Registration Statement No.33_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Jos. A. Bank Clothiers, Inc.
(Exact name of issuer as specified in its charter)
Delaware 36-3189198
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
500 Hanover Pike, Hampstead, Maryland 21074
(Address of Principal Executive Offices) (Zip Code)
Jos. A. Bank Clothiers, Inc. Incentive Plan
(Full title of the plan)
Charles D. Frazer, Vice President
and General Counsel
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
(Name and address of agent for service)
(410) 239-2700
(Telephone number, including area code, of agent for service)
With a copy to:
Ralph J. Sutcliffe, Esq.
Kronish, Lieb, Weiner & Hellman LLP
1114 Avenue of the Americas
New York, NY 10036-7798
CALCULATION OF REGISTRATION FEE
Title of Amount
securities Amount Offering Aggregate of
to be to be price offering registration
registered registered per share(1) price fee
Common Stock,
$.01 par 954,486 $4.03125 $3,847,772 $1,326.82
value
Page 1 of 12
Exhibit Index Located on Page 9
(1) Average of the bid and asked prices as reported on the Nasdaq National
Market on January 23, 1997, pursuant to Rule 457(c).
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been filed by Jos. A. Bank
Clothiers, Inc. (the "Company" or "registrant") with the Securities and Exchange
Commission (the "SEC"), are incorporated by reference in this Registration
Statement as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended February 3, 1996;
(b) The Company's quarterly reports on Form 10-Q for the
periods ended May 3, 1996, August 3, 1996 and November 2, 1996.
(c) The description of the Company's capital stock contained
in the Company's Registration Statement on Form 8-A (No. 0-23874) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), declared
effective May 3, 1994.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel
Ralph J. Sutcliffe, a partner of Kronish, Lieb, Weiner &
Hellman LLP and counsel to the registrant, beneficially owns 15,500 shares of
the Company's common stock.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides
that the Company will, to the fullest extent permitted by the General
Corporation Law of the State of Delaware (the "GCL"), as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto. The
Company's By-laws, as amended, contain a similar provision requiring
indemnification of the Company's directors and officers to the fullest extent
authorized by the GCL. The GCL permits a corporation to indemnify its directors
and officers (among others) against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceeding brought (or threatened
to be brought) by third parties, if such directors or officers acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made for expenses (including attorneys' fees) actually
and reasonably incurred by directors and officers in connection with
2
<PAGE>
the defense or settlement of such action if they had acted in good faith and in
a manner they reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
liable to the Company unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses. The GCL further provides that, to the extent any
director or officer has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in this paragraph, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith. In addition, the Company's Certificate of Incorporation
contains a provision limiting the personal liability of the Company's directors
for monetary damages for certain breaches of their fiduciary duty. The Company
has indemnification insurance under which directors and officers are insured
against certain liability that may occur in their capacity as such.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
3
<PAGE>
Item 8. Exhibits.
4.1 Form of Common Stock certificate, previously filed
with the SEC as an exhibit to the Company's
Registration Statement on Form 8-A (No. 0-23874)
under the Exchange Act, declared effective May 3,
1994, and incorporated herein by reference.
5.1 Opinion of counsel as to legality of the shares of
common stock covered by this Registration
Statement.
23.1 Consent of independent accountants
23.2 Consent of counsel (included within Exhibit 5.1)
4
<PAGE>
Item 9. Undertakings.
A. Post-Effective Amendments
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that subparagraphs (i) and (ii) above will not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed with or furnished to the
SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Subsequent Documents Incorporated by Reference
The registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement will be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5
<PAGE>
C. Claims for Indemnification
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hampstead, State of Maryland, on the 24th day of
January, 1997.
Jos. A. Bank Clothiers, Inc.
(Registrant)
By: /s/ TIMOTHY F. FINLEY
_______________________________
Timothy F. Finley
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in all
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C>
/s/ TIMOTHY F. FINLEY
____________________ Chairman of the Board, January 21, 1997
Timothy F. Finley Chief Executive Officer
and Director
/s/ FRANK TWORECKE
____________________ President January 23, 1997
Frank Tworecke
/s/ DAVID E. ULLMAN
____________________ Executive Vice President January 23, 1997
David E. Ullman and Chief Financial
Officer
/s/ THOMAS E. POLLEY
____________________ Vice President, January 20, 1997
Thomas E. Polley Controller and Treasurer
/s/ DAVID A. PREISER
____________________ Director January 20, 1997
David A. Preiser
/s/ PAUL L. SCHNEIDER
____________________ Director January 21, 1997
Paul L. Schneider
7
<PAGE>
/s/ ROBERT N. WILDRICK
____________________ Director January 20, 1997
Robert N. Wildrick
/s/ ROBERT B. BANK
____________________ Director January 20, 1997
Robert B. Bank
/s/ PETER V. HANDAL
____________________ Director January 20, 1997
Peter V. Handal
/s/ GARY S. GLADSTEIN
____________________ Director January 20, 1997
Gary S. Gladstein
/s/ HENRY C. SCHWARTZ
____________________ Director and Vice January 21, 1997
Henry C. Schwartz Chairman
/s/ DONALD V. SMITH
____________________ Director January 20, 1997
Donald V. Smith
/s/ ANDREW A. GIORDANO
____________________ Director January 23, 1997
Andrew A. Giordano
</TABLE>
8
<PAGE>
EXHIBIT INDEX
Exhibit Page
4.1 Form of Common Stock certificate, previously filed with the
SEC as an exhibit to the Company's Registration Statement
on Form 8-A (No. 0-23874) under the Exchange Act, declared
effective May 3, 1994, and incorporated herein by reference.
5.1 Opinion of counsel as to legality of the shares
of common stock covered by this Registration
Statement.
23.1 Consent of independent accountants
23.2 Consent of counsel (included within Exhibit
5.1)
9
Exhibit 5.1
[Kronish, Lieb, Weiner & Hellman LLP Letterhead]
January 23, 1997
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074
Gentlemen:
We have acted as counsel for Jos. A. Bank Clothiers, Inc. (the
"Company"), a Delaware corporation, in connection with the registration pursuant
to a Registration Statement on Form S-8 (the "Registration Statement") by the
Company under the Securities Act of 1933, as amended (the "Act"), of 954,486
shares of the Company's common stock, par value $.01 per share (the "Common
Stock"), to be offered for sale by the Company from time to time under the
Company's Incentive Plan adopted in February 1994 (the "Plan").
We have examined the Company's Restated Certificate of
Incorporation and By-laws, as amended, and minute books and such other documents
and records as we have deemed necessary and relevant as a basis for our opinions
hereinafter set forth. For the purposes of this letter, we have assumed the
genuineness of all signatures and the conformity to original documents of all
instruments furnished to us for review or examination as copies.
Based on the foregoing and having regard to such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Company is a corporation duly organized under the
laws of the State of Delaware.
2. The Common Stock covered by the Registration
Statement has been validly authorized.
3. When (i) the Common Stock has been duly registered under
the Act, (ii) certificates for the Common Stock have been duly delivered, and
(iii) the Company has received the consideration to be received by it pursuant
to and upon exercise of the related options awarded under the Plan, the Common
Stock will be validly issued, fully paid and non-assessable by the Company, with
no personal liability attaching to ownership thereof.
<PAGE>
January 23, 1997
Page 2
We hereby consent to the inclusion of this opinion in the
Registration Statement and to the references to this firm contained therein.
Very truly yours,
/s/ Kronish, Lieb, Weiner & Hellman LLP
KRONISH, LIEB, WEINER & HELLMAN LLP
EXHIBIT 23.1
[Arthur Andersen LLP Logo]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants , we hereby consent to the incorporation by
reference in this registration statement of our report dated April 24, 1996,
included in Jos. A. Bank Clothiers, Inc. and subsidiaries' Form 10-K for the
year ended February 3, 1996, and to all references to our Firm included in this
registration statement. It should be noted that we have performed no audit
procedures subsequent to April 24, 1996, the date of our report. Furthermore, we
have not made an audit of any financial statements of Jos. A. Bank Clothiers,
Inc. and subsidiaries as of any date or for any period subsequent to February
3, 1996, the date of the latest financial statements covered by our report.
/s/ Arthur Andersen LLP
Baltimore, Maryland,
January 21, 1997
