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 30, 1999 ("Fiscal 1998").
[ ] 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 Section 12(g) of the Act:
Title of each class
Common Stock (the "Common Stock") par value $.01 per share
Securities registered pursuant to Section 12(b) of the Act: None
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 23, 1999 was approximately $49,649,717.
The number of shares of Common Stock, par value $0.01 per share, outstanding on
April 23, 1999 was 6,792,027.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of Definitive Proxy Statement for Annual Meeting of Shareholders to be
held on June 8, 1999 are incorporated by reference into Part III hereof.
Index to the exhibits appears on Pages 14 and 15.
<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 91 Company-operated retail stores, 4 outlet stores and 10 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 also initiated an Internet site in 1997 and began to take customer
orders through the Internet in August, 1998.
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 and accessories, which is offered at price points typically established
at approximately 20% 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 its sourcing leverage.
In April, 1998, the Company completed the disposition of its remaining
manufacturing operations and now sources all of its products through third party
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
Financial and Results of Operations
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.
During fiscal year 1996, the Company focused on its core men's business
after discontinuing its women's business in 1995. Earnings from continuing
operations have increased each year since 1995, to $5.9 million ($.85 per share)
in 1998 from $2.5 million ($.36 per share) in 1997 and $.7 million ($.10 per
share) in 1996. The improved earnings were due primarily to: a) a 44% increase
in stores from 72 stores at the beginning of 1996 to 104 stores at the end of
1998, b) increased gross profit resulting from merchandise mix and improved
inventory management, c) improved financial position which has reduced debt by
$21.0 million in the last three years and d) leverage of selling, general and
administrative costs as a result of increased sales volume.
In fiscal year 1997, the Company decided to eliminate its final
manufacturing operations and focus solely on retail operations, resulting in an
after-tax charge of $1.8 million from discontinued operations.
Strategy
The Company's strategy is to further enhance its competitive position in
men's proprietary label, updated apparel, and to capitalize on the strength of
the Jos. A. Bank name and reputation by offering its customers multiple
convenient outlets to purchase product, including its retail stores, catalog,
Internet site and Corporate Sales Division.
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 its 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 29 new full-line stores and 3 franchise stores since Spring
1996 and expects to open approximately 30 new stores (excluding relocations) in
the next two years. Substantially all of the stores to be opened in the next two
to three years will be placed in existing markets which allows the Company to
leverage its existing advertising, management, distribution and sourcing
infrastructure.
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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, and an average store size of 6,800 square feet at the end of
fiscal year 1998. 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 of a size similar to the
prototype by the end of fiscal year 2000.
The growth in the Company's catalog will be generated by new product
offerings and increased circulation. In Fall 1999, the Company expects to launch
a branded shoe and sportswear catalog which will feature prominent brands such
as Cole Haan, Allen Edmonds, Timberland, Johnston & Murphy, Joseph Abboud and
others along with the Jos. A. Bank sportswear brand.
Internet. The Company's success as a cataloger facilitated the
development of on-line selling capabilities in August, 1998, providing a
worldwide purchasing audience. In early 1999, the Company drew a significant
number of new customers to its web site and monthly hits to the site grew to
14,000 from 1,500 just one year ago. To date, Internet sales for early 1999
exceed last year's busiest holiday purchasing months of November and December.
The Company is establishing solid on-line partnerships that will
generate even more exposure for the web site. Through amazon.com's "Shop the
Web" feature, customers can compare price points of similar products offered by
various retailers and then gain immediate access to the Company's web site.
Through a partnership agreement with America Online, Inc. (AOL), the Company's
16 million subscribers can now access the web site directly from AOL's shopping
page.
Corporate Sales. The newest division of Jos. A. Bank, corporate sales,
was created in mid-1998. The division capitalizes on the expanding corporate
market - purchases made by end user organizations as gifts or incentives to
their clients or employees. Corporate sales combines two existing business
units, the corporate card program and corporate incentive program, with a new
business line, corporate monogrammed services.
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 with extreme detail for quality
materials and workmanship. The Company is a value oriented retailer with price
points typically established at approximately 20% below those of its principal
competitors for items of comparable quality. 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 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, tuxedos, 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 to target men
at various points in their careers and the Company has designed special
collections to target these segments:
"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 is sold along with other "JAB" Sportswear. In 1998,
casual wear (which includes sportcoats, slacks and sportswear) accounted
for 35% of the Company's sales.
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The Company believes that its merchandise offerings which range from
tuxedos to sportswear, is well positioned to meet the changing trends of dress
for its target customer. As the corporate work environment has trended to casual
wear, the Company's product offering has been modified to meet the needs of the
Jos. A. Bank customer.
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, buying and planning staffs working in
conjunction with contract manufacturers. The merchandising buying staff oversees
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. The Company's planning staff is 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 designing products,
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 1998, Burlington
Industries, Inc., Eighteen International 1981, Ltd., HMS International Fabrics
Corp. and Warren Corporation, accounted for over 85% 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 it 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, in addition to employing
print and radio medias to convey its message, direct mail usage was enhanced to
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 approximately 20% below those of its principal competitors for
items of comparable quality. The Company has a database of over 2.6 million
names of people who have previously made a purchase from either the Company's
retail store or catalog or have requested a catalog from the Company. Of
these, over 1.2 million individuals have made such purchase or request in the
past 24 months. 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.
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. In 1997, the Company began allocating a portion of its marketing
expenditures to image advertising, with national ads running on CNN Headline
News and ESPN. The Company expanded this advertising in 1998, with a focus on
image and promotion and is continuing this campaign into 1999.
3
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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 wardrobe and $199 suit sales. 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 sales. At the end of each season, the Company
stores conduct clearance sales to promote the sale of that season's merchandise.
Corporate Sales Division
The newest division of Jos. A. Bank, corporate sales, was created in
mid-1998. The division capitalizes on the expanding corporate market - purchases
made by end user organizations as gifts or incentives to their clients or
employees. Corporate sales combines two existing business units, the corporate
card program and corporate incentive program, with a new business line,
corporate monogrammed clothing.
Corporate Card
Organizations and companies can participate in our corporate card
program, through which all of their employees receive a 20% discount off
regularly-priced Jos. A. Bank merchandise. The card is honored at all stores as
well as for catalog purchases. Over 6,700 companies nationally, from
privately-owned to large public companies, are now participating in the program.
As marketing efforts for the corporate card increase and companies actively
promote it as a free benefit to their employees, corporate card sales are
expected to grow.
Apparel Incentive Program
Jos. A. Bank Clothiers apparel incentive gift certificates are used by
various companies as a reward for achievement for their employees. The Company
also redeems proprietary gift certificates marketed by major premium/incentive
companies through its stores and catalogs.
Corporate Monogrammed Clothing
As a recognized high-quality supplier of business and promotional casual
wear, we are leveraging our brand awareness and quality reputation to further
meet the promotional needs of companies and other organizations. With few
high-quality, branded competitors in the decorative services market, we are
favorably positioned to offer a full range of options such as reproduction of
trademarks, logos and customized monograms on a wide selection of our products
including blazers, sweaters, polo shirts, turtlenecks, wind vests and shirts and
dress shirts.
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. Sales through the Jos. A. Bank credit card represented less than
3% of total retail sales in 1998. The Company discontinued the card in early
1999 and does not expect the change to impact sales volume.
Stores
At April 23, 1999, the Company operated 91 retail stores and 4 outlet
stores and had 10 franchise locations in a total of 28 states and the District
of Columbia. The following table sets forth the region and market of the stores
that were open at such date.
4
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JOS. A. BANK STORES
<TABLE>
<CAPTION>
Total # Total #
Region & Market Of Stores Region & Market Of Stores
- --------------- --------- --------------- ---------
<S> <C> <C> <C>
Northeast Minnesota 2
Connecticut 3 Missouri 1
New York 9 Ohio 4
Massachusetts 3 Wisconsin 1
Rhode Island 1 -------
----- Subtotal ............... 20
Subtotal ........... 16
South
Mid-Atlantic Alabam 2 (a)
Delaware 1 Florida 5
New Jersey 6 Georgia 5 (a)
Maryland 9 (b) North Carolina 6 (a)
Pennsylvania 5 (b) South Carolina 1
Washington, D.C. 1 Kentucky 1
----- Louisiana 3 (a)
Subtotal ........... 22 Mississippi 1 (a)
Tennessee 3 (a)
West Texas 11
Denver, Colorado 2 Virginia 7 (b)
----- --------
Subtotal ........... 2 Subtotal .............. 45
--------
Midwest
Kansas 1 TOTAL 105
Illinois 6 (a)
Indiana 1
Michigan 4 (a) Indicates one or more franchise stores.
(b) Indicates one or more outlet stores.
</TABLE>
Since Spring 1996, the Company has opened 29 new full-line stores and 3
franchise stores. The Company-operated stores are located in a variety of retail
settings, including high income shopping areas, malls, specialty village centers
and urban locations. 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, numerous tables to feature fashion merchandise, carpet 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 4,000 square feet
prototype that has been developed over the last three years, 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 and averaged 6,800
square feet at the end of fiscal 1998. The newer stores are designed to utilize
regional overflow tailor shops which allows the use of smaller tailor shops
within each store.
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 from
five locations around the country primarily to the Company's stores and, to a
lesser extent, outside retailers. 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 10 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
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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.
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 each of fiscal 1998 and
1997, the Company distributed approximately 7.6 million catalogs, excluding
catalogs sent to stores for display and general distribution. In both fiscal
1998 and 1997, catalog sales represented approximately 11% 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.
Catalogs offer potential and existing customers an easy way to order the
full range of Jos. A. Bank products. Catalogs are important tools in
communicating our high-quality image, providing customers with guidance in
coordinating outfits, generating store traffic and providing useful market data
on customers. Customers increasingly are becoming more comfortable purchasing
traditional business attire through the catalog.
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 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 connection with the millennium and to retain a competitive edge, many
of the Company's systems have been updated in the last two years or will be
updated in 1999. A thorough review of the impact of these changes is included in
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" included herein.
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Manufacturing
(See Item 2-Description of Properties). In fiscal 1997, the Company
manufactured approximately 15% of its merchandise requirements at its two
facilities located in Maryland. Prior to the end of fiscal 1997, the Company
decided to discontinue its then remaining manufacturing operations and focus on
its retailing expertise. (See "Consolidated Financial Statements - Note 24" for
a discussion of discontinued manufacturing operations). As of April 18, 1998
(the date of the sale), approximately 370 employees worked at these
manufacturing facilities. These employees were transferred to the purchaser of
the manufacturing operations (the "Purchaser") and the Company was released from
any future obligation to the employees. The Company has agreed to buy certain
clothing units from the Purchaser at least through April, 2001, subject to
certain conditions and performance criteria.
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 approximately 20% 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.
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 23, 1999, the Company had 1,150 employees.
As of April 23 1999, 116 employees worked 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, 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.
Item 2. DESCRIPTION OF PROPERTY
The Company owns its distribution and corporate office facility located
in the Maryland area, subject to certain financing liens. (See "Consolidated
Financial Statements -- Note 6.") The Company believes that its existing
facility are well maintained and in good operating condition. The Company also
owns and leases two manufacturing facilities in Maryland. The table below
presents certain information relating to the Company's corporate properties as
of April 23, 1999:
<TABLE>
<CAPTION>
Gross Owned/
Location Square Feet Leased Primary Function
- -------- ----------- ------ ----------------
<S> <C> <C> <C>
Hampstead, Maryland.............. 210,000 Owned Corporate offices, distribution center, catalog
fulfillment and regional tailoring overflow shop
Baltimore, Maryland.(1).......... 118,000 Owned Coat and pants sewing plant and central pressing
Baltimore, Maryland.(1).......... 51,000 Leased Cutting facility
</TABLE>
(1) The two properties noted above that are located in Baltimore, MD, were
leased or sub-leased in connection with the disposition of the manufacturing
operations in April ,1998.
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As of April 23, 1999, the Company had 95 Company-operated stores,
including its outlet stores, all of which were leased. The full line stores
average 6,800 square feet as of the beginning of fiscal 1999, including selling,
storage, tailor shop, and service areas. The full line stores range in size from
approximately 2,600 square feet to approximately 18,855 square feet. The leases
typically provide for an initial term of between 5 and 10 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 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.
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 30, 1999.
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 closing 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 1997 Fiscal 1998
High Low High Low
1st Quarter $ 4.25 $ 3.50 $ 8.38 $ 5.75
2nd Quarter 4.00 2.94 9.13 6.50
3rd Quarter 7.50 3.25 8.00 5.88
4th Quarter 7.00 5.06 8.00 5.88
1st Quarter (through April 23, 1999) $ 8.00 $ 6.00
On April 23, 1999 the closing sale price of the Common Stock was $ 7.31.
(b) Holders of Common Stock
At April 23, 1999, there were 145 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.
8
<PAGE>
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 30, 1999 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."
<TABLE>
<CAPTION>
Fiscal Year
------------------------------------------------------------------------
1994 1995 1996 1997 1998
---- ----- ----- ---- ----
(in thousands, except per share data)
Consolidated Statements of Income (Loss) Information:
<S> <C> <C> <C> <C> <C>
Net Sales:
Men's $143,465 $143,459 $153,191 $172,174 $187,163
Women's 32,589 25,908 -- -- --
-------- -------- -------- -------- --------
Net Sales (a) 176,054 169,367 153,191 172,174 187,163
Cost of goods sold 94,199 100,589 82,598 92,001 96,281
-------- -------- -------- -------- --------
Gross profit 81,855 68,778 70,593 80,173 90,882
Operating Expenses:
General and administrative 16,490 17,326 16,374 17,695 18,806
Sales and marketing 59,375 63,013 50,924 55,609 62,249
Store opening costs 1,025 -- 229 301 617
Store repositioning costs -- 3,500 (b) -- -- --
-------- -------- -------- -------- --------
Total operating expenses 76,890 83,839 67,527 73,605 81,672
-------- -------- -------- -------- --------
Operating income (loss) 4,965 (15,061) 3,066 6,568 9,210
Interest expense, net (2,430) (3,444) (1,946) (2,501) (1,762)
-------- -------- -------- -------- --------
Income (loss) from continuing operations
before income taxes 2,535 (18,505) 1,120 4,067 7,448
(Provision) benefit for income taxes (989) 5,640 (437) (1,590) (1,539)(d)
-------- -------- -------- -------- --------
Income (loss) from continuing
operations 1,546 (12,865) 683 2,477 5,909
Loss on disposal of manufacturing
operations, net of tax (c) -- -- -- (1,512) --
Loss from discontinued operations,
net of tax (c) (199) (321) (432) (266) (51)
-------- -------- -------- -------- --------
Net income (loss) $ 1,347 $(13,186)(a) $ 251 $ 699 $ 5,858 (d)
-------- -------- -------- -------- --------
Per Share Information (Diluted):
Income (loss) from continuing
operations $ 0.25 $ (1.89) $ 0.10 $ 0.36 $ 0.85 (d)
Loss on disposal of manufacturing
operations -- -- -- (0.22) --
Loss from discontinued operations (0.03) (0.05) (0.06) (0.04) (0.01)
-------- -------- -------- -------- --------
Net income (loss) per share $ 0.22 $ (1.94) $ 0.04 $ 0.10 $ 0.84
-------- -------- -------- -------- --------
Weighted average number of
shares outstanding (diluted) 6,241 6,790 6,824 6,864 6,976
Balance Sheet Information (As of End
of Fiscal Year):
Working capital $ 45,089 $ 35,722 $ 28,989 $26,142 $ 27,062
Total assets 100,403 89,190 79,604 77,144 82,515
Total debt 23,943 30,220 18,415 12,999 9,177
Total long-term obligations (including debt) 27,914 33,373 21,472 15,105 11,808
Shareholder's equity 48,631 35,445 35,699 36,391 42,313
</TABLE>
9
<PAGE>
(a) In 1995, the Company discontinued its women's product line to concentrate
solely on its men's business.
(b) 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
(regarding the impairment of long-lived assets) and costs to exit certain
leases and reposition stores.
(c) Represents disposal of manufacturing operations in 1997. All years
presented herein have been restated to reflect this discontinued operation.
(d) Includes a benefit of $1,365 or $.20 per share related to the reversal of a
valuation allowance which had been recorded in 1995 related to tax net
operating losses.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Overview
The Company's income from continuing operations increased to $5.9
million or $.85 per share in fiscal year 1998 from $2.5 million or $.36 per
share in fiscal year 1997. This improved profitability was driven by an 8.7%
increase in sales compared to 1997 and strong margins in all product categories
resulting from merchandising mix and improved inventory management. While the
Company's comparable store sales were even with 1997, gross profit increased
$2.7 million in the comparable stores, thus generating increased profitability
compared to 1997.
The Company opened 17 new stores in 1998 and has opened 32 new stores
since Spring 1996 (mostly in existing markets) which has temporarily slowed
comparable store growth. The Company plans to open approximately 30 new stores
(excluding relocations) over the next two years, an increase to the existing
store base of approximately 29%. The increased store base has provided the
Company with greater leverage of its expenses such as advertising, marketing,
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 significantly smaller than its
average stores and which allows for increased market opportunity for new stores
and for greater efficiencies in the stores. The Company believes these stores
offer customers greater convenience while allowing the Company to maintain
proper levels of quality merchandise.
The Company's availability in excess of outstanding borrowings, as
supported by the existing borrowing base under its Credit Agreement, has
increased to $28.7 million at April 23, 1999 compared to $25.9 million at the
same time in 1998.
Results of Operations
The following table is derived from the Company's Consolidated
Statements of Income and sets forth, for the periods indicated, the items
included in the Consolidated Statements of Income expressed as a percentage of
net sales.
<TABLE>
<CAPTION>
Percentage Of Net Sales
Fiscal Years
1996 1997 1998
---- ---- ----
<S> <C> <C> <C>
Net Sales 100.0% 100.0% 100.0%
Cost of goods sold 53.9 53.4 51.4
Gross profit 46.1 46.6 48.6
General and administrative expenses 10.7 10.3 10.0
Sales and marketing expenses 33.3 32.3 33.3
Store opening costs 0.1 0.2 0.3
Operating income 2.0 3.8 4.9
Interest expense, net (1.3) (1.5) (0.9)
Income from continuing operations before income taxes 0.7 2.3 4.0
Income taxes (0.3) (0.9) (0.8)
Income from continuing operations, net of tax 0.4 1.4 3.2
Loss from discontinued operations, net of tax (0.2) (1.0) (0.1)
Net income 0.2% 0.4% 3.1%
</TABLE>
10
<PAGE>
Fiscal 1998 Compared to Fiscal 1997
Net Sales - Net sales increased $15.0 million or 8.7% to $187.2 million in
fiscal 1998 from $172.2 million in fiscal 1997. The increase in net sales was
provided primarily by the opening of 32 new stores since Spring of 1996.
Gross Profit - Gross profit as a percent of sales increased 2.0 percentage
points to 48.6% from 46.6% due primarily to continued increases in sales of
higher quality products and improved inventory management resulting in reduced
markdowns.
General and Administrative Expenses - General and administrative expenses
continued to decline as a percent of sales to 10.0% in fiscal 1998 from 10.3%
and 10.7% in fiscal years 1996 and 1997, respectively, as the Company is able to
leverage its overhead while opening new stores. Total general and administrative
expenses increased to $18.8 million in 1998 from $17.7 million in 1997. This
increase was due primarily to higher personnel and travel costs related to
Company growth.
Sales and Marketing Expenses - Sales and marketing expenses increased $6.6
million to $62.2 million in fiscal 1998 from $55.6 million in fiscal 1997.
Nearly all of this increase was from costs associated with new stores (stores
which were open less than 24 months as of January, 1998). The Company expects
these costs to decrease as a percent of sales in the future as the new stores
mature.
Store Opening Costs - Store opening expenses, which include direct incremental
costs incurred to open new stores, increased in 1998 compared to 1997 as a
result of opening 17 new stores in 1998 compared to opening 9 new stores in
1997.
Interest Expense - Interest expense decreased $.7 million to $1.8 million in
fiscal 1998 from $2.5 million in 1997. This improvement was due primarily to
lower average borrowing on the Wells Fargo credit facility and lower interest
rates in fiscal 1998 compared to fiscal 1997. The Company's borrowing rates may
vary in the future depending upon prime and LIBOR rate fluctuations.
Income Taxes - At January 30, 1999, the Company had approximately $6.0 million
of tax net operating loss carryforwards ("NOL's") which expire in 2010. 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. As of the beginning of the fiscal year 1998, the
Company had a deferred tax asset of $4.6 million related to NOLs and an
offsetting valuation allowance of approximately $1.4 million. Management has
determined, based on the Company's recent history of earnings, that future
earnings of the Company will more likely than not be sufficient to utilize all
of the NOLs prior to their expiration. Accordingly, during the third quarter of
1998, the Company eliminated the $1.4 million valuation reserve.
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 fewer
markdowns. The Company has strategically liquidated its inventories during the
year, resulting in 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
11
<PAGE>
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.
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.
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 $28.7 million at April 23, 1999 compared to $25.9 million at the
same time in 1998. The Company's availability at April 23, 1999 has increased
compared to the same time in 1998 principally by 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:
Years Ended
--------------------
Jan. 31, Jan. 30,
1998 1999
------ ---------
Cash provided by (used in):
Operating activities $ 9,910 $ 9,484
Investing activities (4,056) (6,319)
Financing activities (5,432) (3,817)
Discontinued operations (577) 836
Net (decrease) increase in
cash and cash equivalents $ (155) $ 184
Cash provided by the Company's operating activities (net) was due
primarily to improved operating results and the use of tax net operating losses
to reduce tax payments. Cash used in investing activities relates primarily to
leasehold improvements in new, renovated and relocated stores. The Company spent
approximately $6.3 million on capital expenditures in fiscal year 1998 primarily
for the buildout of new, renovated and relocated stores and to upgrade its
distribution center to accommodate up to 140 stores. Cash used in financing
activities represents primarily repayments of the revolving loan under the
Credit Agreement.
The Company expects to spend between $8.0 and $8.5 million on capital
expenditures in 1999, primarily to open between 12 and 15 new stores, to
relocate, downsize or renovate at least ten stores and to install a new
point-of-sale system. The store expansion program is being financed through
operations, the Credit Agreement and fixture leasing arrangements. The Company
expects to open approximately 30 additional stores (excluding relocations) in
the next two years, mostly in existing markets. The Company believes that its
existing markets can support these additional stores which will provide
additional leverage for its management, distribution, advertising and sourcing
infrastructure. To support this growth, the
12
<PAGE>
Company is upgrading certain information systems and its existing distribution
center. The Company believes that its current liquidity and its Credit Agreement
will be adequate to support its current working capital and investment needs.
Further expansion beyond 1999 may necessitate revised financing arrangements for
the Company.
The Company expects to devote significant efforts in 1999 to ensure that
its business-critical systems are "Year 2000 compliant". The Year 2000 ("Y2K")
issue is the result of computer programs using a two-digit format, as opposed to
four digits, to indicate the year. Such computer systems will be unable to
accurately interpret dates beyond the year 1999, which could cause a system
failure or other computer errors, leading to disruptions in operations.
The Company has performed an assessment of its systems in order to
identify Y2K issues and has identified its business-critical area of exposure to
be: (a) merchandising and financial, (b) point-of-sale (POS), (c) cash
management, (d) catalog, (e) warehouse management, and (f) third party
relationships. Most of the Company's applications operate on two IBM AS/400
hardware configurations and are "off-the-shelf" packages with modifications and
interfaces made by the Company. The Company also relies on personal computers to
prepare detailed analysis. The Company believes that by installing the
vendor-developed upgrades to the latest versions of its existing systems and
re-working its modifications and interfaces, most of the Y2K issues should be
corrected. The vendors for the merchandising, general ledger and catalog
applications have certified that the updated versions of their systems are Y2K
complaint.
The Company expects to complete the installation of the latest versions
of its systems by the middle of 1999 with Y2K testing performed for each
application installed. In accordance with this plan, in August, 1998 the Company
installed and implemented the latest version of its merchandising, warehouse,
sales audit, accounts payable and general ledger system (which included many
upgrades in addition to Y2K compliance), and expects to finalize the related Y2K
testing for these applications in the first half of 1999. The Company expects to
complete the upgrade of its catalog system in May, 1999 with Y2K testing
performed thereafter. The Company's existing POS system is Y2K complaint.
However, to improve customer service and customer database management, the
Company is replacing its current POS system with installation of the base system
expected to be completed in August, 1999. The Company has identified certain
third parties who supply product to the Company and they do not expect to have
any significant disruptions to deliveries as a result of Y2K issues. However the
Company will continue to monitor this situation.
The Company has also reviewed its less critical and non-Information
Technology areas such as their personal computers and related software, security
and phone systems, etc., and has determined that these items are substantially
Y2K compliant and does not anticipate any major disruptions.
The Company estimates that it will spend approximately $1.0 million
(representing a combination of capital and expense) on these upgrades through
the end of fiscal 1999, although an exact amount related to Y2K compliance
cannot be measured because many of the upgrades include increased functionality
as well as Y2K compliance.
Should these efforts not be successful, the Y2K problems could have a
material impact on the operations of the Company. Although there is a high level
of confidence that these efforts will be successful, there can be no guarantee
that these estimates will be achieved and actual results could differ materially
from those anticipated. The Company has not developed a formal contingency plan
should any of its critical systems not operate in the Year 2000 and expects to
focus on this aspect of the Y2K project in the second half of 1999.
The Company's plans and beliefs concerning future operations contained
herein are forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Actual results may differ materially
from those forecast due to a variety of factors that can adversely affect the
Company's operating results, liquidity and financial condition such as risks
associated with economic, weather and other factors affecting consumer spending,
the mix of goods sold, pricing, availability of lease sites for new stores and
other competitive factors.
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 7a. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
At January 30, 1999, there were no derivative financial instruments. In
addition, the Company does not believe it is materially at risk for changes in
market interest rates or foreign currency fluctuations.
13
<PAGE>
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY 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 1999 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.
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>
<CAPTION>
1. Financial Statements Page
----
<S> <C>
Report of Independent Public Accountants F
Consolidated Balance Sheets as of January 31, 1998 and January 30,
1999 F-1
Consolidated Statements of Income for the Years Ended February 1,
1997, January 31, 1998 and January 30, 1999 F-2
Consolidated Statements of Shareholders' Equity for the Years
Ended February 1, 1997, January 31, 1998 and January 30, 1999 F-3
Consolidated Statements of Cash Flows for the Years Ended February
1, 1997, January 31, 1998 and January 30, 1999 F-4
Notes to Consolidated Financial Statements F-5
</TABLE>
2. Financial Statement Schedules
All required information is included within the Consolidated
Financial Statements and the notes thereto.
(b) Forms 8-K
- Item 5 - Other events - Press release stating the
Company's intention to complete a long term supply agreement with MS Pietrafesa
LP.
14
<PAGE>
(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 A
Preferred Stock***** ........................................................................
10.1 --1994 Incentive Plan*.........................................................................
10.1(a) --Amendments to Incentive Plan dated as of October 6, 1997, ****** ............................
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.,
****** ......................................................................................
10.7(a) --Amended and Restated Employment Agreement, dated as of September 19,
1997, between Frank Tworecke and Jos. A. Bank Clothiers, Inc., ****** .......................
10.7(b) --Amendment to the Employment Agreement dated February 9, 1999 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., ****** ......................
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.).**** ..........................
10.12 --Employment Agreement, dated September 19, 1997, between Gary W.
Cejka and Jos. A. Bank Clothiers, Inc., ****** ..............................................
10.13 --Employment Agreement, dated September 19, 1997, between Charles D.
Frazer and Jos. A. Bank Clothiers, Inc., ****** .............................................
10.13a --Amendment to the Employment Agreement dated February 14, 1999
between Charles D. Frazer and Jos. A. Bank Clothiers, Inc., filed
herewith ....................................................................................
10.15 --Employment Agreement dated August 31, 1998 between J.F. Timothy
Carroll and Jos. A. Bank Clothiers, Inc., filed herewith ....................................
21.1a --Company subsidiaries, ******.................................................................
27.0 --Financial data schedule, 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.
****** Incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended January 31, 1998.
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 23, 1999.
15
<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> <C>
/s/: Timothy F. Finley Director, Chairman of the Board and Chief
Executive Officer (Principal Executive Officer) April 23, 1999
/s/: Frank Tworecke President and Chief Operating Officer April 23, 1999
/s/: David E. Ullman Executive Vice President, Chief Financial and April 23, 1999
Administrative Officer
/s/: Thomas E. Polley Vice President - Treasurer (Principal
Accounting Officer) April 23, 1999
/s/: Robert B. Bank Director April 23, 1999
/s/: Andrew A. Giordano Director April 23, 1999
/s/: Gary S. Gladstein Director April 23, 1999
/s/: Peter V. Handal Director April 23, 1999
/s/: David A. Preiser Director April 23, 1999
/s/: Robert N. Wildrick Director April 23, 1999
</TABLE>
16
<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 January 31, 1998
and January 30, 1999, and the related consolidated statements of income,
shareholders' equity and cash flows for the years ended February 1, 1997,
January 31, 1998 and January 30, 1999. 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 January 31, 1998 and January 30, 1999, and the results of
their operations and their cash flows for the years ended February 1, 1997,
January 31, 1998 and January 30, 1999, in conformity with generally accepted
accounting principles.
Arthur Andersen LLP sig appears here
Baltimore, Maryland
March 2, 1999
F
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF JANUARY 31, 1998 AND JANUARY 30, 1999
(In Thousands, Except Share Information)
ASSETS
<TABLE>
<CAPTION>
Jan. 31, 1998 JAN. 30, 1999
- --------------------------------------------------------------------------------------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 564 $ 748
Accounts receivable 2,737 2,808
Inventories 40,114 44,828
Prepaid expenses and other current assets 4,338 4,189
Deferred income taxes 4,030 2,883
- --------------------------------------------------------------------------------------
Total current assets 51,783 55,456
NONCURRENT ASSETS:
Property, plant and equipment, net 22,107 24,547
Other noncurrent assets, net 791 512
Deferred income taxes 1,680 2,000
Net noncurrent assets of discontinued operations 783 --
- --------------------------------------------------------------------------------------
Total assets $ 77,144 $ 82,515
- --------------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 13,319 $ 14,012
Accrued expenses 9,774 12,504
Current portion of long-term debt 1,448 1,111
Current portion of pension termination liability 437 --
Net current liabilities of discontinued operations 663 767
- --------------------------------------------------------------------------------------
Total current liabilities 25,641 28,394
NONCURRENT LIABILITIES:
Long-term debt 11,551 8,066
Deferred rent 3,474 3,662
Pension liability 80 80
- --------------------------------------------------------------------------------------
Total liabilities 40,746 40,202
- --------------------------------------------------------------------------------------
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
January 31, 1998 and 6,792,027 outstanding as of 70 70
January 30, 1999
Preferred stock, $1.00 par, 500,000 shares authorized,
none issued or outstanding -- --
Additional paid-in capital 56,336 56,393
Accumulated deficit (18,088) (12,230)
Less 209,415 as of January 31, 1998 and 208,540
as of January 30, 1999 shares of common stock held (1,920) (1,920)
in treasury, at cost
- --------------------------------------------------------------------------------------
Total shareholders' equity 36,398 42,313
- --------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $ 77,144 $ 82,515
- --------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
F-1
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED FEBRUARY 1, 1997, JANUARY 31, 1998 AND JANUARY 30, 1999
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
<TABLE>
<CAPTION>
Years Ended
- --------------------------------------------------------------------------------------
Feb. 1, 1997 Jan. 31, 1998 Jan. 30, 1999
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
NET SALES $ 153,191 $ 172,174 $ 187,163
COST OF GOODS SOLD 82,598 92,001 96,281
- --------------------------------------------------------------------------------------
Gross Profit 70,593 80,173 90,882
- --------------------------------------------------------------------------------------
OPERATING EXPENSES:
General and administrative 16,374 17,695 18,806
Sales and marketing 50,924 55,609 62,249
Store opening costs 229 301 617
- --------------------------------------------------------------------------------------
Total operating expenses 67,527 73,605 81,672
- --------------------------------------------------------------------------------------
OPERATING INCOME 3,066 6,568 9,210
Interest expense, net (1,946) (2,501) (1,762)
- --------------------------------------------------------------------------------------
Income from continuing operations
before provision for income taxes 1,120 4,067 7,448
Provision for income taxes (437) (1,590) (1,539)
- --------------------------------------------------------------------------------------
INCOME FROM CONTINUING OPERATIONS 683 2,477 5,909
Discontinued operations, net of tax:
Loss on disposal of manufacturing operations -- (1,512) --
Loss from discontinued operations (432) (266) (51)
- --------------------------------------------------------------------------------------
Net income $ 251 $ 699 $ 5,858
- --------------------------------------------------------------------------------------
EARNINGS PER SHARE:
Income from continuing operations:
Basic $ 0.10 $ 0.36 $ 0.87
Diluted $ 0.10 $ 0.36 $ 0.85
Discontinued operations (net of tax):
Basic $ (0.06) $ (0.26) $ (0.01)
Diluted $ (0.06) $ (0.26) $ (0.01)
Net income:
Basic $ 0.04 $ 0.10 $ 0.86
Diluted $ 0.04 $ 0.10 $ 0.84
Weighted average shares outstanding:
Basic 6,790 6,791 6,791
Diluted 6,824 6,864 6,976
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-2
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED FEBRUARY 1, 1997, JANUARY 31, 1998 AND JANUARY 30, 1999
(In Thousands)
<TABLE>
<CAPTION>
Additional Total
Common Paid-In Accumulated Treasury Shareholders'
Stock Capital Deficit Stock Equity
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
BALANCE, FEBRUARY 3, 1996 $ 70 $ 56,333 $ (19,038) $ (1,920) $ 35,445
Net income -- -- 251 -- 251
Net proceeds from issuance of
common stock (1,000 shares)
pursuant to Incentive Option Plan -- 3 -- -- 3
- ----------------------------------------------------------------------------------------
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
- ----------------------------------------------------------------------------------------
Net income -- -- 5,858 -- 5,858
Net proceeds from issuance of
common stock (875 shares)
pursuant to Incentive Option Plan -- 5 -- -- 5
Stock based compensation -- 52 -- -- 52
- ----------------------------------------------------------------------------------------
BALANCE, JANUARY 30, 1999 $ 70 $ 56,393 $ (12,230) $ (1,920) $ 42,313
- ----------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-3
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED FEBRUARY 1, 1997, JANUARY 31, 1998 AND JANUARY 30, 1999
(In Thousands)
<TABLE>
<CAPTION>
Years Ended
- --------------------------------------------------------------------------------------------
Feb. 1, 1997 Jan. 31, 1998 JAN. 30, 1999
- --------------------------------------------------------------------------------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C> <C>
Net income $ 251 $ 699 $ 5,858
Loss from discontinued operations 432 266 51
Loss on disposal of manufacturing operations -- 1,512 --
- --------------------------------------------------------------------------------------------
Income from continuing operations 683 2,477 5,909
Adjustments to reconcile net income
to net cash provided by operating
activities:
Deferred tax expense 3,884 1,573 827
Depreciation and amortization 3,645 3,581 4,105
(Gain) loss on disposition of assets (25) 2 --
Stock based compensation -- -- 52
Changes in assets and liabilities:
(Increase) decrease in accounts receivable 780 349 (71)
(Increase) decrease in inventories 2,394 (546) (4,714)
(increase) decrease in prepaid expenses and
other current assets (481) 511 149
(Increase) decrease in other noncurrent assets 101 248 53
Increase in accounts payable 3,338 1,192 693
Decrease in long-term pension liability (730) (803) (437)
Increase in accrued expenses 196 1,070 2,730
Increase in deferred rent 134 256 188
- --------------------------------------------------------------------------------------------
Net cash provided by operating
activities of continuing operations 13,919 9,910 9,484
- --------------------------------------------------------------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (2,137) (4,056) (6,319)
Proceeds from disposal of assets 779 -- --
- --------------------------------------------------------------------------------------------
Net cash used in investing activities of
continuing operations (1,358) (4,056) (6,319)
- --------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings under revolving loan agreement 29,786 36,505 36,549
Repayment of borrowings under revolving loan agreement(40,680) (42,419) (40,329)
Borrowing of other long-term debt -- 833 277
Repayment of other long-term debt (911) (335) (319)
Principal payments under capital lease obligations (183) (16) --
Payments related to debt financing (142) -- --
Net proceeds from issuance of common stock 3 -- 5
- --------------------------------------------------------------------------------------------
Net cash used in financing activities
of continuing operations (12,127) (5,432) (3,817)
- --------------------------------------------------------------------------------------------
Net cash (used in) provided by discontinued operations (359) (577) 836
- --------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 75 (155) 184
CASH AND CASH EQUIVALENTS, beginning of year 644 719 564
- --------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS, end of year $ 719 $ 564 $ 748
- --------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-4
<PAGE>
JOS. A. BANK CLOTHIERS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FEBRUARY 1, 1997, JANUARY 31, 1998 and JANUARY 30, 1999
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 and internet 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), January 31, 1998 (fiscal 1997) and January
30, 1999 (fiscal 1998), each contained fifty-two 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):
Years Ended
-------------------------------
Feb. 1, Jan. 31, Jan. 30,
1997 1998 1999
-------- --------- --------
Interest paid $ 2,784 $ 2,181 $ 1,462
Income taxes paid 100 101 252
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 January 31, 1998 and January 30, 1999, prepaid catalog and
promotional materials were approximately $1,726,000 and $1,400,000,
respectively, representing expenditures for the applicable subsequent spring
catalog.
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:
Estimated
Asset Class Useful Lives
----------- ------------
Buildings 25 years
Equipment 3-10 years
Furniture and fixtures 10 years
Leasehold improvements Initial term of
lease, not to
exceed 10 years
Other Noncurrent Assets - Other noncurrent assets includes deferred financing
costs of $282,000 and $57,000 as of January 31, 1998 and January 30, 1999,
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 $427,000 and
$375,000 of notes receivable as of January 31, 1998 and January 30, 1999,
respectively.
Fair Value of Financial Instruments - For cash and equivalents, the carrying
amount is a reasonable estimate of fair value. For long-term debt, rates
available for debt with similar terms and remaining maturities are used to
estimate the fair value of existing debt.
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 Consolidated Balance Sheets.
Store Opening Costs - Costs incurred in connection with start-up and promotion
of new store openings are expensed as incurred.
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
F-5
<PAGE>
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 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 are as
follows:
1996 1997 1998
---- ---- ----
Weighted average shares
outstanding for basic EPS 6,790 6,791 6,791
Diluted EPS:
Dilutive effect of
common stock equivalents 34 73 185
Weighted average shares
outstanding for diluted
EPS 6,824 6,864 6,976
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.
New Accounting Standards - In June 1997, the FASB issued SFAS 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. There was no impact of the adoption of SFAS No. 130 on the Company's
financial statements.
Effective December 31, 1998, the Company adopted Statement of Financial
Accounting Standards No. 131 ("SFAS 131"), "Disclosures about Segments of an
Enterprise and Related Information." This standard requires that a public
business enterprise report financial and descriptive information about its
reportable operating segments. Operating segments are components of an
enterprise about which separate financial information is available that is
evaluated regularly by the chief operating decision maker in deciding how to
allocate resources and in assessing performance. See Note 13 for disclosures on
segment reporting.
In February 1998, the FASB issued SFAS No. 132, "Employer's Disclosures about
Pensions and Other Post-retirement Benefits." SFAS No. 132 revises employers'
disclosures about pension and other post-retirement benefit plans. SFAS No. 132
is effective for fiscal years beginning after December 15, 1997. See Note 8 for
disclosures of pension and other post-retirement benefits.
2. DISCONTINUED OPERATIONS:
In January, 1998 (fiscal 1997), 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,
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 was reported net of an income tax
benefit of $967,000, for an after-tax loss of $1,512,000 for fiscal 1997. In
addition, losses from operations have been reflected for each year presented.
Summarized financial information for the discontinued operations is as follows
(in thousands):
Feb. 1, Jan.31, Jan. 30,
1997 1998 1999
------ ------- -------
Loss before income taxes $ (708) $ (374) $ (84)
Net loss $ (432) $ (266) $ (51)
------- ------- -------
Current assets $ 3,839 $ 1,159
Less current liabilities 4,502 1,926
------- ------- -------
Net current liabilities $ (663) $ (767)
------- ------- -------
Noncurrent assets $ 1,028 $ 241
Noncurrent liabilities 245 241
------- ------- -------
Net noncurrent assets $ 783 $ --
------- ------- -------
Revenues of the manufacturing operations primarily represent intercompany sales
which have been eliminated in consolidation other than external sales of
$1,867,000, $0 and $0 for the years ended February 1, 1997, January 31, 1998 and
January 30, 1999, respectively.
Net current and noncurrent assets/liabilities of discontinued operations noted
above include receivables, inventories, plant and equipment, pension termination
and other transaction costs associated with the discontinued manufacturing
operations.
3. INVENTORIES:
Inventories at January 31, 1998 and January 30, 1999, consist of the following
(in thousands):
Jan. 31, 1998 Jan. 30, 1999
------------- -------------
Finished goods $ 33,120 $ 39,650
Raw materials 6,994 5,178
-------- --------
Total $ 40,114 $ 44,828
-------- --------
F-6
<PAGE>
4. PROPERTY, PLANT AND EQUIPMENT:
Property, plant and equipment at January 31, 1998 and January 30, 1999, consists
of the following (in thousands):
Jan. 31, 1998 Jan. 30, 1999
Land $ 475 $ 475
Buildings and
improvements 29,318 32,059
Equipment,
furniture and
fixtures 17,132 19,245
------- -------
46,925 51,779
Less: Accumulated
depreciation and
amortization (24,818) (27,232)
------- -------
Property, plant and
equipment, net $ 22,107 $ 24,547
------- -------
5. ACCRUED EXPENSES:
Accrued expenses at January 31, 1998 and January 30, 1999, consists of the
following (in thousands):
Jan. 31, 1998 Jan. 30, 1999
Accrued compensation
and benefits $ 3,581 $ 5,007
Accrued advertising 1,776 1,216
Gift certificate
payable 1,184 1,899
Other accrued expenses 3,233 4,382
------- -------
Total $ 9,774 $12,504
------- -------
Other accrued expenses consist primarily of liabilities related to interest,
sales taxes, property taxes, customer deposits, and percentage rent.
6. LONG-TERM DEBT:
Long-term debt at January 31, 1998 and January 30, 1999, consists of the
following (in thousands):
Jan. 31, Jan. 30,
1998 1999
-------- --------
Bank credit agreement-
Borrowings under
long-term revolving
loan agreement, including
term portion $ 12,096 $8,316
Notes related to lease-
hold improvements,
interest at 2% plus
prime, 9.4%, 9.9% and 11.0%,
respectively, payable in
monthly installments
through February 1, 2003 824 828
Notes related to
building improvements,
interest at 12% payable in
monthly installments through
June 10, 2000 18 11
Mortgage payable,
interest at 3%, payable
in monthly installments
through September 1,
1999; secured by related
land and building 61 22
-------- -------
Total debt 12,999 9,177
Less: Current maturities 1,448 1,111
-------- -------
Long-term debt $ 11,551 $ 8,066
-------- -------
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. The Company is in compliance with all loan covenants. Interest rates
under the amended agreement range from prime to prime plus 2.0% or LIBOR plus
2.0% to LIBOR plus 4.0%, depending upon financial performance. The amended
agreement also includes an early termination fee and provisions for a seasonal
over-advance.
As of January 31, 1998 and January 30, 1999, the Company's availability in
excess of outstanding borrowings under the formula was $24,019,000 and
$28,732,000, respectively. Substantially all assets of the Company are
collateralized under the Credit Agreement.
During the years ended January 31, 1998 and January 30, 1999, borrowings under
the Credit Agreement bore interest ranging from prime to prime plus .75% or
LIBOR plus 2.0% to LIBOR plus 2.75%. Amounts outstanding under the Credit
Agreement as of January 30, 1999, bear interest at rates ranging from 7.75% to
8.5% which may vary in the future depending upon prime and LIBOR rate
fluctuations.
The average daily outstanding balance under the Credit Agreement for the fiscal
years ended January 31, 1998 and January 30, 1999 were $19,506,000 and
$12,474,000, respectively. The highest month end outstanding balance under the
Credit Agreement for the fiscal years ended January 31, 1998 and January 30,
1999 were $27,433,000 and $18,657,000, respectively. In addition to borrowings
under the Credit Agreement, the Company has issued a letter of credit of
$400,000 at January 30, 1999, to secure the payment of rent.
The aggregate maturities of the Company's long-term debt as of January 30, 1999,
are as follows: year ending 2000-$1,111,000; 2001-$994,000; 2002-$6,891,000 and
2003-$181,000.
F-7
<PAGE>
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 consolidated financial statements taken as a whole.
Employment Agreements - The Company has employment agreements with certain of
its executives expiring in 2000, aggregating base compensation of $1,984,000
(not including annual adjustments) over the term. These executives would also be
entitled to severance of approximately $2,837,000 (not including annual
adjustments) if terminated without cause or if the executive left the Company
for cause (as defined). The contracts also provide for additional incentive
payments subject to performance standards. In addition, other employees are
eligible for incentive payments based on performance. The Company expensed
approximately $925,000, $1,393,000 and $1,885,000 in incentive payments in
fiscal years 1996, 1997 and 1998, respectively.
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
30, 1999, are as follows (in thousands):
Year Ending Amount
----------- ------
2000 $12,803
2001 11,529
2002 10,729
2003 10,036
2004 9,519
2005 and thereafter 27,410
-------
Total $82,026
-------
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 $10,224,000, $11,364,000 and $12,839,000 for
the years ended February 1, 1997, January 31, 1998 and January 30, 1999,
respectively. Minimum rentals were $9,986,000, $11,049,000 and $12,435,000,
respectively. Contingent rentals, which are based on a percentage of sales,
approximated $395,000, $389,000 and $423,000, respectively. Additionally,
sublease payments received approximated $157,000, $74,000 and $19,000,
respectively.
Inventories - The Company ordinarily commits to purchases of inventory
at least one to two seasons in advance. The Company has committed to a
substantial portion of its purchases for fiscal 1999 and has also committed to
approximately 15% to 20% of its purchases for fiscal 2000 and 2001.
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.
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 at a cost of $3.3 million which was recorded in
fiscal 1993. The related liability was repaid in installments over four years
through October, 1998.
Defined Benefit Pension & Post-Retirement Plans - In connection with the above
termination, the Company adopted a new noncontributory defined benefit pension
plan and a new post-retirement benefit 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 Company does not pre-fund the benefits from the
post-retirement benefit plan.
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 plan's funded status as of December 31, 1997
and 1998, the date of the latest actuarial valuations (in thousands):
F-8
<PAGE>
<TABLE>
<CAPTION>
Other Post-retirement
Pension Benefits Benefits
--------------- -------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at beginning of year $ 177 $ 209 $ 300 $ 259
Service cost 24 28 9 22
Interest cost 10 13 10 19
Actuarial (gain) loss (44) (41) 32 --
Benefits paid (11) (32) -- --
----- ----- ----- -----
Benefit obligation at end of year $ 156 $ 177 $ 351 $ 300
----- ----- ----- -----
Change in plan assets:
Fair value of plan assets at beginning of year $ 186 $ 141 $ -- $ --
Actual return on plan assets 19 48 -- --
Employer contribution 12 29 -- --
Benefits paid (11) (32) -- --
----- ----- ----- -----
Fair value of plan assets at end of year $ 206 $ 186 $ -- $ --
----- ----- ----- -----
Funded status $ 50 $ 8 $(351) $(300)
Unrecognized net actuarial loss (gain) (19) 32 (93) (56)
Unrecognized initial net liability at transition 48 82 143 178
----- ----- ----- -----
Prepaid (accrued) benefit cost $ 79 $ 122 $(301) $(178)
----- ----- ----- -----
Discount rate 7.25% 7.75% 7.25% 7.75%
Expected return on plan assets 8.00% 8.00% -- --
Components of net periodic benefit cost:
Service cost $ 24 $ 28 $ 22 $ 22
Interest cost 10 13 21 19
Amortization of net liability at transition 5 7 10 11
Expected return on plan assets (11) (14) -- --
Recognized net actuarial gain (1) -- (10) (3)
----- ----- ----- -----
Net periodic benefit cost $ 27 $ 34 $ 43 $ 49
----- ----- ----- -----
</TABLE>
Assumed health care cost trend rates have a significant effect on the amounts
reported for the health care plans. A one-percentage point change in assumed
health care cost trend rates would have less than a $12,000 effect on total
service and interest costs and post-retirement benefit obligation.
Profit Sharing Plan - The Company maintains a defined contribution 401(k) profit
sharing plan for its employees. All non-union and certain 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 $223,000,
$238,000 and $321,000 for the years ended February 1, 1997, January 31, 1998 and
January 30, 1999, respectively. The Company also established a non-qualified,
unfunded deferred Compensation plan effective October 1, 1998. This plan is
designed to provide a select group of management and highly-compensated
employees with retirement benefits. All assets of the plan are fully subject to
the Company's creditors. The Company's matching contributions are equal to $.25
for each $1.00 the participant contributes. Contributions by the Company for the
year ended January 30, 1999 were $10,000.
9. INCOME TAXES:
At January 30, 1999, the Company had approximately $6.0 million of tax net
operating loss carryforwards (NOLs) which expire in 2010. 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.
As of the beginning of the fiscal year 1998, the Company had a deferred tax
asset of $4.6 million related to NOLs and an offsetting valuation allowance of
approximately $1.4 million. Management has determined, based on the Company's
F-9
<PAGE>
recent history of earnings, that future earnings of the Company will more likely
than not be sufficient to utilize the NOLs prior to their expiration.
Accordingly, during the third quarter of 1998, the Company eliminated the $1.4
million valuation reserve.
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 $3.0 million 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 $.6
million of interest income related to the refund.
The provision for income taxes for continuing operations was comprised of the
following (in thousands):
Years Ended
--------------------------------
Feb. 1, Jan. 31, Jan. 30,
1997 1998 1999
---- ---- ----
Federal:
Current $ (41) $ (110) $ (712)
Deferred (346) (1,289) (651)
State:
Current -- -- --
Deferred (50) (191) (176)
------- ------- -------
Provision for
income taxes $ (437) $(1,590) $(1,539)
------- ------- -------
The differences between the recorded income tax provision and the "expected" tax
provision based on the statutory federal income tax rate is as follows (in
thousands):
Years Ended
---------------------------------
Feb. 1, Jan. 31, Jan. 30,
1997 1998 1999
------ ------- --------
Computed federal tax
provision at
statutory rates $ (381) $(1,383) $(2,532)
State income taxes, net
of federal income
tax effect (60) (203) (372)
Valuation allowance -- -- 1,365
Other, net 4 (4) --
------- ------- -------
Provision for
income taxes $ (437) $(1,590) $(1,539)
------- ------- -------
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):
Jan. 31, Jan. 30,
1998 1999
--------- ---------
Deferred Tax Assets:
Long-term pension liability $ 171 $ --
Inventories 646 717
Property, plant and equipment 151 844
Accrued liabilities 2,175 2,514
Operating loss carryforwards
and carrybacks 4,559 1,525
Valuation allowance (1,365) --
------- -------
6,337 5,600
Deferred Tax Liabilities:
Prepaid expenses and other
current assets (627) (717)
------- -------
Net Deferred Tax Asset $ 5,710 $ 4,883
------- -------
10. 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 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. All options covered under the Plan vest in full upon a change of control
of the Company.
As of January 30, 1999, options outstanding for 883,097 shares had been granted
under the plan at exercise prices ranging from $1.63 to $7.38 per share and
options for 427,199 shares were exercisable at January 30, 1999. In addition,
there are 209,415 options outstanding at $9.17 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 1996, 1997 and 1998, using the
Black-Scholes option pricing model as prescribed by SFAS No. 123. Assumptions
used for the pricing model include 4.5% to 7.9% for the risk-free interest rate,
expected stock option lives of 2-10 years, expected dividend yield of 0% each
year and expected volatility of 69% 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 would have been net income of $223,000 in 1996, net income of
$542,000 in 1997 and net income of $5,680,455 in 1998. Pro forma basic earnings
per share would have been $.03 in 1996, $.08 in 1997 and $.84 in 1998. Pro forma
diluted earnings per share would have been $.03 in 1996, $.08 in 1997 and $.81
in 1998.
F-10
<PAGE>
Transactions with respect to the plans were as follows (shares in thousands):
<TABLE>
<CAPTION>
January 30, 1999 January 31, 1998 February 1, 1997
---------------- ---------------- ----------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
------ -------- ------ -------- ------ --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at
beginning of year 1,081 $ 6.45 1,036 $ 6.57 771 $ 7.63
Granted 36 $ 6.57 189 $ 6.10 266 $ 3.48
Exercised (1) $ 4.00 -- $ -- (1) $ 3.25
Canceled (23) $ 6.65 (144) $ (688) -- $ --
----- ------ -----
Outstanding at
end of year 1,093 $ 6.48 1,081 $ 6.45 1,036 $ 6.57
===== ====== =====
Exercisable at
end of year 637 $ 7.14 475 $ 7.71 409 $ 7.34
===== ====== =====
</TABLE>
The following table summarizes information about stock options outstanding at
January 30, 1999 (shares in thousands):
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------- -------------------
Number Weighted Average Weighted Number Weighted
Range of Exercise Outstanding Remaining Average Exercisable at Average
Prices Jan. 30, 1999 Contractual Life Exercise Price Jan. 30, 1999 Exercise Price
- ----------------- ------------- ---------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
$1.63 - $4.00 281 7.28 $ 3.45 115 $2.98
$4.01 - $7.38 603 6.37 6.95 313 7.30
$7.39 - $9.17 209 5.02 9.16 209 9.16
----- ---
1,093 6.34 6.48 637 7.14
===== ===
</TABLE>
The weighted average fair value of options granted for the years ended February
1, 1997, January 31, 1998 and January 30, 1999, was $1.78, $4.80 and $5.06,
respectively.
11. 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 of 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-11
<PAGE>
12. 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 $31,000, $0 and $0 for the years
ended February 1, 1997, January 31, 1998 and January 30, 1999, respectively, for
professional services rendered.
The Company has also made loans of $314,000 to three of its officers. The
balance as of January 30, 1999 included in other noncurrent assets in the
accompanying consolidated balance sheet was approximately $205,000.
13. SEGMENT REPORTING (Unaudited):
The Company has two reportable segments: full line stores and catalog direct
marketing. While each segment offers a similar mix of men's clothing to the
retail customer, the full line stores also provide alterations.
The accounting policies of the segments are the same as those described in the
summary of significant policies. The Company evaluates performance of the
segments based on "four wall" contribution which excludes any allocation of
"management company" costs, distribution center costs (except order fulfillment
costs which are allocated to catalog), interest and income taxes.
The Company's segments are strategic business units that offer similar products
to the retail customer by two distinctively different methods. In full line
stores the typical customer travels to the store and purchases men's clothing
and or alterations and takes their purchases with them. The catalog customer
receives a catalog in his or her home or office and either calls, mails or faxes
an order to the Company. The merchandise is then shipped to the customer.
The detail segment data is presented in the following table (in thousands):
<TABLE>
<CAPTION>
Fiscal 1998 Full line Catalog direct
(in thousands) stores marketing Other Total
----- --------- ----- -----
<S> <C> <C> <C> <C>
Net sales $159,283 $ 20,354 $ 7,526(a) $187,163
Depreciation and amortization 2,817 15 1,273 4,105
Operating income (b) 26,057 2,746 (19,593) 9,210
Identifiable assets (c) 47,562 9,192 25,761 82,515
Capital expenditures (d) 4,811 14 1,494 6,319
Fiscal 1997 Full line Catalog direct
(in thousands) stores marketing Other Total
------ --------- ----- -----
Net sales $ 143,564 $ 19,774 $ 8,836(a) $172,174
Depreciation and
amortization 2,499 26 1,056 3,581
Operating income (b) 21,753 3,311 (18,496) 6,568
Identifiable assets (c) 39,477 8,537 29,130 77,144
Capital expenditures (d) 3,939 2 115 4,056
Fiscal 1996 Full line Catalog direct
(in thousands) stores marketing Other Total
------ --------- ----- -----
Net sales $127,836 $ 16,863 $ 8,492 (a) $153,191
Depreciation and
amortization 2,326 28 1,291 3,645
Operating income (b) 16,686 2,008 (15,628) 3,066
Capital expenditures (d) 1,908 6 223 2,137
</TABLE>
a) Revenue from segments below the quantitative thresholds are attributable
primarily to four operating segments of the Company. Those segments include
outlet stores, franchise, regional tailor shops and showroom stores. None
of these segments has ever met any of the quantitative thresholds for
determining reportable segments.
b) Operating income represents profit before allocations of overhead from
corporate office and the distribution center, interest and income taxes.
c) Identifiable assets include cash, accounts receivable, inventories, prepaid
expenses and fixed assets residing in or related to the reportable segment.
Assets included in Other are primarily fixed assets associated with the
corporate office and distribution center, deferred tax assets, and
inventory which has not been assigned to one of the reportable segments.
d) Capital expenditures include purchases of property, plant and equipment
made for the reportable segment.
F-12
<PAGE>
14. QUARTERLY FINANCIAL INFORMATION (Unaudited):
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER TOTAL
(In Thousands, Except Per Share Amounts)
<S> <C> <C> <C> <C> <C>
FISCAL 1998
Net sales $ 43,383 $ 41,947 $ 44,584 $ 57,249 $187,163
Gross profit 21,232 20,190 22,316 27,144 90,882
Operating income 1,794 1,415 1,966 4,035 9,210
Income from continuing operations 828 597 2,238 2,246 5,909
Net Income $ 777 $ 597 $ 2,238 $ 2,246 $ 5,858
Income from continuing operations
per share (diluted) $ 0.12 $ 0.09 $ 0.32 $ 0.32 $ 0.85
Net income per share (diluted) $ 0.11 $ 0.09 $ 0.32 $ 0.32 $ 0.84
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 (Loss) $ 382 $ 196 $ 402 $ (281) $ 699
Income from continuing operations
per share (diluted) $ 0.06 $ 0.04 $ 0.07 $ 0.19 $ 0.36
Net income (loss) per share (diluted) $ 0.06 $ 0.03 $ 0.06 $ (0.04) $ 0.10
</TABLE>
F-13
FIRST AMENDMENT
TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is made this 9th day of
February, 1999, by and between FRANK TWORECKE ("Executive") and JOS. A. BANK
CLOTHIERS, INC. ("Employer") to that certain Amended and Restated Employment
Agreement, dated as of September 19, 1998 (the "Employment Agreement").
FOR GOOD AND VALUATION CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, Executive and Employer, being the sole parties to the
Employment Agreement, hereby amend the Employment Agreement as follows:
1. In Section 3.1, lines 2 and 7-8, delete the phrase "Chief
Merchandising Officer" and insert in lieu thereof the phrase
"Chief Operating Officer."
2. In Section 5.2, paragraph d, line 4, delete the phrase "Chief
Merchandising Officer" and insert in lieu thereof the phrase
"Chief Operating Officer."
3. In Section 5.3, delete clause (ii) and insert in lieu thereof the
clause "(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."
Except as specifically amended hereby, the Employment Agreement shall
remain in full force and effect according to its terms. To the extent of any
conflict between the terms of this Amendment and the terms of the remainder of
the Employment Agreement, the terms of this Amendment shall control and prevail.
Capitalized terms used but not defined herein shall have those respective
meanings attributed to them in the Employment Agreement. This Amendment shall
hereafter be deemed a part of the Employment Agreement for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
/s/ Frank Tworecke
-------------------------------
FRANK TWORECKE
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
----------------------------------
Name: Timothy F. Finley
Title: CEO
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is made as of the 14th day of
February, 1999, by and between CHARLES D. FRAZER ("Executive") and JOS. A. BANK
CLOTHIERS, INC. ("Employer") to that certain Employment Agreement, dated as of
September 19, 1997 (the "Employment Agreement").
FOR GOOD AND VALUATION CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, Executive and Employer, being the sole parties to the
Employment Agreement, hereby amend the Employment Agreement by increasing
Executive's Base Salary (as set forth in Section 4.1 of the Employment
Agreement) to $150,000.00.
Except as specifically amended hereby, the Employment Agreement shall
remain in full force and effect according to its terms. To the extent of any
conflict between the terms of this Amendment and the terms of the remainder of
the Employment Agreement, the terms of this Amendment shall control and prevail.
Capitalized terms used but not defined herein shall have those respective
meanings attributed to them in the Employment Agreement. This Amendment shall
hereafter be deemed a part of the Employment Agreement for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
/s/ Charles D. Frazer
-------------------------------
CHARLES D. FRAZER
JOS. A. BANK CLOTHIERS, INC.
By: /s/ Timothy F. Finley
----------------------------------
Name: Timothy F. Finley
Title: Chairman & CEO
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 31, 1998 between J.F. TIMOTHY
CARROLL ("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 August 31, 1999 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 - Corporate Sales 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 - Corporate Sales, 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.
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 $175,000. 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.
<PAGE>
4.2 Additional Compensation.
a. ANNUAL BONUS. For fiscal year 1999 (ending on or about January
31, 2000) 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. Notwithstanding anything to the
contrary contained herein, the minimum Bonus payable to Executive for Bonus Year
1999 shall be $17,500 or such lesser amount as may be calculated in accordance
with this Section 4.2 in the event the Employment Period shall expire or
terminate prior to the last day of Bonus Year 1999. 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.
b. 1998 BONUS. The Company shall pay to Executive a bonus in the
amount of $10,000 on February 1, 1999 in compensation for a bonus which would or
may have been payable to Executive by his former employer, A.T. Cross Company
("Cross"). The Company shall have the right, but not the obligation, to also
include Executive in the Company's 1998 bonus program. The amount of any bonus
payable to Executive for fiscal year 1998 in excess of the aforementioned
$10,000 shall be determined by the Company in its sole discretion.
c. CROSS STOCK BUYOUT. The Company shall pay to Executive the
amount of $38,565 on February 1, 1999 as a buyout of certain options held or
previously held by Executive to purchase Cross stock. Such amount has been
calculated as the sum of (i) 14,596 multiplied by (A) $12.25 (the fair market
value of one share of Cross stock as of close of market on August 17, 1998) less
(B) $9.96 (Executive's exercise price); plus (ii) 2,000 multiplied by (A) $12.25
less (B) $9.68.
2
<PAGE>
4.3 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 for the leasing of automobiles for use by
Employer's senior management or Employer shall pay to Executive a car allowance;
provided that such expense or allowance shall in no event exceed $900 per month.
Employer shall also be responsible for all expenses of use and operation of any
leased automobile.
4.4 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), including (but not limited
to) relocation expenses. Executive shall all be entitled to reimbursement of
reasonable initiation fees and dues at a social club.
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 Senior Vice
President - Corporate Sales 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
3
<PAGE>
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 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%
4
<PAGE>
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 4.4 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 twelve (12) month period
following the date of termination (calculated at its then current rate per
5
<PAGE>
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 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
6
<PAGE>
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. J.F.
Timothy Carroll, 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
7
<PAGE>
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/ J.F. Timothy Carroll 2/29/98
--------------------------------
J.F. TIMOTHY CARROLL
8
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