INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(“Agreement”) is made and entered into as of the 1st
day of September, 2009, by and between Jos. A. Bank Clothiers,
Inc., a Delaware corporation (the “Company”), and
Robert N. Wildrick (“Indemnitee”).
WHEREAS, at the request of the Company,
Indemnitee currently serves as a director of the Company and may,
therefore, be subjected to claims, suits or proceedings arising as
a result of his service; and
WHEREAS, as an inducement to Indemnitee to
continue to serve as such director, the Company has agreed to
indemnify and to advance expenses and costs incurred by Indemnitee
in connection with any such claims, suits or proceedings, to the
maximum extent permitted by law; and
WHEREAS, the parties by this Agreement desire to
set forth their agreement regarding indemnification and advance of
expenses;
NOW, THEREFORE, in consideration of the premises
and the covenants contained herein, the Company and Indemnitee do
hereby covenant and agree as follows:
Section 1. Definitions . For
purposes of this Agreement:
(a) “Change in Control” means a
change in control of the Company occurring after the Effective Date
of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), whether or not the Company is
then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be deemed
to have occurred if, after the Effective Date (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) 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 15% or more of the combined voting power of all of the
Company’s then-outstanding securities entitled to vote
generally in the election of directors without the prior approval
of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person’s attaining such
percentage interest; (ii) the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least two-thirds of the members
of the Board of Directors then in office, as a consequence of which
members of the Board of Directors in office immediately prior to
such transaction or event constitute less than a majority of the
Board of Directors thereafter; or (iii) at any time, a majority of
the members of the Board of Directors are not individuals
(A) who were directors as of the Effective Date or
(B) whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by the
affirmative vote of at least two-thirds of the directors then in
office who were directors as of the Effective Date or whose
election for nomination for election was previously so
approved.
(b) “Corporate Status” means
the status of a person as a present or former director, officer,
employee or agent of the Company or as a director, trustee,
officer, partner, manager, managing member, fiduciary, employee or
agent of any other foreign or domestic corporation, partnership,
limited liability company, joint venture, trust, employee benefit
plan or other enterprise that such person is or was serving in such
capacity at the request of the Company. As a clarification and
without limiting the circumstances in which Indemnitee may be
serving at the request of the Company, service by Indemnitee shall
be deemed to be at the request of the Company if Indemnitee serves
or served as a director, trustee, officer, partner, manager,
managing member, fiduciary, employee or agent of any corporation,
partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise (i) of which a
majority of the voting power or equity interest is owned directly
or indirectly by the Company or (ii) the management of which
is controlled directly or indirectly by the Company.
(c) “Disinterested Director”
means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification and/or advance
of Expenses is sought by Indemnitee.
(d) “Effective Date” means the
date set forth in the first paragraph of this Agreement.
(e) “Expenses” means any and
all reasonable and out-of-pocket attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, federal,
state, local or foreign taxes imposed on Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement,
ERISA excise taxes and penalties and any other disbursements or
expenses incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in or otherwise participating in a Proceeding.
Expenses shall also include Expenses incurred in connection with
any appeal resulting from any Proceeding including, without
limitation, the premium, security for and other costs relating to
any cost bond, supersedeas bond or other appeal bond or its
equivalent.
(f) “Independent Counsel” means
a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither is, nor in the past five
years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than
with respect to matters concerning Indemnitee under this Agreement
or of other indemnitees under similar indemnification agreements),
or (ii) any other party to or participant or witness in the
Proceeding giving rise to a claim for indemnification or advance of
Expenses hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
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(g) “Proceeding” means any
threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other proceeding, whether brought by
or in the right of the Company or otherwise and whether of a civil
(including intentional or unintentional tort claims), criminal,
administrative or investigative (formal or informal) nature,
including any appeal therefrom, including those pending or
completed on or before the Effective Date. If Indemnitee reasonably
believes that a given situation may lead to or culminate in the
institution of a Proceeding, such situation shall also be
considered a Proceeding.
Section 2. Services by Indemnitee .
Indemnitee will serve as a director of the Company. However, this
Agreement shall not impose any independent obligation on Indemnitee
or the Company to continue Indemnitee’s service to the
Company. This Agreement shall not be deemed an employment contract
between the Company (or any other entity) and
Indemnitee.
Section 3. General . The Company
shall indemnify, and advance Expenses to, Indemnitee (a) as
provided in this Agreement and (b) otherwise to the maximum
extent permitted by Delaware law in effect on the Effective Date
and as amended from time to time; provided, however, that no change
in Delaware law shall have the effect of reducing the benefits
available to Indemnitee hereunder based on Delaware law as in
effect on the Effective Date. The rights of Indemnitee provided in
this Section 3 shall include, without limitation, the rights
set forth in the other sections of this Agreement, including any
additional indemnification permitted by Section 145 (including
subsection (f)) of the Delaware General Corporation Law (the
“DGCL”).
Section 4. Proceedings Other Than
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is
threatened to be, made a party to or a witness in any threatened,
pending, or completed Proceeding, other than a Proceeding by or in
the right of the Company. Pursuant to this Section 4,
Indemnitee shall be indemnified against all judgments, penalties,
fines and amounts paid in settlement and all Expenses actually and
reasonably incurred by him or on his behalf in connection with a
Proceeding by reason of his Corporate Status if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company and, with
respect to a criminal Proceeding, had no reasonable cause to
believe his conduct was unlawful.
Section 5. Proceedings by or in the
Right of the Company . Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5 if, by
reason of his Corporate Status, he is, or is threatened to be, made
a party to or a witness in any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 5, Indemnitee
shall be indemnified against all amounts paid in settlement and all
Expenses actually and reasonably incurred by him or on his behalf
in connection with such Proceeding if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and except that no
indemnification shall be made in respect of any Proceeding where
the Indemnitee has been adjudged to be liable to the
Company.
Section 6. Court-Ordered
Indemnification . Notwithstanding any other provision of this
Agreement, the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought may determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for any claim, issue or
matter.
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Section 7. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful . Notwithstanding
any other provision of this Agreement, and without limiting any
such provision, to the extent that Indemnitee was or is, by reason
of his Corporate Status, made a party to (or otherwise becomes a
participant in) any Proceeding and is successful, on the merits or
otherwise, in the defense of such Proceeding, Indemnitee shall be
indemnified for all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify
Indemnitee under this Section 7 for all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
such claim, issue or matter, allocated on a reasonable and
proportionate basis. For purposes of this Section 7 and,
without limitation, the termination of any claim, issue or matter
in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or
matter.
Section 8. Advance of Expenses for a
Party . If, by reason of Indemnitee’s Corporate Status,
Indemnitee is, or is threatened to be, made a party to any
Proceeding, the Company shall, without requiring a preliminary
determination of Indemnitee’s ultimate entitlement to
indemnification hereunder, advance all reasonable Expenses incurred
by or on behalf of Indemnitee in connection with such Proceeding
within ten days after the receipt by the Company of a statement or
statements requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding.
Such statement or statements shall set forth in reasonable detail
the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by a written undertaking by or on behalf of
Indemnitee, in substantially the form attached hereto as
Exhibit A or in such form as may be required under
applicable law as in effect at the time of the execution thereof,
to reimburse the portion of any Expenses advanced to Indemnitee
relating to any claim, issue or matter in the Proceeding as to
which it is ultimately determined that the Indemnitee is not
entitled to be indemnified and which has not been successfully
resolved as described in Section 7 of this Agreement. To the
extent that Expenses advanced to Indemnitee do not relate to a
specific claim, issue or matter in the Proceeding, such Expenses
shall be allocated on a reasonable and proportionate basis. The
undertaking required by this Section 8 shall be an unlimited
general obligation by or on behalf of Indemnitee and shall be
accepted without reference to Indemnitee’s financial ability
to repay such advanced Expenses and without any requirement to post
security therefor.
Section 9. Indemnification and Advance
of Expenses of a Witness . Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is or may be, by
reason of his Corporate Status, made a witness or otherwise
required to participate in any Proceeding, whether instituted by
the Company or any other party, and to which Indemnitee is not a
party, he shall be advanced all reasonable Expenses and indemnified
against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith within ten days after the
receipt by the Company of a statement or statements requesting such
advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements
shall set forth in reasonable detail the Expenses incurred by
Indemnitee.
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Section 10. Procedure for Determination
of Entitlement to Indemnification .
(a) To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. Indemnitee may submit
one or more such requests from time to time and at such time(s) as
Indemnitee deems appropriate in his sole discretion. The officer of
the Company receiving any such request from Indemnitee shall,
promptly upon receipt of such a request for indemnification, advise
the Board of Directors in writing that Indemnitee has requested
indemnification.
(b) Upon written request by Indemnitee for
indemnification pursuant to Section 10(a) above, a determination,
if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall promptly be made in the specific case:
(i) if a Change in Control shall have occurred, by Independent
Counsel, in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee, which Independent Counsel
shall be selected by the Indemnitee and approved by the Board of
Directors in accordance with Section 145(d)(3) of the DGCL,
which approval will not be unreasonably withheld or delayed; or
(ii) if a Change in Control shall not have occurred,
(A) by the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors, (B) by a majority vote
of a committee of Disinterested Directors designated by a majority
of Disinterested Directors even if less than a quorum, (C) if
Independent Counsel has been selected by the Board of Directors in
accordance with Section 145(d)(3) of the DGCL and approved by
the Indemnitee, which approval shall not be unreasonably withheld
or delayed, by Independent Counsel, in a written opinion to the
Board of Directors, a copy of which shall be delivered to
Indemnitee or (D) if so directed by the Board of Directors, by
the stockholders of the Company. If
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