February 12, 2020

Jos A. Bank/Men's Wearhouse (FTC 2014)

Deal SummaryCooperation | Conditions Precedent |Defense Strategy | Litigation Commitments | Remedy Commitments | Reverse Break Fees | Termination Provisions

(a)               Deal Summary. On November 26, 2013, Men’s Warehouse announced that it would acquire Jos A. Bank for approximately $55 per share (ultimately $1.8 billion). Men’s Wearhouse was required to use “best efforts” to “vigorously litigate any suit or proceeding” seeking to block or delay the merger. Although, Men’s Wearhouse is not required to hold-separate or make any divestitures to obtain clearance. The parties agreed that either company could initially terminate the transaction by September 30, 2014. The FTC cleared the transaction on May 30, 2014 when it issued letters to each party closing its investigation of the transaction.

(b)               Cooperation. § 6.4(a)-(c): Approvals. (a) On the terms and subject to conditions of this Agreement, each of the parties hereto shall cooperate with the other parties and use (and shall cause their respective Subsidiaries and Representatives to use) their respective best efforts to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable to cause the conditions set forth in Section 7.1 and the Offer Conditions to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Antitrust Laws), and (ii) obtain all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Merger.

                        (b) In furtherance and not in limitation of the foregoing, each party hereto agrees to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take, or cause to be taken, all other actions consistent with this Section 6.4 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable.

                        (c) Each of the parties hereto shall use its best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Entity in connection with the Offer, the Merger and the other transactions contemplated hereby and in connection with any investigation or other inquiry by or before a Governmental Entity relating to the Offer or the Merger, including any proceeding initiated by a private party, and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding the Offer, the Merger and the other transactions contemplated hereby. Subject to applicable Laws relating to the exchange of information, each party hereto shall consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any such request, inquiry, investigation, action or other legal proceeding. In addition, except as may be prohibited by any Governmental Entity or by Law, in connection with any such request, inquiry, investigation, action or other legal proceeding, each party hereto shall permit authorized Representatives of the other parties (x) to participate at or in each substantive meeting, conference or telephone call with a representative of a Governmental Entity relating to such request, inquiry, investigation, action or other legal proceeding and (y) to have reasonable access to and be consulted in connection with any material document (other than documents submitted in response to the “Second Request” issued by the FTC), opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or other legal proceeding

(c)                Conditions Precedent. §§ 4.5 and 5.4 Required Filings and Consents. The execution and delivery by the Company of this Agreement does not, and the performance by the Company of this Agreement will not, require any consent, approval, order, authorization or permit of, or declaration, registration, filing with, or notification to (collectively, “Consents”), any Governmental Entity, except for (a) applicable requirements, if any, of (i) the Exchange Act, including the filing with the SEC of the Schedule 14D-9, (ii) state securities or “blue sky” Laws, (iii) the DGCL to file the Certificate of Merger or other appropriate documentation and (iv) Nasdaq, (b) those required by the HSR Act, (c) such filings and approvals as are required to be made or obtained under any foreign antitrust, competition or similar Laws in connection with the consummation of the Offer, the Merger and the other transactions contemplated hereby and as set forth in Section 4.5 of the Company Disclosure Letter and (d) such Consents, the failure of which to obtain, would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(d)               Defense Strategy. § 6.4(d): Approvals. (d) …Notwithstanding anything in this Agreement to the contrary, Parent and Purchaser shall, on behalf of the parties, control and lead all communications and strategy relating to any litigation or to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Merger; providedhowever, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such litigation or approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such litigation or approvals, as applicable.

(e)                Litigation Commitments. § 6.4(d): Approvals. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.4, and subject to Section 6.4(e) below, Parent and Purchaser shall use best efforts to ensure that prior to the Offer Closing Date (i) no requirement for consent or approval of the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Entity with respect to any Antitrust Laws, (ii) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding with respect to any Antitrust Laws, and (iii) no other matter relating to any Antitrust Laws would preclude consummation of the Offer and the Merger by the Outside Date. Each of Parent and Purchaser and the Company shall, and shall cause each of their respective Subsidiaries to, vigorously litigate any suit or proceeding challenging the Offer, the Merger or the other transactions contemplated hereby which would otherwise have the effect of preventing, delaying or restricting the consummation of the Offer, the Merger or the other transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, Parent and Purchaser shall, on behalf of the parties, control and lead all communications and strategy relating to any litigation or to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Merger; providedhowever, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such litigation or approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such litigation or approvals, as applicable.

(f)                Remedy Commitments. § 6.4: Approvals (e) Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or Purchaser be obligated to, and the Company and its Subsidiaries shall not without the prior written consent of Parent, agree or proffer to (i) divest or hold separate, or enter into any licensing, business restriction or similar arrangement with respect to assets (whether tangible or intangible) or any portion of any business of Parent, Purchaser, the Company or any of their respective Subsidiaries, (ii) alter, modify, amend, enter into, terminate, suspend or waive any, or any right under any, contract, lease, sublease, agreement, or other business arrangement, or (iii) otherwise take any action that in any way limits the freedom of action with respect to, interferes with the operations of, or affects Parent’s, Purchaser’s, the Company’s or their respective Subsidiaries’ ability to retain any of the businesses, product lines, contracts, agreements, business arrangements or assets of Parent, Purchaser, the Company or any of their Subsidiaries, in each case of (i), (ii) or (iii), which would result in an aggregate economic effect that would have, or would reasonably be likely to have, a material adverse effect on the business or operations of Parent and its Subsidiaries, including the Surviving Corporation and its Subsidiaries, taken as a whole after the Effective Time (assuming Parent and its Subsidiaries, including the Surviving Corporation and its Subsidiaries, taken as a whole, are the size of the Company and its Subsidiaries, taken as a whole). Notwithstanding the foregoing, the Company’s and its Subsidiaries’ obligation to obtain the prior written consent of Parent pursuant to this Section 6.4(e) shall be limited to matters necessary to ensure that prior to the Offer Closing Date (i) no requirement for consent or approval of the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Entity with respect to any Antitrust Laws, (ii) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding with respect to any Antitrust Laws, and (iii) no other matter relating to any Antitrust Laws would preclude consummation of the Offer and the Merger by the Outside Date. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, to the extent Parent consents to itself or the Company or any of their Subsidiaries taking any of the foregoing actions described in this Section 6.4(e), each of Parent, Purchaser, the Company and their respective Subsidiaries shall not be required to take or not to take, or agree to take or not to take, any such actions unless such obligations are conditioned on, and are not effective until, the Closing.

(g)               Reverse Break Fees. N/A.

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. §8.1: Termination. Subject to Section 1.3(c), this Agreement may be terminated and the Offer and the Merger may be abandoned at any time prior to the Effective Time:

                        (a) by mutual written consent of Parent and the Company;

                        (b) by either Parent or the Company: (i) if the Offer Closing shall not have occurred by September 30, 2014 (the “Outside Date”); providedhowever, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party whose failure to fulfill any covenant or agreement contained in this Agreement has been a principal cause of, or resulted in, the failure of the Offer Closing to have occurred on or by such date; or . . .