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
(Amendment No. 16)
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
Notice 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.
This Amendment No. 16 to Schedule 14D-9 amends and supplements the Schedule 14D-9, originally filed by Jos. A. Bank Clothiers, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission on January 17, 2014 (as amended, the “Statement”). Capitalized terms used but not defined herein have the meanings ascribed to them in the Statement.
Except as otherwise noted below, no changes are being made to the Statement.
Item 8. Additional Information
Item 8 is hereby amended and supplemented as set forth below.
The section titled “Litigation” is hereby amended to delete the first sentence of the fourth paragraph and add the following language to the end of the fourth paragraph thereof:
“On March 13, 2013, Eminence and the Company jointly filed a stipulation of dismissal and the action was dismissed with prejudice.”
The section titled “Litigation” is hereby amended to delete the fifth paragraph thereof and add the following language after the fourth paragraph thereof:
“The foregoing description is qualified in its entirety by reference to the initial complaint filed by Eminence, filed as Exhibit (a)(6) herewith, the Amended Eminence Complaint, filed as Exhibit (a)(9) herewith, the Second Amended Eminence Complaint, filed as Exhibit (a)(14) herewith and the stipulation of dismissal filed as Exhibit (a)(20) herewith.”
The section titled “Litigation” is hereby amended to delete the eleventh paragraph and add the following language after the tenth paragraph thereof:
“On March 13, 2013, the Court granted MW’s unopposed motion for order of dismissal and dismissed the action with prejudice.”
The section titled “Litigation” is hereby amended to delete the twelfth paragraph thereof and add the following language after the eleventh paragraph thereof:
“The foregoing description is qualified in its entirety by reference to the initial complaint filed by MW, filed as Exhibit (a)(16) herewith and the motion for an order for dismissal filed as Exhibit (a)(21) herewith.”
Item 9. Exhibits
Item 9 is hereby amended and restated in its entirety as follows:
|
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. |
| (a)(7)* | Complaint in State-Boston Retirement System v. Wildrick, et al., filed by Boston in the Court of Chancery of the State of Delaware on January 29, 2014. |
| (a)(8) * | Press release issued by the Company on February 2, 2014. |
| 2 |
| (a)(9) * | Complaint in Eminence Capital, LLC v. Robert N. Wildrick, et al., filed by Eminence in the Court of Chancery of the State of Delaware on February 4, 2014. |
| (a)(10) | Press release regarding the Everest Transaction issued by the Company on February 14, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014). |
| (a)(11) | Investor Presentation, dated February 14, 2014 (incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K, dated February 14, 2014). |
| (a)(12) | Press release regarding Company earnings update issued by the Company on February 14, 2014 (incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K, dated February 14, 2014). |
| (a)(13) | Press Release, dated February 19, 2014 (incorporated by reference to Exhibit (a)(1)(F) to the Schedule TO filed by the Company on February 19, 2014). |
| (a)(14)* | Complaint in Eminence Capital, LLC v. Robert N. Wildrick, et al., filed by Eminence in the Court of Chancery of the State of Delaware on February 21, 2014. |
| (a)(15) | Press release issued by the Company on February 24, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, dated February 24, 2014). |
| (a)(16)* | Complaint in The Men’s Wearhouse Inc. v. Robert N. Wildrick et al., filed by The Men’s Wearhouse in the Court of Chancery of the State of Delaware on February 24, 2014. |
| (a)(17)* | Press Release issued by the Company on February 27, 2014. |
| (a)(18)* | Complaint in State-Boston Retirement System v. Wildrick, et al., filed by Boston in the Court of Chancery of the State of Delaware on March 4, 2014. |
| (a)(19) | Joint press release issued by the Company and The Men’s Wearhouse, Inc. on March 11, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed March 11, 2014). |
| (a)(20) | Stipulation of Dismissal in Eminence Capital, LLC v. Robert N. Wildrick, et al., filed by Eminence in the Court of Chancery of the State of Delaware on March 13, 2014. |
| (a)(21) | Motion for Order of Dismissal in The Men’s Wearhouse Inc. v. Robert N. Wildrick et al., filed by The Men’s Wearhouse in the Court of Chancery of the State of Delaware on March 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). |
| 3 |
| (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). |
| (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). |
| 4 |
| (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). |
| (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). |
| (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). |
| 5 |
| (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). |
| (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). |
| 6 |
| (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 No. 1 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). |
| (e)(67) | Amendment No. 2 to the 2007 Rights Agreement, dated February 13, 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 February 14, 2014). |
| (e)(68) | Membership Interest Purchase Agreement, dated as of February 13, 2014, by and among Everest Topco LLC, Everest Holdings LLC and the Company (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014). |
| (e)(69) | Standstill and Stockholder Agreement, dated as of February 13, 2014, by and between the Company and Everest Topco LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated February 14, 2014). |
| (e)(70) | Amendment No. 3 to Rights Agreement, dated March 11, 2014, by and 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 March 11, 2014). |
| (e)(71) | Agreement and Plan of Merger, dated as of March 11, 2014, by and among The Men’s Wearhouse, Inc., Java Corp. and the Company (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, dated March 11, 2014). |
* Previously Filed
| 7 |
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. Frazer | |
| Name: Title: |
Charles D. Frazer Senior Vice President – General Counsel |
|
Dated: March 13, 2014
| 8 |
Exhibit (a)(20)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
| EMINENCE CAPITAL, LLC, Directly and | ) | |
| Derivatively on Behalf of Jos. A. Bank Clothiers, | ) | |
| Inc., | ) | |
| ) | ||
| Plaintiff, | ) | |
| ) C.A. No. 9241-VCL | ||
| v. | ) | |
| ) | ||
| ROBERT N. WILDRICK, ANDREW A. | ) | |
| GIORDANO, BYRON L. BERGREN, R. NEAL | ) | |
| BLACK, JAMES H. FERSTL, WILLIAM E. | ) | |
| HERRON, SIDNEY H. RITMAN, | ) | |
| Defendants, | ) | |
| ) | ||
| and | ) | |
| ) | ||
| JOS. A. BANK CLOTHIERS, INC., | ) | |
| Nominal Defendant. | ) |
STIPULATION OF DISMISSAL
IT IS HEREBY STIPULATED AND AGREED by and among the parties, through their undersigned counsel, pursuant to Court of Chancery Rule 41(a)(1)(ii), that the above-captioned action is dismissed with prejudice. Each party shall bear its own costs, fees and expenses.
| /s/ Raymond J. DiCamillo | |
| OF COUNSEL: | Raymond J. DiCamillo (#3188) |
| Brian M. Lutz | Susan M. Hannigan (#5342) |
| Goutam U. Jois | Rachel E. Horn (#5906) |
| Gibson, Dunn & Crutcher LLP | Richards, Layton & Finger, P.A. |
| 200 Park Avenue | 920 N. King Street |
| New York, New York 10166 | Wilmington, Delaware 19801 |
| (212) 351-4000 | (302) 651-7700 |
| Attorneys for Plaintiff Eminence Capital, LLC | |
| /s/ Edward P. Welch | |
| Edward P. Welch (#671) | |
| OF COUNSEL: | Edward B. Micheletti (#3794) |
| Jenness E. Parker (#4659) | |
| William P. Frank | Sarah R. Martin (#5230) |
| Robert E. Zimet | Skadden, Arps, Slate, Meagher & Flom LLP |
| Skadden, Arps, Slate, Meagher & Flom LLP | One Rodney Square |
| 4 Times Square | P.O. Box 636 |
| New York, New York 10036 | Wilmington, Delaware 19899-0636 |
| (212) 735-3000 | (302) 651-3000 |
| Attorneys for Defendants Robert N. Wildrick, Andrew A. Giordano, Byron L. Bergren, R. Neal Black, James H. Ferstl, William E. Herron, Sidney H. Ritman, and Jos. A. Bank | |
| March 13, 2014 |
| 2 |
Exhibit (a)(21)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
| THE MEN’S WEARHOUSE, INC., | ) | |
| ) | ||
| Plaintiff, | ) | |
| ) | ||
| v. | ) | |
| ) | ||
| ROBERT N. WILDRICK, ANDREW A. | ) | |
| GIORDANO, BYRON L. BERGREN, R. | ) | C.A. No. 9383-VCL |
| NEAL BLACK, JAMES H. FERSTL, | ) | |
| WILLIAM E. HERRON, SIDNEY H. | ) | |
| RITMAN, EVEREST HOLDINGS, LLC, | ) | |
| EVEREST TOPCO LLC, GOLDEN GATE | ) | |
| PRIVATE EQUITY, INC., AND JOS. A. | ) | |
| BANK CLOTHIERS, INC., | ) | |
| ) | ||
| Defendants. | ) |
THE MEN’S WEARHOUSE’S UNOPPOSED MOTION FOR
ORDER OF DISMISSAL WITH PREJUDICE
Pursuant to the Agreement of Plan and Plan of Merger by and among the The Men’s Wearhouse, Inc., Java Corp. and Jos. A. Bank Clothiers, Inc. dated as of March 11, 2014, plaintiff The Men’s Wearhouse, Inc. hereby moves pursuant to Chancery Court Rule 41(a) for the entry of an Order, in the form attached hereto, dismissing this action with prejudice, with each party to bear its own costs. Defendants do not oppose this Motion, and have approved the attached form of Order.
| MORRIS, NICHOLS, ARSHT & TUNNELL LLP | |
| /s/ Kenneth J. Nachbar | |
| Kenneth J. Nachbar (#2067) | |
| John P. DiTomo (#4850) | |
| D. McKinley Measley (#5108) | |
| Daniel C. Homer (#5905) | |
| 1201 N. Market Street | |
| P.O. Box 1347 | |
| Wilmington, DE 19899-1347 | |
| (302) 658-9200 | |
| Attorneys for Plaintiff | |
| The Men’s Wearhouse, Inc. |
OF COUNSEL:
WILLKIE FARR & GALLAGHER LLP
Joseph T. Baio
Tariq Mundiya
Deirdre N. Hykal
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
March 13, 2014
8082611
| 2 |
CERTIFICATE OF SERVICE
I hereby certify that on March 13, 2014, a copy of the foregoing document was served, via LexisNexis File & Serve, on the following attorneys of record:
| Edward P. Welch | Collins J. Seitz, Jr. | |
| Edward B. Micheletti | Bradley R. Aronstam | |
| Sarah R. Martin | S. Michael Sirkin | |
| Lisa D. Chan | Nicholas D. Mozal | |
| Jenness E. Parker | Seitz Ross Aronstam & Moritz LLP | |
| Skadden, Arps, Slate, Meagher & Flom LLP | 100 S. West Street, Suite 400 | |
| One Rodney Square | Wilmington, DE 19801 | |
| P.O. Box 636 | ||
| Wilmington, DE 19899 | ||
| Thad J. Bracegirdle | Kevin G. Abrams | |
| Wilks, Lukoff & Bracegirdle, LLC | Adam K. Schulman | |
| 1300 North Grant Avenue, Suite 100 | Abrams & Bayliss LLP | |
| Wilmington, DE 19806 | 20 Montchanin Road, Suite 200 | |
| Wilmington, DE 19807 |
| /s/ Kenneth J. Nachbar | |
| Kenneth J. Nachbar (#2067) |