Exhibit 10.1





EXHIBIT 10.1




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




THIS
EMPLOYMENT AGREEMENT, dated as of the
30th day of August, 2010, between JOS.
A. BANK CLOTHIERS, INC. (“Employer” or “Company”) and R. NEAL BLACK (“Executive”),



WITNESSETH THAT:




WHEREAS, Employer and Executive are the sole parties to that certain Employment Agreement,
dated as of September 9, 2008 (the “Original Employment Agreement”); and



WHEREAS, Employer and Executive have determined to amend and restate the Original Employment
Agreement in its entirety,



NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, Employer and Executive do hereby amend and restate the Original Employment
Agreement in its entirety and agree as follows:



1. Employment of Executive




Employer hereby agrees to employ Executive, and Executive hereby agrees to be in the employ of
Employer, upon the terms and conditions hereinafter set forth. This Agreement is a contract for
personal services of Executive and services pursuant hereto may only be performed by Executive.



2. Employment Period




The term of Executive’s employment under this Agreement (the “Employment Period”) commenced
December 21, 2008 and shall, subject to earlier termination as provided in Section 5, continue
through January 26, 2013.



3. Duties and Responsibilities




3.1 General. During the Employment Period, Executive (i) shall have the title of Chief
Executive Officer of the Company and (ii) shall devote substantially all of his business time and
expend his best efforts, energies and skills to the business of the Company. The preceding sentence
shall not be construed to prohibit Executive from continuing to devote more than an insignificant
amount of time, in accordance with his past practice, to management of his investments, serving on
boards of directors, performing consulting services on his own time (except for retail department
stores where the consulting services are focused on the men’s clothing business or for specialty
men’s stores) and participation in civic and philanthropic activities.


 


 









 





Executive shall perform such duties, consistent with his status as Chief Executive Officer, as he
may be assigned from time to time by Employer’s Board of Directors (the “Board”). Executive shall
have such authority, discretion, power and responsibility, and shall be entitled to an office,
secretarial and administrative assistance (at least one secretary and/or administrative assistant
of his selection) and other facilities and conditions of employment, as are customary or
appropriate to his position. Without limitation of the generality of the foregoing, but subject to
any applicable legal requirements, Executive, within the general guidelines adopted from time to
time by the Board, shall have the power, without further approval of the Board, to hire, fire and
establish the terms of employment (including all compensation and bonus arrangements) of all
employees of, and consultants and other advisers to, the Company (other than the Chairman of the
Board). Executive shall also serve without additional compensation as a director of the Employer
and, if he should so desire, as a director of any subsidiaries of the Company. At the request of
the Board, Executive shall also serve without additional compensation as a director of any
subsidiaries of the Employer. Executive agrees to resign any and all such directorships
concurrently with the expiration or other termination of his employment hereunder. Notwithstanding
anything to the contrary contained herein, in the event Employer shall acquire another company or
enterprise (or the business or operations thereof) (an “acquisition”), “Company” shall mean the
subsidiary or division of Employer responsible for the operations of the entity “Jos. A. Bank
Clothiers” as it exists immediately prior to an acquisition (such subsidiary or division being
hereinafter referred to as “Clothiers”) and all corporations, associations, companies,
partnerships, firms and other enterprises controlled by Clothiers. Following an acquisition, the
entity which will own or control Clothiers is herein referred to as “Holding” and the “Board”
referred to herein shall be the Board of Directors of Holding. In the event of an acquisition,
Executive shall remain Chief Executive Officer of Clothiers and shall report to the chief executive
officer of Holding. Executive shall not, unless otherwise determined by the chief executive officer
of Holding, become the chief executive officer of, or have any responsibilities with respect to,
the acquired entity.



3.2 Location of Executive Offices. The Company will maintain its principal executive
offices at a location in the Baltimore, Maryland metropolitan area.



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”) in accordance with this Section 4.1. Prior to the date on
which base salary increases, if any, go into effect generally for other employees of the Company,
the Base Salary in Fiscal 2010 shall be $750,000. In the event base salary increases go into effect
generally for other employees of the Company in Fiscal 2010, the Base Salary on and after the date
of such increases shall be $775,000. Beginning in Fiscal 2011, the Compensation Committee of the
Board (the “Compensation Committee”) shall increase the Base Salary at least once each fiscal year
on the date on which general salary increases within the Company, if any, for such year take effect
(the “Annual Increase Date”). The annual increase shall be in an amount not less than the
percentage increase in the consumer price index over the most recently reported 12-month period.
In the event the Compensation Committee fails to so increase the Base Salary in any such fiscal
year by the Annual Increase Date, the Base Salary shall automatically be increased on such date by
an amount equal to the percentage increase in the consumer price index over the most recently
reported 12-month period. Notwithstanding anything to the contrary contained herein, in the event
the Company does not grant base salary increases generally for other employees of the Company in
any particular fiscal year, Executive shall not be entitled to a Base Salary increase for that
fiscal year. The Base Salary shall be payable in installments in accordance with the Company’s
policy on payment of executives in effect from time to time. All references in this Agreement to
“fiscal year” or to a particular “Fiscal Year” shall be references to the fiscal year of the
Company.


 


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4.2 Annual Bonus. For Fiscal 2010 and for each fiscal year thereafter that begins
during the Employment Period (each such fiscal year, a “Bonus Year”), Executive shall be entitled
to receive a bonus of up to 400% of the Base Salary (each, a “Bonus”) based upon attainment of
annual quantitative and qualitative performance goals for the Company. In the event of an
acquisition, the Bonus performance goals shall be determined with respect to the operations of
Clothiers only. If earned, the Bonus may be payable in cash or a combination of cash and equity,
provided that not less than 150% of Base Salary shall be payable as a cash Bonus to the extent
earned. The Bonus, or portion thereof, payable in cash (the “Cash Bonus”) and the portion of the
Bonus payable in equity, if any, (the “Equity Bonus”) shall be determined by the Compensation
Committee not later than 90 days following the beginning of each Bonus Year. The earned Equity
Bonus, if any, equal to the first 100% of Base Salary shall vest on the later to occur of (a) the
first anniversary of the equity grant date or (b) the date on which the Compensation Committee
shall determine the degree to which the performance goals have been met. One-half of any additional
earned Equity Bonus shall vest on each of the second and third anniversaries of the grant date.
The performance goals shall be established by the Compensation Committee in consultation with
Executive as soon as possible following the beginning of each Bonus Year, but in no event later
than 90 days following the beginning of each Bonus Year. It is the intention of the parties hereto
that the Bonus shall meet the criteria for “performance-based compensation” within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended (“Code”). The relationship between
the size of each Bonus and degree of attainment of performance objectives shall be discretionary
with the Compensation Committee. The Bonus earned for any Bonus Year shall be payable promptly
following the determination thereof after the end of the Bonus Year, but in no event later than two
and one-half (21/2) months following the end of each Bonus Year. 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 Cash Bonus for such last full Bonus Year as and when such Cash
Bonus would have been paid had the Employment Period not ended.



4.3 Car Allowance. Employer shall pay to Executive throughout the Employment Period a
car allowance equal to $1,600 per month, which shall be in lieu of any expense reimbursement
related to a car purchased or leased, repairs, insurance, or gas, oil or mileage charges.


 


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4.4 Other Benefits. Throughout 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) under any pension or retirement plan,
disability plan or insurance, group life insurance, medical and dental insurance, travel accident
insurance, stock option, phantom stock or other similar plan or program of employer. Executive’s
Base Salary shall (where applicable) constitute the compensation on the basis of which the amount
of Executive’s benefits under any such plan or program shall be fixed and determined. If, during
the Employment Period, any plan or program in which Executive participates shall be amended so as
to result in overall reduction of Executive’s benefits, or shall be terminated without being
replaced by a new plan or program providing for benefits equivalent overall to those provided for
Executive prior thereto, the Company shall make arrangements, in addition to any such amended or
terminated plan or program, for Executive to participate in a plan or program so as to provide
benefits to Executive at least equivalent overall to those provided to Executive prior to such
amendment or termination, such benefits to be provided through a plan or program of insurance if
commercially available.



4.5 Expense Reimbursement. Employer shall reimburse Executive for all business
expenses, including car rental expense while traveling on Employer business, reasonably incurred by
him in the performance of his duties under this Agreement and consistent with past practice upon
his presentation, not less frequently than monthly, of signed, itemized accounts of such
expenditures, all in accordance with Employer’s procedures and policies as adopted and in effect
from time to time and applicable to its senior management employees.



4.6 Vacations. Executive shall be entitled to 20 business days of vacation during each
calendar year, which shall accrue in accordance with the Company’s vacation policy in effect from
time to time for its senior executive officers, with reasonable carry-over allowances, which
vacations shall be taken at such time or times as shall not unreasonably interfere with Executive’s
performance of his duties under this Agreement. Upon termination of Executive’s employment pursuant
to Section 5 herein, for any reason whatsoever, Employer shall pay Executive, in addition to any
termination compensation provided for under Section 6 herein, an amount equivalent to Executive’s
per diem compensation at the then-current Base Salary rate multiplied by the number of unused
vacation days, including any carry-over, accrued by Executive as of the date of termination.



5. Termination of Employment Period




5.1 Termination without Cause. Employer or Executive may, by delivery of not less than
60 days’ notice to the other at any time during the Employment Period, terminate the Employment
Period without cause.


 


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5.2 By Employer for Cause. Employer may, at any time during the Employment Period by
notice to Executive in accordance with and only after full compliance with the procedure set forth
herein terminate the Employment Period “for cause” effective immediately. For the purposes hereof,
“for cause” means:




(i) the conviction of Executive in a court of competent jurisdiction of
a crime constituting a felony in such jurisdiction involving money or
other property of Employer or any of its affiliates or any other felony
or offense involving moral turpitude; or




(ii) the willful (a) commission of an act not approved of or
ratified by the Board involving a material conflict of interest or
self-dealing relating to any material aspect of the Company’s business
or affairs; or (b) commission of an act of fraud or misrepresentation
(including the omission of material facts), provided that such acts
relate to the business of the Company and would materially and
negatively impact upon the Company; or (c) material failure of
Executive to obey directions of the Board that are consistent with
Executive’s status as Chief Executive Officer; however, for the
purposes of this subsection 5.2 (ii), the refusal of Executive to
comply with an order or directive of anyone other than the majority of
the Board, or the refusal of Executive to perform an act
which is contrary to his duties, responsibilities and/or
authority as Chief Executive Officer or is unlawful shall
not constitute “for cause”. In the event of an act or
omission as provided for in this subsection 5.2 (ii),
Employer shall provide Executive with a written notice of intent
to terminate the Employment Period “for cause”, setting forth,
with reasonable particularity, the reasons and acts or
omissions constituting “cause” under this subsection, and
shall provide Executive with at least thirty (30)
calendar days after such notice to cure or eliminate the
problem or violation giving rise to such cause or any
longer period as reasonably needed by Executive, provided
that it is susceptible of cure or elimination and
Executive is proceeding diligently and in good faith to cure
such violation. In the event and only after the Executive fails
to cure the problem or violation within the period provided
for herein, Employer may exercise its rights to terminate
the Employment Period in accordance with the procedure
set forth below.



Termination “for cause” shall be effected only if (A) Employer has delivered to Executive of a
written notice of termination “for cause”, setting forth, with reasonable particularity, the
reasons for such “for cause” termination, (B) Employer has provided Executive with, on at least ten
(10) business days’ prior written notice, in the case of a termination pursuant to subsection
5.2(ii), the opportunity, together with Executive’s counsel, to be heard before Employer’s Board,
said hearing to occur at such reasonable time and place that is mutually convenient to Executive,
his counsel, and Employer, and (C) the Board (after such notice and opportunity to be heard has
been provided to Executive in the case of a termination pursuant to subsection 5.2(ii)) adopts a
resolution concurred in by not less than majority of all of the directors of Employer then in
office, including at least two-thirds of all of the directors who are not officers of Employer,
that Executive was guilty of conduct constituting “for cause” hereunder, which conduct has not been
cured (if applicable), and specifying the particulars thereof in detail.


 


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5.3 By Executive for Good Reason. Executive may, at any time during the Employment
Period by notice to Employer, terminate the Employment Period under this Agreement for “good
reason” effective immediately. For the purposes hereof, “good reason” means 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 cure period 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 shall be
limited to seven days after delivery of notice thereof to Employer. Without limitation of the
generality of the foregoing, each of the following shall be deemed to be a material breach of this
Agreement by Employer: (x) any failure timely to pay (or any reduction in) compensation (including
benefits) paid or payable to Executive pursuant to the provisions of Section 4 hereof; (y) any
reduction in the duties, responsibilities or perquisites of Executive as provided in Section 3.1
hereof and (z) any transfer of the Company’s principal executive offices outside the geographic
area described in Section 3.2 hereof or requirement that Executive principally perform his duties
in other than such office. The parties acknowledge and agree that as of the date hereof, no event
has occurred giving Executive “good reason” to terminate the Employment Period. The parties further
acknowledge that a material breach owing to the failure to timely pay compensation or benefits to
Executive was never intended to include an administrative or ministerial lapse by Employer
resulting in an inadvertent delay of such payment and that the foregoing seven day cure period will
serve to permit the Employer to correct such a lapse.



5.4 By Executive for a Change of Control. Executive may terminate the Employment
Period under this Agreement as a result of a “change of control” of Clothiers (at any time prior to
an acquisition) or Holding (at anytime following an acquisition) (the “Entity”) immediately upon
notice to Employer given not more than ninety (90) days following the date upon which Executive
becomes aware of such change in control.



For purposes of this Agreement, a “change of control” shall, as more fully set forth in the
Original Employment Agreement, generally be deemed to have occurred in the event (a) any person is
or becomes the beneficial owner of a majority of the outstanding securities of the Entity; (b) any
person is or becomes the beneficial owner of 30% or more of the outstanding securities of the
Entity combined with a change in a majority of the members of the Board; or (c) of a merger,
consolidation or liquidation of the Entity or a sale of all or substantially all of such the
Entity’s assets.


 


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5.5 Disability. During the Employment Period, if, as a result of physical or mental
incapacity or infirmity (including alcoholism or drug addiction), Executive shall be unable to
perform his material duties under this Agreement for (i) a continuous period of at least 180 days,
or (ii) periods aggregating at least 270 days during any period of 12 consecutive months (each a
“Disability Period”), and at the end of the Disability Period there is no reasonable probability
that Executive can promptly resume his material duties hereunder pursuant hereto, Executive shall
be deemed disabled (the “Disability”) and Employer, by notice to Executive, shall have the right to
terminate the Employment Period for Disability at, as of or after the end of the Disability Period.
The existence of the Disability shall be determined by a reputable, licensed physician mutually
selected by Employer and Executive, whose determination shall be final and binding on the parties;
provided, that if Employer and Executive cannot agree upon such physician, such physician shall be
designated by the then acting President of the Baltimore City Medical Society, and if for any
reason such President shall fail or refuse to designate such physician, such physician shall, at
the request of either party, be designated by the American Arbitration Association. Executive shall
cooperate in all reasonable respects to enable an examination to be made by such physician.




5.6 Death. The Employment Period shall end on the date of Executive’s death.



6. Termination Compensation; Non-Compete




6.1 Termination Without Cause, for Good Reason or Change of Control. If the
Employment Period is terminated by Employer pursuant to the provisions of Section 5.1 or by
Executive pursuant to the provisions of Sections 5.3 or 5.4 hereof, Employer will pay to
Executive, (a) on the last day of the Employment Period a lump sum of $1,550,000, plus (b) if
applicable, the earned Cash Bonus for the last full Bonus Year contained in the Employment Period
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.



6.2 Certain Other Terminations. If the Employment Period is terminated (a) by Employer
pursuant to the provisions of Section 5.2 at any time prior to, or more than 90 days after, a
change of control of the Company, (b) by Executive pursuant to Section 5.1, (c) as a result of a
Disability pursuant to the provisions of Section 5.5, or (d) as a result of the death of Executive
pursuant to the provisions of Section 5.6., Employer shall pay to Executive, (x) within 60 days
after the date of termination, a lump sum equal to any unpaid annual Base Salary through the date
of termination, (y) in the case of termination for Disability or by death pursuant to the
provisions of Section 5.5 or 5.6, when due pursuant to the provisions of Section 4.2 the earned
Cash Bonus for the Bonus Year in which the date of termination occurred (assuming any personal
goals not related to Company-wide performance were met) 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 and (z) if applicable, the earned Cash Bonus for the last full
Bonus Year contained in the Employment Period 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.


 


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6.3 Expiration with Severance.



6.3.1 If (a) Employer fails to offer to Executive at least a one year renewal or extension of
the Employment Period on its then current terms by no later than August 1 of the last year of the
Employment Period and (b) the Employment Period shall thereafter expire on its then stated
expiration date ((a) and (b) collectively, a “Term Expiration”), Employer will pay to Executive,
(y) on the date of termination, a lump sum of $775,000 and (z) if applicable, the earned Cash
Bonus for the Bonus Year ending on the stated expiration date of the Employment Period
pursuant to and at the time otherwise payable under Section 4.2. Employer shall have no obligation
to continue any other benefits provided in Section 4 past the date of termination.



6.3.2 Pursuant to the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan (the
“Equity Incentive Plan”), Employer has granted to Executive, and may in the future grant to
Executive, the opportunity to earn certain performance-based Restricted Stock Units (“RSUs”),
including, without limitation, the grant made pursuant to that certain CEO Performance Restricted
Stock Unit Award Agreement, dated June 17, 2010 (the “June 2010 Agreement”). Notwithstanding
anything to the contrary contained in the Equity Incentive Plan or in any award agreement providing
for the grant and vesting of performance-based RSUs to Executive pursuant thereto (including, but
not limited to the June 2010 Agreement) (each, an “Award Agreement”), for purposes of each Award
Agreement, if the Executive is then willing and able to continue his employment with the Company on
the then current terms and/or execute a new agreement providing terms and conditions substantially
similar to those in this Employment Agreement and continue providing such services at the time of
the Term Expiration, such Term Expiration shall be deemed a termination of this Employment
Agreement (and Executive’s employment) by Employer without cause and (a) if the Term Expiration
occurs on the last day of the Performance Period or after the end of the Performance Period but, in
either case, prior to the Certification Date, upon certification by the Compensation Committee or
the Board of Directors of the Earned Award on the Certification Date, Executive will be credited
with such Earned Award and shall be deemed to have fully vested in such Earned Award on the First
Vesting Date and (b) if the Term Expiration occurs on or after the Certification Date, Executive
will be deemed to have fully vested in such Earned Award, and all vesting restrictions will lapse
upon the termination of this Agreement.



The timing of any RSU payments hereunder shall be subject to the provisions of the June 2010
Agreement, including, without limitation, Sections 3 and 13 thereof, and any provisions in future
Award Agreements addressing the timing of payments and matters under Section 409A of the Internal
Revenue Code, as applicable. Capitalized terms used in this Section 6.3.2 but not defined in this
Agreement will have those definitions attributed to them in the Award Agreement(s). This Section
6.3.2 shall be deemed an amendment of the June 2010 Agreement.



6.4 No Other Termination Compensation. Executive shall not, except as set forth in
this Section 6 and in Section 4.6, be entitled to any compensation following termination of the
Employment Period, except as may be otherwise provided in any equity award (e.g. stock options or
restricted stock units) granted by Employer to Executive.


 


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6.5 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.



6.6 Non-compete. For the purposes of this Agreement, “not compete” (or words of
similar effect) shall mean that Executive shall not, directly or indirectly (a) engage in any
activities that are in competition with the Company in any geographic area within 50 miles of the
location of any Company store (owned or franchised) as of the date of termination of Executive (b)
engage in any catalog business that focuses on the sale of men’s clothing, (c) solicit any customer
of the Company or (d) solicit any person who is then employed by the Company or was employed by the
Company within one year of such solicitation to (i) terminate his or her employment with the
Company, (ii) accept employment with anyone other than the Company, or (iii) in any manner
interfere with the business of the Company. If the Employment Period is terminated (x) by Executive
pursuant to the provisions of Section 5.4 hereof; (y) by Employer pursuant to the provisions of
Section 5.1 hereof; or (z) by Executive pursuant to the provisions of Section 5.3 hereof, Executive
shall not compete with the Company for a period of two years from the date of termination. If the
Employment Period is terminated by the Employer pursuant to the provisions of Section 5.2,
Executive shall not compete with the Company for a period of six months from the date of
termination. If the Employment Period expires and Executive is entitled to severance pursuant to
Section 6.3, Executive shall not compete with the Company for a period of one year from the date of
expiration. Executive acknowledges and agrees that in the event of any violation or threatened
violation by Executive by his obligations under this section, Employer shall be entitled to
injunctive relief without any necessity to post bond. Executive acknowledges and agrees that the
Company’s catalog business is competitive with retail store businesses offering similar product
lines.



6.7 Section 409A. It is the intent of this Agreement to comply with the requirements
of Section 409A of the Code, and any ambiguities herein will be interpreted and this agreement will
be administered to so comply.




(i) Termination Payments. If any compensation to be paid to
Executive under Section 6 is “nonqualified deferred compensation”
subject to Code Section 409A, such compensation shall be paid no
earlier than the date of Executive’s “separation from service” from the
Company within the meaning of Code Section 409A(a)(2)(A)(i). If the
Executive is a “specified employee” within the meaning of Code Section
409A(a)(2)(B)(i) at the time of the Executive’s termination of
employment, any nonqualified deferred compensation subject to Section
409A that would otherwise have been payable as a result of, and within
the first six (6) months following, the Executive’s “separation from
service”, and not by reason of another event under Section
409A(a)(2)(A), will become payable six (6) months and one (1) day
following the date of the Executive’s separation from service or, if
earlier, the date of Executive’s death.


 


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(ii) Reimbursements. Consistent with the requirements of
Section 409A of the Code, to the extent that any reimbursement or
in-kind benefit provided to Executive under Sections 4.5 and 8.2 is
taxable, unless stated otherwise: (i) reimbursements and in-kind
benefits will be provided only during the employee’s employment with
the Employer; (ii) the expenses eligible for reimbursement or the
in-kind benefits provided in any given calendar year will not affect
the expenses eligible for reimbursement or the in-kind benefits
provided in any other calendar year; (iii) the reimbursement of an
eligible expense must be made no later than the last day of calendar
year following the calendar year in which the expense was incurred; and
(iv) the right to reimbursements or in-kind benefits cannot be
liquidated or exchanged for any other benefit.



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), judgments, 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 or before the Employment Period or otherwise by
reason of the fact that he is or was a director or officer of Employer of any subsidiary or
affiliate included as a part of the Company, to the fullest extent and in the manner set forth and
permitted by the General Corporation Law of the State of Delaware and any other applicable law as
from time to time in effect. The provisions of this Section 7 shall survive any termination of the
Employment Period or any deemed termination of this Agreement.


 


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8. Miscellaneous




8.1 Notices. All notices required or permitted to be given hereunder shall be in
writing and shall be (a) sent by certified mail-return receipt requested, postage prepaid, (b)
personally delivered (via overnight delivery or otherwise), or (c) transmitted by facsimile.
Notices shall be deemed delivered as follows: (a) three days after deposit with the United States
Postal Service by certified mail; (b) one business day after deposit with a nationally-recognized
overnight delivery service; (c) on the date of delivery when sent by local, commercial delivery
service; or (d) on the date of transmission if sent by facsimile during the hours of 9:00 a.m. to
5:00 p.m. on a business day, or on the next following business day if sent by facsimile other than
during such time. Notwithstanding anything to the contrary contained herein, notices shall be
deemed to have been given when received or refused by the party to which or whom it was sent or
delivered and any writing actually received by the party to which or whom it is addressed
(regardless of the means of delivery) shall be sufficient notice hereunder. Notices shall be
addressed as follows, provided that either party may, at any time, in the manner set forth for
giving notices to the other, establish a different address to which notices to it or him shall be
sent:



	 	 	 
	If to Employer:

	 	Jos. A. Bank Clothiers, Inc.
	 

	 	500 Hanover Pike
	 

	 	Hampstead, Maryland 21704
	 

	 	Attn: Chief Financial Officer
	 
	 	 
	With copy to:

	 	Jos. A. Bank Clothiers, Inc.
	 

	 	500 Hanover Pike
	 

	 	Hampstead, Maryland 21704
	 

	 	Attn: General Counsel
	 
	 	 
	If to Executive:

	 	Mr. R. Neal Black
	 

	 	2 Calvary Court
	 

	 	Lutherville, Maryland 21093






8.2 Legal Fees. The Company shall pay the reasonable legal fees and expenses incurred
by Executive in connection with preparation, negotiation, executive and delivery of this Agreement
(not to exceed $5,000), as well as such fees and expenses incurred in connection with any amendment
or modification hereof or enforcement of Executive’s rights hereunder.



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 judgment of
Employer to comply with applicable laws and regulations.



8.4 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Maryland, without regard to any conflicts of law
jurisprudence. Executive hereby consents to the jurisdiction of the state courts of the State of
Maryland and the United States District Court for District of Maryland over all claims arising
under this Agreement.



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. Judgment may be entered on the
arbitration award in any court having jurisdiction; PROVIDED, HOWEVER, that Executive shall be
entitled to seek specific performance of his right to be paid until expiration of the Employment
Period during the pendency of any arbitration.



8.6 Headings. All descriptive headings in this Agreement are inserted for convenience
only and shall be disregarded in construing or applying any provision of this Agreement.


 


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8.7 Counterparts. This Agreement may be executed by facsimile and/or in counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute one and
the same instrument.



8.8 Severability. If any provision of this Agreement, or any part thereof, is held to
be unenforceable, the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.



8.9 Entire Agreement and Representations. This Agreement contains the entire agreement
and understanding between Employer and Executive with respect to the subject matter hereof. No
representations or warranties of any kind or nature relating to the Company or its several
businesses, or relating to the Company’s assets, liabilities, operations, future plans or prospects
have been made by or on behalf of Employer to Executive. This Agreement supersedes any prior
agreement between the parties relating to the subject matter hereof.



8.10 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors, heirs (in the case of
Executive) and assigns.



8.11 Termination of Prior Employment Agreements. Effective upon the commencement of
the Employment Period, Employer and Executive hereby terminate that certain Employment Agreement,
dated as of December 21, 1999, as amended, pursuant to which Executive was employed by Employer.
This Agreement amends and restates in its entirety the Original Employment Agreement, which, except
as otherwise set forth in Section 5.4, shall hereafter have no further force or effect.



IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	EMPLOYER:


	 	EXECUTIVE:
	JOS. A. BANK CLOTHIERS, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ SIDNEY H. RITMAN
	 	/s/ R. NEAL BLACK
	 

	 	 
	 	 
	 

	 	Sidney H. Ritman, Chairman
	 	R. NEAL BLACK
	 

	 	Compensation Committee	 	 







 


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