May 8, 2013.

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(9) Mr. Ullman’s shares consist of 50,000 shares of common stock and 3,775 restricted stock units which will vest within 60 days of May 8, 2013.

(10) Mr. Wildrick’s shares consist of 45,702 shares of common stock, 6,000 stock units held for the account of Mr. Wildrick under the Company’s 2010 Deferred Compensation Plan and 2,250 restricted stock units which will vest within 60 days of May 8, 2013. Receipt of the shares of common stock underlying the restricted stock units has been deferred until Mr. Wildrick’s separation from service as a member of the Board.

(11) The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 7) filed with the SEC on February14, 2013. According to the aforementioned Schedule 13G, the reporting persons reported sole voting power with respect to 466,009 shares, sole dispositive power with respect to 4,191,700 shares, and no shared voting or dispositive power. The address of reporting persons is 82 Devonshire Street, Boston MA 02109.

(12) The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 6) filed with the SEC on January 14, 2013. Royce & Associates, LLC (“Royce”) reported sole voting and dispositive power with respect to 2,997,137 shares and no shared voting or dispositive power. The address of Royce is 745 Fifth Avenue, New York, NY 10151.

(13) The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 3) filed with the SEC on February 12, 2013. BlackRock, Inc. (“BlackRock”) reported sole voting power with respect to 2,187,553 shares, sole dispositive power with respect to 2,187,553 shares, and no shared voting or dispositive power. The address of BlackRock is 40 East 52^nd Street, New York, NY 10022.

(14) The information in the table above and in this footnote is based on a Schedule 13G (Amendment No. 1) filed with the SEC on February 11, 2013. The Vanguard Group, Inc. (“Vanguard”) reported sole voting power with respect to 40,185 shares, no shared voting power, sole dispositive power with respect to 1,626,788 shares, and shared dispositive power with respect to 38,373 shares. The address of Vanguard is 100 Vanguard Blvd., Malvern, PA 19355.

(15) The information in the table above and in this footnote is based on a Schedule 13G filed with the SEC on February 11, 2013. TimesSquare Capital Management, LLC (“TimesSquare”) reported sole voting power with respect to 1,305,749 shares, no shared voting power, sole dispositive power with respect to 1,545,849 shares, and no shared dispositive power. The address of TimesSquare is 1177 Avenue of the Americas, 39^th Floor, New York, NY 10036.

(16) Consists of: R. Neal Black, James H. Ferstl, Andrew A. Giordano, Robert B. Hensley, William E. Herron, Gary M. Merry, Sidney H. Ritman, James W. Thorne, David E. Ullman and Robert N. Wildrick.

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