SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] Annual Report Pursuant To Section 13 or 15(d) of The Securities Exchange Act
of 1934 for the fiscal year ended January 31, 1998 ("Fiscal 1997").
[ ] Transition Report Pursuant To Section 13 or 15(d) of The Securities Exchange
Act of 1934 for the transition period from to .
[Commission file number 0-23874]
JOS. A. BANK CLOTHIERS, INC.
----------------------------
(Exact name of registrant as specified in its character)
DELAWARE 36-3189198
-------- ----------
(State of Incorporation) (I.R.S. Employer Identification No.)
500 HANOVER PIKE, HAMPSTEAD, MD 21074
- ------------------------------- -----------
(Address of principal executive offices) (zip code)
(410) 239-2700
--------------
(Registrant's telephone number, including area code)
Securities registered pursuant to Securities registered pursuant to
Section 12(g) of the Act: Section 12(b) of the Act:
Title of each class None
-------------------
Common Stock (the "Common Stock")
par value $.01 per share
RIGHTS TO PURCHASE UNITS OF SERIES A PREFERRED STOCK
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III for this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by nonaffiliates of the
registrant, based upon the closing price of shares of Common Stock on the
National Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System at April 24, 1998 was approximately $50,084,746.
The number of shares of Common Stock, par value $0.01 per share, outstanding on
April 24, 1998 was 6,791,152.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of Definitive Proxy Statement for Annual Meeting of Shareholders to be
held on June 9, 1998 are incorporated by reference into Part III hereof.
Index to the exhibits appears on Page 17.
<PAGE>
PART I
Item 1. BUSINESS
GENERAL
Jos. A. Bank Clothiers, Inc., (the "Company"), established in 1905, is
a retailer and cataloger of Men's tailored and casual clothing and accessories.
The Company's products are sold exclusively under the Jos. A. Bank label through
its 80 Company-operated retail stores, 4 outlet stores and 9 franchise stores
located throughout the Northeast, Midwest, South and Mid-Atlantic regions of the
U.S., as well as through the Company's nationwide catalog operations. The
Company's products are targeted at the male career professional, and its
marketing emphasizes the Jos. A. Bank line of quality tailored and casual
clothing, which is offered at price points typically established at 20-30% below
those of its principal competitors for items of comparable quality. The Company
believes that it is able to achieve this pricing advantage for its men's suits,
sport coats and pants, primarily by its design capability, and by effectively
sourcing and negotiating with vendors. The Company has two principal, wholly
owned subsidiaries, The Joseph A. Bank Mfg. Co., Inc., (the "Manufacturer") and
National Tailoring Services, Inc. ("NTS").
HISTORY
Financials
In May 1991, the Company completed a debt and capital restructuring,
under which the Company issued a combination of new preferred stock and Common
Stock in exchange for all of its then outstanding preferred stock and Common
Stock, senior subordinated notes and subordinated debentures issued in
connection with the 1986 leveraged acquisition of the Company. As a result of
this restructuring, JAB Holdings, Inc., a Delaware corporation ("Holdings"), was
created and issued $47.4 million aggregate principal amount of 8% Secured Notes
due December 31, 1998 (the "Notes") to the Company's former debtholders. There
were no cash proceeds from the issuance of the Notes. During its existence,
Holdings had no operations and did not incur any costs or expenses on behalf of
the Company. As a result of this restructuring, Holdings became the holder of
90% of the Company's Common Stock.
As of January 29, 1994, the Company and Holdings completed a capital
restructuring, the overall substantive effect of which was to eliminate all of
the debt incurred in connection with the 1986 leveraged acquisition of the
Company. In connection with such restructuring, Holdings entered into an
exchange agreement (the "Exchange Agreement") with the holders of its Notes
pursuant to which all Notes were exchanged for common stock of Holdings.
Concurrently with the execution of the Exchange Agreement, the Company entered
into a merger and exchange agreement (the "Merger and Exchange Agreement") with
Holdings and the Company's other stockholders. Pursuant to the Merger and
Exchange Agreement: (i) the Company's preferred stock was converted into Common
Stock; (ii) Holdings' common stock was converted into the Company's Common
Stock; (iii) all existing shares of the Company's Common Stock other than the
shares issued in exchange for the Company's preferred stock or Holdings' common
stock were canceled; and (iv) Holdings was merged into the Company.
On May 10, 1994, the Company sold 2,000,000 shares of its Common Stock
for $10.00 per share in connection with an initial registration with the
Securities Exchange Commission. The net proceeds of $16,894,000 were used to pay
off long-term debt of approximately $8,100,000 and for the opening of new
stores.
Results of Operations
During fiscal year 1996, the Company focused on its core men's business
after discontinuing the women's business in 1995. Operating income for the year
ended February 1, 1997 improved $18.1 million to an operating income of $3.1
million from an operating loss of $15.1 million in 1995. The Company improved
its operating income in each quarter during fiscal 1996 compared to the same
quarter in fiscal 1995. The turnaround in operating results for fiscal 1996 was
due primarily to a) higher maintained margins which were driven by strong suit
sales, b) the elimination of the unprofitable, lower margin women's business, c)
men's comparable store sales increase of 9.3 percent, d) lower operating
expenses and e) the closure of several unprofitable stores. The Company also
restructured several leases to support its men's-only business, adjusted its
manufacturing capacity, relocated three stores and lowered its store selling
expenses. The increased men's comparable store sales was generated on men's
average inventory levels that were approximately
1
<PAGE>
$5.6 million lower than the prior year as the Company improved its inventory
turns as well as its product selection. The improved operating results continued
in fiscal year 1997 as operating income increased to $6.6 million in fiscal year
1997 from $3.1 million in fiscal year 1996. Also in fiscal year 1997, the
Company decided to eliminate its final manufacturing operation and focus solely
on retail operations, resulting in an after-tax charge of $1.8 million from
discontinued operations.
The Company has replaced the sales volume generated by the women's
business which was discontinued in 1995 and which generated $33 million of sales
in fiscal year 1994. To increase sales and improve the leverage of its assets,
the Company opened new stores, including 15 stores that have been opened since
fall 1996. The Company expects to open up to 65 new stores in the next three
years (including 14 relocations).
STRATEGY
The Company's strategy is to further enhance its competitive position
in men's proprietary label, updated apparel, including a full line of casual
wear and accessories and to capitalize on the strength of the Jos. A. Bank name
and reputation through enhanced product offerings within its existing store base
and to increase the number of full-line stores, primarily in existing markets.
Store and Catalog Operations and Growth. The Company's
strategy is to operate its stores and catalogs as an integrated
business and to provide the same personalized service to its customers
regardless of whether merchandise is purchased through its stores or
catalogs. The Company believes that the synergy between the Company
stores and catalogs offers an important convenience to its customers
and a competitive advantage to the Company in identifying new store
sites and testing new business concepts. The Company also uses its
catalog to communicate the Jos. A. Bank image, to provide customers
with fashion guidance in coordinating outfits and to generate store
traffic.
The Company believes that it has substantial opportunity to
increase its store base by adding stores in its existing markets and
entering new markets. The Company opened 12 new full-line stores and
three franchise stores since fall 1996 and expects to open up to 65 new
stores (including 14 relocations) in the next three years.
Substantially all of the stores to be opened in the next three years
will be placed in existing markets which allows the Company to leverage
its existing advertising, management and distribution. The Company has
developed and refined a new store prototype over the past two years.
The prototype consists of a 4,000 square foot store, which compares to
an average store size of 8,200 square feet as of the beginning of
fiscal year 1997. The Company believes this prototype allows more
flexibility to enter markets and effectively reduces its operating
expenses. The Company expects that approximately 65% of its stores will
be similar to the prototype by the end of fiscal year 2000.
Competitive Pricing and Aggressive Promotion. The Company is a
value oriented retailer with price points typically established at 20%
to 30% below those of its principal competitors for items of comparable
quality. In addition to the Company's everyday values, the Company has
a Corporate Card program, which provides employees of participating
businesses and their families with discounts on all Jos. A. Bank
merchandise, and runs promotions throughout the year, such as wardrobe
and trade-in sales, designed to generate store traffic and create
shopping excitement.
MERCHANDISING
The Company's target customer is a professional man, age 25 to 55, who
is well-educated and relatively affluent. The Company's merchandising strategy
focuses on achieving an updated classic look. The Company's stores offer a
distinctive collection of proprietary label, classic career clothing and
accessories, as well as casual wear for men, all made exclusively by or for the
Company in predominantly natural fibers. The men's line includes all clothing
and accessories necessary to dress the career man from head to toe, including
suits, shirts, vests, ties, sport coats, pants, formal wear, overcoats,
mufflers, sweaters, belts and braces, socks and underwear.
The market for classic quality men's clothing is segmented at various
points in men's careers and the Company has designed special collections to
target these segments:
2
<PAGE>
"Signature Collection" - is designed for the man who has achieved
success and is willing to pay for the value of the best fabric,
superior quality and extra details.
"Corporate Collection" - was created for the confident executive who is
making his mark and is looking to set himself apart. It features
updated, tailored clothing and dress furnishings offered in a range of
fabrics and silhouettes that reflect current trends in the men's
market.
"Executive Collection" - is designed for the executive creating or
replenishing his wardrobe essentials. It includes tailored clothing and
dress furnishings in a broad range of basic fabrics and styles at
affordable prices.
"Corporate Casual and JAB Sportswear" - was created for the man who
seeks the same quality for casual attire and leisure wear as for their
working lives. Classic sportswear featuring quality, styling, fabric
and details comparable to brands which are considerably more expensive.
In 1997, the Company signed a five-year agreement with David
Leadbetter, a world-renowned golf professional, to produce golf and
other apparel under his name and which is sold along with other "JAB"
Sportswear.
Since Spring 1991, the Company has offered its customers its Business
Express line, a concept for purchasing suits that allows customers to customize
their wardrobe by selecting separate, but perfectly matched, jackets and pants
from one of three coat styles, plain front or pleated pants, and numerous fabric
choices. Matching vests are also available in selected fabrics. The Business
Express line allows a customer to buy a suit with minimal alteration that fits
their unique body size, similar to a custom-made suit. Jos. A. Bank is one of
the few retailers in the country that has successfully developed this concept
which the Company believes is a competitive advantage.
DESIGN AND PURCHASING
The Jos. A. Bank merchandise is designed through the coordinated
efforts of the Company's merchandising and buying staffs working in conjunction
with contract manufacturers. The merchandising and buying staffs oversee the
development of each product in terms of style, color and fabrication. Because
the Company's designs are focused on updated classic clothing, the Company
experiences much less fashion risk than other retailers. The process of creating
a new garment begins approximately nine months before the product's expected
in-store date. In addition to being responsible together with the merchandising
staff for selecting and developing appropriate products, the Company's buying
staff is also responsible for providing the catalog operations and stores with
the correct amount of products at all times.
The Company believes that it gains a distinct advantage over many of
its competitors in terms of quality and price by effectively sourcing piece
goods and then having merchandise manufactured to its own specifications by
contract manufacturers, either domestically or abroad. For example, the Company
currently buys quality English and Italian wool for some of its suits and
Italian silk for its neckwear, and then has the suits made and neckwear hand
sewn by contract manufacturers. The Company buys its shirts from leading U.S.
and overseas shirt manufacturers who also supply shirts to many of the Company's
competitors. All clothing manufactured for the Company by contract manufacturers
must conform to the Company's rigorous specifications with respect to
standardized sizing and quality.
The Company transacts business on an order-by-order basis and does not
maintain any long-term or exclusive contracts, commitments or arrangements to
purchase from any piece goods vendor or contract manufacturer other than those
discussed in the "Manufacturing" section. During fiscal 1997, Burlington
Industries, Inc., Eighteen International 1981, Ltd., Threadtex, Inc., HMS
International Fabrics Corp. and Warren Corporation, accounted for over 80% of
the piece goods purchased by the Company. The Company does business with all of
its vendors in U.S. currency and has not experienced any material difficulties
as a result of any foreign political, economic or social instabilities. The
Company believes that is has good relationships with its piece goods vendors and
contract manufacturers and that there will be adequate sources to produce a
sufficient supply of quality goods in a timely manner and on satisfactory
economic terms.
MARKETING, ADVERTISING AND PROMOTION
Strategy
Historically, the Company pursued a traditional or mass marketing
approach in support of its retail locations. In 1996 and 1997, in addition to
employing print and radio medias to convey its message, direct mail usage was
enhanced to
3
<PAGE>
achieve improved marketing efficiency. Core to each campaign, while primarily
promotional, is the identification of the Jos. A. Bank name as synonymous with
high quality, updated classic clothing offered at price points typically
established at 20-30% below those of its principal competitors for items of
comparable quality. The Company has a database of over one million customers who
have made purchases from either the catalog and/or retail stores. The Company
selects names from this database based on expectations of response to specific
promotions which allows the Company to more efficiently use its advertising
dollars.
In 1997, the Company allocated a portion of its marketing expenditures
to image advertising on CNN Headline News. The Company believes that it has
strong brand recognition and wants to increase the awareness of its name as a
complement to its store opening strategy. The Company expects to expand this
image advertising in 1998.
Product Specific Sales and Promotional Events
Throughout each season, the Company promotes specific items or
categories at specific prices that are below the normal retail price. Examples
are the trade-in sale whereby a customer receives a fixed dollar amount off the
purchase of a suit by "trading-in" an old suit which is donated to charity and
the $199 suit sale. These sales are used to complement promotional events and to
meet the needs of the customers. These events also include the wardrobe sale and
the clearance and roundup sales. Twice a year the Company stores conduct
wardrobe sales in which customers who purchase certain levels of merchandise
receive an additional amount of merchandise selected free. At the end of each
season, the Company stores conduct clearance sales to promote the sale of that
season's merchandise.
Corporate Card
Through the Corporate Card program, the Company issues corporate
discount cards to employees of major companies. The card provides the holder and
members of his or her immediate family with a discount on all regularly priced
merchandise. The Company believes that this program enhances customer loyalty
from a core base of customers.
Apparel Incentive Program
Jos. A. Bank Clothiers apparel incentive gift certificates are
used by various companies as a reward for achievement. The Company also
redeems proprietary gift certificates marketed by major premium/incentive
companies through its stores and catalogs.
Jos. A. Bank Credit Card
In addition to accepting cash, checks and major credit cards,
since 1992 the Company has offered customers its own credit card. The Company
pays an independent contractor to administer the Jos. A. Bank credit card and
assume all credit risks. At the end of fiscal 1997, the Company had
approximately 97,000 credit card accounts, and sales through the Jos. A. Bank
credit card represented approximately 5% of total retail sales for the year.
The Jos. A. Bank credit card also provides the Company with an important
tool for building its customer mailing list.
Stores
At April 15, 1998, the Company operated 80 retail stores and 4 outlet
stores and had 9 franchise locations in a total of 28 states and the District of
Columbia. The following table sets forth the region and market of the 93 stores
that were open at such date.
4
<PAGE>
JOS. A. BANK STORES
Total #
Region & Market Of Stores
- --------------- ---------
Northeast
Connecticut 2
New York 7
Massachusetts 3
Rhode Island 1
-----
Subtotal ............... 13
Mid-Atlantic
Delaware 1
New Jersey 4
Maryland 7 (b)
Pennsylvania 5 (b)
Washington, D.C. 1
-----
Subtotal ............... 18
West
Denver, Colorado 2
-----
Subtotal ............... 2
Midwest
Kansas 1
Illinois 6 (a)
Indiana 1
Michigan 4
Minnesota 1
Missouri 1
Ohio 4
Wisconsin 1
-----
Subtotal ............... 19
Total #
Region & Market Of Stores
- --------------- ---------
South
Alabama 2
Florida 4
Georgia 5 (a)
North Carolina 5 (a)
South Carolina 1
Kentucky 1
Louisiana 2 (a)
Mississippi 1 (a)
Tennessee 3 (a)
Texas 10
Virginia 7 (b)
-----
Subtotal .............. 41
TOTAL 93
(a) Indicates one or more franchise stores.
(b) Indicates one or more outlet stores.
5
<PAGE>
Since 1996, the Company has opened 12 new full-line stores and three
franchise stores, and closed two unprofitable full-line stores and five catalog
stores. The stores that were closed represented approximately 2% of sales in
fiscal 1995. The Company-operated stores are located in a variety of retail
settings, including high income shopping areas, malls, specialty village centers
and urban locations. The Company's principal consideration in selecting store
sites is finding locations with excellent sales potential coupled with
reasonable rental rates. Stores in suburban areas are usually not located in
malls, but in high-income shopping areas near major malls. In urban locations,
stores are generally located in major retail or financial areas. Since the
Company believes that its stores are destination stores and that its customers
desire convenience, the Company stores are generally most successful in
locations that are easily accessible and provide sufficient parking. Thus, when
stores are located within a mall, they often have a private entrance to the
parking area.
The Company has developed a standard store design to appeal to the
Company's quality oriented customers while remaining consistent with the
Company's value image. The design is based on the use of wooden fixtures with
glass shelving, Shaker style furniture with numerous tables to feature fashion
merchandise, carpet, quilted wall hangings and abundant accent lighting and is
intended to promote a pleasant and comfortable shopping environment. The Company
developed this standard design to effect cost savings in the design and
construction of new stores. With its new 4,000 square feet prototype, 80% of a
store's space is dedicated to selling activities, with the rest allocated to
stockroom and other support areas. This compares favorably to existing stores
where approximately 65% is dedicated to selling activities. The full-line stores
averaged 8,200 square feet at the beginning of fiscal 1997, with sizes ranging
from 4,500 square feet to 19,000 square feet. The newer stores are designed to
utilize regional overflow tailor shops which allows the use of smaller tailor
shops within each store.
Stores normally employ a total of 5 to 25 full- and part-time sales
associates depending on their size. Store management consists of a store manager
and two or three department managers who are also sales associates. The typical
store manager has ten to fifteen years of experience in the tailored clothing
industry. Store management receives compensation in the form of a base salary
plus a bonus based on achieving targeted quarterly profit goals. In addition,
store managers are required to meet sales quotas. Sales associates receive a
base salary against a commission. A number of programs offer incentives to both
management and sales associates to increase sales.
The Company attributes part of its success to its customer service
policies. The Company encourages sales associates to develop one-on-one
relationships with their customers. Sales associates maintain personal business
planners containing information on customers' sizes, favorite styles and colors
and are encouraged to call customers when new items are stocked and before
special promotions. The Company strives to create an environment in its stores
in which sales associates are responsive to customers' needs. Sales associates
are encouraged to assist customers in merchandise selection and wardrobe
coordination, and thereby encourage multiple purchases.
Each full line store has a tailor shop which provides a range of
tailoring services. Substantially all of the tailor shops are owned by the
Company as the Company has converted most of its leased shops to Company-owned
shops in the past three years. The Company guarantees all the tailoring work and
controls the pricing structure used in all stores. In addition, NTS, the
Company's wholly-owned tailoring subsidiary, provides alteration services
primarily to the Company's stores and, to a lesser extent, outside retailers.
NTS has four locations - Houston (leased location), Atlanta (leased location),
Chicago (in present store) and Hampstead, MD (in distribution facility).
Operating NTS has allowed the Company to reduce the number of tailors in the
stores by sending all overflow work to NTS. These overflow shops experience
higher productivity as the tailors are not interrupted by store personnel during
the course of the day. In every store, the store manager and certain additional
staff have been trained to fit tailored clothing for alterations.
The Company has nine franchise locations. Generally, a franchise
agreement between the Company and the franchisee provides for a ten-year term
with an option, exercisable by the franchisee under certain circumstances, to
extend the term for an additional ten-year period. Franchisees pay the Company
an initial fixed franchise fee and then a percentage of sales. To assure that
customers at franchise locations receive the same personalized service offered
at Company operated stores, the Company typically requires certain franchisee
employees to attend a Company sponsored training program. In addition,
franchisees are required to present and sell merchandise according to the
Company standardized procedures and to maintain and protect the Company's
reputation for high quality, classic clothing. Franchisees purchase
substantially all merchandise offered for sale in their stores from the Company
at an amount above cost.
6
<PAGE>
The Company presently has four outlet stores which are used to
liquidate excess merchandise and typically offer first quality products at a
reduced price. Because of the classic character of the Company's merchandise and
aggressive store clearance promotions, historically the Company has not had
significant quantities of merchandise to sell through its outlet stores.
CATALOG
The Company's catalogs offer potential and existing customers
convenience in ordering the Company's merchandise. In fiscal 1997, the Company
distributed approximately 7.6 million catalogs, excluding catalogs sent to
stores for display and general distribution. During fiscal 1997, catalog sales
represented approximately 12% of net sales. The Company divides the year into
two merchandise seasons, Spring and Fall, and mails its catalog to active
customers as often as every four weeks. Catalog circulation has traditionally
included base catalogs offering a representative assortment of the Company's
entire range of merchandise. In addition to providing customers convenience in
ordering merchandise, the Company generally uses its catalogs to: (i)
communicate its image of quality clothing; (ii) provide customers with fashion
guidance in coordinating outfits; (iii) generate store traffic; and (iv) provide
the Company with market data, including identification of new store locations.
To make catalog shopping as convenient as possible, the Company
maintains a toll-free telephone number accessible 24 hours a day, seven days a
week. The Company utilizes on-line computer terminals to enter customer orders
and to retrieve information about merchandise and its availability. Catalog
sales associates are generally able to help select merchandise and can provide
detailed information regarding size, color, fit and other merchandise features.
In most cases, sample merchandise is available for catalog sales associates to
view, thereby allowing them to better assist customers. Clothing purchased from
the catalog may be returned to any Company store or to the Company by mail.
To process catalog orders, sales associates enter orders on-line into a
computerized catalog order entry system which automatically updates all files,
including the Company's customer mailing list and permits the Company to measure
the response to individual merchandise and catalog mailings. Sales and inventory
information is available to the Company's buyers the next day. Computer
processing of orders is performed by the warehouse management system which
permits efficient picking of inventory from the warehouse. The Company's
efficient order entry and fulfillment systems permit the shipment of most orders
the following day. Orders are shipped primarily by second day delivery or, if
requested, by expedited delivery services, such as UPS priority.
DISTRIBUTION
Inventory of basic merchandise in the Company stores is replenished
regularly based on sales tracked through its point-of-sale terminals. The
Company uses a centralized distribution system, under which all merchandise is
received, processed and distributed through the Company's distribution facility
located in Hampstead, Maryland. Merchandise received at the distribution center
is promptly inspected to insure expected quality in workmanship and conformity
to Company sizing specifications. The merchandise is then allocated to
individual stores, packed for delivery and shipped to the stores, principally by
common carrier, usually within two days of receipt. Each store generally
receives a shipment of merchandise twice a week from the distribution center;
however, when necessary because of a store's size or volume, a store can receive
shipments more frequently. Shipments to catalog customers are also made from the
central distribution facility.
MANAGEMENT INFORMATION SYSTEMS
In 1991 through 1994, the Company replaced substantially all of its
management information systems with updated technology. The new systems provide
for automated stock replenishment and distribution, integrated accounts payable
and general ledger maintenance, purchase order management, forecasting and
planning, extensive management reporting capabilities through interactive and
batch processing and a comprehensive human resource/payroll system. The Company
uses IBM AS\400 systems for substantially all applications.
In 1993, a complete new mail order system was installed and integrated
into the merchandising system and later into the warehouse management system.
Consistent with industry practice, the Company uses an outside service to
analyze and provide data in connection with its catalog operations. The
Company's last remaining mainframe system was used in its manufacturing
operation and was eliminated in 1997.
7
<PAGE>
In order to assure the accuracy of inventory from purchase order
through the sale of an item to the consumer, the Company employs sophisticated
scanning, modern point-of-sale systems and updated distribution facilities. For
any item to be moved between stores and for all sales in the stores a bar-coded
tag must be scanned, which then causes the price to be captured via the price
look-up feature in the IBM 4680 point-of-sale terminal. A warehouse management
system was installed in 1993 to improve the accuracy and control of warehouse
inventory. Since Fall 1993, warehouse distributions have been controlled through
the use of a "pick-to-light" system.
In connection with the millennium, these systems will require
significant modification to properly handle transactions. A thorough review of
the impact of this change is included in "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included herein.
MANUFACTURING
Through its subsidiary, Manufacturer, the Company makes men's suits,
sport coats and pants at its two facilities located in the greater Baltimore
area. (See Item 2-Description of Properties) In fiscal 1997, the Company
manufactured approximately 35% of its tailored clothing which accounts for over
60% of the Company's sales. Prior to yearend, the Company decided to discontinue
its remaining manufacturing operations and focus on its retailing expertise.
(See Footnote 2 to Consolidated Financial Statements for a discussion of
discontinued manufacturing operations). As of April 18, 1998, approximately 370
employees worked at these manufacturing facilities. These employees were
transferred to the purchasers of the manufacturing operations (the"Purchaser")
and the Company has agreed to buy certain clothing units from the Purchaser over
the next three years.
COMPETITION
The Company competes primarily with other specialty retailers,
department stores and other catalogers engaged in the retail sale of apparel,
and to a lesser degree with other retailers of men's apparel. Among others, the
Company's store and catalog operations compete with Brooks Brothers, Nordstrom
and Lands End, as well as local competitors in each store's market. Many of
these major competitors are considerably larger and have substantially greater
financial, marketing and other resources than the Company.
In general, the Company believes that it maintains its competitive
position based not only on its ability to offer its quality career clothing at
price points typically established at 20-30% below those of its principal
competitors for items of comparable quality, but also on greater selection of
merchandise within the Company's focus on classic career clothing, the quality,
consistency and value of the Jos. A. Bank brand, and superior customer service.
The Company believes that it is able to achieve this pricing advantage for its
men's suits, sports coats and pants primarily by designing and contracting with
manufacturers to produce substantially all of these items and for other men's
clothing and accessories by effectively sourcing and negotiating with vendors.
In addition, the Company believes that its Business Express program gives the
Company distinct advantages relative to its competition.
TRADEMARKS
The Company is the owner in the United States of the trademark
"Jos. A. Bank". This trademark is registered in the United States Patent
and Trademark Office. A federal registration is renewable indefinitely if the
trademark is still in use at the time of renewal. The Company's rights in the
Jos. A. Bank trademark are a significant part of the Company's business.
Accordingly, the Company intends to maintain its trademark and the related
registration. The Company is not aware of any claims of infringement or
other challenges to the Company's right to use its trademark in the United
States. The Company is also the owner of pending applications for "The Miracle
Tie Collection" (U.S. Serial No. 75/219,824) and "Joe's Casual" (U.S. Serial No.
74/726,017).
EMPLOYEES
As of April 15, 1998, the Company had approximately 1,470 employees.
As of April 15, 1998, approximately 350 employees worked at the
Company's manufacturing facilities and approximately 123 employees work in the
tailoring and distribution center, most of whom are represented by the Union of
Needletrades Industrial & Textile Employees. The current collective bargaining
agreement, which was extended in 1997,
8
<PAGE>
expires on April 30, 2000. The Company believes that union relations are good.
During the past 48 years, the Company has had only one work stoppage, which
occurred more than 18 years ago. The Company believes that its relations with
its non-union employees are also good. A small number of our sales associates
are union members. In connection with the sale of the manufacturing operations,
the manufacturing employees were transferred to the Purchaser and the Company
was released from any future obligation to the employees.
Item 2. DESCRIPTION OF PROPERTY
Except as noted below, the Company owns its manufacturing, distribution
and corporate office facilities located in the Maryland area, subject to certain
financing liens. See "Notes to Consolidated Financial Statements -- Note 6." The
Company believes that its existing facilities are well maintained and in good
operating condition. The table below presents certain information relating to
the Company's corporate properties as of April 18, 1997:
<TABLE>
<CAPTION>
Gross
Location Square Feet Owned/Leased Primary Function
- -------- ----------- ------------ ----------------
<S><C>
Hampstead, Maryland......... 210,000 Owned Corporate offices, distribution center, catalog
fulfillment and regional tailoring overflow shop
Baltimore, Maryland......... 118,000 Owned Coat and pants sewing plant and central pressing
Baltimore, Maryland......... 51,000 Leased Cutting facility
</TABLE>
As of April 18, 1998, the Company had 80 Company-operated stores,
including its outlet stores, all of which were leased. The full line stores
average 8,200 square feet as of the beginning of fiscal 1997, including selling,
storage, tailor shop, and service areas. The full line stores range in size from
approximately 4,500 square feet to approximately 19,000 square feet. The leases
typically provide for an initial term of between 10 and 15 years, with renewal
options permitting the Company to extend the term for between 5 and 10 years
thereafter. The Company generally has been successful in renewing its store
leases as they expire. In most cases the Company pays a fixed annual base rent
plus a percentage rent based on the store's annual sales in excess of specified
levels. Most leases also require the Company to pay real estate taxes, insurance
and utilities and, other than free standing locations, to make contributions
toward the common area operating costs. Most of the Company's lease arrangements
provide for an increase in annual fixed rental payments during the lease term.
The two properties noted above that are located in Baltimore, MD, will
be leased or sub-leased in connection with the disposition of the manufacturing
operations.
Item 3. LEGAL PROCEEDINGS
The Company has been named as a defendant in legal actions arising from
its normal business activities. Although the outcome of these lawsuits or other
proceedings against the Company cannot be accurately predicted, the Company does
not expect that any such liability will have a material adverse effect on the
business, net assets or financial position of the Company.
On December 14, 1995, the Company filed a Verified Complaint in the
United States District Court for the Northern District of Maryland (case No. MJG
95-3826) against J.A.B. of Lexington, Inc. and its principals (the "Defendants")
alleging federal trademark infringement, common law trademark and service mark
infringement, statutory unfair competition, common law unfair competition,
breach of franchise agreement, breach of lease, breach of promissory note and
breach of security agreement. Damages sought in the Verified Complaint are
unspecified. The Defendants have counterclaimed against the Company seeking
declaratory judgements, compensatory damages and punitive damages. The Company
denies the allegations in the counterclaims and intends to vigorously defend
same.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's security holders
during the quarter ended January 31, 1998.
9
<PAGE>
PART II
Item 5. MARKET FOR THE REGISTRANTS COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
(a) Price Range of Common Stock, subsequent to its initial public
offering in May 3, 1994
The Company's Common Stock trades on The Nasdaq Stock Market ("NASDAQ")
under the trading symbol "JOSB". The following table sets forth, for the periods
indicated, the range of high and low bid prices for the Common Stock, as
reported on NASDAQ. The approximate high and low bid prices for the Common Stock
tabulated below represent inter-dealer quotations which do not include retail
mark-ups, mark-downs or commissions. Such prices do not necessarily represent
actual transactions.
Fiscal 1996 Fiscal 1997
---------------- ----------------
High Low High Low
---- --- ---- ---
1st Quarter $ 2.50 $ 1.63 $ 3.81 $ 3.81
2nd Quarter 6.13 2.50 3.38 3.38
3rd Quarter 4.88 2.94 5.75 5.38
4th Quarter 5.00 3.00 5.63 5.50
1st Quarter (through April 24, 1998) $ 8.50 $ 7.25
On April 24, 1997 the closing sale price of the Common Stock was $ 7.38.
(b) Holders of Common Stock
At April 24, 1998, there were 151 holders of record of the
Company's Common Stock.
(c) Dividend Policy
The Company intends to retain its earnings to finance the
development and expansion of its business and for working capital purposes, and
therefore does not anticipate paying any cash dividends in the foreseeable
future. In addition, the Company's Credit Agreement prohibits the Company from
paying cash dividends.
Item 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data with respect to each
of the fiscal years in the five-year period ended January 31, 1998 have been
derived from the Company's audited Consolidated Financial Statements. Fiscal
year 1995 was a 53-week year and all other years consisted of 52-weeks, each of
which ended on the Saturday closest to the end of January of the respective
year. The information should be read in conjunction with the Consolidated
Financial Statements and Notes thereto that appear elsewhere in the 10-K and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
10
<PAGE>
<TABLE>
<CAPTION>
Fiscal Year
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
<S><C> (in thousands, except per share data)
Consolidated Statements of Income (Loss) Information:
NET SALES:
MEN'S $121,319 $143,465 $143,459 $153,191 $172,174
Women's 28,259 32,589 25,908 -- --
- ---------------------------------------------------------------------------------------------------------------
Net Sales (a) 149,578 176,054 169,367 153,191 172,174
Cost of goods sold 79,580 94,199 100,589 82,598 92,001
- ---------------------------------------------------------------------------------------------------------------
Gross profit 69,998 81,855 68,778 70,593 80,173
- ---------------------------------------------------------------------------------------------------------------
Operating Expenses:
General and administrative 14,802 16,490 17,326 16,374 17,695
Sales and marketing 47,156 59,375 63,013 50,924 55,609
Store opening costs 1,064 1,025 -- 229 301
Termination of executive equity plan 3,425 (c) -- -- -- --
Termination of participation in
multi-employer pension plan 3,300 (b) -- -- -- --
Store repositioning costs -- -- 3,500 (e) -- --
- ---------------------------------------------------------------------------------------------------------------
Total operating expenses 69,747 76,890 83,839 67,527 73,605
- ---------------------------------------------------------------------------------------------------------------
OPERATING INCOME (LOSS) 251 4,965 (15,061) 3,066 6,568
Interest expense, net (2,075) (2,430) (3,444) (1,946) (2,501)
- ---------------------------------------------------------------------------------------------------------------
Income (loss) from continuing operations
before income taxes (1,824) 2,535 (18,505) 1,120 4,067
(Provision) benefit for income taxes 3,690 (989) 5,640 (437) (1,590)
- ---------------------------------------------------------------------------------------------------------------
INCOME (LOSS) FROM CONTINUING
OPERATIONS 1,866 1,546 (12,865) 683 2,477
Loss on disposal of manufacturing
operations, net of tax (f) -- -- -- -- (1,512)
Loss from discontinued operations,
net of tax (f) (223) (199) (321) (432) (266)
Cumulative effect of change in
accounting principle 2,127 -- -- -- --
- ---------------------------------------------------------------------------------------------------------------
NET INCOME (LOSS) $3,770 $1,347 $(13,186) $251 $699
- ---------------------------------------------------------------------------------------------------------------
Per Share Information:
INCOME (LOSS) FROM CONTINUING
OPERATIONS $0.38 $0.25 $(1.89) $0.10 $0.36
Loss on disposal of manufacturing
operations -- -- -- -- (0.22)
Loss from discontinued operations (0.04) (0.03) (0.05) (0.06) (0.04)
Cumulative effect of change in
accounting principle 0.44 -- -- -- --
- ---------------------------------------------------------------------------------------------------------------
NET INCOME (LOSS) PER SHARE $0.78 $0.22 $(1.94) $0.04 $0.10
- ---------------------------------------------------------------------------------------------------------------
Weighted average number of
shares outstanding (d) 4,862 6,241 6,790 6,824 6,864
</TABLE>
11
<PAGE>
Balance Sheet Information (As of End of Fiscal Year):
<TABLE>
<CAPTION>
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
<S><C>
Working capital $ 36,138 $ 45,089 $ 35,722 $ 28,989 $ 26,142
Total assets 83,037 100,403 89,190 79,604 77,144
Total debt 27,486 23,943 30,220 18,415 12,999
Total long-term obligations 31,698 27,914 33,373 21,472 15,105
Shareholder's equity 30,390 48,631 35,445 35,699 36,398
</TABLE>
(a) In 1995, the Company discontinued its women's product line to concentrate
solely on its men's business.
(b) During fiscal 1993, the Company recognized an expense and a corresponding
liability of $3.3 million relating to its termination of participation in a
multi-employer pension plan.
(c) As of January 29, 1994, the employment agreements between the Company and
two executives were amended to surrender the executives' rights to receive
certain payments related to increases in the equity value of the Company in
exchange for, among other things, 373,553 shares of the Company's Common
Stock.
(d) Gives effect to the exercise of all stock options and all shares issued in
the initial public offering in May 1994.
(e) In fiscal 1995, the Company recorded an expense of $3.5 million related to
the early adoption of Statement of Financial Accounting Standards No. 121
and costs to exit certain leases and reposition stores.
(f) Represents disposal of manufacturing operations in 1997. All years
presented herein have been restated to reflect this discontinued operation.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The Company's income from continuing operations increased to $2.5
million or $.36 per share in fiscal year 1997 from $.7 million or $.10 per share
in fiscal year 1996. This improved profitability was driven by a 12.4% increase
in sales compared to 1996 and a 4.1% increase in comparable store sales in 1997.
The comparable store sales increase for 1997 was on top of an increase of 9.3%
in 1996.
The Company has opened 15 new stores since fall of 1996 and plans to
open up to 65 new stores (including 14 relocations) over the next three years,
an increase to the existing store base of approximately 60%. The increased store
base has provided the Company with greater leverage of its expenses such as
advertising, marketing and distribution and sourcing infrastructure. In the past
two years, the Company has developed, opened and refined a 4,000 square foot
prototype store which is approximately 50% smaller than its average stores and
which allow for increased market opportunity for new stores and for greater
efficiencies in the stores. The Company believes these stores will offer
customers greater convenience while allowing the Company to maintain proper
levels of quality merchandise. Also during 1997, the Company spent over $1.0
million on a new image advertising program on CNN Headline News and expects to
continue the program in 1998.
The Company's availability in excess of outstanding borrowings as
supported by the existing borrowing base under its Credit Agreement has
increased to $27.2 million at April 15, 1998 compared to $13.3 million at the
same time in 1997. In August 1997, the Company added $4 million of term debt to
its Credit Agreement to help fund the new stores.
RESULTS OF OPERATIONS
The following table is derived from the Company's Consolidated
Statements of Income (Loss) and sets forth, for the periods indicated, the items
included in the Consolidated Statements of Income (Loss), expressed as a
percentage of net sales.
12
<PAGE>
<TABLE>
<CAPTION>
Percentage of Net Sales
Fiscal Years
1995 1996 1997
---- ---- ----
<S><C>
SALES:
MEN'S 84.7% 100.0% 100.0%
Women's 15.3 -- --
- ----------------------------------------------------------------------------------------------------
NET SALES 100.0 100.0 100.0
Cost of goods sold 59.4 53.9 53.4
- ----------------------------------------------------------------------------------------------------
Gross profit 40.6 46.1 46.6
General and administrative expenses 10.2 10.7 10.3
Sales and marketing expenses 37.2 33.3 32.3
Store opening costs -- 0.1 0.2
Store repositioning costs 2.1 -- --
- ----------------------------------------------------------------------------------------------------
OPERATING INCOME (LOSS) (8.9) 2.0 3.8
Interest expense, net (2.0) (1.3) (1.5)
- ----------------------------------------------------------------------------------------------------
Income (loss) from continuing operations before income taxes (10.9) 0.7 2.3
Income taxes 3.3 (0.3) (0.9)
- ----------------------------------------------------------------------------------------------------
Income (loss) from continuing operations, net of tax (7.6) 0.4 1.4
Loss from discontinued operations, net of tax (0.2) (0.2) (1.0)
- ----------------------------------------------------------------------------------------------------
NET INCOME (LOSS) (7.8)% 0.2% 0.4%
- ----------------------------------------------------------------------------------------------------
</TABLE>
FISCAL 1997 COMPARED TO FISCAL 1996
NET SALES - Net sales increased $19.0 million or 12.4% to $172.2 million in
fiscal 1997 from $153.2 million in fiscal 1996. Comparable store sales increased
4.1% in fiscal 1997 while catalog sales increased 17%. The increase in
comparable store sales was primarily due to strong merchandise offerings, an
increase in marketing activity and the improvement of the sportswear offering,
among other factors. The increase in catalog sales was consistent with the
circulation increase, reflecting continued strong response to the catalog. The
Company opened eight Company-owned stores and one franchise store in existing
markets during 1997 compared to four new Company-owned stores and two new
franchise stores in 1996.
GROSS PROFIT - Gross profit as a percentage of net sales increased to 46.6% in
fiscal 1997 from 46.1% in fiscal 1996 due primarily to an increase in sales of
higher quality products and better inventory management resulting in less
markdowns. The Company has strategically liquidated its inventories during the
year, resulting in significantly improved inventory aging compared to the prior
year.
GENERAL AND ADMINISTRATIVE EXPENSES - General and administrative expenses of
$17.7 million increased $1.3 million from $16.4 million in fiscal 1996 due
primarily to a) professional fees for several union negotiations, the issuance
of a stockholders rights plan and a store expansion study and b) an incentive
credit recorded in fiscal 1996 related to the relocation of a store. Such
expenses decreased as a percentage of sales, reflecting increased leverage from
the higher store base.
SALES AND MARKETING EXPENSES - Sales and marketing expenses decreased as a
percentage of net sales to 32.3% in fiscal 1997 from 33.3% in fiscal 1996
reflecting improved leverage of advertising expense as a result of the higher
number of stores in existing markets and a reduction in store payroll costs. In
addition, the Company spent over $1.0 million on a new national image
advertising program on CNN Headline news in 1997 which it views as a key
component to long-term brand awareness.
STORE OPENING COSTS - Store opening expenses, which include direct incremental
costs incurred to open new stores, increased in 1997 compared to 1996 as a
result of opening twice as many new stores in 1997.
13
<PAGE>
INTEREST EXPENSE - Excluding $.6 million of interest income earned in fiscal
1996 related to an income tax refund received from the Company's pre-1986
parent, interest expense was comparable in 1997 and 1996, despite increasing
capital expenditures to $4.1 million in 1997 from $2.1 million in 1996. The
Company also amended its Credit Agreement in 1997 which resulted in a lower
interest rate based on operating results.
INCOME TAXES - The Company has net tax operating loss carryforwards (NOLs) of
approximately $15.0 million which expire through 2010. The NOLs were generated
during periods in which the Company operated its women's business along with the
men's business, primarily in fiscal 1995. In 1995, the Company discontinued its
women's business to focus its efforts on its men's business. Realization of the
future tax benefits of the NOLs is dependent on the Company's ability to
generate taxable income within the carryforward period. Management has
determined, based on the Company's history of earnings, its recent operating
results and growth plans, that future earnings of the Company will more likely
than not be sufficient to utilize at least $10.0 million of the NOLs prior to
their expiration. Accordingly, the Company has recorded a deferred tax asset of
$4.6 million and a valuation allowance of $1.4 million relating to the NOLs. The
average minimum taxable income that the Company would need to generate prior to
the expiration of the NOLs would be less than the average taxable income that
the Company earned during fiscal years 1996 and 1997, as adjusted for unusual
charges. Management believes that although the recent earnings and estimated
future earnings might justify a higher amount, the recorded asset represents a
reasonable estimate of the future utilization of the NOLs. The Company will
continue to evaluate the likelihood of future profit and the necessity of future
adjustments to the deferred tax asset valuation allowance. No assurance can be
given that sufficient taxable income will be generated for full utilization of
the NOLs.
FISCAL 1996 COMPARED TO FISCAL 1995
NET SALES - Men's sales showed a strong improvement over the prior year as
reflected in the men's total sales increase of $9.7 million or 6.8% on sales of
$153.2 million in fiscal 1996 as compared to $143.5 million in fiscal 1995.
Men's comparable store sales also posted an increase of $10.6 million or 9.3% in
fiscal 1996, from $114.4 million to $125.0 million, while men's catalog sales
posted a $1.3 million increase or 8.3% on sales of $16.9 million in fiscal 1996
and $15.6 million in fiscal 1995. The increase in men's sales can be attributed
to favorable apparel trends, an improved merchandising mix, reduced competition
from attrition within the industry and improved efficiency in the Company's
marketing approach, among other factors.
Total sales decreased $16.2 million or 9.6% to $153.2 million in fiscal
1996 from $169.4 million in fiscal 1995 due to the discontinuance of the women's
product line which generated $25.9 million of net sales in fiscal 1995.
GROSS PROFIT - Gross profit as a percentage of net sales rose to 46.1% in
fiscal 1996 from 40.6% in fiscal 1995. This improvement was due to the
elimination of the women's product line and the improvement of margins in the
continuing men's business through better sourcing and fresher product offering,
particularly in the higher margin suit and tie categories. Gross profit also
improved as the Company consolidated its in-store tailoring operations into
several Company-owned overflow shops.
GENERAL AND ADMINISTRATIVE EXPENSES - General and administrative expenses
decreased $.9 million to $16.4 million for fiscal 1996 compared to $17.3 million
for fiscal 1995. Approximately $.7 million of the decrease was related to
severance in the first quarter of 1995 for terminated employees. The remainder
of the improvement was due primarily to lower professional fees and payroll and
related expenses which reflects the Company's continued focus on controlling
overhead costs. These reductions were partially offset by higher employee
relocation expenses and performance incentive compensation in 1996.
SALES AND MARKETING EXPENSES - Sales and marketing expense decreased $12.1
million to $50.9 million in fiscal 1996 from $63.0 million in fiscal 1995. These
expenses also decreased to 33.3% of sales in 1996 from 37.2% in 1995 due
primarily to a) more efficient retail store advertising expenditures resulting
from a shift in strategy putting a greater emphasis on direct mail, b) the
elimination of the women's product line and its related costs, c) the reduction
of the number of catalogs mailed to prospects in the first half of 1996, and d)
a $.3 million expense reduction related to a lease settlement.
14
<PAGE>
STORE OPENING COSTS - The Company opened four new full-line stores in fiscal
1996 and incurred approximately $.2 million of new store opening expense. The
Company expects the new store opening cost per store in 1997 to be comparable to
the costs in 1996 as its strategy is to open new stores in existing markets
which requires lower incremental costs of opening compared to a new market.
INTEREST EXPENSE - The decrease of $1.5 million in interest expense for fiscal
1996 is attributable to lower inventories and $.6 million of interest income
related to an income tax refund received from the Company's pre-1986 parent. The
Company expects interest expense to increase in fiscal 1997 as it increases its
borrowings to finance new store openings.
INCOME TAXES - The Company recorded a Federal and State tax provision of $.4
million against income from continuing operations which approximated the
statutory rates, with any differences between the financial reporting carrying
amounts and tax basis of assets and liabilities generating deferred income
taxes.
LIQUIDITY AND CAPITAL RESOURCES
The Company's availability in excess of outstanding borrowings as
supported by the existing borrowing base under its Credit Agreement has
increased to $27.2 million at April 15, 1998 compared to $13.3 million at the
same time in 1997. The Company's availability at April 15, 1998 has increased
compared to the same time in 1997 principally by better inventory management and
improved operating results.
The following table summarizes the Company's sources and uses of funds
as reflected in the Condensed Consolidated Statements of Cash Flows:
<TABLE>
<CAPTION>
Year Ended
-------------------------------
Feb. 1, Jan. 31,
1997 1998
----------- ---------
<S><C>
Cash provided by (used in):
Operating activities $ 13,919 $ 9,910
Investing activities, net (1,358) (4,056)
Financing activities (12,127) (5,432)
Discontinued operations (359) (577)
---------------------------------------------------------------------------------------------
Net (decrease) increase in
cash and cash equivalents $ 75 $ (155)
---------------------------------------------------------------------------------------------
</TABLE>
Cash provided by the Company's operating activities was due primarily
to improved operating results and better inventory management. Cash used in
investing activities relates primarily to leasehold improvements in new and
relocated stores and continued consolidation of the Company's tailoring
operations. The Company spent approximately $4.0 million on capital expenditures
in fiscal year 1997 as it implemented its program to reposition its existing
store base, which included $2.8 million to open eight new company-owned stores
and $.8 million to re-fixture existing stores and convert leased tailor shops to
Company-owned shops. Cash used in financing activities represents primarily
repayments of the revolving loan under the Credit Agreement.
The Company expects to spend between $6.0 and $7.0 million on capital
expenditures in 1998, primarily to open up to 17 new stores and to relocate two
existing stores. The store expansion program is being financed through
operations and the Credit Agreement. The Company also expects to open or
relocate at least 46 additional stores beyond 1998, mostly in existing markets.
The Company believes that its existing markets can support these additional
stores which will provide leverage for its management, distribution, advertising
and sourcing infrastructure. To support this growth, the Company expects to
upgrade certain information systems and its existing distribution center in 1998
and 1999. The Company believes that its current liquidity and its recently
extended Credit Agreement will be adequate to support its current working
capital and investment needs. Further expansion beyond 1998 may necessitate
revised financing arrangements for the Company.
The Company has initiated an assessment of systems issues associated
with operating the business in the year 2000 and has identified its
business-critical systems. The Company believes that the upgrades to the latest
versions of its existing systems (including merchandising, catalog, warehouse
management and general ledger) should resolve most of the year 2000 issues. The
point-of-sale and certain phone and security systems may require replacement to
ensure
15
<PAGE>
compliance with the year 2000 processing. If such upgrades and replacements are
not made, or are not completed in a timely fashion, the year 2000 problems could
have a material impact on the operations of the Company. Based on preliminary
estimates, the Company expects to spend approximately $.7 million to $1.0
million (representing a combination of capital and expense) on these upgrades in
the next one and one-half years. However, there can be no guarantee that these
estimates will be achieved and actual results could differ materially from those
anticipated. A significant portion of such cost would have been required
regardless of the year 2000 issues as the Company focuses on continually
improving the functionality of existing systems.
SEASONALITY
Unlike many other retailers, the Company's operations are not greatly
affected by seasonal fluctuations. Although variations in sales volumes do exist
between quarters, the Company believes the nature of its merchandise helps to
stabilize demand between the different periods of the year. The Company does not
expect seasonal fluctuation to materially affect its operations in the future.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENT DATA
The financial statements listed in Item 14(a) 1 and 2 are included in
the Report beginning on page F-1.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information included under the captions "Directors", "Executive
Officers" and "Compliance with Section 16(a) of the Exchange Act" in the
Company's proxy statement for the 1998 Annual Meeting of Shareholders to be
filed with the Commission (the "Proxy Statement") are incorporated herein by
reference.
Item 11. EXECUTIVE COMPENSATION
The information included under the captions "Executive Compensation",
"Executive Employment Agreements", "Compensation of Directors", "Report of the
Compensation Committee of the Board of Directors" and "Performance Graph" in the
Company's Proxy Statement are incorporated herein by reference.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information included under the caption "Security Ownership of
Directors and Officers" in the Company's Proxy Statement is incorporated herein
by reference.
Item 13. CERTAIN RELATIONSHIP AND RELATED TRANSACTIONS
The information included under the caption "Certain Transactions" in
the Company's Proxy Statement is incorporated herein by reference.
16
<PAGE>
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K
(a) The following Financial Statements of Jos. A. Bank Clothiers,
Inc., the notes thereto, and the related reports thereon of the independent
public accountants are filed under Item 8 of this report:
<TABLE>
1. FINANCIAL STATEMENTS PAGE
<S><C>
Report of Independent Public Accountants F-1
Consolidated Balance Sheets as of February 1, 1997 and January 31, 1998 F-2
Consolidated Statements of Income (Loss) for the Years Ended
February 3, 1996, February 1, 1997 and January 31, 1998 F-3
Consolidated Statement of Shareholders' Equity for the Years Ended
February 3, 1996, February 1, 1997 and January 31, 1998 F-4
Consolidated Statements of Cash Flows for the Years Ended
February 3, 1996, February 1, 1997 and January 31, 1998 F-5
Notes to Consolidated Financial Statements F-6
</TABLE>
2. FINANCIAL STATEMENT SCHEDULES
All required information is included within the Consolidated
Financial Statements and the notes thereto.
(b) Forms 8-K
No reports on Form 8-K were filed during the last quarter of
the year covered by this Annual Report on Form 10-K, which ended on January 31,
1998.
(c) Exhibits
<TABLE>
<S><C>
3.1 -- Restated Certificate of Incorporation of the Company.*..............................
3.2 -- By-laws of the Company, together with all amendments thereto.*......................
4.1 -- Form of Common Stock certificate.*..................................................
4.2 -- Amended and Restated Stockholders Agreement, dated as of January 29, 1994,
among the parties named therein.*...................................................
4.3 -- Rights Agreement dated as of September 19, 1997*****................................
4.4 -- Certificate of Designation governing the Company's Series of
Preferred Stock.*****...............................................................
10.1 -- 1994 Incentive Plan*................................................................
10.1(a) -- Amendments to Incentive Plan dated as of October 6, 1997, filed herewith............
10.4(f) -- Fourth Amended and Restated Credit Agreement, April 30, 1996, by and
among the Company, Wells Fargo Bank, N.A. ***.......................................
10.5(c) -- Amended and Restated Employment Agreement, dated as of September 19, 1997,
between Timothy F. Finley and Jos. A. Bank Clothiers, Inc., filed herewith..........
10.7(a) -- Amended and Restated Employment Agreement, dated as of September 19, 1997,
between Frank Tworecke and Jos. A. Bank Clothiers, Inc., filed herewith.............
10.8(a) -- Amended and Restated Employment Agreement, dated as of September 19, 1997,
between David E. Ullman and Jos. A. Bank Clothiers, Inc., filed herewith............
10.9 -- Jos. A. Bank Clothiers, Inc. Retirement and Savings Plan and Trust Agreement
as amended and restated effective April 1, 1994.****................................
10.10 -- Collective Bargaining Agreement between Retail Employees Union Local 340,
Amalgamated Clothing and Textile Workers Union, AFL-CIO and Jos. A. Bank
Clothiers, Inc.****.................................................................
10.11 -- Union Agreement, dated May 1, 1995, by and between Joseph A. Bank Mfg. Co., Inc.....
and Baltimore Regional Joint Board, Amalgamated Clothing and Textile Workers
Union (also known as U.N.I.T.E.).****...............................................
</TABLE>
17
<PAGE>
<TABLE>
<S><C>
10.12 -- Employment Agreement, dated September 19, 1997, between Gary W. Cejka and
Jos. A. Bank Clothiers, Inc., filed herewith........................................
10.13 -- Employment Agreement, dated September 19, 1997, between Charles D. Frazer and
Jos. A. Bank Clothiers, Inc., filed herewith........................................
10.14 -- Employment Agreement, dated September 19, 1997, between John C. Harry and
Jos. A. Bank Clothiers, Inc., filed herewith........................................
21.1a -- Company subsidiaries, filed herewith................................................
</TABLE>
- ---------
* Incorporated by reference to the Company's Registration Statement on
Form S-1 filed May 3, 1994.
** Incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended January 28, 1995.
*** Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended February 3, 1996.
**** Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended February 1, 1997.
***** Incorporated by reference to the Company's Form 8-K dated September 19,
1997.
Pursuant to the requirements Section 13 and 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Hampstead, State of Maryland, on April 24, 1998.
18
<PAGE>
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 Exchange Act of 1934,
this Report has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S><C>
/s/: Timothy F. Finley Director, Chairman of the Board and Chief
____________________________ Executive Officer (Principal Executive Officer) April 24, 1998
Timothy F. Finley
/s/: Frank Tworecke President and Chief Merchandising Officer April 24, 1998
____________________________
Frank Tworecke
/s/: David E. Ullman Executive Vice President, Chief Financial and April 24, 1998
____________________________ Administrative Officer
David E. Ullman
/s/: Thomas E. Polley Vice President - Treasurer (Principal
____________________________ Accounting Officer) April 24, 1998
Thomas E. Polley
/s/: Robert B. Bank Director April 24, 1998
____________________________
Robert B. Bank
/s/: Andrew A. Giordano Director April 24, 1998
____________________________
Andrew A. Giordano
/s/: Gary S. Gladstein Director April 24, 1998
____________________________
Gary S. Gladstein
/s/: Peter V. Handal Director April 24, 1998
____________________________
Peter V. Handal
/s/: David A. Preiser Director April 24, 1998
____________________________
David A. Preiser
/s/: Robert N. Wildrick Director April 24, 1998
____________________________
Robert N. Wildrick
</TABLE>
19
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders
of Jos. A. Bank Clothiers, Inc.:
We have audited the accompanying consolidated balance sheets of Jos. A. Bank
Clothiers, Inc. (a Delaware corporation) and subsidiaries as of February 1, 1997
and January 31, 1998, and the related consolidated statements of income (loss),
shareholders' equity and cash flows for the years ended February 3, 1996,
February 1, 1997 and January 31, 1998. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Jos. A. Bank Clothiers, Inc.
and subsidiaries as of February 1, 1997 and January 31, 1998, and the results of
its operations and its cash flows for the years ended February 3, 1996, February
1, 1997 and January 31, 1998, in conformity with generally accepted accounting
principles.
Baltimore, Maryland
April 16, 1998
F-1
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF FEBRUARY 1, 1997 AND JANUARY 31, 1998
(IN THOUSANDS, EXCEPT SHARE INFORMATION)
<TABLE>
<CAPTION>
ASSETS Feb. 1, 1997 Jan. 31, 1998
------------ -------------
<S><C>
CURRENT ASSETS:
Cash and cash equivalents $ 719 $ 564
Accounts receivable 3,086 2,737
Inventories 39,568 40,114
Prepaid expenses and other current assets 4,849 4,338
Deferred income taxes 3,200 4,030
- ---------------------------------------------------------------------------------------------------------------------
Total current assets 51,422 51,783
NONCURRENT ASSETS:
Property, plant and equipment, net 21,483 22,107
Other noncurrent assets, net 1,270 791
Deferred income taxes 4,083 1,680
Net noncurrent assets of discontinued operations 1,346 783
- ---------------------------------------------------------------------------------------------------------------------
Total assets $ 79,604 $ 77,144
- ---------------------------------------------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 12,127 $ 13,319
Accrued expenses 8,800 9,774
Current portion of long-term debt 678 1,448
Current portion of pension termination liability 803 437
Net current liabilities of discontinued operations 25 663
- ---------------------------------------------------------------------------------------------------------------------
Total current liabilities 22,433 25,641
NONCURRENT LIABILITIES:
Long-term debt 17,737 11,551
Deferred rent 3,218 3,474
Pension liability 517 80
- ---------------------------------------------------------------------------------------------------------------------
Total liabilities 43,905 40,746
- ---------------------------------------------------------------------------------------------------------------------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Common stock, $.01 par, 20,000,000 shares authorized,
7,000,567 issued and 6,791,152 outstanding as of
February 1, 1997 and January 31, 1998 70 70
Preferred stock, $1.00 par, 500,000 shares authorized,
none outstanding -- --
Additional paid-in capital 56,336 56,336
Accumulated deficit (18,787) (18,088)
Less 209,415 shares of common stock held in treasury,
at cost (1,920) (1,920)
- ---------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 35,699 36,398
- ---------------------------------------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $ 79,604 $ 77,144
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets.
F-2
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (LOSS)
FOR THE YEARS ENDED FEBRUARY 3, 1996 , FEBRUARY 1, 1997 AND JANUARY 31, 1998
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
<TABLE>
<CAPTION>
Years Ended
-----------------------------------------------------------
Feb. 3, 1996 Feb. 1, 1997 Jan. 31, 1998
-----------------------------------------------------------
<S><C>
NET SALES:
MEN'S $143,459 $153,191 $172,174
Women's 25,908 -- --
- -------------------------------------------------------------------------------------------------------------------------
NET SALES 169,367 153,191 172,174
COST OF GOODS SOLD 100,589 82,598 92,001
- -------------------------------------------------------------------------------------------------------------------------
Gross profit 68,778 70,593 80,173
- -------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
General and administrative 17,326 16,374 17,695
Sales and marketing 63,013 50,924 55,609
Store opening costs -- 229 301
Store repositioning costs 3,500 -- --
- -------------------------------------------------------------------------------------------------------------------------
Total operating expenses 83,839 67,527 73,605
- -------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME (LOSS) (15,061) 3,066 6,568
Interest expense, net (3,444) (1,946) (2,501)
- -------------------------------------------------------------------------------------------------------------------------
Income (loss) from continuing operations
before (provision) benefit for income taxes (18,505) 1,120 4,067
(Provision) benefit for income taxes 5,640 (437) (1,590)
- -------------------------------------------------------------------------------------------------------------------------
INCOME (LOSS) FROM CONTINUING
OPERATIONS (12,865) 683 2,477
Discontinued operations (net of income tax benefit):
Loss on disposal of manufacturing operations -- -- (1,512)
Loss from discontinued operations (321) (432) (266)
- -------------------------------------------------------------------------------------------------------------------------
Net income (loss) $(13,186) $ 251 $ 699
- -------------------------------------------------------------------------------------------------------------------------
EARNINGS PERSHARE:
INCOME (LOSS) FROM CONTINUING OPERATIONS:
BASIC $ (1.89) $ 0.10 $ 0.36
DILUTED $ (1.89) $ 0.10 $ 0.36
Discontinued operations (net of tax):
Basic $ (0.05) $ (0.06) $ (0.26)
Diluted $ (0.05) $ (0.06) $ (0.26)
Net income (loss)
Basic $ (1.94) $ 0.04 $ 0.10
Diluted $ (1.94) $ 0.04 $ 0.10
Weighted average shares outstanding:
Basic 6,790 6,790 6,791
Diluted 6,790 6,824 6,864
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets.
F-3
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED FEBRUARY 3, 1996 , FEBRUARY 1, 1997 AND JANUARY 31, 1998
(IN THOUSANDS, EXCEPT SHARE INFORMATION)
<TABLE>
<CAPTION>
Additional Total
Common Paid-In Accumulated Treasury Shareholders'
Stock Capital Deficit Stock Equity
------ ---------- ----------- -------- -------------
<S><C>
BALANCE, JANUARY 28, 1995 $ 70 $ 56,333 $ (5,852) $ (1,920) $ 48,631
Net loss -- -- (13,186) -- (13,186)
- -------------------------------------------------------------------------------------------------------------------------
BALANCE, FEBRUARY 3, 1996 70 56,333 (19,038) (1,920) 35,445
- -------------------------------------------------------------------------------------------------------------------------
Net proceeds from issuance of
common stock (1,000 shares)
pursuant to Incentive Option Plan -- 3 -- -- 3
Net income -- -- 251 -- 251
- -------------------------------------------------------------------------------------------------------------------------
BALANCE, FEBRUARY 1, 1997 70 56,336 (18,787) (1,920) 35,699
- -------------------------------------------------------------------------------------------------------------------------
Net income -- -- 699 -- 699
- -------------------------------------------------------------------------------------------------------------------------
BALANCE, JANUARY 31, 1998 $ 70 $ 56,336 $ (18,088) $ (1,920) $ 36,398
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets.
F-4
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED FEBRUARY 3, 1996, FEBRUARY 1, 1997 AND JANUARY 31, 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
Years Ended
--------------------------------------------------------------
Feb. 3, 1996 Feb. 1, 1997 Jan. 31, 1998
------------ ------------ -------------
<S><C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ (13,186) $ 251 $ 699
Loss from discontinued operations 321 432 266
Loss on disposal of manufacturing operations -- -- 1,512
- -----------------------------------------------------------------------------------------------------------------------------
Income (loss) from continuing operations (12,865) 683 2,477
Adjustments to reconcile net income (loss)
to net cash provided by (used in) operating
activities:
Deferred tax (benefit) expense (5,533) 3,884 1,573
Depreciation and amortization 4,413 3,645 3,581
(Gain) loss on disposition of assets 168 (25) 2
Store repositioning costs 3,500 -- --
Changes in assets and liabilities:
Decrease in accounts receivable 679 780 349
(Increase) decrease in inventories 7,817 2,394 (546)
(Increase) decrease in prepaid expenses and
other current assets 3,213 (481) 511
(Increase) decrease in other noncurrent assets (776) 101 248
Increase (decrease) in accounts payable (5,207) 3,338 1,192
Decrease in long-term pension liability (665) (730) (803)
Increase in accrued expenses 119 196 1,070
Increase in deferred rent 461 134 256
- -----------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) operating
activities of continuing operations (4,676) 13,919 9,910
- -----------------------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (2,184) (2,137) (4,056)
Proceeds from disposal of assets 137 779 --
- -----------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities
of continuing operations (2,047) (1,358) (4,056)
- -----------------------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings under revolving loan agreement 54,364 29,786 36,505
Repayment of borrowings under revolving loan
agreement (47,550) (40,680) (42,419)
Borrowing of other long-term debt -- -- 833
Repayment of other long-term debt (537) (911) (335)
Net proceeds from issuance of common stock -- 3 --
Principal payments under capital lease obligations (212) (183) (16)
Payments related to debt financing (493) (142) --
- -----------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) financing activities
of continuing operations 5,572 (12,127) (5,432)
- -----------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) discontinued operations 1,058 (359) (577)
- -----------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash
equivalents (93) 75 (155)
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR 737 644 719
- -----------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS, END OF YEAR $ 644 $ 719 $ 564
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets.
F-5
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FEBRUARY 3, 1996, FEBRUARY 1, 1997 AND JANUARY 31, 1998
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
DESCRIPTION OF BUSINESS - Jos. A. Bank Clothiers, Inc. (Clothiers) is a
nationwide retailer of classic men's clothing through conventional retail
stores, catalog direct marketing and franchisees.
FISCAL YEAR - The Company maintains its accounts on a fifty-two / fifty-three
week fiscal year ending on the Saturday nearest to January 31. The fiscal years
ended February 1, 1997 (fiscal 1996) and January 31, 1998 (fiscal 1997), each
contained fifty-two weeks and the fiscal year ended February 3, 1996 (fiscal
1995) contained fifty-three weeks.
BASIS OF PRESENTATION - The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements
include the accounts of Clothiers and its wholly-owned subsidiaries, The
Joseph A. Bank Mfg. Co., Inc. and National Tailoring Services, Inc.
(collectively referred to as the Company). All significant intercompany
balances and transactions have been eliminated in consolidation.
CASH AND CASH EQUIVALENTS - Cash and cash equivalents include overnight
investments.
SUPPLEMENTAL CASH FLOW INFORMATION - Interest and income taxes paid were as
follows (in thousands):
<TABLE>
<CAPTION>
Years Ended
-------------------------------------
Feb. 3, Feb. 1, Jan. 31,
1996 1997 1998
-------------------------------------
<S><C>
Interest paid $ 2,679 $ 2,784 $ 2,181
Income taxes paid 30 100 101
</TABLE>
INVENTORIES - Inventories are stated at the lower of first-in first-out, cost or
market. The Company capitalizes into inventories certain warehousing and
delivery costs associated with getting its merchandise to the point of sale.
CATALOGS AND PROMOTIONAL MATERIALS - Costs related to mail order catalogs and
promotional materials are included in prepaid expenses and other current assets.
These costs are amortized over the expected periods of benefit, not to exceed
six months. At February 1, 1997 and January 31, 1998, prepaid catalog and
promotional materials were approximately $1,505,000 and $1,726,000,
respectively.
PROPERTY, PLANT AND EQUIPMENT - Property, plant and equipment are stated at
cost. The Company depreciates and amortizes property, plant and equipment on a
straight-line basis over the following estimated useful lives:
<TABLE>
<CAPTION>
Estimated
Asset Class Useful Lives
---------------------------------------------------
<S><C>
Buildings 25 years
Equipment 3-10 years
Furniture and fixtures 10 years
Leasehold improvements Initial term of
lease, not to
exceed 10 years
</TABLE>
OTHER NONCURRENT ASSETS - Other noncurrent assets includes deferred financing
costs of $514,000 and $282,000 as of February 1, 1997 and January 31, 1998,
respectively. Deferred financing costs were incurred in connection with the
Company's bank credit agreement described in Note 6 and are being amortized as
additional interest expense over the remaining term of the agreement using the
effective interest method. Other noncurrent assets also include $675,000 and
$427,000 of notes receivable as of February 1, 1997 and January 31, 1998,
respectively.
FRANCHISE REVENUE RECOGNITION - Initial franchise fees for a store are generally
recognized as revenue when the Company has provided substantially all the
initial franchise services. Inventory sales (and cost of sales) to the
franchisees are recognized when the inventory is shipped. Monthly franchise fees
are recorded when earned under the franchise agreements.
LEASE EXPENSE - The Company records lease expense in accordance with Statement
of Financial Accounting Standards (SFAS) No. 13 -- Accounting for Leases. As
such, rent expense on leases is recorded on a straight-line basis over the term
of the lease and the excess of expense over cash amounts paid are reflected as
"deferred rent" in the accompanying balance sheets.
STORE OPENING COSTS - Costs incurred in connection with start-up and promotion
of new store openings are expensed as incurred.
F-6
<PAGE>
INCOME TAXES - The Company accounts for income taxes in accordance with SFAS No.
109 -- Accounting for Income Taxes. Under SFAS 109, the liability method is used
in accounting for income taxes. Deferred tax liabilities are determined based on
differences between the financial reporting and tax basis of assets and
liabilities and are measured using tax rates and laws that are expected to be in
effect when the differences are scheduled to reverse.
EARNINGS PER SHARE - During 1997, the Financial Accounting Standards Board
(FASB) issued Statement No. 128 (SFAS No. 128), "Earnings Per Share," which
establishes new standards for computing and presenting earnings per
share. The Company has adopted SFAS No. 128 and restated earnings per share
data presented to reflect the new standard. SFAS No. 128 requires
presentation of basic earnings per share and diluted earnings per share. The
weighted average shares used to calculate basic and diluted earnings per share
in accordance with SFAS No. 128 is as follows:
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S><C>
Weighted average shares
outstanding for basic EPS 6,790 6,790 6,791
- ---------------------------------------------------------------
Diluted EPS:
Dilutive effect of
common stock equivalents -- 34 73
- ---------------------------------------------------------------
Weighted average shares
outstanding for diluted
EPS (pro forma) 6,790 6,824 6,864
- ---------------------------------------------------------------
</TABLE>
Weighted average shares outstanding for calculating dilutive EPS include basic
shares outstanding, plus shares issuable upon the exercise of stock options,
using the treasury stock method.
RECLASSIFICATIONS - Certain reclassifications have been made to the February 3,
1996 and February 1, 1997, financial statements in order to conform with the
January 31, 1998, presentation.
NEW ACCOUNTING STANDARDS - In June 1997, the Financial Accounting
Standards Board issued Statement No. 130, "Reporting Comprehensive Income."
SFAS No. 130 establishes standards for reporting and display of
comprehensive income and its components in financial statements. SFAS No.
130 is effective for fiscal years beginning after December 15, 1997.
Reclassification of financial statements for earlier periods provided for
comparative purposes is required. The impact of the adoption of SFAS No.
130 on the Company has not been determined.
2. DISCONTINUED OPERATIONS:
In January 1998, the Company formalized a plan to dispose of its manufacturing
operations. Accordingly, the consolidated financial statements have been
restated to reflect the disposition of the manufacturing operations as
discontinued operations. The revenues, costs and expenses, assets and
liabilities, and cash flows of the manufacturing operations have been excluded
from the respective captions in the Consolidated Statements of Income (Loss),
Consolidated Balance Sheets and Consolidated Statements of Cash Flows and the
related footnotes included herein.
In April 1998, the Company entered into an agreement which included the
disposition of the Company's manufacturing operations. Based upon the agreement,
an estimated loss on disposal of $2,479,000 is reported net of an income tax
benefit of $967,000, for an after-tax loss of $1,512,000.
Summarized financial information for the discontinued operations is as follows
(in thousands):
<TABLE>
<CAPTION>
Feb. 3, Feb. 1, Jan. 31,
1996 1997 1998
------- ------- --------
<S><C>
Loss before income
taxes $ (526) $ (708) $ (374)
Net loss $ (321) $ (432) $ (266)
- ---------------------------------------------------------------
Current assets $ 1,554 $ 3,839
Less current liabilities 1,579 4,502
- ---------------------------------------------------------------
Net current assets
(liabilities) $ (25) $ (663)
- ---------------------------------------------------------------
Noncurrent assets $ 1,598 $ 1,028
Noncurrent liabilities 252 245
- ---------------------------------------------------------------
Net noncurrent assets $ 1,346 $ 783
- ---------------------------------------------------------------
</TABLE>
Revenues of the manufacturing operations primarily represent intercompany sales
which have been eliminated in consolidation other than external sales of
$200,000, $1,867,000 and $0 for the years ended February 3, 1996, February 1,
1997 and January 31, 1998, respectively.
Net current and noncurrent assets/liabilities of discontinued operations noted
above includes inventories, plant and equipment, pension termination and other
transaction costs associated with the discontinued manufacturing operations.
F-7
<PAGE>
3. INVENTORIES:
Inventories at February 1, 1997 and January 31, 1998, consist of the following
(in thousands):
<TABLE>
<CAPTION>
Feb. 1, 1997 Jan. 31, 1998
------------ -------------
<S><C>
Finished goods $ 31,862 $ 33,120
Raw materials 7,706 6,994
- --------------------------------------------------------------
Total $ 39,568 $ 40,114
- --------------------------------------------------------------
</TABLE>
4. PROPERTY, PLANT AND EQUIPMENT:
Property, plant and equipment at February 1, 1997 and January 31, 1998, consists
of the following (in thousands):
<TABLE>
<CAPTION>
Feb. 1, 1997 Jan. 31, 1998
------------ -------------
<S><C>
Land $ 475 $ 475
Buildings and
improvements 28,062 29,318
Equipment,
furniture and
fixtures 15,577 17,132
- --------------------------------------------------------------
44,114 46,925
Less: Accumulated
depreciation and
amortization (22,631) (24,818)
- --------------------------------------------------------------
Property, plant and
equipment, net $ 21,483 $ 22,107
- --------------------------------------------------------------
</TABLE>
5. ACCRUED EXPENSES:
Accrued expenses at February 1, 1997 and January 31, 1998, consists of the
following (in thousands):
<TABLE>
<CAPTION>
Feb. 1, 1997 Jan. 31, 1998
------------ -------------
<S><C>
Accrued compensation
and benefits $ 3,253 $ 3,581
Accrued advertising 2,142 1,776
Gift certificate
payable 1,135 1,184
Other accrued expenses 2,270 3,233
- --------------------------------------------------------------
Total $ 8,800 $ 9,774
- --------------------------------------------------------------
</TABLE>
Other accrued expenses consist primarily of liabilities related to interest,
sales taxes, customer deposits, and percentage rent.
6. LONG-TERM DEBT:
Long-term debt at February 1, 1997 and January 31, 1998, consists of the
following (in thousands):
<TABLE>
<CAPTION>
Feb. 1, Jan. 31,
1997 1998
-------- --------
<S><C>
Bank credit agreement-
Borrowings under
long-term revolving
loan agreement, including
term portion $ 18,010 $ 12,096
Notes related to lease-
hold improvements,
interest at 2% plus
prime, 9.9% and 11.0%,
payable in monthly
installments through
November 1, 2002 134 824
Notes related to
building improvements,
interest at 10%, and
12% payable in monthly
installments through
July 1, 1997 and June 10, 2000 174 18
Mortgages payable,
interest at 3%, payable
in monthly installments
through September 1,
1999; secured by related
land and building 97 61
- -------------------------------------------------------------
Total debt 18,415 12,999
Less: Current maturities 678 1,448
- -------------------------------------------------------------
Long-term debt $ 17,737 $ 11,551
- -------------------------------------------------------------
</TABLE>
BANK CREDIT AGREEMENT - The Company maintains a bank credit agreement (the
"Credit Agreement"), which provides for a revolving loan whose limit is
determined by a formula based on the Company's inventories, accounts receivable
and real estate and equipment values. In September 1997, the Company extended
the Credit Agreement to April 2001. The amended Credit Agreement changed the
maximum borrowing under the facility to approximately $43,000,000 including a
new term loan facility of $4,000,000 payable in monthly installments based on a
five-year amortization with any outstanding balance due in April 2001. The
Credit Agreement also includes a) financial covenants concerning net worth,
EBITDA coverage and working capital, among others, b) limitations on capital
expenditures and additional indebtedness and c) a restriction on the payment of
dividends. Interest rates under the amended agreement range from prime to prime
plus 2.0% or LIBOR plus 2.0% to LIBOR plus 3.5%. The amended agreement also
includes an early termination fee and provisions for a seasonal over-advance.
F-8
<PAGE>
As of February 1, 1997 and January 31, 1998 the Company's availability in excess
of outstanding borrowings under the formula was $13,750,000 and $24,019,000,
respectively. Substantially all assets of the Company are collateralized under
the Credit Agreement.
During the years ended February 1, 1997 and January 31, 1998, borrowings under
the Credit Agreement bore interest ranging from prime to prime plus 2% or LIBOR
plus 3% to LIBOR plus 3.5%. Amounts outstanding under the Credit Agreement as of
January 31, 1998, bear interest at rates ranging from 7.6% to 9.5% which will
vary in the future depending upon prime and LIBOR.
In addition to borrowings under the Credit Agreement, the Company has issued a
letter of credit of $400,000 at January 31, 1998, to secure the payment of rent.
The aggregate maturities of the Company's long-term debt as of January 31, 1998,
are as follows: year ending 1999-$1,448,000; 2000-$1,470,000; 2001-$1,347,000;
2002-$8,609,000 and 2003 and thereafter $125,000.
7. COMMITMENTS AND CONTINGENCIES:
LITIGATION - Lawsuits and claims are filed from time to time against the Company
in its ordinary course of business. Management, after reviewing developments to
date with legal counsel, is of the opinion that the outcome of such matters will
not have a material adverse effect on the net assets of the Company or the
accompanying financial statements taken as a whole.
EMPLOYMENT AGREEMENTS - The Company has employment agreements with certain of
its executives expiring in 1999, aggregating base compensation of $1,701,000
(not including annual adjustments) over the term. The contracts also provide for
additional incentive payments subject to performance standards. In addition,
other employees are eligible for incentive payments based on performance. For
fiscal 1997, the Company expensed approximately $1,393,000 in incentive payments
and $925,000 in incentive payments were expensed in fiscal year 1996. No
incentive payment was expensed in fiscal year 1995.
LEASE OBLIGATIONS - The Company has numerous noncancelable operating leases for
retail stores, certain office space and equipment. Certain facility leases
provide for annual base minimum rentals plus contingent rentals based on sales.
Renewal options are available under the majority of the leases.
Future minimum lease payments under noncancelable operating leases at January
31, 1998, are as follows (in thousands):
<TABLE>
<CAPTION>
Year Amount
---- ----------
<S><C>
1999 $ 11,716
2000 12,099
2001 10,718
2002 10,004
2003 9,321
2004 and thereafter 33,212
- --------------------------------------------------
Total $ 87,070
- --------------------------------------------------
</TABLE>
The minimum rentals above do not include additional payments for percentage
rent, insurance, property taxes and maintenance costs that may be due as
provided for in the leases. Many of the noncancelable operating leases include
scheduled rent increases.
Total rental expense for operating leases, including contingent rentals and net
of sublease payments received, was $10,189,000, $10,224,000 and $11,364,000 for
the years ended February 3, 1996, February 1, 1997 and January 31, 1998,
respectively. Minimum rentals were $10,023,000, $9,986,000 and $11,049,000,
respectively. Contingent rentals, which are based on a percentage of sales,
approximated $353,000, $395,000 and $389,000, respectively. Additionally,
sublease payments received approximated $187,000, $156,000 and $74,000,
respectively.
INVENTORIES - The Company ordinarily commits to purchases of inventory at least
one to two seasons in advance. Accordingly, the Company has committed to a
substantial portion of its purchases for fiscal 1998 and has also committed to
approximately 15% to 20% of its purchases for fiscal 1999 and 2000.
OTHER - During fiscal 1997, the Company signed a five-year agreement with David
Leadbetter, a golf professional, to produce golf and other apparel under his
name. Payments are based on sales volumes. The minimum annual commitment under
this agreement is $150,000.
8. BENEFIT PLANS:
MULTI-EMPLOYER PENSION PLAN - Through the year ended January 29, 1994, the
Company's employees covered by a collective bargaining agreement participated in
plans with pension and post-retirement benefits administered by the national and
local Union of Needletrades Industrial & Textile Employees. The Company made
contributions to the plans in accordance with the collective bargaining
agreement.
F-9
<PAGE>
During the year ended January 29, 1994, the Company's Board of Directors and
management decided to terminate the Company's participation in the
multi-employer pension plan. The related liability is being repaid in
installments over four years through October, 1998. As of January 31, 1998, the
Company owed approximately $437,000 related to the termination which is included
in pension termination liability in the accompanying Balance Sheet.
DEFINED BENEFIT PENSION PLAN - In connection with the above termination, the
Company adopted a new noncontributory defined benefit pension plan to cover the
above-mentioned union employees with equivalent benefits to the multi-employer
plan. The Company's contributions are intended to provide for both benefits
attributed to service to date and for benefits expected to be earned in the
future. The annual contributions are not less than the minimum funding standards
set forth in the Employee Retirement Income Security Act of 1974, as amended.
The plan provides for eligible employees to receive benefits based principally
on years of service with the Company.
The following table sets forth the plan's funded status as of December 31, 1996
and 1997, the date of the latest actuarial valuations (in thousands).
Actuarial present value of benefit obligations from continuing operations:
<TABLE>
<CAPTION>
Feb. 1, Jan. 31,
1997 1998
------- --------
<S><C>
Accumulated benefit obligation,
including vested benefits of $186
and $164 $ 209 $ 177
- --------------------------------------------------------------
Projected benefit obligation for
service rendered to date $ (209) $ (177)
Fair value of plan assets 141 186
- --------------------------------------------------------------
Fair value of plan assets greater/less
than projected benefit obligation (68) 9
Unrecognized net loss 21 32
Unrecognized net transition liability 87 82
Employer contributions between
December 31,and fiscal year end 12 3
- --------------------------------------------------------------
PREPAID PENSION COST $ 52 $ 126
- --------------------------------------------------------------
</TABLE>
Net periodic pension expense from continuing operations for the years ended
February 3, 1996, February 1, 1997 and January 31, 1998, includes the following
components (in thousands):
<TABLE>
<CAPTION>
Feb. 3, Feb. 1, Jan. 31,
1996 1997 1998
------- ------- --------
<S><C>
Normal service
cost-benefits earned
during the period $ 30 $ 25 $ 28
Interest cost on
projected benefit
obligation 12 14 13
Actual return on plan
assets (9) (14) (36)
Net amortization
and deferral 12 11 29
- --------------------------------------------------------------
NET PERIODIC PENSION
EXPENSE $ 45 $ 36 $ 34
- --------------------------------------------------------------
</TABLE>
The Company recorded minimum pension liabilities of $89,000 and $0 at February
1, 1997 and January 31, 1998, respectively, which is included in "noncurrent
pension liability", representing the excess of the unfunded accumulated benefit
obligation over previously accrued pension costs. A corresponding intangible
asset was recorded as an offset to this additional liability, which is included
in "other noncurrent assets".
In determining the actuarial present value of the projected benefit obligation,
the weighted average discount rate used was 7.75% for fiscal 1997 and fiscal
1996 and the expected long-term rate of return on plan assets was 8.0% for
fiscal year 1997 and 8.0% for fiscal 1996.
POST-RETIREMENT BENEFIT PLAN - In connection with the termination of
participation in the multi-employer pension plan described above, the Company
adopted a new post-retirement benefit plan to cover the above-mentioned union
employees with equivalent benefits to the multi-employer plan. The Company does
not pre-fund these benefits.
In accordance with SFAS No. 106, "Employers' Accounting for Post-Retirement
Benefits Other than Pensions", the Company records the expected cost of these
benefits as expense during the years that employees render service. The Company
has adopted the standards on a prospective basis as permitted. As such, the
Company amortizes the related transition liability over 20 years. The following
table sets forth the post-retirement benefit program's funded status as of
December 31, 1996 and 1997, the dates of the latest actuarial valuations for the
related periods (in thousands):
F-10
<PAGE>
Accumulated post-retirement benefit from continuing operations:
<TABLE>
<CAPTION>
Feb. 1, Jan. 31,
1997 1998
------- --------
<S><C>
Retirees $ -- $ --
Fully eligible active plan participants (232) (299)
- ----------------------------------------------------------------
Total (232) (299)
Unrecognized net transition liability 189 178
Unrecognized net gain (loss) (85) (56)
- ----------------------------------------------------------------
ACCRUED POST-RETIREMENT BENEFIT
COST $ (128) $ (177)
- ----------------------------------------------------------------
</TABLE>
Net periodic post-retirement benefit expense from continuing operations for the
years ended February 3, 1996, February 1, 1997 and January 31, 1998, includes
the following components (in thousands):
<TABLE>
<CAPTION>
Feb. 3, Feb. 1, Jan. 31,
1996 1997 1998
------- ------- --------
<S><C>
Normal service cost benefits
earned during the period $ 20 $ 23 $ 22
Interest cost on accumulated
post-retirement benefit
obligation 18 18 19
Net amortization and
deferral 9 9 9
- ---------------------------------------------------------------
NET PERIODIC POST-RETIREMENT
BENEFIT EXPENSE $ 47 $ 50 $ 50
- ---------------------------------------------------------------
</TABLE>
For measurement purposes, a 5% annual rate of increase in the per capita cost
of covered health care benefits was assumed.
The health care cost trend rate assumption has a significant effect on the
amounts reported. Increasing the assumed health care cost trend rate by one
percentage point would increase the accumulated post-retirement benefit
obligation by $52,000 and would increase net periodic post-retirement benefit
cost by $9,000. The weighted average discount rate used in determining the
accumulated post-retirement benefit obligation was 7.75%.
PROFIT SHARING PLAN - The Company maintains a defined contribution 401(k) profit
sharing plan for its employees. All non-union employees are eligible to
participate after one year of service. Employee contributions to the plan are
limited based on applicable sections of the Internal Revenue Code. The Company
is required to match a portion of employee contributions to the plan and may
make additional contributions at the discretion of the directors of the Company.
Contributions by the Company to the plan were approximately $239,000, $223,000
and $238,000 for the years ended February 3, 1996, February 1, 1997 and January
31, 1998, respectively.
9. STORE REPOSITIONING COSTS:
In the fourth quarter of fiscal 1995, the Company elected early adoption of SFAS
No.121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed of". In the first half of fiscal 1995, the men's and
women's apparel industries began suffering a significant down-turn. In the face
of a potential cash shortage and other factors affecting the women's business,
the Company decided to discontinue the women's product line (which was sold in
the same stores as the men's products) to generate cash. The women's product
line represented approximately $33 million and $26 million of sales in fiscal
1994 and 1995, respectively (or 18% and 15% of sales, respectively). With this
loss of the women's volume, and with the men's business experiencing a decline
(but improving) certain previously-profitable stores became unprofitable since
the store rents remained basically unchanged.
Given these events, the Company performed a store-by-store analysis to determine
which stores were losing money and not expected to generate future cash flows
that were sufficient to support the book values of the related store assets.
Based upon this analysis, the Company determined that (a) certain stores needed
to be closed, down-sized or relocated and (b) a write-down of the specific store
leasehold improvements and equipment was required. As a result, the Company
recorded an impairment loss of $2,300,000 representing the writedown of assets
to fair value. The fair values were determined based on estimated future cash
flows and market value of the assets. In addition, the Company recorded a
$1,200,000 charge representing an estimate of costs to be incurred to implement
the Company's plan to reposition its store base and to exit certain leases as it
discontinued the women's business and re-aligned its stores to support the
remaining men's-only business.
These costs are included in "store repositioning costs" in the accompanying
consolidated statement of income (loss) for the year ended February 3, 1996
(fiscal 1995).
During fiscal 1996, the Company closed two unprofitable full-line stores and
five catalog stores and relocated three stores at a cost of approximately
$930,000, which included lease settlement payments and moving costs. During
fiscal 1997, the Company relocated one full-line store and closed two catalog
stores at a cost of approximately $157,000. All costs noted above were charged
to the reserve.
10. INCOME TAXES:
At January 31, 1998, the Company had approximately $15.0 million of tax net
operating loss carryforwards
F-11
<PAGE>
(NOLs) which expire as follows: in the year 2009 - $4.0 million and 2010 - $11.0
million. SFAS No. 109 requires that the tax benefit of such NOLs be recorded as
an asset to the extent that management assesses the utilization of such NOLs to
be "more likely than not". Realization of the future tax benefits is dependent
on the Company's ability to generate taxable income within the carryforward
period. Future levels of operating income are dependent upon general economic
conditions, including interest rates and general levels of economic activity,
competitive pressures on sales and margins and other factors beyond the
Company's control. Therefore no assurance can be given that sufficient taxable
income will be generated for full utilization of the NOLs.
Management has determined, based on the Company's history of earnings, that
future earnings of the Company will more likely than not be sufficient to
utilize at least $10 million NOLs prior to their expiration. Accordingly, the
Company has recorded a deferred tax asset of $4.6 million and a valuation
allowance of $1.4 million relating to the NOLs. Management believes that
although the prior earnings and current year operating results might justify a
higher amount, the recorded asset represents a reasonable estimate of the future
utilization of the NOLs. The Company will continue to evaluate the likelihood of
future profit and the necessity of future adjustments to the deferred tax asset
valuation allowance.
During the year ended January 29, 1994, the Company filed for a prior year net
operating loss carryback to a year in which the Company was included in the
consolidated federal income tax return of its pre-1986 parent and the Company
recorded a deferred tax asset of $3,000,000 in anticipation of collecting the
refund. In March 1996, the refund plus interest was collected. Included in the
consolidated statement of income for the year ended February 1, 1997 is $600,000
of interest income related to the refund.
The (provision) benefit for income taxes was comprised of the following (in
thousands):
<TABLE>
<CAPTION>
Years Ended
--------------------------------------
Feb. 3, Feb. 1, Jan. 31,
1996 1997 1998
---------- ----------- -----------
<S><C>
Federal:
Current $ 71 $ (41) $ (110)
Deferred 4,655 (346) (1,289)
State:
Current 230 -- --
Deferred 684 (50) (191)
- --------------------------------------------------------------
(PROVISION) BENEFIT
FOR INCOME TAXES $ 5,640 $ (437) $ (1,590)
- --------------------------------------------------------------
</TABLE>
The differences between the recorded income tax (provision) benefit and the
"expected" tax (provision) benefit based on the statutory federal income tax
rate is as follows (in thousands):
<TABLE>
<CAPTION>
Years Ended
--------------------------------------
Feb. 3, Feb. 1, Jan. 31,
1996 1997 1998
---------- ----------- -----------
<S><C>
Computed federal tax
(provision) benefit at
statutory rates $ 6,286 $ (381) $ (1,383)
State income taxes, net
of federal income
tax effect 608 (60) (203)
Valuation allowance (1,365) -- --
Other, net 111 4 (4)
- -------------------------------------------------------------------
(PROVISION) BENEFIT
FOR INCOME TAXES $ 5,640 $ (437) $ (1,590)
- -------------------------------------------------------------------
</TABLE>
Temporary differences between the financial reporting carrying amounts and tax
basis of assets and liabilities give rise to deferred income taxes. Total
deferred tax assets and deferred tax liabilities stated by sources of the
differences between financial accounting and tax basis of the Company's assets
and liabilities which give rise to the deferred tax assets and deferred tax
liabilities are as follows (in thousands):
<TABLE>
<CAPTION>
Feb. 1, Jan. 31,
1997 1998
-------- ---------
<S><C>
Deferred Tax Assets:
Long-term pension liability $ 484 $ 171
Inventories 487 646
Property, plant and equipment 163 151
Accrued liabilities 2,085 2,175
Operating loss carryforwards
and carrybacks 6,092 4,559
Valuation allowance (1,365) (1,365)
- --------------------------------------------------------------
7,946 6,337
- --------------------------------------------------------------
Deferred Tax Liabilities:
Prepaid expenses and other
current assets (628) (627)
Miscellaneous (35) --
- --------------------------------------------------------------
(663) (627)
- --------------------------------------------------------------
NET DEFERRED TAX ASSET $ 7,283 $ 5,710
- --------------------------------------------------------------
</TABLE>
11. INCENTIVE OPTION PLAN:
Effective January 28, 1994, the Company adopted an Incentive Plan (the Plan).
The Plan generally provides for the granting of stock, stock options, stock
appreciation rights, restricted shares or any combination of the foregoing to
the eligible participants, as defined. Approximately 953,000 shares of Common
Stock have been reserved for issuance under the Plan. The exercise price of an
option granted under the Plan may not be less
F-12
<PAGE>
than the fair market value of the underlying shares of Common Stock on the date
of grant and employee options expire at the earlier of termination of employment
or ten years from the date of grant.
As of January 31, 1998 options for 871,872 shares had been granted under the
plan at exercise prices ranging from $1.625 to $7.375 per share and options for
265,700 shares were exercisable at January 31, 1998. In addition there are
209,415 options outstanding at $9.170 per share which were issued in fiscal 1993
under employment agreements.
The Company has computed for pro forma disclosure purposes the value of all
compensatory options granted during fiscal year 1995, 1996 and 1997, using the
Black-Scholes option pricing model as prescribed by SFAS No. 123. Assumptions
used for the pricing model include 5.0% to 7.9% for the risk-free interest rate
in 1997, expected stock option lives of 5-10 years, expected dividend yield of
0% each year and expected volatility of 70% each year. Options were assumed to
be exercised upon vesting for the purposes of this valuation. Adjustments are
made for options forfeited prior to vesting. Had compensation costs for
compensatory options been determined consistent with SFAS No. 123, the Company's
pro forma net income (loss) would have been a loss of $(13,203,000) in 1995, net
income of $223,000 in 1996 and net income of $542,000 in 1997. Pro forma
earnings (loss) per share would have been $(1.94) in 1995, $.03 in 1996 and $.08
in 1997.
The following table summaries the stock option activity for the years ended
February 1, 1997 and January 31, 1998:
<TABLE>
<CAPTION>
Number of Range of
Shares Exercise Prices
--------- ---------------
<S><C>
Outstanding as of
February 3, 1996 770,965 $1.875 - $ 9.170
Granted 265,750 1.625 - 4.750
- ------------------------------------------------------------
Exercised (1,000) 3.250
Terminated -- --
Outstanding as of
February 1, 1997 1,035,715 1.625 - 9.170
- ------------------------------------------------------------
Granted 189,250 3.500 - 7.375
Forfeited (143,678) 4.000 - 9.170
Terminated -- --
- ------------------------------------------------------------
Outstanding as of
January 31, 1998 1,081,287 1.625 - 9.170
- ------------------------------------------------------------
</TABLE>
Weighted average fair value of options granted for the years ended February 1,
1997 and January 31, 1998, was $1.78 and $4.80, respectively.
12. RIGHTS OFFERING:
In September, 1997, the Company adopted a Stockholder Rights Plan in which
preferred stock purchase rights were distributed as a dividend at the rate of
one Right for each share of Jos. A. Bank's outstanding Common Stock held as of
the close of business on September 30, 1997. Each Right will entitle
stockholders to buy one one-hundredth of a share of the newly designated Series
A Preferred Stock of Jos. A. Bank at an exercise price of $40. The Rights will
be exercisable only if a person or group acquires beneficial ownership of 20
percent or more of the Company's outstanding Common Stock (without the approval
of the board of directors) or commences a tender or exchange offer upon
consummation of which a person or group would beneficially own 20 percent or
more of the Company's outstanding Common Stock.
If any person becomes the beneficial owner of 20 percent or more of the
Company's outstanding common stock (without the approval of the board of
directors), or if a holder of 20 percent or more the Company's Common Stock
engaged in certain self-dealing transactions or a merger transaction in which
the Company is the surviving corporation and its Common Stock remains
outstanding, then each Right not owned by such person or certain related parties
will entitle its holder to purchase, at the Right's then-current exercise price,
units of the Company's Series A Preferred Stock (or, in certain circumstances,
Common Stock, cash, property or other securities of the Company) having a market
value equal to twice the then-current exercise price of the Rights. In addition,
if the Company is involved in a merger or other business combination transaction
with another person after which its Common Stock does not remain outstanding, or
sells 50 percent or more of its assets or earning power to another person, each
Right will entitle its holder to purchase, at the Right's then-current exercise
price, shares of common stock of such other person having a market value equal
to twice the then-current exercise price of the Rights.
The Company will generally be entitled to redeem the Rights at $.01 per Right at
any time until the tenth business day following the public announcement that a
person or group has acquired 20 percent or more of the Company's Common Stock.
F-13
<PAGE>
13. RELATED PARTY TRANSACTIONS:
The Company has an executive who is the Chairman of the Board of a consulting
group. The Company paid the group approximately $69,000, $31,000 and $0 for the
years ended February 3, 1996, February 1, 1997 and January 31, 1998,
respectively, for professional services rendered.
The Company has also made a $200,000 loan to its President in accordance with
his employment contract. The balance as of January 31, 1998 included in "other
noncurrent assets" in the accompanying consolidated balance sheet was $160,000 .
14. QUARTERLY FINANCIAL INFORMATION (UNAUDITED):
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter Total
------- ------- ------- ------- -----
(In Thousands Except Per Share Amounts)
<S><C>
FISCAL 1997
Net sales $ 38,655 $ 39,530 $ 41,536 $ 52,453 $ 172,174
Gross profit 18,862 18,158 20,027 23,126 80,173
Operating income 1,315 1,108 1,513 2,632 6,568
Income from continuing operations 437 251 457 1,332 2,477
Net Income $ 382 $ 196 $ 402 $ (281) $ 699
INCOME FROM CONTINUING OPERATIONS
PER SHARE $ 0.06 $ 0.04 $ 0.07 $ 0.19 $ 0.36
Net income (loss) per share $ 0.06 $ 0.03 $ 0.06 $ (0.04) $ 0.10
FISCAL 1996
Net sales $ 36,408 $ 32,924 $ 36,734 $ 47,125 $ 153,191
Gross profit 17,681 14,779 17,275 20,858 70,593
Operating income 1,165 (400) 917 1,384 3,066
Income from continuing operations 275 (268) 156 520 683
Net Income $ 228 $ (559) $ 109 $ 473 $ 251
INCOME FROM CONTINUING OPERATIONS
PER SHARE $ 0.04 $ (0.04) $ 0.02 $ 0.08 $ 0.10
Net income (loss) per share $ 0.03 $ (0.08) $ 0.02 $ 0.07 $ 0.04
</TABLE>
F-14
Amendments to Incentive Plan
Add a new paragraph II(d) as follows:
II. DEFINITIONS
(d) A "Change of Control" shall be deemed to have occurred if, as a
result of a single transaction or a series of transactions, (A) and "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a
trustee or other fiduciary holding securities under any employee benefit plan of
the Company or a corporation owed, directly or indirectly, by the stockholders
of the Company (including any nominee corporation that holds shares of the
Company on behalf of the beneficial owners of such corporation), in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
51% or more of the combined voting power of the Company's then outstanding
securities; or (B) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
Add a new paragraph VIII(i) as follows:
VIII. OTHER TERMS AND CONDITIONS
(i) Unless provided to the contrary in any Award, all Awards heretofore
or hereafter issued under the Plan shall vest in full upon a Change of Control.
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of September 19,
1997, effective as of March 31, 1994, between TIMOTHY F. FINLEY ("Executive")
and JOS. A. BANK CLOTHIERS, INC. ("Employer").
WHEREAS, the parties hereto are parties to a Management Agreement, dated as
of May 10, 1991, as amended from time to time (the "Previous Agreement")
pursuant to which Executive is currently serving as the Chief Executive Officer
of Employer.
WHEREAS, the parties wish by this Employment Agreement to provide for the
terms of the continued employment of Executive and to terminate the Previous
Agreement, except with respect to Section 6 thereof which was the subject of an
amendment to the previous Agreement, dated as of January 29, 1994, ("Section 6
of the Previous Agreement, as amended").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE; TERMINATION OF PREVIOUS AGREEMENT
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth. Employer and Executive hereby agree that upon the
execution hereof, the Previous Agreement shall be deemed terminated except with
respect to Section 6 of the Previous Agreement, as amended, which shall continue
in full force and effect and be deemed a part of this Agreement. This Agreement
is a contract for personal services of Executive and services pursuant hereto
may only be performed by Executive. This Agreement is an amendment and
restatement of that certain Employment Agreement, dated as of February 5, 1996,
between Executive and Employer, which Employment Agreement is hereby superseded
in its entirety.
2. EMPLOYMENT PERIOD
The term of Executive's employment under this Agreement (the "Employment
Period") shall commence March 31, 1994 and shall, subject to earlier termination
as provided in Section 5, continue for a period of five years after commencement
and be automatically renewed thereafter for successive one-year periods unless,
at least 180 days before the end of the initial five-year period or any
subsequent one-year period, either party gives notice to the other of his or its
desire to terminate the Employment Period, in which case the Employment Period
shall terminate as of the end of such period.
3. DUTIES AND RESPONSIBILITIES
3.1 General. During the Employment Period, Executive (i) shall have the
title of Chairman and Chief Executive Officer and (ii) shall devote
substantially all of his business time and expend his best efforts, energies and
skills to the business of the Company. The preceding sentence shall not be
<PAGE>
construed to prohibit Executive from continuing to devote more than an
insignificant amount of time, in accordance with his past practice, to
management of his investments, serving on boards of directors, serving as Chief
Executive Officer of The Finley Group and participation in civic and
philanthropic activities.
Executive shall perform such duties, consistent with his status as Chairman
and Chief Executive Officer of Employer, as he may be assigned from time to time
by Employer's Board of Directors (the "Board of Directors"). Executive shall
have such authority, discretion, power and responsibility, and shall be entitled
to a office, secretarial and administrative (at least one secretary and/or
administrative assistant of his selection) and other facilities and conditions
of employment, as are customary or appropriate to his position and those
currently exercised by or afforded to him. Without limitation of the generality
of the foregoing, Executive, within the general guidelines adopted from time to
time by the Board of Directors, shall have the power, without further approval
of the Board of Directors, to hire, fire and establish the terms of employment
(including all compensation and bonus arrangements) of all employees of and
consultants and other advisers to the Company (other than the President).
Executive shall also serve without additional compensation as a director of the
Company and, if he should so desire, any of its subsidiaries. For all purposes
of this Agreement, the term "Company" means Employer and all corporation,
associations, companies, partnerships, firms and other enterprises controlled by
or under common control with Employer.
3.2 Location of Executive Offices. The Company will maintain its principal
executive offices at a location in the Baltimore, Maryland metropolitan area.
Executive shall not be required to perform services for the Company at any other
location, except for services rendered in connection with required travel on the
Company's business to an extent not substantially in excess of Executive's past
travel commitments for the Company.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive during the Employment
Period an annual base salary (the "Base Salary") of $435,000, subject to such
raises as the Compensation Committee of the Board of Directors (the "Committee")
or the Board of Directors may from time to time determine in their sole
discretion. Commencing January 1, 1995, and on each January 1 thereafter during
the Employment Period, the Base Salary shall be increased (but never decreased)
by a percentage equal to the annual percentage increase, if any, in the Consumer
Price Index for Urban Wage Earners and Clerical Workers, Washington-Baltimore
DC-MD-VA-WV, All Items (November 1996 = 100) (the "Index"), published by the
Bureau of Labor Statistics of the United States Department of Labor. Any portion
of increased Base Salary which is retroactively due to Executive hereunder shall
be payable within 15 days after the computation thereof has been made.
Appropriate adjustment shall be promptly made following receipt of notice from
Executive in the event there is a published amendment of the Index figures upon
which the computation is based. If publication of the Index is discontinued, the
parties shall accept comparable statistics on the cost of living for the
Baltimore, Maryland area as computed and published by any recognized authority
acceptable to the parties. The Base Salary for each calendar year shall be
payable in installments in accordance with the Company's policy on payment of
executives in effect from time to time.
2
<PAGE>
4.2 Annual Bonus. For fiscal year 1994 (ending January 28, 1995) and for
each fiscal year that begins during the Employment Period (each such fiscal
year, a "Bonus Year"), Executive shall be entitled to receive a bonus of 75% of
Base Salary (each, a "Performance Bonus") conditioned upon the satisfaction of
(a) Company performance goals established by the Committee for such Bonus Year
and (b) personal performance goals submitted by the Executive to, and approved
by, the Company and the Committee for such Bonus Year. Company and personal
performance goals are herein referred to collectively as the "Performance
Goals". In the event the Performance Goals for any Bonus Year are not fully
satisfied, the Committee shall have the right, but not the obligation, to grant
a partial Performance Bonus for such Bonus Year. The Performance Goals for each
Bonus Year shall be established as soon as possible following the beginning of
such Bonus Year. In addition, the Committee may grant a discretionary bonus of
up to 25% of Base Salary for each Bonus Year (each, a "Discretionary Bonus") in
the event the Committee, acting in its sole discretion, determines that payment
thereof is warranted by extraordinary performance by Executive. The Performance
Bonus and the Discretionary Bonus are herein referred to collectively as the
"Bonus". The Bonus earned for any Bonus Year shall be payable promptly following
the determination thereof, but in no event later than 90 days following the end
of each Bonus Year. If (a) the Employment Period shall expire or terminate and
(b) Employee is entitled to payment of a bonus pursuant to Section 6 hereof, the
Bonus payable for the Bonus Year in which the Employment Period terminates or
expires shall equal the Bonus that would have been paid had the Employment
Period not so terminated or expired, multiplied by a fraction, the numerator of
which shall be the number of days of the Employment Period within the Bonus Year
and the denominator of which shall be 365. For the purposes of determining the
amount of Bonus payable pursuant to the immediately preceding sentence, it shall
be assumed that all conditions to payment based upon performance by the
Executive (e.g. personal performance goals) have been satisfied; provided that
nothing herein shall be deemed to require payment of a Discretionary Bonus.
Notwithstanding anything to the contrary contained herein or in the Employer's
Bonus Plan, in the event (y) the Employment Period shall end for any reason
whatsoever on a day prior to payment to Executive of a Bonus for the last full
Bonus Year contained within the Employment Period, and (z) Executive would have
been entitled to receive a Bonus for such last full Bonus Year had the
Employment Period not ended - then, Employer shall pay to Executive the Bonus
for such last full Bonus Year as and when such Bonus would have been paid had
the Employment Period not ended.
4.3 Life Insurance. Employer shall maintain in effect at all times during
the Employment Period, at Employer's expense, a policy of term life insurance,
or such other type of policy as Executive shall request provided that the cost
to Employer thereof is approximately the same as the cost of such term policy,
on the life of Executive in the amount of not less than $2,000,000 naming such
person as Executive shall designate from time to time as the owner and
beneficiary thereof. Executive agrees that Employer shall have the right to
obtain other life insurance on Executive's life, at Employer's sole expense and
with Employer or an affiliate thereof as the sole beneficiary thereof. Executive
shall (i) cooperate fully with Employer in obtaining all such insurance, (ii)
sign any necessary consents, applications and other related forms or documents,
and (iii) take any required medical examinations.
4.4 Automobile. Throughout the Employment Period, Employer shall provide to
Executive, at Employer's expense, a top-of-the-line Cadillac, Lincoln, Lexus or
comparable luxury automobile selected by Executive on a biannual basis and
equipped to Executive's satisfaction. Employer shall also be responsible for all
expenses of use and operation thereof.
3
<PAGE>
4.5 Other Benefits. During the Employment Period, subject to, and to the
extent Executive is eligible under their respective terms, Executive shall be
entitled to receive such fringe benefits as are, or are from time to time
hereafter, generally provided by Employer to Employer's senior management
employee or other employees (other than those provided under or pursuant to
separately negotiated individual employment agreements or arrangements) under
any pension or retirement plan, disability plan or insurance, group life
insurance, medical and dental insurance, travel accident insurance, stock
option, phantom stock or other similar plan or program of Employer. Executive's
Base Salary shall (where applicable) constitute the compensation on the basis of
which the amount of Executive's benefits under any such plan or program shall be
fixed and determined. If, during the Employment Period, any plan or program in
which Executive participates (including those in which Executive currently
participates) shall be amended so as to result in overall reduction of
Executive's benefits, or shall be terminated without being replaced by a new
plan or program providing for benefits equivalent overall to those provided for
Executive prior thereto, the Company shall make arrangements, in addition any
such amended or terminated plan or program, for Executive to participate in a
plan or program so as to provide benefits to Executive at least equivalent
overall to those provided to Executive prior to such amendment or termination,
such benefits to be provided through a plan or program of insurance if
commercially available.
4.6 Expense Reimbursement. Employer shall reimburse Executive for all
business expenses reasonably incurred by him in the performance of his duties
under this Agreement and consistent with past practice upon his presentation,
not less frequently than monthly, of signed, itemized accounts of such
expenditures, all in accordance with Employer's procedures and policies as
adopted and in effect from time to time and applicable to its senior management
employees.
4.7 Vacations. Executive shall be entitled to 20 days of vacation during
each calendar year, which shall accrue in accordance with the Company's vacation
policy in effect from time to time for its senior executive officers, with
reasonable carry-over allowances, which vacations shall be taken at such time or
times as shall not unreasonably interfere with Executive's performance of his
duties under this Agreement. Upon termination of Executive's employment pursuant
to Section 5 herein or non-renewal of the Employment Period as provided for
under Section 2 herein, for any reason whatsoever, Employer shall pay Executive,
in addition to any termination compensation provided for under Section 6 herein,
an amount equivalent to Executive's per diem compensation at the then-current
Base Salary rate multiplied by the number of unused vacation days, including any
carry-over, accrued by Executive as of the date of termination.
4.8 Tax Gross-up. In the event that any payments made by Employer to or on
behalf of Executive pursuant to the provisions of Section 4.3 through 4.6 hereof
result in the payment of additional federal, state or local income taxes by
Executive, Employer shall pay to Executive the amount of such additional taxes
plus such additional amount as shall be necessary to hold harmless Executive, as
nearly as can be, from the obligation to pay such taxes in respect of amounts
payable pursuant to this Section 4.8.
4.9. Initiation Fee Loan. The Company shall loan to Executive the sum of
approximately $40,000 (the "Initiation Fee Loan"), as evidenced by two, $20,000
Promissory Notes in form and substance mutually satisfactory to the Company and
Executive. One half of the Initiation Fee Loan
4
<PAGE>
shall be unsecured and made upon terms and conditions more fully set forth in
Promissory Note A. The other half of the Initiation Fee Loan shall be secured by
the "equity portion" of the initiation fee paid by Executive for membership at
Caves Valley Country Club ("Caves Valley"), all as more fully set forth in
Promissory Note B. For the purposes of this Section 4.9, the "equity portion" of
the initiation fee shall mean that portion thereof refunded upon resignation by
Executive of his membership at Caves Valley. Executive hereby assigns to the
Company, as collateral security for repayment of that portion of the Initiation
Fee Loan evidenced by Promissory Note B, the equity portion of Executive's
initiation fee at Caves Valley. Executive acknowledges receipt of the sum of
$40,200 on or about July 2, 1997, which sum shall be deemed the Initiation Fee
Loan, and agrees to repay such sum as set forth above.
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause. Employer or Executive may, by delivery of
not less than 60 days' notice to the other at any time during the Employment
Period, terminate the Employment Period without cause.
5.2 By Employer for Cause. Employer may terminate the Employment Period in
accordance with this Section 5.2 at any time for cause. For the purpose of this
Section 5.2, "cause" shall mean any of the following:
a) the conviction of Executive in a court of competent
jurisdiction of a felony involving money or property of
the Company or moral turpitude;
b) the willful commission of an act not approved of or
ratified by the Board of Directors involving a series of
material conflicts of interest or self-dealings relating
to any material aspect of the Company;
c) the willful commission of any act of fraud or
misrepresentation (including the omission of material
facts) relating to the business of the Company and
materially and negatively impacting upon the Company and
its business; or
d) at any time prior to a change in control of the Company,
the willful and material failure of Executive to comply
with the lawful orders of the Board of Directors, provided
such orders are consistent with Executive's duties,
responsibilities and/or authority as Chief Executive
Officer of the Company.
In the event Employer shall elect to pursue a termination for cause, the
Board of Directors shall deliver to Executive a written notice setting forth
with reasonable particularity the grounds upon which the Board of Directors has
found cause for termination. In the event such grounds are predicated upon acts
or omissions as set forth in paragraphs (b), (c) or (d) above, Executive shall
have thirty (30) days, or such longer period as may be necessary provided
Executive has commenced and is diligently proceeding, to cure or eliminate the
cause for termination. In the event Executive has failed to timely cure or
eliminate the cause for termination as set forth in the immediately preceding
sentence,
5
<PAGE>
Executive and Executive's counsel (if Executive shall so elect) shall be granted
the opportunity to be heard before the Board of Directors upon not less than ten
days notice. The Employment Period shall terminate for cause if the Board of
Directors shall adopt at such hearing (or, in the event of cause predicated on a
criminal conviction as set forth in paragraph (a) above, at any meeting
following such conviction) a resolution concurred in by not less than a majority
of the Board of Directors, including at least two-thirds of all of the directors
who are not officers of Employer, that Executive was guilty of conduct
constituting "cause" hereunder, which conduct has not been timely cured (if
applicable), and specifying the particulars thereof in reasonable detail.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by notice to Employer, terminate the Employment Period under
this Agreement for "good reason" effective immediately. For the purposes hereof,
"good reason" means (i) any material breach by Employer of any provision of this
Agreement which, if susceptible of being cured, is not cured within 30 days of
delivery of notice thereof to Employer by Executive; it being agreed, however,
that the foregoing 30 day cure period shall not be applicable to any failure
timely to pay (or any reduction in) compensation or benefits paid or payable to
Executive pursuant to the provisions of Section 4 hereof or (ii) the occurrence
of a change in control (as hereinafter defined) of Employer provided that not
more than 90 days shall have elapsed subsequent to Executive's becoming aware of
the occurrence of the change in control. Without limitation of the generality of
the foregoing, each of the following shall be deemed to be a material breach of
this Agreement by Employer: (x) any failure timely to pay (or any reduction in)
compensation (including benefits) paid or payable to Executive pursuant to the
provisions of Section 4 hereof; (y) any reduction in the duties,
responsibilities or perquisites of Executive as provided in Section 3.1 hereof
and (z) any transfer of the Company's principal executive offices outside the
geographic area described in Section 3.2 hereof or requirement that Executive
principally perform his duties outside such geographic area.
For purposes of this Agreement, a "change in control" of the Company shall
be deemed to have occurred if, as a result of a single transaction or a series
of transactions, (A) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than a trustee or other fiduciary holding securities under any employee
benefit plan of the Company or a corporation owned, directly or indirectly, by
the stockholders of the Company ( including any nominee corporation that holds
shares of the Company on behalf of the beneficial owners of such corporation),
in substantially the same proportions as their ownership of stock of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 51% or more of the combined voting power of the Company's then
outstanding securities; or (B) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than a trustee or other fiduciary
holding securities under any employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of the Company
(including any nominee corporation that holds shares of the Company on behalf of
the beneficial owners of such corporation), in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities and there are
at least a majority of directors serving on the Board of Directors who were not
serving in such capacity as of the date hereof or who were not elected with the
consent of the Executive; or (C) the shareholders of the Company approve a
merger or consolidation of the Company with any other
6
<PAGE>
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 70% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
the Company's assets; provided, however, the change in ownership of the
Company's securities resulting from the initial public offering thereof shall
not be deemed a "change in control" for purposes of this Agreement.
5.4 Disability. During the Employment Period, if, as a result of physical
or mental incapacity or infirmity (including alcoholism or drug addiction),
Executive shall be unable to perform his material duties under this Agreement
for (i) a continuous period of at least 180 days, or (ii) periods aggregating at
least 270 days during any period of 12 consecutive months (each a "Disability
Period"), and at the end of the Disability Period there is no reasonable
probability that Executive can promptly resume his material duties hereunder
pursuant hereto, Executive shall be deemed disabled ("the Disability") and
Employer, by notice to Executive, shall have the right to terminate the
Employment Period for Disability at, as of or after the end of the Disability
Period. The existence of the Disability shall be determined by a reputable,
licensed physician mutually selected by Employer and Executive, whose
determination shall be final and binding on the parties, provided, that if
Employer and Executive cannot agree upon such physician, such physician shall be
designated by the then acting President of the Baltimore City Medical Society,
and if for any reason such President shall fail or refuse to designate such
physician, such physician shall, at the request of either party, be designated
by the American Arbitration Association. Executive shall cooperate in all
reasonable respects to enable an examination to be made by such physician.
5.5 Death. The Employment Period shall end on the date of Executive's
death.
6. TERMINATION COMPENSATION; NON-COMPETE
6.1 Termination Without Cause by Employer or for Good Reason by Executive.
If the Employment Period is terminated by Employer pursuant to the provisions of
Section 5.1 hereof or by Executive pursuant to the provisions of Section 5.3
hereof, Employer will pay to Executive (a) Base Salary for a period of thirty
(30) months following the date of termination (calculated at the applicable Base
Salary rate which would have been in effect for each year during the balance of
Employment Period, assuming no termination) payable in equal installments at the
times Base Salary would have been paid had the Employment Period not been
terminated; (b) on the date due pursuant to the provisions of Section 4.2
hereof, the Bonus for the then current Bonus Year prorated as provided in
Section 4.2 and (c) if applicable, the Bonus for the last full Bonus Year
pursuant to Section 4.2. All other benefits provided for in Sections 4.3, 4.4,
4.5 and 4.8 shall be continued at the expense of Employer for the period that
payments are required to be made pursuant to the preceding provisions of this
Section 6.1. Without limiting the generality of the immediately preceding
sentence, Employer agrees that (x) the health benefits to be continued on behalf
of the Executive (at Company expense) during the severance period shall not be
part of Executive's optional COBRA period; (y) Executive shall have the right
and option to continue health coverage at Executive's expense after the
severance period to the greatest extent required to be offered by the Company
pursuant to applicable law; and (z)
7
<PAGE>
Executive shall be entitled to continue contributions into the Company's 401k
Plan during the severance period and the Company shall match a share of such
contributions in accordance with the Company's general policy applicable to
active employees. Notwithstanding termination of the Employment Period,
Executive shall continue to be entitled to discounts on purchases of products
from the Company in accordance with the discount program in effect from time to
time for active employees of the Company.
6.2 Certain Other Terminations. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.2, by Executive pursuant to
Section 5.1 or as a result of the death of Executive as set forth in Section
5.5, Employer shall pay to Executive (a) Base Salary (calculated at its then
current rate per year) through the date of termination, (b) in the case of
termination as a result of the death of Executive as set forth in Section 5.5,
when due pursuant to provisions of Section 4.2 the Bonus for the Bonus Year in
which the date of termination occurred prorated as provided in said Section 4.2
and (c) if applicable, the Bonus for the last full Bonus Year pursuant to
Section 4.2. Employer shall have no obligation to continue any other benefits
provided for in Section 4 past the date of termination.
6.3 Termination for Disability. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.4, Employer shall make all
payments and continue all benefits provided for in Section 6.1 for the balance
of the Employment Period (assuming no termination), provided, however, that such
payments shall be reduced by any amounts actually paid to Executive pursuant to
any disability insurance or other such similar program maintained by Employer.
6.4 Expiration at Election of Employer. In the event the Employment Period
expires because of an election by Employer to allow the Employment Period to
expire at the end of its then stated term as provided in Section 2 hereof,
Employer shall pay to Executive (a) Base Salary for the thirty (30) month period
following the date of termination (calculated at its then current rate per
year), payable in equal installments at the times Base Salary would have been
paid had the Employment Period not been terminated, (b) when due pursuant to the
provisions of Section 4.2, the Bonus for the Bonus Year in which the Employment
Period expired prorated as provided in said Section 4.2 and (c) if applicable,
the Bonus for the last full Bonus Year pursuant to Section 4.2. Employer shall
have no obligation to continue any other benefits provided for in Section 4 past
the date of termination.
6.5 Tax Grossup. In the event that any amounts paid to Executive pursuant
to the provisions of this Section 6 (including benefits continued and payments
deemed received by reason of changes in stock options provided for therein, all
such amounts, collectively, the "Severance Payments") shall be deemed to be
subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Excise Tax"), an additional amount (the "Grossup Amount") shall
be paid by Employer to Executive such that the net amount retained by Executive,
after deduction of any Excise Tax on the Severance Payments and any federal,
state and local income tax and Excise Tax upon the payment provided for by this
sentence, shall be equal to the Severance Payments. The provisions of this
Section 6.5 shall survive the expiration of the Employment Period and shall
continue in effect until expiration of the statute of limitations for tax
returns filed that include the period in which any Severance Payments are made
or, if earlier, final determination of tax liability relating thereto. Payment
of the Grossup Amount shall be made in accordance with the computation thereof
8
<PAGE>
by the accountant to Executive in connection with preparation of Executive's tax
return for the relevant tax year, and shall be adjusted upon final determination
of tax liability, with any increase therein being paid by the Employer to
Executive or decrease therein being paid by Executive to Employer within 30 days
following the date of final determination of tax liability.
6.6 No Other Termination Compensation. Executive shall not, except as set
forth in this Section 6 and in Section 4.7, be entitled to any compensation
following termination of the Employment Period, except as otherwise provided in
any stock options granted by Employer to Executive.
6.7 Mitigation. Executive shall not be required to mitigate the amount of
any payments or benefits provided for hereunder upon termination of the
Employment Period by seeking employment with any other person, or otherwise, nor
shall the amount of any such payments or benefits be reduced by any
compensation, benefit or other amount earned by, accrued for or paid to
Executive as the result of Executive's employment by or consultancy or other
association with any other person, provided, that any medical, dental or
hospitalization insurance or benefits provided to Executive with his employment
by or consultancy with an unaffiliated person during such period shall be
primary to the benefits to be provided to Executive pursuant to this Agreement
for the purposes of coordination of benefits.
6.8 Non-Compete. For the 6 month period following the termination or
expiration of the Employment Period for any reason whatsoever (other than a
termination by Executive pursuant to Section 5.1, in which case the applicable
period shall be one year), and for so long as Employer is making and the
Executive is accepting the payments required to be made to Executive pursuant to
either Section 6.1 or 6.4 hereof, Executive shall not, directly or indirectly,
(i) engage in any activities that are in competition with the Company in any
geographic area where the Company is engaged in business, (ii) solicit any
customer of the Company or (iii) solicit any person who is then employed by the
Company or was employed by the Company within one year of such solicitation to
(a) terminate his or her employment with the Company, (b) accept employment with
anyone other than the Company, or (c) in any manner interfere with the business
of the Company; provided, however, in the event Executive violates any of the
provisions of the foregoing at any time after the expiration of 6 months (one
year, in the case of a termination by Executive pursuant to Section 5.1)
following the termination of the Employment Period, Employer's sole remedy under
this Agreement shall be the right to terminate any and all severance payments
required under Sections 6.1 or 6.4 hereof. Executive acknowledges and agrees
that in the event of any violation or threatened violation by Executive of his
obligations under the preceding sentence during the six month (or, in the case
of a termination pursuant to Section 5.1, the one year) period following the
termination of the Employment Period, Employer shall be entitled to injunctive
relief without any necessity to post bond.
7. INDEMNIFICATION
The Company shall indemnify and hold Executive harmless from and against
any expenses (including attorneys' fees of the attorneys selected by Executive
to represent him, which shall be advanced as incurred), judgements, fines and
amounts paid in settlement incurred by him by reason of his being made a party
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of any act
9
<PAGE>
or omission to act by Executive during or before the Employment Period or
otherwise by reason of the fact that he is or was a director or officer of
Employer or any subsidiary or affiliate included as a part of the Company, to
the fullest extent and in the manner set forth and permitted by the General
Corporation Law of the State of Delaware and any other applicable law as from
time to time in effect. The provisions of this Section 7 shall survive any
termination of the Employment Period or any deemed termination of this
Agreement.
8. MISCELLANEOUS
8.1 Notices. Any notice, consent or authorization required or permitted to
be given pursuant to this Agreement shall be in writing and sent to the party
for or to whom intended, at the address of such party set forth below, be
registered or certified mail, postage paid (deemed given five days after deposit
in the U.S. mails) or personally or by facsimile transmission (deemed given upon
receipt), or at such other address as either party shall designate by notice
given to the other in the manner provided herein.
If to Employer: Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
Attn: Secretary
With copy to: Ralph J. Sutcliffe, Esq.
Kronish, Lieb, Weiner & Hellman
1114 Avenue of the Americas
New York, New York 10036
If to Executive: Mr. Timothy F. Finley
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
8.2 Legal Fees. From and after any change in control of the Company,
Employer shall, upon demand by Executive, pay directly or reimburse Executive
for all costs and expenses, including but not limited to attorneys' fees and
court costs, incurred by Executive (a) in the event of any breach or threatened
breach by Employer of any of the terms and conditions of this Agreement, (b) in
the event of any dispute under this Agreement between Employer and Executive,
(c) in connection with the enforcement of any right or remedy reserved to
Executive under this Agreement, (d) in connection with the defense of any claim
by Employer of a breach by Executive under this Agreement (regardless of whether
such claim is proven) or (e) in connection with any modification of or amendment
to this Agreement. Neither the institution of any lawsuit nor the rendering of
any particular judgement therein shall constitute a condition precedent to
Executive's rights under the immediately preceding sentence.
8.3 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security, unemployment compensation and other taxes as shall be necessary or
appropriate in the reasonable judgement of Employer to comply with applicable
laws and regulations.
10
<PAGE>
8.4 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed therein.
8.5 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Baltimore,
Maryland in accordance with the rules of the American Arbitration Association
then in effect. Judgement may be entered on the arbitration award in any court
having jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of his right to be paid until expiration of the Employment
Period during the pendency of any arbitration.
8.6 Headings. All descriptive headings in this Agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
8.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
8.8 Severability. If any provision of this Agreement, or any part thereof,
is held to be unenforceable, the remainder of such provision and this Agreement,
as the case may be, shall nevertheless remain in full force and effect.
8.9 Entire Agreement and Representation. This Agreement contains the entire
agreement and understanding between Employer and Executive with respect to the
subject matter hereof. No representations or warranties of any kind or nature
relating to the Company or its several businesses, or relating to the Company's
assets, liabilities, operations, future plans or prospects have been made by or
on behalf of Employer to Executive. This Agreement supersedes any prior
agreement between the parties relating to the subject matter hereof.
8.10 Successor and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
heirs (in the case of Executive) and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Charles D. Frazier
_____________________________
Name: Charles D. Frazier
_____________________________
Title: SVP/General Counsel
_____________________________
/s/ Timothy F. Finley
_____________________________
TIMOTHY F. FINLEY
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of September 19,
1997, effective as of February 5, 1996, between FRANK TWORECKE ("Executive") and
JOS. A. BANK CLOTHIERS, INC. ("Employer").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth. This Agreement is a contract for personal services of
Executive and services pursuant hereto may only be performed by Executive. This
Agreement is an amendment and restatement of that certain Employment Agreement,
dated as of February 5, 1996, between Executive and Employer, which Employment
agreement is hereby superseded in its entirety.
2. EMPLOYMENT PERIOD
The term of Executive's employment under this Agreement (the "Employment
Period") shall commence as of February 5, 1996 and shall, subject to earlier
termination as provided in Section 5, continue for a period of three years after
commencement and be automatically renewed thereafter for successive one-year
periods unless, at least 180 days before the end of the initial three-year
period or any subsequent one-year period, either party gives notice to the other
of his or its desire to terminate the Employment Period, in which case the
Employment Period shall terminate as of the end of such period.
3. DUTIES AND RESPONSIBILITIES
3.1 General. During the Employment Period, Executive (i) shall have the
title of President and Chief Merchandising Officer and (ii) shall devote
substantially all of his business time and expend his best efforts, energies and
skills to the business of the Company. The preceding sentence shall not be
construed to prohibit Executive from continuing to devote more than an
insignificant amount of time, in accordance with his past practice, to
management of his investments, serving on boards of directors and participating
in civic and philanthropic activities.
Executive shall perform such duties, consistent with his status as
President and Chief Merchandising Officer of Employer, as he may be assigned
from time to time by Employer's Chief Executive Officer (the "Chief Executive
Officer") or Employer's Board of Directors (the "Board of Directors"). Executive
shall have such authority, discretion, power and responsibility, and shall be
entitled to such secretarial and administrative assistance and other facilities
and conditions of employment, as are customary or appropriate to his position.
Upon request of the Board of Directors, Executive shall also serve without
additional compensation as a director of the Company and any of its
subsidiaries. For all purposes of this Agreement, the term "Company" means
Employer and
<PAGE>
all corporations, associations, companies, partnership, firms and other
enterprises controlled by or under common control with Employer.
3.2 Location of Executive Offices. The Company will maintain its principal
executive offices at a location in the Baltimore, Maryland metropolitan area.
Executive shall not be required to perform services for the Company at any other
location, except for services rendered in connection with required travel on the
Company's business.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive during the Employment
Period an annual base salary (the "Base Salary") of $200,000 for the first year
of the Employment Period ("Year 1"); $400,000 for the second year of the
Employment Period; and $400,000 for the third year of the Employment Period. The
Base Salary for each year shall be payable in installments in accordance with
the Company's policy on payment of executives in effect from time to time.
Beginning February 5, 2000, and on each February 5th thereafter during the
Employment Period, the Base Salary shall be increased (but never decreased) by a
percentage equal to the annual percentage increase, if any, in the Consumer
Price Index for Urban Wage Earners and Clerical Workers, Washington-Baltimore
DC-MD-VA-WA, All Items (November 1, 1996 = 100) (the "Index"), published by the
Bureau of Labor Statistics of the United States Department of Labor. Any portion
of increased Base Salary which is retroactively due to Executive hereunder shall
be payable within 15 days after the computation thereof has been made.
Appropriate adjustment shall be promptly made following receipt of notice from
Executive in the event there is a published amendment of the Index figures upon
which the computation is based. If publication of the Index is discontinued, the
parties shall accept comparable statistics on the cost of living for the
Baltimore, Maryland area as computed and published by any recognized authority
acceptable to the parties. The Compensation Committee of the Board of Directors
(the "Committee") or the Board of Directors shall have the right, but not the
obligation, acting in their sole discretion, to increase the Base Salary by an
amount in excess of the otherwise required annual cost of living adjustments.
4.2 Annual Bonus. For fiscal year 1996 (ending February 4, 1997) and for
each fiscal year that begins during the Employment Period (each such fiscal
year, a "Bonus Year"), Executive shall be entitled to receive a bonus (each, a
"Bonus") as hereinafter set forth. The Bonus for Bonus Year 1996 shall be
$175,000, payable on or before February 1, 1997. For Bonus Year 1997 (ending
January 31, 1998), Executive shall be entitled to receive a Bonus of 50% of Base
Salary conditioned upon the satisfaction of (a) Company performance goals
established by the Committee for such Bonus Year and (b) personal performance
goals submitted by the Executive to, and approved by, the Company and the
Committee for such Bonus Year. Company and personal performance goals are herein
referred to collectively as the "Performance Goals". For Bonus Year 1998 (ending
January 30, 1999), and for each Bonus Year thereafter, Executive shall be
entitled to receive a Bonus of 75% of Base Salary conditioned upon satisfaction
of the Performance Goals for such Bonus Year. In the event the Performance Goals
for any Bonus Year are not fully satisfied, the Committee shall have the right,
but not the obligation, to grant a partial Bonus for such Bonus Year. The
Performance Goals for each Bonus Year shall be established as soon as possible
following the beginning of such Bonus Year. The Bonus earned for any Bonus Year
shall be payable promptly following the determination thereof, but in no event
later than 90 days following the end of each Bonus Year. If (a) the Employment
Period
2
<PAGE>
shall expire or terminate and (b) Employee is entitled to payment of a bonus
pursuant to Section 6 hereof, the Bonus payable for the Bonus Year in which the
Employment Period terminates or expires shall equal the Bonus that would have
been paid had the Employment Period not so terminated or expired, multiplied by
a fraction, the numerator of which shall be the number of days of the Employment
Period within the Bonus Year and the denominator of which shall be 365. For the
purposes of determining the amount of Bonus payable pursuant to the immediately
preceding sentence, it shall be assumed that all conditions to payment based
upon performance by the Executive (e.g. personal performance goals) have been
satisfied. Notwithstanding anything to the contrary contained herein or in the
Employer's Bonus Plan, in the event (y) the Employment Period shall end for any
reason whatsoever on a day prior to payment to Executive of a Bonus for the last
full Bonus Year contained within the Employment Period, and (z) Executive would
have been entitled to receive a Bonus for such last full Bonus Year had the
Employment Period not ended - then, Employer shall pay to Executive the Bonus
for such last full Bonus Year as and when such Bonus would have been paid had
the Employment Period not ended.
4.3 Housing - The Ohio House. Executive is the owner of a house located in
Cincinnati, Ohio (the "Ohio House"). Executive shall use reasonable efforts to
sell the Ohio House for the fair market value thereof. Executive shall not
accept an offer to purchase the Ohio House for less than the fair market value
thereof without the consent of the Company, which consent shall not be
unreasonably withheld. Upon settlement of the Ohio House, the Company shall
reimburse Executive for (a) the Deficiency (as hereinafter defined), but not
more than $100,000 and (b) the reasonable costs and expenses incurred by
Executive in connection with the sale and settlement of the Ohio House, but not
more than $30,000. For the purposes hereof, the "Deficiency" shall mean the
difference (but not less than zero) obtained by subtracting the gross selling
price of the Ohio House from $550,000.00 (the purchase price paid by Executive
for the Ohio House plus the cost of capital improvements).
4.4 Housing - The Mortgage Loan. The Company shall loan to Executive the
sum of $200,000 (the "Mortgage Loan"), repayable over five years (or less) as
hereinafter set forth, to assist with the purchase of a house to be selected or
built by Executive (the "New House"). The Mortgage Loan shall be evidenced by an
amended and restated deed of trust note (the "Note") and secured by, at
Employer's option, a mortgage or deed of trust (the "Mortgage"). The Mortgage
Loan shall be funded (a) at settlement of the New House or (b) if Executive
shall elect to build the New House and purchase the land therefor separately, at
settlement of said land; provided, however, that Employer shall not be
responsible for funding more than 80% of the cost of said land. The difference
between $200,000 and the amount funded for said land shall be funded as mutually
agreed upon by Employer and Executive, but not later than settlement on the
completed New House. The Mortgage shall secure no less than a second lien on the
New House. The Mortgage Loan shall bear interest at the applicable "Federal
Rate" (as hereinafter defined) in effect on the date of the Mortgage Loan. For
the purposes hereof, the "Federal Rate" shall mean that rate of interest,
determined by Employer's auditors in accordance with Internal Revenue Service
regulations, necessary to prevent interest on the Mortgage Loan from being
imputed to Executive as income and to Employer as expense. The Mortgage Loan
shall be repayable in sixty, equal payments of principal, plus accrued and
unpaid interest. All payments shall be due on the first of each month, with
interest payable in arrears. Notwithstanding anything to the contrary contained
herein or in the Note or Mortgage, Executive shall not be required to make the
principal and/or interest payments otherwise due during the Employment Period
and the Employer
3
<PAGE>
shall credit the Mortgage Loan account as if such payments had been timely made.
Amounts so credited shall be deemed forgiven and Executive shall not be liable
for repayment thereof. In the event (a) Executive shall remain in the employ of
Employer for at least 5 consecutive years; (b) Employer shall terminate this
Agreement without cause (Section 5.1); (c) Executive shall terminate this
Agreement for good reason (Section 5.3); (d) this Agreement shall terminate or
be terminated as a result of the death (Section 5.5) or disability (Section 5.4)
of Executive; (e) Employer (or any trustee of Employer) shall reject this
Agreement pursuant to powers granted under the United States Bankruptcy Code (11
U.S.C. ss.ss. 101 et seq.), or any successor statute thereto, and either (i)
Employer and Executive, each acting in his/its sole and absolute subjective
discretion, shall fail to agree upon terms and conditions for Executive's
continued employment with Employer or (ii) Executive, in his sole and absolute
subjective discretion, shall fail to accept, and thereafter Employer shall fail
to withdraw its demand for, any proposed revision in the terms and conditions of
the Mortgage Loan; or (f) Employer shall give notice of termination pursuant to
Section 2 of this Agreement, then, and in any of such events, the Mortgage Loan,
and all interest due thereon, shall, subject to receipt of assigned insurance
proceeds in the case of death as provided in Section 4.7, be deemed paid in
full. In the event (x) Executive shall terminate this Agreement without cause
(Section 5.1); (y) Executive shall give notice of termination pursuant to
Section 2; or (z) Employer shall terminate this Agreement for cause (Section
5.2), Executive shall pay to Employer the unpaid principal balance and all
accrued interest on the Mortgage Loan. Upon payment or deemed payment of the
Mortgage Loan, and all interest due thereon, the Note shall be canceled and
returned to Executive and the Mortgage shall be released of record. In addition
to the Mortgage Loan, Employer shall reimburse Executive for the reasonable
costs and expenses incurred by Executive in connection with the settlement of
the New House, but not more than $30,000.
4.5 Life Insurance. Employer shall maintain in effect at all times during
the Employment Period, at Employer's expense, a policy of term life insurance,
or such other type of policy as Executive shall request provided that the cost
to Employer thereof is approximately the same as the cost of such term policy,
on the life of Executive in the amount of not less than $1,000,000 naming such
person as Executive shall designate from time to time as the owner and
beneficiary thereof. Executive agrees that Employer shall have the right to
obtain other life insurance on Executive's life, at Employer's sole expense and
with Employer or an affiliate thereof as the sole beneficiary thereof. Employer
shall also have the right, at its sole cost, to increase the amount of the
aforesaid $1,000,000 policy and Executive shall execute such assignments or
other documents necessary or desirable to assign to Employer the proceeds of the
policy in excess of $1,000,000 . Executive shall (i) cooperate fully with
Employer in obtaining all such insurance, (ii) sign any necessary consents,
applications and other related forms or documents, and (iii) take any required
medical examinations. If such examination(s) shall disclose that Executive is
not eligible for "standard, non-smoking risk" pricing for term life insurance,
the amount of such insurance shall be reduced to an amount which is available
for a premium equal to the premium which would have been charged for $1,000,000
of term life insurance had Executive been so eligible. At Executive's option and
expense, any policy maintained by Employer under this Section 4.5 shall be
transferred to Executive upon the expiration or termination of the Employment
Period, unless such transfer is otherwise prohibited. After such transfer,
Employer shall have no further responsibility with respect to said policy.
4.6 Automobile. Throughout the Employment Period, Employer shall provide to
Executive, at Employer's expense, an automobile in accordance with Employer's
policy in effect from time to time
4
<PAGE>
for the leasing of automobiles for use by Employer's senior management. Employer
shall also be responsible for all expenses of use and operation of such
automobile. At Executive's option, Employer shall assume responsibility for
Executive's existing car lease payments, provided that such payments shall not
exceed $800 per month. Upon termination or expiration of the Employment Period,
or upon expiration of any automobile lease entered into by Employer in
satisfaction of its obligations under this Section 4.6, Executive shall have the
right and option to assume the lease on his then-current car and to exercise any
buy-out option contained in such lease.
4.7 Other Benefits. During the Employment Period, subject to, and to the
extent Executive is eligible under their respective terms, Executive shall be
entitled to receive such fringe benefits as are, or are from time to time
hereafter, generally provided by Employer to Employer's senior management
employees or other employees (other than those provided under or pursuant to
separately negotiated individual employment agreement or arrangements) under any
pension or retirement plan, disability plan or insurance, group life insurance,
medical and dental insurance, travel accident insurance, stock option, phantom
stock or other similar plan or program of Employer. Executive's Base Salary
shall (where applicable) constitute the compensation on the basis of which the
amount of Executive's benefits under any such plan or program shall be fixed and
determined. The first $200,000 (or such lesser amount as may be necessary) of
benefits under any life insurance policy provided hereunder (but not the
$1,000,000 policy under Section 4.5) shall be assigned to Employer to pay the
remaining principal balance of the Mortgage Loan upon the death of Executive.
4.8 Expense Reimbursement. Employer shall reimburse Executive for all
business expenses reasonably incurred by him in the performance of his duties
under this Agreement upon his presentation, not less frequently than monthly, of
signed, itemized accounts of such expenditures, all in accordance with
Employer's procedures and policies as adopted and in effect from time to time
and applicable to its senior management employees. Without limiting the
generality of the foregoing, Employer shall pay for all of Executive's
reasonable travel expenses incurred in traveling from and to the Ohio House and,
prior to the earlier of settlement upon the New House or September 30, 1996, his
reasonable living expenses (not to exceed $5,000 per month) while the Executive
is residing in the Baltimore, Maryland area, including, without limitation,
hotel or other residential accommodation expenses and meals, all such amounts to
be treated as additional salary for all securities acts reporting purposes.
4.9 Tax Gross-up. In the event that any payments made by Employer to or on
behalf of Executive pursuant to the provisions of Section 4.3 through 4.8 hereof
(other than the Mortgage Loan and principal and interest forgiveness in
connection therewith) result in the payment of additional federal, state or
local income taxes by Executive, Employer shall pay to Executive the amount of
such additional taxes plus such additional amount as shall be necessary to hold
harmless Executive, as nearly as can be, from the obligation to pay such taxes
in respect of amounts payable pursuant to this Section 4.9.
4.10 Stock Options. On the effective date hereof, the Company shall grant
to Executive the right and option to purchase an aggregate of 60,000 shares (the
"Option Shares") of the Company's common stock, $.01 par value per share, which
option is intended, to the fullest extent permitted by law, to qualify as an
incentive stock option, as defined to Section 422 of the Internal Revenue Code
of 1986. The option to purchase one-half of the Option Shares shall be granted
pursuant to each of the
5
<PAGE>
Company's two option plans pursuant to the standard agreements therefor. The
"Purchase Price" and "Closing Price" shall be determined with reference to the
effective date hereof in accordance with such agreements.
4.11 Vacations. Executive shall be entitled to 20 days of vacation during
each calendar year, which shall accrue in accordance with the Company's vacation
policy in effect from time to time for its senior executive officers, which
vacations shall be taken at such time or times as shall not unreasonably
interfere with Executive's performance of his duties under this Agreement. The
number of vacation days shall be prorated for any calendar year not wholly
within the Employment Period. Upon termination of Executive's employment
pursuant to Section 5 or non-renewal of the Employment Period pursuant to
Section 2, for any reason whatsoever, Employer shall pay Executive, in addition
to any termination compensation provided for under Section 6, an amount
equivalent to Executive's per diem compensation at the then-current Base Salary
rate multiplied by the number of unused vacation days, including any carry-over,
accrued by Executive as of the date of termination.
4.12. Initiation Fee Loan. The Company shall loan to Executive the sum of
approximately $40,000 (the "Initiation Fee Loan"), as evidenced by two, $20,000
Promissory Notes in form and substance mutually satisfactory to the Company and
Executive. One half of the Initiation Fee Loan shall be made upon terms and
conditions substantially similar to those established for the Mortgage Loan, all
as more fully set forth in Promissory Note A. The other half of the Initiation
Fee Loan shall be secured by the "equity portion" of the initiation fee paid by
Executive for membership at Caves Valley Country Club ("Caves Valley"), all as
more fully set forth in Promissory Note B. For the purposes of this Section
4.12, the "equity portion" of the initiation fee shall mean that portion thereof
refunded upon resignation by Executive of his membership at Caves Valley.
Executive hereby assigns to the Company, as collateral security for repayment of
that portion of the Initiation Fee Loan evidenced by Promissory Note B, the
equity portion of Executive's initiation fee at Caves Valley.
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause. Employer or Executive may, by delivery of
not less than 60 days' notice to the other at any time during the Employment
Period, terminate the Employment Period without cause.
5.2 By Employer for Cause. Employer may terminate the Employment Period in
accordance with this Section 5.2 at any time for cause. For the purpose of this
Section 5.2, "cause" shall mean any of the following:
a) the conviction of Executive in a court of competent
jurisdiction of a felony involving money or property of
the Company or moral turpitude;
b) the willful commission of an act not approved of or
ratified by the Chief Executive Officer involving a series
of material conflicts of interest or self-dealings
relating to any material aspect of the Company;
6
<PAGE>
c) the willful commission of any act of fraud or
misrepresentation (including the omission of material
facts) relating to the business of the Company and
materially and negatively impacting upon the Company and
its business; or
d) at any time prior to a change in control of the Company,
the willful and material failure of Executive to comply
with the lawful orders of the Chief Executive Officer,
provided such orders are consistent with Executive's
duties, responsibilities and/or authority as President and
Chief Merchandising Officer of the Company.
In the event Employer shall elect to pursue a termination for cause,
Employer shall deliver to Executive, with a copy to the Board of Directors, a
written notice from the Chief Executive Officer setting forth with reasonable
particularity the grounds upon which the Chief Executive Officer has found cause
for termination. In the event such grounds are predicated upon acts or omissions
as set forth in paragraphs (b), (c) or (d) above, Executive shall have thirty
(30) days, or such longer period as may be necessary provided Executive has
commenced and is diligently proceeding, to cure or eliminate the cause for
termination. In the event Executive has failed to timely cure or eliminate the
cause for termination as set forth in the immediately preceding sentence,
Executive and Executive's counsel (if Executive shall so elect) shall be granted
the opportunity to be heard before the Board of Directors upon not less than ten
days notice. The Employment Period shall terminate for cause if the Board of
Directors shall adopt at such hearing (or, in the event of cause predicated on a
criminal conviction as set forth in paragraph (a) above, at any meeting
following such conviction) a resolution concurred in by not less than a majority
of the Board of Directors, including at least two-thirds of all of the directors
who are not officers of Employer, that Executive was guilty of conduct
constituting "cause" hereunder, which conduct has not been timely cured (if
applicable), and specifying the particulars thereof in reasonable detail.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by notice to Employer, terminate the Employment Period under
this Agreement for "good reason" effective immediately. For the purposes hereof,
"good reason" means (i) any material breach by Employer of any provision of this
Agreement which, if susceptible of being cured, is not cured within 30 days of
delivery of notice thereof to Employer by Executive; it being agreed, however,
that the foregoing 30 day cure period shall not be applicable to any failure
timely to pay (or any reduction in) compensation or benefits paid or payable to
Executive pursuant to the provisions of Section 4 hereof or (ii) the occurrence
of a change in control (as hereinafter defined) of Employer if, and only if, any
of the duties, responsibilities or perquisites of Executive as provided in this
Agreement are thereafter reduced. Without limitation of the generality of the
foregoing, each of the following shall be deemed to be a material breach of this
Agreement by Employer: (x) any failure timely to pay (or any reduction in)
compensation (including benefits) paid or payable to Executive pursuant to the
provisions of Section 4 hereof; (y) any reduction in the duties,
responsibilities or perquisites of Executive as provided in this Agreement and
(z) any transfer of the Company's principal executive offices outside the
geographic area described in Section 3.2 hereof or requirement that Executive
principally perform his duties outside such geographic area.
For purposes of this Agreement, a "change in control" of the Company shall
be deemed to have occurred if, as a result of a single transaction or a series
of transactions, (A) any "person" (as such term
7
<PAGE>
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or a corporation
owned, directly or indirectly, by the stockholders of the Company ( including
any nominee corporation that holds shares of the Company on behalf of the
beneficial owners of such corporation), in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 51% or more of the combined voting power
of the Company's then outstanding securities; or (B) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee
or other fiduciary holding securities under any employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the stockholders of
the Company (including any nominee corporation that holds shares of the Company
on behalf of the beneficial owners of such corporation), in substantially the
same proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities and there are
at least a majority of directors serving on the Board of Directors who were not
serving in such capacity as of the date hereof or who were not elected with the
consent of the Executive; or (C) the shareholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets;
provided, however, the change in ownership of the Company's securities resulting
from the initial public offering thereof shall not be deemed a "change in
control" for purposes of this Agreement.
5.4 Disability. During the Employment Period, if, as a result of physical
or mental incapacity or infirmity (excluding alcoholism or drug addiction),
Executive shall be unable to perform his material duties under this Agreement
for (i) a continuous period of at least 180 days, or (ii) periods aggregating at
least 270 days during any period of 12 consecutive months (each a "Disability
Period"), and at the end of the Disability Period there is no reasonable
probability that Executive can promptly resume his material duties hereunder
pursuant hereto, Executive shall be deemed disabled ("the Disability") and
Employer, by notice to Executive, shall have the right to terminate the
Employment Period for Disability at, as of or after the end of the Disability
Period. The existence of the Disability shall be determined by a reputable,
licensed physician mutually selected by Employer and Executive, whose
determination shall be final and binding on the parties, provided, that if
Employer and Executive cannot agree upon such physician, such physician shall be
designated by the then acting President of the Baltimore City Medical Society,
and if for any reason such President shall fail or refuse to designate such
physician, such physician shall, at the request of either party, be designated
by the American Arbitration Association. Executive shall cooperate in all
reasonable respects to enable an examination to be made by such physician.
5.5 Death. The Employment Period shall end on the date of Executive's
death.
8
<PAGE>
6. TERMINATION COMPENSATION; NON-COMPETE
6.1 Termination Without Cause by Employer or for Good Reason by Executive.
If the Employment Period is terminated by Employer pursuant to the provisions of
Section 5.1 hereof or by Executive pursuant to the provisions of Section 5.3
hereof, Employer will pay to Executive (a) Base Salary for a period of thirty
(30) months following the date of termination (calculated at the applicable Base
Salary rate which would have been in effect for each year during the balance of
Employment Period, assuming no termination) payable in equal installments at the
times Base Salary would have been paid had the Employment Period not been
terminated; (b) on the date due pursuant to the provisions of Section 4.2
hereof, the Bonus for the then current Bonus Year prorated as provided in
Section 4.2 and (c) if applicable, the Bonus for the last full Bonus Year
pursuant to Section 4.2. All other benefits provided for in Sections 4.5, 4.6,
4.7, 4.9 and 4.11 shall be continued at the expense of Employer for the period
that payments are required to be made pursuant to the preceding provisions of
this Section 6.1. Without limiting the generality of the immediately preceding
sentence, Employer agrees that (x) the health benefits to be continued on behalf
of the Executive (at Company expense) during the severance period shall not be
part of Executive's optional COBRA period; (y) Executive shall have the right
and option to continue health coverage at Executive's expense after the
severance period to the greatest extent required to be offered by the Company
pursuant to applicable law; and (z) Executive shall be entitled to continue
contributions into the Company's 401k Plan during the severance period and the
Company shall match a share of such contributions in accordance with the
Company's general policy applicable to active employees. Notwithstanding
termination of the Employment Period, Executive shall continue to be entitled to
discounts on purchases of products from the Company in accordance with the
discount program in effect from time to time for active employees of the
Company.
6.2 Certain Other Terminations. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.2, by Executive pursuant to
Section 5.1 or as a result of the death of Executive as set forth in Section
5.5, Employer shall pay to Executive (a) Base Salary (calculated at its then
current rate per year) through the date of termination, (b) in the case of
termination as a result of the death of Executive as set forth in Section 5.5,
when due pursuant to provisions of Section 4.2, the Bonus for the Bonus Year in
which the date of termination occurred prorated as provided in said Section 4.2
and (c) if applicable, the Bonus for the last full Bonus Year pursuant to
Section 4.2. Employer shall have no obligation to continue any other benefits
provided for in Section 4 past the date of termination.
6.3 Termination for Disability. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.4, Employer shall make all
payments and continue all benefits provided for in Section 6.1 for the balance
of the Employment Period (assuming no termination), provided, however, that such
payments shall be reduced by any amounts actually paid to Executive pursuant to
any disability insurance or other such similar program maintained by Employer.
6.4 Expiration at Election of Employer. In the event the Employment Period
expires because of an election by Employer to allow the Employment Period to
expire at the end of its then stated term as provided in Section 2 hereof,
Employer shall pay to Executive (a) Base Salary for the thirty (30) month period
following the date of termination (calculated at its then current rate per
year), payable in equal installments at the times Base Salary would have been
paid had the
9
<PAGE>
Employment Period not been terminated, (b) when due pursuant to the provisions
of Section 4.2, the Bonus for the Bonus Year in which the Employment Period
expired prorated as provided in said Section 4.2 and (c) if applicable, the
Bonus for the last full Bonus Year pursuant to Section 4.2. Employer shall have
no obligation to continue any other benefits provided for in Section 4 past the
date of termination.
6.5 Tax Grossup. In the event that any amounts paid to Executive pursuant
to the provisions of this Section 6 (including benefits continued and payments
deemed received by reason of changes in stock options provided for therein, all
such amounts, collectively, the "Severance Payments") shall be deemed to be
subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (or any successor section thereto) (the "Excise Tax"), an additional
amount (the "Grossup Amount") shall be paid by Employer to Executive such that
the net amount retained by Executive, after deduction of any Excise Tax on the
Severance Payments and any federal, state and local income tax and Excise Tax
upon the payment provided for by this sentence, shall be equal to the Severance
Payments. The provisions of this Section 6.5 shall survive the expiration of the
Employment Period and shall continue in effect until expiration of the statute
of limitations for tax returns filed that include the period in which any
Severance Payments are made or, if earlier, final determination of tax liability
relating thereto. Payment of the Grossup Amount shall be made in accordance with
the computation thereof by the accountant to Executive in connection with
preparation of Executive's tax return for the relevant tax year, and shall be
adjusted upon final determination of tax liability, with any increase therein
being paid by the Employer to Executive or decrease therein being paid by
Executive to Employer within 30 days following the date of final determination
of tax liability.
6.6 No Other Termination Compensation. Executive shall not, except as set
forth in this Section 6 and in Section 4.7, be entitled to any compensation
following termination of the Employment Period, except as otherwise provided in
any stock options granted by Employer to Executive.
6.7 Mitigation. Executive shall not be required to mitigate the amount of
any payments or benefits provided for hereunder upon termination of the
Employment Period by seeking employment with any other person, or otherwise, nor
shall the amount of any such payments or benefits be reduced by any
compensation, benefit or other amount earned by, accrued for or paid to
Executive as the result of Executive's employment by or consultancy or other
association with any other person, provided, that any medical, dental or
hospitalization insurance or benefits provided to Executive with his employment
by or consultancy with an unaffiliated person during such period shall be
primary to the benefits to be provided to Executive pursuant to this Agreement
for the purposes of coordination of benefits.
6.8 Non-Compete. For the 6 month period following the termination or
expiration of the Employment Period for any reason whatsoever (other than a
termination by Executive pursuant to Section 5.1, in which case the applicable
period shall be one year), and for so long as Employer is making and the
Executive is accepting the payments required to be made to Executive pursuant to
either Section 6.1 or 6.4 hereof, Executive shall not, directly or indirectly,
(i) engage in any activities that are in competition with the Company in any
geographic area where the Company is engaged in business, (ii) solicit any
customer of the Company or (iii) solicit any person who is then employed by
10
<PAGE>
the Company or was employed by the Company within one year of such solicitation
to (a) terminate his or her employment with the Company, (b) accept employment
with anyone other than the Company, or (c) in any manner interfere with the
business of the Company; provided, however, in the event Executive violates any
of the provisions of the foregoing at any time after the expiration of 6 months
(one year, in the case of a termination by Executive pursuant to Section 5.1)
following the termination of the Employment Period, Employer's sole remedy under
this Agreement shall be the right to terminate any and all severance payments
required under Sections 6.1 or 6.4 hereof. Executive acknowledges and agrees
that in the event of any violation or threatened violation by Executive of his
obligations under the preceding sentence during the six month (or, in the case
of a termination pursuant to Section 5.1, the one year) period following the
termination of the Employment Period, Employer shall be entitled to injunctive
relief without any necessity to post bond.
7. INDEMNIFICATION
The Company shall indemnify and hold Executive harmless from and against
any expenses (including attorneys' fees of the attorneys selected by Executive
to represent him, which shall be advanced as incurred), judgements, fines and
amounts paid in settlement incurred by him by reason of his being made a party
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of any act or omission to act by Executive during the Employment Period
or otherwise by reason of the fact that he is or was a director or officer of
Employer or any subsidiary or affiliate included as a part of the Company, to
the fullest extent and in the manner set forth and permitted by the General
Corporation Law of the State of Delaware and any other applicable law as from
time to time in effect. The provisions of this Section 7 shall survive any
termination of the Employment Period or any deemed termination of this
Agreement.
8. MISCELLANEOUS
8.1 Notices. Any notice, consent or authorization required or permitted to
be given pursuant to this Agreement shall be in writing and sent to the party
for or to whom intended, at the address of such party set forth below, be
registered or certified mail, postage paid (deemed given five days after deposit
in the U.S. mails) or personally or by facsimile transmission (deemed given upon
receipt), or at such other address as either party shall designate by notice
given to the other in the manner provided herein.
If to Employer: Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
Attn: Secretary
If to Executive: Mr. Frank Tworecke
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
11
<PAGE>
8.2 Legal Fees. From and after any change in control of the Company,
Employer shall, upon demand by Executive, pay directly or reimburse Executive
for all costs and expenses, including but not limited to attorneys' fees and
court costs, incurred by Executive (a) in the event of any breach or threatened
breach by Employer of any of the terms and conditions of this Agreement, (b) in
the event of any dispute under this Agreement between Employer and Executive,
(c) in connection with the enforcement of any right or remedy reserved to
Executive under this Agreement, (d) in connection with the defense of any claim
by Employer of a breach by Executive under this Agreement (regardless of whether
such claim is proven) or (e) in connection with any modification of or amendment
to this Agreement. Neither the institution of any lawsuit nor the rendering of
any particular judgement therein shall constitute a condition precedent to
Executive's rights under the immediately preceding sentence.
8.3 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security, unemployment compensation and other taxes as shall be necessary or
appropriate in the reasonable judgement of Employer to comply with applicable
laws and regulations.
8.4 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland applicable to
agreements made and to be performed therein.
8.5 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Baltimore,
Maryland in accordance with the rules of the American Arbitration Association
then in effect. Judgement may be entered on the arbitration award in any court
having jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of his right to be paid until expiration of the Employment
Period during the pendency of any arbitration.
8.6 Headings. All descriptive headings in this Agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
8.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
8.8 Severability. If any provision of this Agreement, or any part thereof,
is held to be unenforceable, the remainder of such provision and this Agreement,
as the case may be, shall nevertheless remain in full force and effect.
8.9 Entire Agreement and Representation. This Agreement contains the entire
agreement and understanding between Employer and Executive with respect to the
subject matter hereof. No representations or warranties of any kind or nature
relating to the Company or its several businesses, or relating to the Company's
assets, liabilities, operations, future plans or prospects have been made by or
on behalf of Employer to Executive. This Agreement supersedes any prior
agreement between the parties relating to the subject matter hereof.
12
<PAGE>
8.10 Successor and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
heirs (in the case of Executive) and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
____________________________________
Timothy F. Finley, Chairman and
Chief Executive Officer
/s/ Frank Tworecke
____________________________________
FRANK TWORECKE
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of September
19, 1997, effective as of February 5, 1996, between DAVID E. ULLMAN
("Executive") and JOS. A. BANK CLOTHIERS, INC. ("Employer" or "Company").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees
to be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth. This Agreement is a contract for the personal services of
Executive and services pursuant hereto may only be performed by Executive. This
Agreement is an amendment and restatement of that certain Employment Agreement,
dated as of February 5, 1996, between Executive and Employer, which Employment
agreement is hereby superseded in its entirety.
2. EMPLOYMENT PERIOD
The term of Executive's employment under this Agreement (the "Employment
Period") shall commence as of February 5, 1996 and shall, subject to earlier
termination as provided in Section 5, continue through September 30, 1998 and
shall continue thereafter for successive one-year periods unless, at least 180
days before the end of the initial Employment Period or any subsequent one-year
period, either party gives notice to the other of his or its desire to terminate
the Employment Period, in which case the Employment Period shall terminate as of
the end of the then-current term.
3. DUTIES AND RESPONSIBILITIES
3.1 General. During the Employment Period, Executive (i) shall have the
title of Executive Vice President - Chief Administrative and Financial Officer
and (ii) shall devote substantially all of his business time and expend his best
efforts, energies and skills to the business of the Company. Executive shall
perform such duties, consistent with his status as Executive Vice President -
Chief Financial and Administrative Officer, as he may be assigned from time to
time by Employer's Chief Executive Officer (the "Chief Executive Officer").
3.2 Location of Executive Office. The Company will maintain its principal
executive offices at a location in the Baltimore, Maryland metropolitan area.
Executive shall not be required to perform services for the Company at any other
location, except for services rendered in connection with required travel on the
Company's business to the extent not substantially in excess of Executive's past
travel commitments for the Company.
<PAGE>
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive during the Employment
Period an annual base salary (the "Base Salary") of $190,000 for the twelve
months ending approximately June 30, 1998. The Base Salary shall be increased
from to time to time upon mutual agreement of the parties hereto; provided, that
the Base Salary shall in all events be increased at least once every twelve (12)
months by a percentage not less than the percentage increase in the Consumer
Price Index (or any equivalent index in the event the Consumer Price Index shall
no longer be published). The Base Salary for each year shall be payable in
installments in accordance with the Company's policy on payment to executives in
effect from time to time.
4.2 Annual Bonus. For fiscal year 1997 (ending January 31, 1998) and for
each fiscal year that begins during the Employment Period (each such fiscal
year, a "Bonus Year"), Executive shall be entitled to receive a bonus of 40% of
Base Salary (each, a "Bonus") conditioned upon the satisfaction of (a) Company
performance goals established by the Compensation Committee of the Board of
Directors of the Company (the "Committee") for such Bonus Year and (b) personal
performance goals submitted by the Executive to, and approved by, the Company
and the Committee for such Bonus Year. Company and personal performance goals
are herein referred to collectively as the "Performance Goals". In the event the
Performance Goals for any Bonus Year are not fully satisfied, the Committee
shall have the right, but not the obligation, to grant a partial Bonus for such
Bonus Year. The Performance Goals for each Bonus Year shall be established as
soon as possible following the beginning of such Bonus Year. The Bonus earned
for any Bonus Year shall be payable promptly following the determination
thereof, but in no event later than 90 days following the end of each Bonus
Year. If (a) the Employment Period shall expire or terminate and (b) Employee is
entitled to payment of a bonus pursuant to Section 6 hereof, the Bonus payable
for the Bonus Year in which the Employment Period terminates or expires shall
equal the Bonus that would have been paid had the Employment Period not so
terminated or expired, multiplied by a fraction, the numerator of which shall be
the number of days of the Employment Period within the Bonus Year and the
denominator of which shall be 365. For the purposes of determining the amount of
Bonus payable pursuant to the immediately preceding sentence, it shall be
assumed that all conditions to payment based upon performance by the Executive
(e.g. personal performance goals) have been satisfied. Notwithstanding anything
to the contrary contained herein or in the Employer's Bonus Plan, in the event
(y) the Employment Period shall end for any reason whatsoever on a day prior to
payment to Executive of a Bonus for the last full Bonus Year contained within
the Employment Period, and (z) Executive would have been entitled to receive a
Bonus for such last full Bonus Year had the Employment Period not ended - then,
Employer shall pay to Executive the Bonus for such last full Bonus Year as and
when such Bonus would have been paid had the Employment Period not ended.
4.3 Other Benefits. During the Employment Period, subject to, and to the
extent Executive is eligible under their respective terms, Executive shall be
entitled to receive such fringe benefits as are, or are from time to time
hereafter, generally provided by Employer to Employer's senior management
employees (other than those provided under or pursuant to separately negotiated
individual employment agreements or arrangements).
2
<PAGE>
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause or Good Reason. Employer may terminate the
Employment Period at any time without cause. Executive may, by delivery of not
less than 60 days' notice to Employer at any time during the Employment Period,
terminate the Employment Period without good reason.
5.2 By Employer for Cause. Employer may terminate the Employment Period
in accordance with this Section 5.2 at any time for cause. For the purpose of
this Section 5.2, "cause" shall mean any of the following:
a) the conviction of Executive in a court of competent
jurisdiction of a felony involving money or property of
the Company or moral turpitude;
b) the willful commission of an act not approved of or
ratified by the Chief Executive Officer involving a
series of material conflicts of interest or
self-dealings relating to any material aspect of the
Company;
c) the willful commission of any act of fraud or
misrepresentation (including the omission of material
facts) relating to the business of the Company and
materially and negatively impacting upon the Company
and its business; or
d) at any time prior to a change in control of the Company,
the willful and material failure of Executive to comply
with the lawful orders of the Chief Executive Officer,
provided such orders are consistent with Executive's
duties, responsibilities and/or authority as Executive
Vice President - Chief Financial and Adminstrative
Officer of the Company.
In the event Employer shall elect to pursue a termination for cause,
Employer shall deliver to Executive a written notice from the Chief Executive
Officer setting forth with reasonable particularity the grounds upon which the
Chief Executive Officer has found cause for termination. In the event such
grounds are predicated upon acts or omissions as set forth in paragraphs (b),
(c) or (d) above, Executive shall have thirty (30) days, or such longer period
as may be necessary provided Executive has commenced and is diligently
proceeding, to cure or eliminate the cause for termination. In the event
Executive has failed to timely cure or eliminate the cause for termination as
set forth in the immediately preceding sentence, the Company shall have the
right to terminate Executive for cause.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by notice to Employer, terminate the Employment Period under
this Agreement "for good reason" effective immediately. For the purposes hereof,
"for good reason" means (i) any material breach by Employer of any provision of
this Agreement which, if susceptible of being cured, is not cured within 30 days
of delivery of notice thereof to Employer by Executive; it being agreed,
however, that the foregoing 30 day cure period shall not be applicable to any
failure timely to pay (or any reduction in) compensation or benefits paid or
payable to Executive pursuant to the
3
<PAGE>
provisions of Section 4 hereof or (ii) the occurrence of a change in control (as
hereinafter defined) of Employer, if, and only if, any of the duties,
responsibilities or perquisites of Executive as provided in this Agreement are
thereafter reduced. Without limitation of the generality of the foregoing, each
of the following shall be deemed to be a material breach of this Agreement by
Employer: (x) any failure timely to pay (or any reduction in) compensation or
benefits paid or payable to Executive pursuant to the provisions of Section 4
hereof; (y) any reduction in the duties, responsibilities or perquisites of
Executive as provided in this Agreement; and (z) any transfer of the Company's
principal executive offices outside the geographic area described in Section 3.2
hereof or requirement that Executive principally perform his duties outside such
geographic area.
For purposes of this Agreement, a "change in control" of the Company
shall be deemed to have occurred if, as a result of a single transaction or a
series of transactions, (A) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding securities under any
employee benefit plan of the Company or a corporation owned, directly or
indirectly, by the stockholders of the Company ( including any nominee
corporation that holds shares of the Company on behalf of the beneficial owners
of such corporation), in substantially the same proportions as their ownership
of stock of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 51% or more of the combined voting power of the Company's
then outstanding securities; or (B) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other
fiduciary holding securities under any employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of the Company
(including any nominee corporation that holds shares of the Company on behalf of
the beneficial owners of such corporation), in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities and there are
at least a majority of directors serving on the Board of Directors of the
Company who were not serving in such capacity as of the date hereof or who were
not elected with the consent of the Executive; or (C) the shareholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 70% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
the Company's assets.
5.4 Death. The Employment Period shall end on the date of Executive's
death.
6. TERMINATION COMPENSATION; NON-COMPETE
6.1 Termination Without Cause by Employer or for Good Reason by
Executive. If the Employment Period is terminated by Employer pursuant to the
provisions of Section 5.1 hereof or
4
<PAGE>
by Executive pursuant to the provisions of Section 5.3 hereof, Employer will pay
to Executive (a) Base Salary for the eighteen (18) month period following the
date of termination, calculated at the applicable Base Salary rate which would
have been in effect from time to time during the balance of Employment Period,
assuming no termination, payable in equal installments at the times Base Salary
would have been paid had the Employment Period not been terminated, (b) on the
date bonuses for the Bonus Year in which the Employment Period is terminated are
generally paid by Employer to Employer's senior management employees, the Bonus
for such Bonus Year prorated as provided in Section 4.2 and (c) if applicable,
the Bonus for the last full Bonus Year pursuant to Section 4.2. All other
benefits provided for in Section 4.3 shall be continued at the expense of
Employer for the period that payments are required to be made pursuant to the
preceding provisions of this Section 6.1. Without limiting the generality of the
immediately preceding sentence, Employer agrees that (x) the health benefits to
be continued on behalf of the Executive (at Company expense) during the
severance period shall not be part of Executive's optional COBRA period; (y)
Executive shall have the right and option to continue health coverage at
Executive's expense after the severance period to the greatest extent required
to be offered by the Company pursuant to applicable law; and (z) Executive shall
be entitled to continue contributions into the Company's 401k Plan during the
severance period and the Company shall match a share of such contributions in
accordance with the Company's general policy applicable to active employees.
Notwithstanding termination of the Employment Period, Executive shall continue
to be entitled to discounts on purchases of products from the Company in
accordance with the discount program in effect from time to time for active
employees of the Company.
6.2 Certain Other Terminations. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.2, by Executive pursuant to
Section 5.1, or as a result of the death of Executive as set forth in Section
5.4, Employer shall pay to Executive (a) Base Salary (calculated at its then
current rate per year) through the date of termination, (b) in the case of
termination as a result of the death of Executive as set forth in Section 5.4,
when due pursuant to provisions of Section 4.2, the Bonus for the Bonus Year in
which the date of termination occurred prorated as provided in said Section 4.2
and (c) if applicable, the Bonus for the last full Bonus Year pursuant to
Section 4.2. Employer shall have no obligation to continue any other benefits
provided for in Section 4 past the date of termination.
6.3 Expiration at Election of Employer. In the event the Employment
Period expires because of an election by Employer to allow the Employment Period
to expire at the end of its then stated term as provided in Section 2 hereof,
Employer shall pay to Executive (a) Base Salary for the eighteen (18) month
period following the date of termination (calculated at its then current rate
per year), payable in equal installments at the times Base Salary would have
been paid had the Employment Period not been terminated, (b) when due pursuant
to the provisions of Section 4.2, the Bonus for the Bonus Year in which the
Employment Period expired prorated as provided in said Section 4.2 and (c) if
applicable, the Bonus for the last full Bonus Year pursuant to Section 4.2.
Employer shall have no obligation to continue any other benefits provided for in
Section 4 past the date of termination.
6.4 Mitigation. Executive shall not be required to mitigate the amount of
any payments or benefits provided for hereunder upon termination of the
Employment Period by seeking
5
<PAGE>
employment with any other person, or otherwise, nor shall the amount of any such
payments or benefits be reduced by any compensation, benefit or other amount
earned by, accrued for or paid to Executive as the result of Executive's
employment by or consultancy or other association with any other person,
provided, that any medical, dental or hospitalization insurance or benefits
provided to Executive with his employment by or consultancy with an unaffiliated
person during such period shall be primary to the benefits to be provided to
Executive pursuant to this Agreement for the purposes of coordination of
benefits.
6.5 Non-Compete. For so long as any termination compensation is being
paid to Executive pursuant to this Section 6 or, in the event of termination of
this Agreement by Employer for cause or by Executive without good reason, for
the balance of what would have been the current Employment Period assuming no
such termination, Executive shall not, directly or indirectly, (i) engage in any
activities that are in competition with the Company in any geographic area where
the Company is engaged in business, (ii) solicit any customer of the Company or
(iii) solicit any person who is then employed by the Company or was employed by
the Company within one year of such solicitation to (a) terminate his or her
employment with the Company, (b) accept employment with anyone other than the
Company, or (c) in any manner interfere with the business of the Company.
Executive acknowledges and agrees that in the event of any violation or
threatened violation by Executive of his obligations under the preceding
sentence, Employer shall be entitled to injunctive relief without any necessity
to post bond.
6.6 Unused Vacation. Upon termination of Executive's employment pursuant
to Section 5 herein or non-renewal of the Employment period as provided for
under Section 2 herein, for any reason whatsoever, Employer shall pay Executive,
in addition to any termination compensation provided for under this Section 6,
an amount equivalent to Executive's per diem compensation at the then-current
Base Salary rate multiplied by the number of unused vacation days, including any
carry-over, accrued by Executive as of the date of termination.
7. INDEMNIFICATION
The Company shall indemnify and hold Executive harmless from and against
any expenses (including attorneys' fees of the attorneys selected by Executive
to represent him, which shall be advanced as incurred), judgements, fines and
amounts paid in settlement incurred by him by reason of his being made a party
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of any act or omission to act by Executive during the Employment Period
or otherwise by reason of the fact that he is or was a director or officer of
Employer or any subsidiary or affiliate included as a part of the Company, to
the fullest extent and in the manner set forth and permitted by the General
Corporation Law of the State of Delaware and any other applicable law as from
time to time in effect. The provisions of this Section 7 shall survive any
termination of the Employment Period or any deemed termination of this
Agreement.
6
<PAGE>
8. MISCELLANEOUS
8.1 Notices. Any notice, consent or authorization required or
permitted to be given pursuant to this Agreement shall be in writing and sent
to the party for or to whom intended, at the address of such party set forth
below, by registered or certified mail, postage paid (deemed given five
days after deposit in the U.S. mail) or personally or by facsimile
transmission (deemed given upon receipt), or at such other address as either
party shall designate by notice given to the other in the manner provided
herein. Notices to Employer shall be sent to: Jos. A. Bank Clothiers, Inc.,
500 Hanover Pike, Hampstead, Maryland 21074-2095, Attn: Secretary. Notices
to Executive shall be sent to: Mr. David Ullman, Jos. A. Bank Clothiers,
Inc., 500 Hanover Pike, Hampstead, Maryland 21074-2095.
8.2 Legal Fees. From and after any change in control of the Company,
Employer shall, upon demand by Executive, pay directly or reimburse Executive
for all costs and expenses, including but not limited to attorneys' fees and
court costs, incurred by Executive (a) in the event of any breach or threatened
breach by Employer of any of the terms and conditions of this Agreement, (b) in
the event of any dispute under this Agreement between Employer and Executive,
(c) in connection with the enforcement of any right or remedy reserved to
Executive under this Agreement, (d) in connection with the defense of any claim
by Employer of a breach by Executive under this Agreement (regardless of whether
such claim is proven) or (e) in connection with any modification of or amendment
to this Agreement. Neither the institution of any lawsuit nor the rendering of
any particular judgement therein shall constitute a condition precedent to
Executive's rights under the immediately preceding sentence.
8.3 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security, unemployment compensation and other taxes as shall be necessary or
appropriate in the reasonable judgement of Employer to comply with applicable
laws and regulations.
8.4 Interpretation. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland applicable to
agreements made and to be performed therein. All descriptive headings in this
Agreement are inserted for convenience only and shall be disregarded in
construing or applying any provision of this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. If any
provision of this Agreement, or any part thereof, is held to be unenforceable,
the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.
8.5 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Baltimore, Maryland in accordance with the rules of the American Arbitration
Association then in effect. Judgement may be entered on the arbitration award in
any court having jurisdiction; provided, however, that Executive shall be
entitled to seek specific performance of his right to be paid until expiration
of the Employment Period during the pendency of any arbitration.
7
<PAGE>
8.6 Entire Agreement and Representation. This Agreement contains the
entire agreement and understanding between Employer and Executive with respect
to the subject matter hereof. No representations or warranties of any kind or
nature relating to the Company or its several businesses, or relating to the
Company's assets, liabilities, operations, future plans or prospects have been
made by or on behalf of Employer to Executive. This Agreement supersedes any
prior agreement between the parties relating to the subject matter hereof.
8.7 Successor and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
heirs (in the case of Executive) and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
____________________________________
Timothy F. Finley, Chairman and
Chief Executive Officer
/s/ David E. Ullman
____________________________________
DAVID E. ULLMAN
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 19, 1997 between GARY W.
CEJKA ("Executive") and JOS. A. BANK CLOTHIERS, INC. ("Employer" or
"Company").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth. This Agreement is a contract for the personal services of
Executive and services pursuant hereto may only be performed by Executive.
2. EMPLOYMENT PERIOD
The term of Executive's employment under this Agreement (the "Employment
Period") shall commence as of the date hereof and shall, subject to earlier
termination as provided in Section 5, continue through September 30, 1998 and
shall continue thereafter for successive one-year periods unless, at least 180
days before the end of the initial Employment Period or any subsequent one-year
period, either party gives notice to the other of his or its desire to terminate
the Employment Period, in which case the Employment Period shall terminate as of
the end of the then-current term.
3. DUTIES AND RESPONSIBILITIES
3.1 General. During the Employment Period, Executive (i) shall have the
title of Senior Vice President Store Operations and (ii) shall devote
substantially all of his business time and expend his best efforts, energies and
skills to the business of the Company. Executive shall perform such duties,
consistent with his status as Senior Vice President - Store Operations, as he
may be assigned from time to time by Employer's Chief Executive Officer (the
"Chief Executive Officer").
3.2 Location of Executive Office. The Company will maintain its principal
executive offices at a location in the Baltimore, Maryland metropolitan area.
Executive shall not be required to perform services for the Company at any other
location, except for services rendered in connection with required travel on the
Company's business to an extent not substantially in excess of Executive's past
travel commitments for the Company.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive during the Employment
Period an annual base salary (the "Base Salary") of $139,400 for the twelve
month period ending approximately June 30, 1998. The Base Salary shall be
increased from to time to time upon mutual agreement of the parties hereto;
provided, that the Base Salary shall in all events be increased at least once
every twelve (12) months by a percentage not less than the percentage increase
in the Consumer Price Index (or any equivalent index in the event the Consumer
Price Index shall no longer be published). The Base
<PAGE>
Salary for each year shall be payable in installments in accordance with the
Company's policy on payment to executives in effect from time to time.
4.2 Annual Bonus. For fiscal year 1997 (ending January 31, 1998) and for
each fiscal year that begins during the Employment Period (each such fiscal
year, a "Bonus Year"), Executive shall be entitled to receive a bonus of 40% of
Base Salary (each, a "Bonus") conditioned upon the satisfaction of (a) Company
performance goals established by the Compensation Committee of the Board of
Directors of the Company (the "Committee") for such Bonus Year and (b) personal
performance goals submitted by the Executive to, and approved by, the Company
and the Committee for such Bonus Year. Company and personal performance goals
are herein referred to collectively as the "Performance Goals". In the event the
Performance Goals for any Bonus Year are not fully satisfied, the Committee
shall have the right, but not the obligation, to grant a partial Bonus for such
Bonus Year. The Performance Goals for each Bonus Year shall be established as
soon as possible following the beginning of such Bonus Year. The Bonus earned
for any Bonus Year shall be payable promptly following the determination
thereof, but in no event later than 90 days following the end of each Bonus
Year. If (a) the Employment Period shall expire or terminate and (b) Employee is
entitled to payment of a bonus pursuant to Section 6 hereof, the Bonus payable
for the Bonus Year in which the Employment Period terminates or expires shall
equal the Bonus that would have been paid had the Employment Period not so
terminated or expired, multiplied by a fraction, the numerator of which shall be
the number of days of the Employment Period within the Bonus Year and the
denominator of which shall be 365. For the purposes of determining the amount of
Bonus payable pursuant to the immediately preceding sentence, it shall be
assumed that all conditions to payment based upon performance by the Executive
(e.g. personal performance goals) have been satisfied. Notwithstanding anything
to the contrary contained herein or in the Employer's Bonus Plan, in the event
(y) the Employment Period shall end for any reason whatsoever on a day prior to
payment to Executive of a Bonus for the last full Bonus Year contained within
the Employment Period, and (z) Executive would have been entitled to receive a
Bonus for such last full Bonus Year had the Employment Period not ended - then,
Employer shall pay to Executive the Bonus for such last full Bonus Year as and
when such Bonus would have been paid had the Employment Period not ended.
4.3 Other Benefits. During the Employment Period, subject to, and to the
extent Executive is eligible under their respective terms, Executive shall be
entitled to receive such fringe benefits as are, or are from time to time
hereafter, generally provided by Employer to Employer's senior management
employees (other than those provided under or pursuant to separately negotiated
individual employment agreements or arrangements).
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause or Good Reason. Employer may terminate the
Employment Period at any time without cause. Executive may, by delivery of not
less than 60 days' notice to Employer at any time during the Employment Period,
terminate the Employment Period without good reason.
5.2 By Employer for Cause. Employer may terminate the Employment Period in
accordance with this Section 5.2 at any time for cause. For the purpose of this
Section 5.2, "cause" shall mean any of the following:
2
<PAGE>
a) the conviction of Executive in a court of competent
jurisdiction of a felony involving money or property of
the Company or moral turpitude;
b) the willful commission of an act not approved of or
ratified by the Chief Executive Officer involving a series
of material conflicts of interest or self-dealings
relating to any material aspect of the Company;
c) the willful commission of any act of fraud or
misrepresentation (including the omission of material
facts) relating to the business of the Company and
materially and negatively impacting upon the Company and
its business; or
d) at any time prior to a change in control of the Company,
the willful and material failure of Executive to comply
with the lawful orders of the Chief Executive Officer,
provided such orders are consistent with Executive's
duties, responsibilities and/or authority as Senior Vice
President - Store Operations of the Company.
In the event Employer shall elect to pursue a termination for cause,
Employer shall deliver to Executive a written notice from the Chief Executive
Officer setting forth with reasonable particularity the grounds upon which the
Chief Executive Officer has found cause for termination. In the event such
grounds are predicated upon acts or omissions as set forth in paragraphs (b),
(c) or (d) above, Executive shall have thirty (30) days, or such longer period
as may be necessary provided Executive has commenced and is diligently
proceeding, to cure or eliminate the cause for termination. In the event
Executive has failed to timely cure or eliminate the cause for termination as
set forth in the immediately preceding sentence, the Company shall have the
right to terminate Executive for cause.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by notice to Employer, terminate the Employment Period under
this Agreement "for good reason" effective immediately. For the purposes hereof,
"for good reason" means (i) any material breach by Employer of any provision of
this Agreement which, if susceptible of being cured, is not cured within 30 days
of delivery of notice thereof to Employer by Executive; it being agreed,
however, that the foregoing 30 day cure period shall not be applicable to any
failure timely to pay (or any reduction in) compensation or benefits paid or
payable to Executive pursuant to the provisions of Section 4 hereof or (ii) the
occurrence of a change in control (as hereinafter defined) of Employer, if, and
only if, any of the duties, responsibilities or perquisites of Executive as
provided in this Agreement are thereafter reduced. Without limitation of the
generality of the foregoing, each of the following shall be deemed to be a
material breach of this Agreement by Employer: (x) any failure timely to pay (or
any reduction in) compensation or benefits paid or payable to Executive pursuant
to the provisions of Section 4 hereof; (y) any reduction in the duties,
responsibilities or perquisites of Executive as provided in this Agreement; and
(z) any transfer of the Company's principal executive offices outside the
geographic area described in Section 3.2 hereof or requirement that Executive
principally perform his duties outside such geographic area.
For purposes of this Agreement, a "change in control" of the Company shall
be deemed to have occurred if, as a result of a single transaction or a series
of transactions, (A) any "person" (as such term
3
<PAGE>
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or a corporation
owned, directly or indirectly, by the stockholders of the Company ( including
any nominee corporation that holds shares of the Company on behalf of the
beneficial owners of such corporation), in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 51% or more of the combined voting power
of the Company's then outstanding securities; or (B) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee
or other fiduciary holding securities under any employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the stockholders of
the Company (including any nominee corporation that holds shares of the Company
on behalf of the beneficial owners of such corporation), in substantially the
same proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities and there are
at least a majority of directors serving on the Board of Directors of the
Company who were not serving in such capacity as of the date hereof or who were
not elected with the consent of the Executive; or (C) the shareholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 70% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
the Company's assets.
5.4 Death. The Employment Period shall end on the date of Executive's
death.
6. TERMINATION COMPENSATION; NON-COMPETE
6.1 Termination Without Cause by Employer or for Good Reason by Executive.
If the Employment Period is terminated by Employer pursuant to the provisions of
Section 5.1 hereof or by Executive pursuant to the provisions of Section 5.3
hereof, Employer will pay to Executive (a) Base Salary for the twelve (12) month
period following the date of termination, calculated at the applicable Base
Salary rate which would have been in effect from time to time during the balance
of Employment Period, assuming no termination, payable in equal installments at
the times Base Salary would have been paid had the Employment Period not been
terminated, (b) on the date bonuses for the Bonus Year in which the Employment
Period is terminated are generally paid by Employer to Employer's senior
management employees, the Bonus for such Bonus Year prorated as provided in
Section 4.2 and (c) if applicable, the Bonus for the last full Bonus Year
pursuant to Section 4.2. All other benefits provided for in Section 4.3 shall be
continued at the expense of Employer for the period that payments are required
to be made pursuant to the preceding provisions of this Section 6.1. Without
limiting the generality of the immediately preceding sentence, Employer agrees
that (x) the health benefits to be continued on behalf of the Executive (at
Company expense) during the severance period shall not be part of Executive's
optional COBRA period; (y) Executive shall have the right and option to continue
health coverage at Executive's expense after the severance period to the
greatest
4
<PAGE>
extent required to be offered by the Company pursuant to applicable law; and (z)
Executive shall be entitled to continue contributions into the Company's 401k
Plan during the severance period and the Company shall match a share of such
contributions in accordance with the Company's general policy applicable to
active employees. Notwithstanding termination of the Employment Period,
Executive shall continue to be entitled to discounts on purchases of products
from the Company in accordance with the discount program in effect from time to
time for active employees of the Company.
6.2 Certain Other Terminations. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.2, by Executive pursuant to
Section 5.1 or as a result of the death of Executive as set forth in Section
5.4, Employer shall pay to Executive (a) Base Salary (calculated at its then
current rate per year) through the date of termination, (b) in the case of
termination as a result of the death of Executive as set forth in Section 5.4,
when due pursuant to provisions of Section 4.2 the Bonus for the Bonus Year in
which the date of termination occurred prorated as provided in said Section 4.2
and (c) if applicable, the Bonus for the last full Bonus Year pursuant to
Section 4.2. Employer shall have no obligation to continue any other benefits
provided for in Section 4 past the date of termination.
6.3 Expiration at Election of Employer. In the event the Employment Period
expires because of an election by Employer to allow the Employment Period to
expire at the end of its then stated term as provided in Section 2 hereof,
Employer shall pay to Executive (a) Base Salary for the twelve (12) month period
following the date of termination (calculated at its then current rate per
year), payable in equal installments at the times Base Salary would have been
paid had the Employment Period not been terminated, (b) when due pursuant to the
provisions of Section 4.2, the Bonus for the Bonus Year in which the Employment
Period expired prorated as provided in said Section 4.2 and (c) if applicable,
the Bonus for the last full Bonus Year pursuant to Section 4.2. Employer shall
have no obligation to continue any other benefits provided for in Section 4 past
the date of termination.
6.4 Mitigation. Executive shall not be required to mitigate the amount of
any payments or benefits provided for hereunder upon termination of the
Employment Period by seeking employment with any other person, or otherwise, nor
shall the amount of any such payments or benefits be reduced by any
compensation, benefit or other amount earned by, accrued for or paid to
Executive as the result of Executive's employment by or consultancy or other
association with any other person, provided, that any medical, dental or
hospitalization insurance or benefits provided to Executive with his employment
by or consultancy with an unaffiliated person during such period shall be
primary to the benefits to be provided to Executive pursuant to this Agreement
for the purposes of coordination of benefits.
6.5 Non-Compete. For so long as any termination compensation is being paid
to Executive pursuant to this Section 6 or, in the event of termination of this
Agreement by Employer for cause or by Executive without good reason, for the
balance of what would have been the current Employment Period assuming no such
termination, Executive shall not, directly or indirectly, (i) engage in any
activities that are in competition with the Company in any geographic area where
the Company is engaged in business, (ii) solicit any customer of the Company or
(iii) solicit any person who is then employed by the Company or was employed by
the Company within one year of such solicitation to (a) terminate his or her
employment with the Company, (b) accept employment with anyone other
5
<PAGE>
than the Company, or (c) in any manner interfere with the business of the
Company. Executive acknowledges and agrees that in the event of any violation or
threatened violation by Executive of his obligations under the preceding
sentence, Employer shall be entitled to injunctive relief without any necessity
to post bond.
6.6 Unused Vacation. Upon termination of Executive's employment pursuant to
Section 5 herein or non-renewal of the Employment period as provided for under
Section 2 herein, for any reason whatsoever, Employer shall pay Executive, in
addition to any termination compensation provided for under this Section 6, an
amount equivalent to Executive's per diem compensation at the then-current Base
Salary rate multiplied by the number of unused vacation days, including any
carry-over, accrued by Executive as of the date of termination.
7. INDEMNIFICATION
The Company shall indemnify and hold Executive harmless from and against
any expenses (including attorneys' fees of the attorneys selected by Executive
to represent him, which shall be advanced as incurred), judgements, fines and
amounts paid in settlement incurred by him by reason of his being made a party
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of any act or omission to act by Executive during the Employment Period
or otherwise by reason of the fact that he is or was a director or officer of
Employer or any subsidiary or affiliate included as a part of the Company, to
the fullest extent and in the manner set forth and permitted by the General
Corporation Law of the State of Delaware and any other applicable law as from
time to time in effect. The provisions of this Section 7 shall survive any
termination of the Employment Period or any deemed termination of this
Agreement.
8. MISCELLANEOUS
8.1 Notices. Any notice, consent or authorization required or
permitted to be given pursuant to this Agreement shall be in writing and
sent to the party for or to whom intended, at the address of such party set
forth below, by registered or certified mail, postage paid (deemed given
five days after deposit in the U.S. mail) or personally or by facsimile
transmission (deemed given upon receipt), or at such other address as either
party shall designate by notice given to the other in the manner provided
herein. Notices to Employer shall be sent to: Jos. A. Bank Clothiers, Inc.,
500 Hanover Pike, Hampstead, Maryland 21074-2095, Attn: Secretary.
Notices to Executive shall be sent to: Mr. Gary W. Cejka, Jos. A. Bank
Clothiers, Inc., 500 Hanover Pike, Hampstead, Maryland 21074-2095.
8.2 Legal Fees. From and after any change in control of the Company,
Employer shall, upon demand by Executive, pay directly or reimburse Executive
for all costs and expenses, including but not limited to attorneys' fees and
court costs, incurred by Executive (a) in the event of any breach or threatened
breach by Employer of any of the terms and conditions of this Agreement, (b) in
the event of any dispute under this Agreement between Employer and Executive,
(c) in connection with the enforcement of any right or remedy reserved to
Executive under this Agreement, (d) in connection with the defense of any claim
by Employer of a breach by Executive under this Agreement (regardless of whether
such claim is proven) or (e) in connection with any modification of or amendment
to this
6
<PAGE>
Agreement. Neither the institution of any lawsuit nor the rendering of any
particular judgement therein shall constitute a condition precedent to
Executive's rights under the immediately preceding sentence.
8.3 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security, unemployment compensation and other taxes as shall be necessary or
appropriate in the reasonable judgement of Employer to comply with applicable
laws and regulations.
8.4 Interpretation. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland applicable to
agreements made and to be performed therein. All descriptive headings in this
Agreement are inserted for convenience only and shall be disregarded in
construing or applying any provision of this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. If any
provision of this Agreement, or any part thereof, is held to be unenforceable,
the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.
8.5 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Baltimore,
Maryland in accordance with the rules of the American Arbitration Association
then in effect. Judgement may be entered on the arbitration award in any court
having jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of his right to be paid until expiration of the Employment
Period during the pendency of any arbitration.
8.6 Entire Agreement and Representation. This Agreement contains the entire
agreement and understanding between Employer and Executive with respect to the
subject matter hereof. No representations or warranties of any kind or nature
relating to the Company or its several businesses, or relating to the Company's
assets, liabilities, operations, future plans or prospects have been made by or
on behalf of Employer to Executive. This Agreement supersedes any prior
agreement between the parties relating to the subject matter hereof.
8.7 Successor and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
heirs (in the case of Executive) and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
____________________________________
Timothy F. Finley, Chairman and
Chief Executive Officer
/s/ Gary W. Cejka
____________________________________
GARY W. CEJKA
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 19, 1997 between CHARLES D.
FRAZER ("Executive") and JOS. A. BANK CLOTHIERS, INC. ("Employer" or
"Company").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth. This Agreement is a contract for the personal services of
Executive and services pursuant hereto may only be performed by Executive.
2. EMPLOYMENT PERIOD
The term of Executive's employment under this Agreement (the "Employment
Period") shall commence as of the date hereof and shall, subject to earlier
termination as provided in Section 5, continue through September 30, 1998 and
shall continue thereafter for successive one-year periods unless, at least 180
days before the end of the initial Employment Period or any subsequent one-year
period, either party gives notice to the other of his or its desire to terminate
the Employment Period, in which case the Employment Period shall terminate as of
the end of the then-current term.
3. DUTIES AND RESPONSIBILITIES
3.1 General. During the Employment Period, Executive (i) shall have the
title of Senior Vice President General Counsel and (ii) shall devote
substantially all of his business time and expend his best efforts, energies and
skills to the business of the Company. Executive shall perform such duties,
consistent with his status as Senior Vice President - General Counsel, as he may
be assigned from time to time by Employer's Chief Executive Officer (the "Chief
Executive Officer").
3.2 Location of Executive Office. The Company will maintain its principal
executive offices at a location in the Baltimore, Maryland metropolitan area.
Executive shall not be required to perform services for the Company at any other
location, except for services rendered in connection with required travel on the
Company's business to an extent not substantially in excess of Executive's past
commitments for the Company.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive during the Employment
Period an annual base salary (the "Base Salary") of $120,000 for the twelve
month period ending approximately June 30, 1998. The Base Salary shall be
increased from to time to time upon mutual agreement of the parties hereto;
provided, that the Base Salary shall in all events be increased at least once
every twelve (12) months by a percentage not less than the percentage increase
in the Consumer Price Index (or any equivalent index in the event the Consumer
Price Index shall no longer be published). The Base
<PAGE>
Salary for each year shall be payable in installments in accordance with the
Company's policy on payment to executives in effect from time to time.
4.2 Annual Bonus. For fiscal year 1997 (ending January 31, 1998) and for
each fiscal year that begins during the Employment Period (each such fiscal
year, a "Bonus Year"), Executive shall be entitled to receive a bonus of 40% of
Base Salary (each, a "Bonus") conditioned upon the satisfaction of (a) Company
performance goals established by the Compensation Committee of the Board of
Directors of the Company (the "Committee") for such Bonus Year and (b) personal
performance goals submitted by the Executive to, and approved by, the Company
and the Committee for such Bonus Year. Company and personal performance goals
are herein referred to collectively as the "Performance Goals". In the event the
Performance Goals for any Bonus Year are not fully satisfied, the Committee
shall have the right, but not the obligation, to grant a partial Bonus for such
Bonus Year. The Performance Goals for each Bonus Year shall be established as
soon as possible following the beginning of such Bonus Year. The Bonus earned
for any Bonus Year shall be payable promptly following the determination
thereof, but in no event later than 90 days following the end of each Bonus
Year. If (a) the Employment Period shall expire or terminate and (b) Employee is
entitled to payment of a bonus pursuant to Section 6 hereof, the Bonus payable
for the Bonus Year in which the Employment Period terminates or expires shall
equal the Bonus that would have been paid had the Employment Period not so
terminated or expired, multiplied by a fraction, the numerator of which shall be
the number of days of the Employment Period within the Bonus Year and the
denominator of which shall be 365. For the purposes of determining the amount of
Bonus payable pursuant to the immediately preceding sentence, it shall be
assumed that all conditions to payment based upon performance by the Executive
(e.g. personal performance goals) have been satisfied. Notwithstanding anything
to the contrary contained herein or in the Employer's Bonus Plan, in the event
(y) the Employment Period shall end for any reason whatsoever on a day prior to
payment to Executive of a Bonus for the last full Bonus Year contained within
the Employment Period, and (z) Executive would have been entitled to receive a
Bonus for such last full Bonus Year had the Employment Period not ended - then,
Employer shall pay to Executive the Bonus for such last full Bonus Year as and
when such Bonus would have been paid had the Employment Period not ended.
4.3 Other Benefits. During the Employment Period, subject to, and to the
extent Executive is eligible under their respective terms, Executive shall be
entitled to receive such fringe benefits as are, or are from time to time
hereafter, generally provided by Employer to Employer's senior management
employees (other than those provided under or pursuant to separately negotiated
individual employment agreements or arrangements).
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause or Good Reason. Employer may terminate the
Employment Period at any time without cause. Executive may, by delivery of not
less than 60 days' notice to Employer at any time during the Employment Period,
terminate the Employment Period without good reason.
5.2 By Employer for Cause. Employer may terminate the Employment Period in
accordance with this Section 5.2 at any time for cause. For the purpose of this
Section 5.2, "cause" shall mean any of the following:
2
<PAGE>
a) the conviction of Executive in a court of competent
jurisdiction of a felony involving money or property of
the Company or moral turpitude;
b) the willful commission of an act not approved of or
ratified by the Chief Executive Officer involving a series
of material conflicts of interest or self-dealings
relating to any material aspect of the Company;
c) the willful commission of any act of fraud or
misrepresentation (including the omission of material
facts) relating to the business of the Company and
materially and negatively impacting upon the Company and
its business; or
d) at any time prior to a change in control of the Company,
the willful and material failure of Executive to comply
with the lawful orders of the Chief Executive Officer,
provided such orders are consistent with Executive's
duties, responsibilities and/or authority as Senior Vice
President - General Counsel of the Company.
In the event Employer shall elect to pursue a termination for cause,
Employer shall deliver to Executive a written notice from the Chief Executive
Officer setting forth with reasonable particularity the grounds upon which the
Chief Executive Officer has found cause for termination. In the event such
grounds are predicated upon acts or omissions as set forth in paragraphs (b),
(c) or (d) above, Executive shall have thirty (30) days, or such longer period
as may be necessary provided Executive has commenced and is diligently
proceeding, to cure or eliminate the cause for termination. In the event
Executive has failed to timely cure or eliminate the cause for termination as
set forth in the immediately preceding sentence, the Company shall have the
right to terminate Executive for cause.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by notice to Employer, terminate the Employment Period under
this Agreement "for good reason" effective immediately. For the purposes hereof,
"for good reason" means (i) any material breach by Employer of any provision of
this Agreement which, if susceptible of being cured, is not cured within 30 days
of delivery of notice thereof to Employer by Executive; it being agreed,
however, that the foregoing 30 day cure period shall not be applicable to any
failure timely to pay (or any reduction in) compensation or benefits paid or
payable to Executive pursuant to the provisions of Section 4 hereof or (ii) the
occurrence of a change in control (as hereinafter defined) of Employer, if, and
only if, any of the duties, responsibilities or perquisites of Executive as
provided in this Agreement are thereafter reduced. Without limitation of the
generality of the foregoing, each of the following shall be deemed to be a
material breach of this Agreement by Employer: (x) any failure timely to pay (or
any reduction in) compensation or benefits paid or payable to Executive pursuant
to the provisions of Section 4 hereof; (y) any reduction in the duties,
responsibilities or perquisites of Executive as provided in this Agreement; and
(z) any transfer of the Company's principal executive offices outside the
geographic area described in Section 3.2 hereof or requirement that Executive
principally perform his duties outside such geographic area.
For purposes of this Agreement, a "change in control" of the Company shall
be deemed to have occurred if, as a result of a single transaction or a series
of transactions, (A) any "person" (as such term
3
<PAGE>
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or a corporation
owned, directly or indirectly, by the stockholders of the Company ( including
any nominee corporation that holds shares of the Company on behalf of the
beneficial owners of such corporation), in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 51% or more of the combined voting power
of the Company's then outstanding securities; or (B) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee
or other fiduciary holding securities under any employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the stockholders of
the Company (including any nominee corporation that holds shares of the Company
on behalf of the beneficial owners of such corporation), in substantially the
same proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities and there are
at least a majority of directors serving on the Board of Directors who were not
serving in such capacity as of the date hereof or who were not elected with the
consent of the Executive; or (C) the shareholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
5.4 Death. The Employment Period shall end on the date of Executive's
death.
6. TERMINATION COMPENSATION; NON-COMPETE
6.1 Termination Without Cause by Employer or for Good Reason by Executive.
If the Employment Period is terminated by Employer pursuant to the provisions of
Section 5.1 hereof or by Executive pursuant to the provisions of Section 5.3
hereof, Employer will pay to Executive (a) Base Salary for the twelve (12) month
period following the date of termination, calculated at the applicable Base
Salary rate which would have been in effect from time to time during the balance
of Employment Period, assuming no termination, payable in equal installments at
the times Base Salary would have been paid had the Employment Period not been
terminated, (b) on the date bonuses for the Bonus Year in which the Employment
Period is terminated are generally paid by Employer to Employer's senior
management employees, the Bonus for such Bonus Year prorated as provided in
Section 4.2 and (c) if applicable, the Bonus for the last full Bonus Year
pursuant to Section 4.2. All other benefits provided for in Section 4.3 shall be
continued at the expense of Employer for the period that payments are required
to be made pursuant to the preceding provisions of this Section 6.1. Without
limiting the generality of the immediately preceding sentence, Employer agrees
that (x) the health benefits to be continued on behalf of the Executive (at
Company expense) during the severance period shall not be part of Executive's
optional COBRA period; (y) Executive shall have the right and option to continue
health coverage at Executive's expense after the severance period to the
greatest
4
<PAGE>
extent required to be offered by the Company pursuant to applicable law; and (z)
Executive shall be entitled to continue contributions into the Company's 401k
Plan during the severance period and the Company shall match a share of such
contributions in accordance with the Company's general policy applicable to
active employees. Notwithstanding termination of the Employment Period,
Executive shall continue to be entitled to discounts on purchases of products
from the Company in accordance with the discount program in effect from time to
time for active employees of the Company.
6.2 Certain Other Terminations. If the Employment Period is terminated by
Employer pursuant to the provisions of Section 5.2, by Executive pursuant to
Section 5.1 or as a result of the death of Executive as set forth in Section
5.4, Employer shall pay to Executive (a) Base Salary (calculated at its then
current rate per year) through the date of termination, (b) in the case of
termination as a result of the death of Executive as set forth in Section 5.4,
when due pursuant to provisions of Section 4.2 the Bonus for the Bonus Year in
which the date of termination occurred prorated as provided in said Section 4.2
and (c) if applicable, the Bonus for the last full Bonus Year pursuant to
Section 4.2. Employer shall have no obligation to continue any other benefits
provided for in Section 4 past the date of termination.
6.3 Expiration at Election of Employer. In the event the Employment Period
expires because of an election by Employer to allow the Employment Period to
expire at the end of its then stated term as provided in Section 2 hereof,
Employer shall pay to Executive (a) Base Salary for the twelve (12) month period
following the date of termination (calculated at its then current rate per
year), payable in equal installments at the times Base Salary would have been
paid had the Employment Period not been terminated, (b) when due pursuant to the
provisions of Section 4.2, the Bonus for the Bonus Year in which the Employment
Period expired prorated as provided in said Section 4.2 and (c) if applicable,
the Bonus for the last full Bonus Year pursuant to Section 4.2. Employer shall
have no obligation to continue any other benefits provided for in Section 4 past
the date of termination.
6.4 Mitigation. Executive shall not be required to mitigate the amount of
any payments or benefits provided for hereunder upon termination of the
Employment Period by seeking employment with any other person, or otherwise, nor
shall the amount of any such payments or benefits be reduced by any
compensation, benefit or other amount earned by, accrued for or paid to
Executive as the result of Executive's employment by or consultancy or other
association with any other person, provided, that any medical, dental or
hospitalization insurance or benefits provided to Executive with his employment
by or consultancy with an unaffiliated person during such period shall be
primary to the benefits to be provided to Executive pursuant to this Agreement
for the purposes of coordination of benefits.
6.5 Non-Compete. For so long as any termination compensation is being paid
to Executive pursuant to this Section 6 or, in the event of termination of this
Agreement by Employer for cause or by Executive without good reason, for the
balance of what would have been the current Employment Period assuming no such
termination, Executive shall not, directly or indirectly, (i) engage in any
activities that are in competition with the Company in any geographic area where
the Company is engaged in business, (ii) solicit any customer of the Company or
(iii) solicit any person who is then employed by the Company or was employed by
the Company within one year of such solicitation to (a) terminate his or her
employment with the Company, (b) accept employment with anyone other
5
<PAGE>
than the Company, or (c) in any manner interfere with the business of the
Company. Executive acknowledges and agrees that in the event of any violation or
threatened violation by Executive of his obligations under the preceding
sentence, Employer shall be entitled to injunctive relief without any necessity
to post bond.
6.6 Unused Vacation. Upon termination of Executive's employment pursuant to
Section 5 herein or non-renewal of the Employment period as provided for under
Section 2 herein, for any reason whatsoever, Employer shall pay Executive, in
addition to any termination compensation provided for under this Section 6, an
amount equivalent to Executive's per diem compensation at the then-current Base
Salary rate multiplied by the number of unused vacation days, including any
carry-over, accrued by Executive as of the date of termination.
7. INDEMNIFICATION
The Company shall indemnify and hold Executive harmless from and against
any expenses (including attorneys' fees of the attorneys selected by Executive
to represent him, which shall be advanced as incurred), judgements, fines and
amounts paid in settlement incurred by him by reason of his being made a party
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of any act or omission to act by Executive during the Employment Period
or otherwise by reason of the fact that he is or was a director or officer of
Employer or any subsidiary or affiliate included as a part of the Company, to
the fullest extent and in the manner set forth and permitted by the General
Corporation Law of the State of Delaware and any other applicable law as from
time to time in effect. The provisions of this Section 7 shall survive any
termination of the Employment Period or any deemed termination of this
Agreement.
8. MISCELLANEOUS
8.1 Notices. Any notice, consent or authorization required or permitted to
be given pursuant to this Agreement shall be in writing and sent to the party
for or to whom intended, at the address of such party set forth below, by
registered or certified mail, postage paid (deemed given five days after deposit
in the U.S. mail) or personally or by facsimile transmission (deemed given upon
receipt), or at such other address as either party shall designate by notice
given to the other in the manner provided herein. Notices to Employer shall be
sent to: Jos. A. Bank Clothiers, Inc., 500 Hanover Pike, Hampstead, Maryland
21074-2095, Attn: Secretary. Notices to Executive shall be sent to: Charles D.
Frazer, Esquire, Jos. A. Bank Clothiers, Inc., 500 Hanover Pike, Hampstead,
Maryland 21074-2095.
8.2 Legal Fees. From and after any change in control of the Company,
Employer shall, upon demand by Executive, pay directly or reimburse Executive
for all costs and expenses, including but not limited to attorneys' fees and
court costs, incurred by Executive (a) in the event of any breach or threatened
breach by Employer of any of the terms and conditions of this Agreement, (b) in
the event of any dispute under this Agreement between Employer and Executive,
(c) in connection with the enforcement of any right or remedy reserved to
Executive under this Agreement, (d) in connection with the defense of any claim
by Employer of a breach by Executive under this Agreement (regardless of whether
such claim is proven) or (e) in connection with any modification of or amendment
to this
6
<PAGE>
Agreement. Neither the institution of any lawsuit nor the rendering of any
particular judgement therein shall constitute a condition precedent to
Executive's rights under the immediately preceding sentence.
8.3 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security, unemployment compensation and other taxes as shall be necessary or
appropriate in the reasonable judgement of Employer to comply with applicable
laws and regulations.
8.4 Interpretation. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland applicable to
agreements made and to be performed therein. All descriptive headings in this
Agreement are inserted for convenience only and shall be disregarded in
construing or applying any provision of this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. If any
provision of this Agreement, or any part thereof, is held to be unenforceable,
the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.
8.5 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Baltimore,
Maryland in accordance with the rules of the American Arbitration Association
then in effect. Judgement may be entered on the arbitration award in any court
having jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of his right to be paid until expiration of the Employment
Period during the pendency of any arbitration.
8.6 Entire Agreement and Representation. This Agreement contains the entire
agreement and understanding between Employer and Executive with respect to the
subject matter hereof. No representations or warranties of any kind or nature
relating to the Company or its several businesses, or relating to the Company's
assets, liabilities, operations, future plans or prospects have been made by or
on behalf of Employer to Executive. This Agreement supersedes any prior
agreement between the parties relating to the subject matter hereof.
8.7 Successor and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
heirs (in the case of Executive) and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
____________________________________
Timothy F. Finley, Chairman and
Chief Executive Officer
/s/ Charles D. Frazer
____________________________________
CHARLES D. FRAZER
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 19, 1997 between JOHN
C. HARRY ("Executive") and JOS. A. BANK CLOTHIERS, INC. ("Employer" or
"Company").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees
to be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth. This Agreement is a contract for the personal services of
Executive and services pursuant hereto may only be performed by Executive.
2. EMPLOYMENT PERIOD
The term of Executive's employment under this Agreement (the
"Employment Period") shall commence as of the date hereof and shall, subject to
earlier termination as provided in Section 5, continue through September 30,
1998 and shall continue thereafter for successive one-year periods unless, at
least 180 days before the end of the initial Employment Period or any subsequent
one-year period, either party gives notice to the other of his or its desire to
terminate the Employment Period, in which case the Employment Period shall
terminate as of the end of the then-current term.
3. DUTIES AND RESPONSIBILITIES
3.1 General. During the Employment Period, Executive (i) shall have the
title of Senior Vice President - Manufacturing and (ii) shall devote
substantially all of his business time and expend his best efforts, energies and
skills to the business of the Company. Executive shall perform such duties,
consistent with his status as Senior Vice President - Manufacturing, as he may
be assigned from time to time by Employer's Chief Executive Officer (the "Chief
Executive Officer").
3.2 Location of Executive Office. The Company will maintain its
principal executive offices at a location in the Baltimore, Maryland
metropolitan area. Executive shall not be required to perform services for the
Company at any other location, except for services rendered in connection with
required travel on the Company's business to an extent not substantially in
excess of Executive's past travel commitments for the Company.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive during the Employment
Period an annual base salary (the "Base Salary") of $153,000 for the twelve
month period ending
<PAGE>
approximately June 30, 1998. The Base Salary shall be increased from to time to
time upon mutual agreement of the parties hereto; provided, that the Base Salary
shall in all events be increased at least once every twelve (12) months by a
percentage not less than the percentage increase in the Consumer Price Index (or
any equivalent index in the event the Consumer Price Index shall no longer be
published). The Base Salary for each year shall be payable in installments in
accordance with the Company's policy on payment to executives in effect from
time to time.
4.2 Annual Bonus. For fiscal year 1997 and for each fiscal year that
begins during the Employment Period (each such fiscal year, a "Bonus Year"),
Executive shall be eligible to receive a bonus (each, a "Bonus") of up to 40% of
Base Salary pursuant to the terms and conditions of Employer's Bonus Plan in
effect from time to time. Notwithstanding anything to the contrary contained
herein or in the Employer's Bonus Plan, in the event (y) the Employment Period
shall end for any reason whatsoever on a day prior to payment to Executive of a
Bonus for the last full Bonus Year contained within the Employment Period, and
(z) Executive would have been entitled to receive a Bonus for such last full
Bonus Year had the Employment Period not ended - then, Employer shall pay to
Executive the Bonus for such last full Bonus Year as and when such Bonus would
have been paid had the Employment Period not ended.
4.3 Other Benefits. During the Employment Period, subject to, and to
the extent Executive is eligible under their respective terms, Executive shall
be entitled to receive such fringe benefits (including, but not limited to,
health care coverage at Employer's expense) as are, or are from time to time
hereafter, generally provided by Employer to Employer's senior management
employees (other than those provided under or pursuant to separately negotiated
individual employment agreements or arrangements). In addition, Executive shall
receive a weekly car allowance of $120.00 per week.
5. TERMINATION OF EMPLOYMENT PERIOD
5.1 Termination Without Cause or Good Reason. Employer may terminate
the Employment Period at any time without cause. Executive may, by delivery of
not less than 60 days' notice to Employer at any time during the Employment
Period, terminate the Employment Period without good reason.
5.2 By Employer for Cause. Employer may, at any time during the
Employment Period by notice to Executive, terminate the Employment Period "for
cause" effective immediately. For the purposes hereof, "for cause" means any
material misconduct, including, but not limited to (a) conviction of Executive
in a court of competent jurisdiction of a crime constituting a felony or other
serious offense; or (b) the commission of an act not approved of or ratified by
the Board of Directors involving a conflict of interest or self-dealing relating
to Employer or any subsidiary or affiliate thereof; or (c) commission of an act
of fraud or misrepresentation (including the omission of material facts); or (d)
failure of Executive to obey any material order or directive of the Board of
Directors of the Company or the Chief Executive
2
<PAGE>
Officer, provided such order or directive is lawful and not contrary to
Executive's duties, responsibilities and authority as an Senior Vice President
Manufacturing of the Company and is consistent with Executive's status as an
Senior Vice President Manufacturing of the Company; or (e) material violation by
Executive of any rule, regulation or policy of Employer generally applicable to
other employees of the Company.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by notice to Employer, terminate the Employment Period under
this Agreement "for good reason" effective immediately. For the purposes hereof,
"for good reason" means (i) any material breach by Employer of any provision of
this Agreement which, if susceptible of being cured, is not cured within 30 days
of delivery of notice thereof to Employer by Executive; it being agreed,
however, that the foregoing 30 day cure period shall not be applicable to any
failure timely to pay (or any reduction in) compensation or benefits paid or
payable to Executive pursuant to the provisions of Section 4 hereof or (ii) the
occurrence of a change in control (as hereinafter defined) of Employer, if, and
only if, any of the duties, responsibilities or perquisites of Executive as
provided in this Agreement are thereafter reduced. Without limitation of the
generality of the foregoing, each of the following shall be deemed to be a
material breach of this Agreement by Employer: (x) any failure timely to pay (or
any reduction in) compensation or benefits paid or payable to Executive pursuant
to the provisions of Section 4 hereof; (y) any reduction in the duties,
responsibilities or perquisites of Executive as provided in this Agreement; and
(z) any transfer of the Company's principal executive offices outside the
geographic area described in Section 3.2 hereof or requirement that Executive
principally perform his duties outside such geographic area.
For purposes of this Agreement, a "change in control" of the Company
shall be deemed to have occurred if, as a result of a single transaction or a
series of transactions, (A) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding securities under any
employee benefit plan of the Company or a corporation owned, directly or
indirectly, by the stockholders of the Company ( including any nominee
corporation that holds shares of the Company on behalf of the beneficial owners
of such corporation), in substantially the same proportions as their ownership
of stock of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 51% or more of the combined voting power of the Company's
then outstanding securities; or (B) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other
fiduciary holding securities under any employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of the Company
(including any nominee corporation that holds shares of the Company on behalf of
the beneficial owners of such corporation), in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities and there are
at least a majority of directors serving on the Board of Directors who were not
serving in such capacity as of the date hereof or who were not elected
3
<PAGE>
with the consent of the Executive; or (C) the shareholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
5.4 Death. The Employment Period shall end on the date of Executive's
death.
6. TERMINATION COMPENSATION; NON-COMPETE
6.1 Termination Without Cause by Employer or for Good Reason by
Executive. If the Employment Period is terminated by Employer pursuant to the
provisions of Section 5.1 hereof or by Executive pursuant to the provisions of
Section 5.3 hereof, Employer will pay to Executive (a) Base Salary for the
twelve (12) month period following the date of termination, calculated at the
Base Salary rate in effect as of the termination date, payable in equal
installments at the times Base Salary would have been paid had the Employment
Period not been terminated, (b) the Bonus for the last full Bonus Year pursuant
to Section 4.2 and (c) for each option (vested or not) to purchase a share of
the Company's common stock held by Executive as of the date of termination, an
amount, if greater than zero, equal to the last sale price of one share of the
Company's common stock as of market close on the termination date, less the
exercise price of such option. All options held by Executive as of the date of
termination shall expire on such date, notwithstanding anything to the contrary
contained in any option agreement. All other benefits provided for in Section
4.3 shall be continued at the expense of Employer for the period that payments
are required to be made pursuant to the preceding provisions of this Section
6.1. Without limiting the generality of the immediately preceding sentence,
Employer agrees that (x) the health benefits to be continued on behalf of the
Executive (at Company expense) during the twelve month severance period shall
not be part of Executive's optional COBRA period; (y) Executive shall have the
right and option to continue health coverage at Executive's expense after the
twelve month severance period to the greatest extent required to be offered by
the Company pursuant to applicable law; and (z) Executive shall be entitled to
continue contributions into the Company's 401k Plan during the twelve month
severance period and the Company shall match a share of such contributions in
accordance with the Company's general policy applicable to active employees.
Notwithstanding termination of the Employment Period, Executive shall continue
to be entitled to discounts on purchases of products from the Company in
accordance with the discount program in effect from time to time for active
employees of the Company.
6.2 Certain Other Terminations. If the Employment Period is
terminated by Employer pursuant to the provisions of Section 5.2 at any time
prior to a change in control of
4
<PAGE>
the Company, by Executive pursuant to Section 5.1 or as a result of the death of
Executive pursuant to the provisions of Section 5.4, Employer shall pay to
Executive (a) Base Salary (calculated at its then current rate per year) through
the date of termination, (b) in the case of termination by death pursuant to the
provisions of Section 5.4, when due pursuant to provisions of Section 4.2 the
Bonus for the Bonus Year in which the date of termination occurred prorated as
provided in said Section 4.2 and (c) if applicable, the Bonus for the last Bonus
Year pursuant to Section 4.2. Employer shall have no obligation to continue any
other benefits provided for in Section 4 past the date of termination.
6.3 Termination with Severance. In the event the Employment Period is
terminated by Employer pursuant to Section 5.2 at any time following a change in
control of the Company or the Employment Period is terminated by Employer
pursuant to notice given in accordance with Section 2 hereof, Employer shall pay
to Executive (a) Base Salary for the twelve (12) month period following the date
of termination (calculated at the applicable Base Salary rate which would have
been in effect from time to time during the balance of Employment Period,
assuming no termination), payable in equal installments at the times Base Salary
would have been paid had the Employment Period not been terminated, (b) when due
pursuant to the provisions of Section 4.2 the Bonus for the Bonus Year in which
the Employment Period expired prorated as provided in said Section 4.2 and (c)
if applicable, the Bonus for the last full Bonus Year pursuant to Section 4.2.
Employer shall have no obligation to continue any other benefits provided for in
Section 4 past the date of termination.
6.4 Mitigation. Executive shall not be required to mitigate the amount
of any payments or benefits provided for hereunder upon termination of the
Employment Period by seeking employment with any other person, or otherwise, nor
shall the amount of any such payments or benefits be reduced by any
compensation, benefit or other amount earned by, accrued for or paid to
Executive as the result of Executive's employment by or consultancy or other
association with any other person, provided, that any medical, dental or
hospitalization insurance or benefits provided to Executive with his employment
by or consultancy with an unaffiliated person during such period shall be
primary to the benefits to be provided to Executive pursuant to this Agreement
for the purposes of coordination of benefits.
6.5 Non-Compete. For so long as any termination compensation is being
paid to Executive pursuant to this Section 6 or, in the event of termination of
this Agreement by Employer for cause or by Executive without good reason, for
the balance of what would have been the current Employment Period assuming no
such termination, Executive shall not, directly or indirectly, (i) engage in any
activities that are in competition with the Company in any geographic area where
the Company is engaged in business, (ii) solicit any customer of the Company or
(iii) solicit any person who is then employed by the Company or was employed by
the Company within one year of such solicitation to (a) terminate his or her
employment with the Company, (b) accept employment with anyone other than the
Company, or (c) in any manner interfere with the business of the Company.
Executive acknowledges and agrees that in the event of any violation or
threatened violation by Executive of his obligations under the preceding
sentence, Employer shall be entitled to injunctive relief without any necessity
to post bond.
5
<PAGE>
6.6 Unused Vacation. Upon termination of Executive's employment
pursuant to Section 5 herein or non-renewal of the Employment period as provided
for under Section 2 herein, for any reason whatsoever, Employer shall pay
Executive, in addition to any termination compensation provided for under this
Section 6, an amount equivalent to Executive's per diem compensation at the
then-current Base Salary rate multiplied by the number of unused vacation days,
including any carry-over, accrued by Executive as of the date of termination.
7. INDEMNIFICATION
The Company shall indemnify and hold Executive harmless from and
against any expenses (including attorneys' fees of the attorneys selected by
Executive to represent him, which shall be advanced as incurred), judgements,
fines and amounts paid in settlement incurred by him by reason of his being made
a party or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of any act or omission to act by Executive during the
Employment Period or otherwise by reason of the fact that he is or was a
director or officer of Employer or any subsidiary or affiliate included as a
part of the Company, to the fullest extent and in the manner set forth and
permitted by the General Corporation Law of the State of Delaware and any other
applicable law as from time to time in effect. The provisions of this Section 7
shall survive any termination of the Employment Period or any deemed termination
of this Agreement.
8. MISCELLANEOUS
8.1 Notices. Any notice, consent or authorization required or
permitted to be given pursuant to this Agreement shall be in writing and
sent to the party for or to whom intended, at the address of such party set
forth below, by registered or certified mail, postage paid (deemed given five
days after deposit in the U.S. mail) or personally or by facsimile transmission
(deemed given upon receipt), or at such other address as either party shall
designate by notice given to the other in the manner provided herein. Notices
to Employer shall be sent to: Jos. A. Bank Clothiers, Inc., 500 Hanover
Pike, Hampstead, Maryland 21074-2095, Attn: Secretary. Notices to
Executive shall be sent to: Mr. John C. Harry, Jos. A. Bank Clothiers,
Inc., 500 Hanover Pike, Hampstead, Maryland 21074-2095.
8.2 Taxes. Employer is authorized to withhold (from any compensation or
benefits payable hereunder to Executive) such amounts for income tax, social
security, unemployment compensation and other taxes as shall be necessary or
appropriate in the reasonable judgement of Employer to comply with applicable
laws and regulations.
8.3 Interpretation. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Maryland applicable to
agreements made and to be performed therein. All descriptive headings in this
Agreement are inserted for convenience only and shall be disregarded in
construing or applying any provision of this
6
<PAGE>
Agreement. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument. If any provision of this Agreement, or any part thereof, is
held to be unenforceable, the remainder of such provision and this Agreement, as
the case may be, shall nevertheless remain in full force and effect.
8.4 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Baltimore, Maryland in accordance with the rules of the American Arbitration
Association then in effect. Judgement may be entered on the arbitration award in
any court having jurisdiction; provided, however, that Executive shall be
entitled to seek specific performance of his right to be paid until expiration
of the Employment Period during the pendency of any arbitration.
8.8 Entire Agreement and Representation. This Agreement contains the
entire agreement and understanding between Employer and Executive with respect
to the subject matter hereof. No representations or warranties of any kind or
nature relating to the Company or its several businesses, or relating to the
Company's assets, liabilities, operations, future plans or prospects have been
made by or on behalf of Employer to Executive. This Agreement supersedes any
prior agreement between the parties relating to the subject matter hereof.
8.9 Successor and Assigns. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors, heirs (in the case of Executive) and assigns.
8.10 Effectiveness. The presentation of this document to Executive is
an inquiry into terms and not an offer. The execution and delivery of this
document by Executive shall be an offer which may be accepted by the Company
only in writing. This Agreement shall be effective, if at all, only upon
execution hereof by each party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
____________________________________
Timothy F. Finley, Chairman and
Chief Executive Officer
/s/ John C. Harry
____________________________________
JOHN C. HARRY
JOS. A. BANK CLOTHIERS, INC.
EXHIBIT 11
STATEMENT OF COMPUTATION OF EARNINGS PER SHARE
During 1997, the Financial Accounting Standards Board (FASB) issued Statement
No. 128 (SFAS No. 128), "Earnings Per Share," which establishes new standards
for computing and presenting earnings per share. The Company has adopted SFAS
No. 128 and restated earnings per share data presented to reflect the new
standard. SFAS No. 128 requires presentation of basic earnings per share and
diluted earnings per share. The weighted average shares used to calculate basic
and diluted earnings per share in accordance with SFAS No. 128 is as follows:
1995 1996 1997
Weighted average shares
outstanding for basic EPS 6,790 6,790 6,791
Diluted EPS:
Dilutive effect of
common stock equivalents -- 34 73
Weighted average shares
outstanding for diluted
EPS (pro forma) 6,790 6,824 6,864
Weighted average shares outstanding for calculating dilutive EPS include basic
shares outstanding, plus shares issuable upon the exercise of stock options,
using the treasury stock method.
JOS. A. BANK CLOTHIERS, INC.
EXHIBIT 21.1a
SUBSIDIARIES
The Joseph A. Bank Mfg. Co., Inc., a New Jersey corporation.
National Tailoring Services, Inc., a Delaware corporation.
Jos. A. Bank of Fishkill, Inc., a Maryland corporation.
Exhibit 23.0
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of Jos. A. Bank Clothiers,
Inc. pertaining to the Jos. A. Bank Clothiers, Inc. Incentive Plan, of our
report dated April 16, 1998.
Baltimore, Maryland,
April 16, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-END> JAN-31-1998
<CASH> 564
<SECURITIES> 0
<RECEIVABLES> 2,737
<ALLOWANCES> 0
<INVENTORY> 40,114
<CURRENT-ASSETS> 51,783
<PP&E> 46,925
<DEPRECIATION> 24,818
<TOTAL-ASSETS> 77,144
<CURRENT-LIABILITIES> 25,641
<BONDS> 0
0
0
<COMMON> 70
<OTHER-SE> 36,328
<TOTAL-LIABILITY-AND-EQUITY> 77,144
<SALES> 172,174
<TOTAL-REVENUES> 172,174
<CGS> 92,001
<TOTAL-COSTS> 73,605
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,501
<INCOME-PRETAX> 4,067
<INCOME-TAX> 1,590
<INCOME-CONTINUING> 2,477
<DISCONTINUED> (1,778)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 699
<EPS-PRIMARY> 0.10
<EPS-DILUTED> 0.10
</TABLE>
