Exhibit 4.1





 


AMENDMENT NO. 3 TO RIGHTS AGREEMENT


 


THIS AMENDMENT NO. 3 TO RIGHTS AGREEMENT (this
“Amendment”), dated as of March 11, 2014, by and between JOS. A. BANK CLOTHIERS, INC., a Delaware corporation
(the “Company”), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, (“Rights Agent”), is made with reference
to the following facts:


 


A.          The
Company and the Rights Agent entered into that certain Rights Agreement, dated as of September 6, 2007 (as amended, the “Rights
Agreement”) in order to implement a shareholder rights plan as more fully described therein.  Terms with initial
letters capitalized that are not otherwise defined herein shall have their respective meanings as set forth in the Rights Agreement.


 


B.           Pursuant
to Section 27 of the Rights Agreement, the Company may amend or supplement any provision of the Rights Agreement, prior to
a Distribution Date, which the Company may deem necessary or desirable, without approval of any holders of Rights Certificates,
and the Rights Agent shall, if the Company so directs, execute such supplement or amendment.


 


C.          
The Company, Everest Topco LLC and Everest Holdings Topco have terminated that certain Membership Interest Purchase Agreement (the
“Eddie Bauer Purchase Agreement”), dated February 13, 2014.


 


D.          
The Company, The Men’s Wearhouse, Inc., a Texas corporation (“Parent”) and Java Corp., a Delaware corporation
and an indirect, wholly-owned Subsidiary of Parent (“Purchaser”) have proposed to enter into an Agreement and
Plan of Merger, dated March 11, 2014 (as it may be amended, modified or supplemented, from time to time, the “Merger Agreement”),
pursuant to which, following the consummation of the tender offer Parent has commenced (as it may be amended from time to time
as permitted under the Merger Agreement, the “Offer”) to purchase all outstanding shares of common stock, par
value $0.01 per share, of the Company, at a price per share of $65.00, Purchaser shall be merged with and into the Company (the
“Merger”), with the Company continuing as the surviving entity following the Merger.


 


E.           The Company, pursuant to a resolution duly
adopted by its Board of Directors, has determined that it is desirable to amend the Rights Agreement as provided in this Amendment
to facilitate the transactions contemplated by the Merger Agreement.


 


F.           The
Company hereby states that there is not as of the date hereof any Acquiring Person and no Distribution Date has occurred under
the Rights Agreement.


 


G.           The
Company desires to amend the Rights Agreement in certain respects as set forth herein, including to:  (i) except from
the operation of the Rights Agreement the Merger Agreement, the Offer and Merger (as such terms are defined in the Merger Agreement),
and any and all other transactions contemplated by the Merger Agreement and to provide that the Rights Agreement shall expire immediately
prior to the effective time of the Merger and (ii) terminate that certain Amendment No. 2, dated February 13, 2014, to this Rights
Agreement (“Amendment No. 2”); provided that certain clarifications included in Amendment No. 2 are also included
in this Amendment.


 






    	 



    	 



    

 


H.           The
Company hereby states that all acts and things necessary to make this Amendment a valid agreement according to its terms have been
done and performed, and the execution and delivery of this Amendment by the Company and the Rights Agent have been in all respects
authorized by the Company and the Rights Agent.


 


NOW, THEREFORE, pursuant to Section 27 of the Rights Agreement,
the Company and the Rights Agent hereby amend, effective upon the date hereof, the Rights Agreement as follows:


 


1.            Amendment
of Section 1(a).  The definition of “Acquiring Person” set forth in Section 1(a) of the Rights
Agreement is hereby amended and restated in its entirety as follows:


 


“ ‘Acquiring Person’ shall mean any
Person (as such term is hereinafter defined) who or that, together with all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 10% or more of the Common Shares
then outstanding. Notwithstanding the foregoing, (A) the term Acquiring Person shall not include (i) the Company, (ii) any Subsidiary
(as such term is hereinafter defined) of the Company, (iii) any employee benefit or compensation plan of the Company or any Subsidiary
of the Company or (iv) any entity holding Common Shares for or pursuant to the terms of any such employee benefit or compensation
plan of the Company or any Subsidiary of the Company, (B) no Person shall become an “Acquiring Person” (i) as the result
of an acquisition of Common Shares by the Company which, by reducing the number of Common Shares issued and outstanding, increases
the proportionate number of Common Shares beneficially owned by such Person to 10% or more of the Common Shares then outstanding;
provided, however, that if a Person shall become the Beneficial Owner of 10% or more of the Common Shares then outstanding by reason
of share purchases by the Company and shall, following written notice from, or public disclosure by the Company of such share purchases
by the Company, become the Beneficial Owner of any additional Common Shares without the prior consent of the Company and shall
then Beneficially Own more than 10% of the Common Shares then outstanding, then such Person shall be deemed to be an “Acquiring
Person,” (ii) as the result of the acquisition of Common Shares directly from the Company; provided, however, that if a Person
shall become the Beneficial Owner of 10% or more of the Common Shares then outstanding by reason of share purchases or issuances
directly from the Company and shall, after that date, become Beneficial Owner of any additional Common Shares without the prior
consent of the Company and shall then Beneficially Own more than 10% of the Common Shares then outstanding, then such Person shall
be deemed to be an “Acquiring Person,” (iii) if the Board of Directors determines in good faith that a Person who would
otherwise be an “Acquiring Person,” as defined pursuant to the other provisions of this Section 1(a), has become such
inadvertently, and such Person divests, as promptly as practicable (as determined in good faith by the Board of Directors), following
receipt of written notice from the Company of such event, of Beneficial


 




    	 



    	 



    

 


Ownership of a sufficient number of Common Shares so
that such Person would no longer be an Acquiring Person, as defined pursuant to the other provisions of this Section 1(a), then
such Person shall not be deemed to be an “Acquiring Person” for any purposes of this Agreement; provided, however,
that if such Person shall again become the Beneficial Owner of 10% or more of the Common Shares then outstanding, such Person shall
be deemed an “Acquiring Person,” subject to the exceptions set forth in this Section 1(a), (iv) if, as of January 3,
2014, any Person is the Beneficial Owner of nine percent (9%) or more of the Common Shares then outstanding, but no greater than
nineteen and ninety-nine one hundredths percent (19.99%) of the Common Shares then outstanding, such Person shall not be or become
an “Acquiring Person,” as defined pursuant to the other provisions of this paragraph (a), provided that such Person
is not (and does not acquire Beneficial Ownership of additional Common Shares such that it becomes) the Beneficial Owner of a percentage
of the Common Shares outstanding that is greater (by more than one percent (1%) of the Common Shares then outstanding) than (x)
the percentage of the Common Shares outstanding as to which such Person had beneficial ownership on January 3, 2014 or (y) such
lesser percentage as to which such Person has beneficial ownership following any transfer of the Company’s securities by
such Person after January 3, 2014 (the lower of the percentages described by clauses (x) and (y), the “Applicable Percentage”);
provided, however, that this subsection (iv) shall pertain, as to any such Person, only until the first time, following January
3, 2014, as such Person has beneficial ownership of less than nine percent (9%) of the Common Shares then outstanding; provided,
further that no Person described in this clause (iv) shall become an “Acquiring Person” solely as the result of an
acquisition of Common Shares by the Company which, by reducing the number of Common Shares issued and outstanding, increases the
proportionate number of Common Shares beneficially owned by such Person to greater than such Person’s Applicable Percentage
then outstanding; provided, further, that if such Person shall become the Beneficial Owner of a percentage of the Common Shares
outstanding that is greater than such Person’s Applicable Percentage by reason of share purchases by the Company and shall,
following written notice from, or public disclosure by the Company of such share purchases by the Company, become the Beneficial
Owner of any additional Common Shares without the prior consent of the Company, then such person shall be deemed to be an “Acquiring
Person,” or (v) who or which otherwise would be an Acquiring Person as of January 3, 2014 solely as a result of giving effect
to Section 2 of this Amendment; provided, however, that such Person shall become an Acquiring Person if, following the Close of
Business on January 3, 2014, such Person, together with all Affiliates and Associates of such Person, acquires Beneficial Ownership
(after giving effect to Section 2 of this Amendment) of additional shares of Common Shares representing one percent (1%) or more
of the Common Shares, (C) FMR LLC (referred to collectively with its Affiliates and Associates as “FMR”) shall not
become an Acquiring Person, unless and until FMR shall acquire Beneficial


 




    	 



    	 



    

 


Ownership of additional Common Shares such that it
becomes the Beneficial Owner of a percentage of the Common Shares outstanding that is greater (by more than one percent (1%) of
the Common Shares then outstanding) than FMR’s Applicable Percentage; provided, however, that this clause (C) shall pertain
only until the first time, following January 3, 2014, as FMR has beneficial ownership of less than nine percent (9%) of the Common
Shares then outstanding; provided, further that FMR shall not become an “Acquiring Person” solely as the result of
an acquisition of Common Shares by the Company which, by reducing the number of Common Shares issued and outstanding, increases
the proportionate number of Common Shares beneficially owned by FMR to greater than FMR’s Applicable Percentage of the Common
Shares then outstanding; provided, further, that if FMR shall become the Beneficial Owner of a percentage of the Common Shares
then outstanding that is greater than FMR’s Applicable Percentage by reason of share purchases by the Company and shall,
following written notice from, or public disclosure by the Company of such share purchases by the Company, become the Beneficial
Owner of any additional Common Shares without the prior consent of the Company, then FMR shall be deemed to be an “Acquiring
Person,” and (D) notwithstanding anything in this Agreement to the contrary, none of Parent, Purchaser or any of their respective
Affiliates or Associates shall be or become an Acquiring Person, and the term “Acquiring Person” shall not include
any of Parent, Purchaser or any of their respective Affiliates or Associates, solely by reason of (i) the approval, execution,
delivery, performance, consummation or public announcement of the Merger Agreement, (ii) the approval, commencement, consummation
or public announcement of the Offer or Merger or (iii) the approval, execution, delivery, performance, commencement, consummation
or public announcement of any of the other transactions contemplated by the Merger Agreement.”


 


2.            Amendment
to Section 1(i). The definition of “Interested Stockholder” set forth in Section 1(i) of the Rights Agreement is
hereby amended by adding the following sentence to the end of said definition:


 


“Notwithstanding anything in this Agreement to
the contrary, none of Parent, Purchaser or any of their respective Affiliates or Associates shall be or become an Interested Stockholder,
and the term “Interested Stockholder” shall not include any of Parent, Purchaser or any of their respective Affiliates
or Associates, solely by reason of (i) the approval, execution, delivery, performance, consummation or public announcement of the
Merger Agreement, (ii) the approval, commencement, consummation or public announcement of the Offer or Merger or (iii) the approval,
execution, delivery, performance, commencement, consummation or public announcement of any of the other transactions contemplated
by the Merger Agreement.”


 




    	 



    	 



    

 


3.            Amendment
to Section 1(n). The definition of “Shares Acquisition Date” set forth in Section 1(n) of the Rights Agreement
is hereby amended by adding the following sentence to the end of said definition:


 


“Notwithstanding anything in this Agreement to
the contrary, no Shares Acquisition Date shall be deemed to have occurred solely as a result of (i) the approval, execution, delivery,
performance, consummation or public announcement of the Merger Agreement, (ii) the approval, commencement, consummation or public
announcement of the Offer or Merger or (iii) the approval, execution, delivery, performance, commencement, consummation or public
announcement of any of the other transactions contemplated by the Merger Agreement.”


 


4.            Amendment
to Section 1(p). The definition of “Transaction” set forth in Section 1(p) of the Rights Agreement is hereby amended
by adding the following sentence to the end of said definition:


 


“Notwithstanding anything
in this Agreement to the contrary, no Transaction shall be deemed to have occurred solely as a result of (i) the approval, execution,
delivery, performance, consummation or public announcement of the Merger Agreement, (ii) the approval, commencement, consummation
or public announcement of the Offer or Merger or (iii) the approval, execution, delivery, performance, commencement, consummation
or public announcement of any of the other transactions contemplated by the Merger Agreement.”


 


5.            Amendments
to Section 1. Section 1 of the Rights Agreement is hereby amended by inserting each of the following definitions in its appropriate
alphabetical order in Section 1:


 


“Effective Time” shall have the
meaning ascribed to such term in the Merger Agreement.


 


“Merger” shall have the meaning
ascribed to such term in the Merger Agreement.


 


“Merger Agreement” shall mean that
certain Agreement and Plan of Merger by and among, Parent, Purchaser and the Company, dated as of March 11, 2014 (as such agreement
may be amended, modified or supplemented from time to time).


 


“Parent” shall mean The Men’s
Wearhouse, Inc., a Texas corporation.


 


“Purchaser” shall mean Java Corp.,
a Delaware corporation and an indirect, wholly-owned Subsidiary of Parent.


 


“Offer” shall have the meaning ascribed
to such term in the Merger Agreement.


 




    	 



    	 



    

 


6.            Amendment
to Section 3(a). The definition of “Distribution Date” in Section 3(a) of the Rights Agreement is hereby amended
by adding the following sentence to the end of said definition:


 


“Notwithstanding anything in this Agreement to
the contrary, no Distribution Date shall be deemed to have occurred solely as a result of (i) the approval, execution, delivery,
performance, consummation or public announcement of the Merger Agreement, (ii) the approval, commencement, consummation or public
announcement of the Offer or Merger or (iii) the approval, execution, delivery, performance, commencement, consummation or public
announcement of any of the other transactions contemplated by the Merger Agreement.”


 


7.            Amendment
to Section 7(a). The definition of “Final Expiration Date” set forth in Section 7(a) of the Rights Agreement is
hereby amended and restated in its entirety as follows:


 


“The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution
Date upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Purchase Price
for each one one- hundredth of a Preferred Share (or such other number of shares or other securities) as to which the Rights are
exercised, at or prior to the earliest of (i) the Close of Business on September 20, 2017 (the “Final Expiration Date”),
(ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the “Redemption Date”), (iii) the
time at which such Rights are exchanged as provided in Section 24 hereof or (iv) the Effective Time. For the avoidance of doubt,
this Agreement shall expire and terminate immediately prior to the Effective Time in accordance with the terms of the Merger Agreement.”


 


8.            Amendment
to Section 11(a)(ii). Section 11(a)(ii) of the Rights Agreement is hereby amended and supplemented by adding the following
sentence to the end of said Section:


 


“Notwithstanding anything in this Agreement to
the contrary, no event requiring an adjustment under this Section 11(a) shall be deemed to have occurred solely by reason of (i)
the approval, execution, delivery, performance, consummation or public announcement of the Merger Agreement, (ii) the approval,
commencement, consummation or public announcement of the Offer or Merger or (iii) the approval, execution, delivery, performance,
commencement, consummation or public announcement of any of the other transactions contemplated by the Merger Agreement.”


 




    	 



    	 



    

 


9.            Amendment
to Section 13(a). Section 13(a) of the Rights Agreement is hereby amended and supplemented by adding the following sentence
to the end of said Section 13(a):


 


“Notwithstanding anything in this Agreement to
the contrary, none of the events described in clauses (x) through (z) of the first sentence of Section 13(a) shall be deemed to
have occurred solely by reason of (i) the approval, execution, delivery, performance, consummation or public announcement of the
Merger Agreement, (ii) the approval, commencement, consummation or public announcement of the Offer or Merger or (iii) the approval,
execution, delivery, performance, commencement, consummation or public announcement of any of the other transactions contemplated
by the Merger Agreement.”


 


10.          Amendment
to Exhibit C (Summary of Rights). The trigger of “Flip-In” and “Flip-Over” Rights set forth in Exhibit
C to the Rights Agreement is hereby amended by adding the following to the end as said section:


 


“Notwithstanding anything in this Agreement to
the contrary, no flip-in date shall be deemed to have occurred solely as a result of (i) the approval, execution, delivery, performance,
consummation or public announcement of the Merger Agreement, (ii) the approval, commencement, consummation or public announcement
of the Offer or Merger or (iii) the approval, execution, delivery, performance, commencement, consummation or public announcement
of any of the other transactions contemplated by the Merger Agreement. Additionally, notwithstanding anything in this Agreement
to the contrary, a flip-over transaction shall be deemed not to have occurred, and the provisions of such section shall not be
made or given effect, solely as a result of (i) the approval, execution, delivery, performance, consummation or public announcement
of the Merger Agreement, (ii) the approval, commencement, consummation or public announcement of the Offer or Merger or (iii) the
approval, execution, delivery, performance, commencement, consummation or public announcement of any of the other transactions
contemplated by the Merger Agreement.”


 


11.          Benefits.
All of the covenants and provisions of this Amendment by or for the benefit of the Company or the Rights Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.


 


12.          Severability.  If
any term, provision or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions or restriction of this Amendment shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.


 


13.          Effectiveness
and Effect of Amendment.


 


a.     Notwithstanding anything
to the contrary set forth in Section 27 of the Rights Agreement, this Amendment shall become effective as of the date first written
above, but such


 




    	 



    	 



    

 


effectiveness is contingent upon the execution and delivery
of the Merger Agreement by the parties thereto. The Company shall notify the Rights Agent via electronic mail of such execution
and delivery of the Merger Agreement promptly thereafter.


 


b.    Except as specifically
modified herein, the Rights Agreement shall not otherwise be supplemented or amended by virtue of this Amendment, but shall remain
in full force and effect. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein,
constitute a waiver or amendment of any provision of the Rights Agreement. Upon and after the effectiveness of this Amendment,
each reference in the Rights Agreement to “this Agreement,” “hereunder,” “hereof” or words
of like import referring to the Rights Agreement, and each reference in any other document to “the Rights Agreement,”
“thereunder,” “thereof” or words of like import referring to the Rights Agreement, shall mean and be a
reference to the Rights Agreement as modified hereby.


 


14.          Termination
of Amendment. Amendment No. 2 is hereby terminated in its entirety and is of no further force or effect pursuant to its terms
which provide that in the event that, prior to the Closing Date (as defined in the Eddie Bauer Purchase Agreement), the Eddie Bauer
Purchase Agreement is terminated in accordance with its terms, Amendment No. 2 shall terminate and be of no further force or effect.


 


15.          Governing
Law.  This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely
within such State.


 


16.          Counterparts.  This
Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the same instrument.  A signature to this Amendment
transmitted electronically shall have the same authority, effect and enforceability as an original signature. 


 


17.          Descriptive
Headings.  Descriptive headings of the several Sections of this Amendment are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.


 


[SIGNATURE PAGE FOLLOWS]


 




    	 



    	 



    

 


IN WITNESS WHEREOF, this Amendment is executed
as of the date first written above.


  


	ATTEST:	 	JOS. A. BANK CLOTHIERS, INC.
	 	 	 
	By:	/s/ Charles D. Frazer 	 	By:	 /s/ David E. Ullman
	 	 	 	 	 
	Name:	Charles D. Frazer	 	Name:	David E. Ullman
	 	 	 	 	 
	Title:	 Senior
    Vice President, General Counsel and Secretary	 	Title:	Executive Vice President - Chief Financial Officer
	 	 	 		 
		 	CONTINENTAL STOCK TRANSFER & TRUST

    COMPANY
	 	 	 	 	 
		 	 	By:	 /s/ Monty Harry
	 	 	 	 	 
		 	 	Name:	 Monty Harry
	 	 	 	 	 
		 	 	Title:	 Vice President