AMENDMENT TO EMPLOYMENT AGREEMENT
---------------------------------
THIS AMENDMENT, dated as of February 3, 1996, by and between Henry C.
Schwartz ("Executive") and Jos. A. Bank Clothiers, Inc. ("Employer"), is made to
that certain Employment Agreement, dated March 31, 1994, between Executive and
Employer (the "Employment Agreement").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, Executive and Employer hereby amend the Employment
Agreement and agree as follows:
1. Employment of Executive; Termination of Previous Agreement
No change is hereby made to Section 1 of the Employment Agreement.
2. Employment Period
Section 2 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"The term of Executive's employment under this Agreement (the
"Employment Period") shall commence March 31, 1994 and shall,
subject to earlier termination as provided in Section 5,
terminate on December 31, 1997."
3. Duties and Responsibilities
3.1 General.
Section 3.1 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"During the Employment Period, Executive shall serve as
Vice Chairman of the Company and shall perform such duties,
consistent with his status as Vice Chairman, as he may be
assigned from time to time by Employer's Chief Executive
Officer or Board of Directors. Executive shall have the use
of an office at Employer's Manhattan store, and the
facilities located therein, for the conduct of Company
business. Upon request of the Board of Directors, during the
Employment Period, Executive shall also serve without
additional compensation as a director of the Company and any
of its subsidiaries."
3.2. Location of Executive Offices. Section 3.2 of the Employment
Agreement is hereby deleted.
4. Compensation and Related Matters
4.1. Base Salary.
Section 4.1 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"From February 4, 1996 through March 31, 1997 (the
"Initial Period"), Employer shall owe to Executive a base
salary (the "Base Salary") of $405,589. The Base Salary
shall be payable in equal (or nearly equal) installments from
February 3, 1996 through December 31, 1997, in accordance with
the Employer's policy on payment of executives in effect from
time to time. That portion of the Employment Period occurring
after the Initial Period is herein referred to the "Deferral
Period" and that portion of the Base Salary payable during the
Deferral Period (i.e. $161,408) is hereinafter referred to as
the "Deferred Portion". Notwithstanding the agreement of the
parties to defer payment of the Deferred Portion of the Base
Salary, $383.39 of the Base Salary shall be deemed earned for
each day elapse during the Initial Period, such that the
entire Base Salary shall be deemed earned by March 31, 1997.
In the event this Agreement shall be rejected in any
bankruptcy proceeding involving Employer, Executive shall have
a priority wage claim for that portion of the Base Salary
earned but unpaid. No salary other than the Deferred Portion
shall be payable during the Deferral Period."
No change is hereby made to any compensation paid or payable to Executive prior
to the date hereof.
4.2. Annual Bonus. Section 4.2 of the Employment Agreement is
hereby deleted.
4.3. Life Insurance. No change is hereby made to Section 4.3 of
the Employment Agreement.
4.4 Automobile. Section 4.4 of the Employment Agreement is hereby
deleted.
4.5 Other Benefits.
Section 4.5 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"During the Employment Period, subject to, and to the extent
Executive is eligible under their respective terms, Executive
shall be entitled to medical, dental, long term disability
and supplemental life insurance coverages (not less than
$250,000) as are, or are from time to time hereafter,
generally provided by Employer to Employer's senior management
employees. Executive's annualized 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."
4.6 Expense Reimbursement.
Section 4.6 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"Employer shall reimburse Executive for all business expenses
reasonably incurred by him directly in the performance of
his duties under this Amendment, upon his presentation,
not less frequently then 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 employees."
4.7 Vacations. Section 4.7 of the Employment Agreement is hereby
deleted.
4.8 Tax Gross-up. No change is hereby made to Section 4.8 of the
Employment Agreement.
5. Termination of Employment Period
5.1. Termination Without Cause.
Section 5.1 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"Employer or Executive may, by delivery of notice to the
other at any time during the Employment Period, terminate
the Employment Period without cause."
5.2 By Employer for Cause. No change is hereby made to Section
5.2 of the Employment Agreement.
5.3 By Executive for Good Reason. Section 5.3 of the Employment
Agreement is hereby deleted.
5.4 Disability. No change is hereby made to Section 5.4 of the
Employment Agreement.
5.5 Death. No change is hereby made to Section 5.5 of the
Employment Agreement.
6. Termination Compensation; Non-Compete.
6.1. Termination Without Cause by Employer.
Section 6.1 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"If the Employment Period is terminated by Employer pursuant
to the provisions of Section 5.1 hereof, Employer shall
continue to make payments to Executive as and when such
payments otherwise would have been due pursuant to Section
4.1, assuming no termination. All other benefits provided
for in Sections 4.5, 4.6 and 4.8 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."
6.2. Certain Other Terminations.
Section 6.2 of the Employment Agreement is hereby deleted and the
following is hereby inserted in lieu thereof:
"If the Employment Period is terminated by Employer pursuant
to Section 5.2, by Executive pursuant to Section 5.1 or by
the death of Executive pursuant to Section 5.5, amounts
which otherwise would have been payable through the date of
termination pursuant to this Agreement shall be paid and
all other amounts (including earned but unpaid Base Salary)
shall be forefeited. In the event of termination by death
pursuant to the provisions of Section 5.5, Employer shall
pay to Sandy Schwartz (or such other payee as may be
designated by Executive in his Last Will and Testiment, or any
codicil thereto, or by notice to Employer) that amount of the
Base Salary earned but unpaid, as calculated pursuant to
Section 4.1, through the date of such termination. If
Executive shall terminate this Agreement with not less than
six months remaining in the Employment Period, Executive shall
be relieved of the non-competition restrictions set forth in
Section 6.7."
6.3. Termination for Disability. No change is hereby made to
Section 6.3 of the Employment Agreement.
6.4. Tax Gross-up. No change is hereby made to Section 6.4 of the
Employment Agreement.
6.5. No Other Termination Compensation. No change is hereby made
to Section 6.5 of the Employment Agreement.
6.6 Mitigation. No change is hereby made to Section 6.6 of the
Employment Agreement.
6.7 Non-Compete. No change is hereby made to Section 6.7 of the
Employment Agreement; provided, however, that during the remainder of the
Employment Period Employer shall not unreasonably withhold its consent to any
request by Executive that he be permitted to provide consulting services to one
or more companies that are not in competition with Company.
7. Indemnification
No change is hereby made to Section 7 of the Employment Agreement.
8. Miscellaneous
8.1 Notice. Any notice, consent or authorization required or
permitted to be given pursuant to the Employment Agreement shall be addressed as
follows, or to such other address as either party shall give the other:
If to Employer: Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
Attn: General Counsel
If to Executive: Mr. Henry C. Schwartz
50 Sutton Place South
Apt. 17A
New York, New York 10022
8.2 Legal Fees. Section 8.2 of the Employment Agreement is hereby
deleted.
8.3 Taxes. No change is hereby made to Section 8.3 of the
Employment Agreement.
8.4 Governing Law. No change is hereby made to Section 8.4 of the
Employment Agreement.
8.5 Arbitration. No change is hereby made to Section 8.5 of the
Employment Agreement.
8.6 Headings. No change is hereby made to Section 8.6 of the
Employment Agreement.
8.7 Counterparts. No change is hereby made to Section 8.7 of the
Employment Agreement.
8.8 Severability. No change is hereby made to Section 8.8 of the
Employment Agreement.
8.9 Entire Agreement and Representation. No change is hereby made
to Section 8.9 of the Employment Agreement.
8.10 Successor and Assigns. No change is hereby made to Section
8.10 of the Employment Agreement.
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 Employment
Agreement, the terms of this Amendment shall control and prevail. Mention in
any provision of the Employment Agreement which is not deleted hereby of any
other provision of the Employment Agreement which is deleted hereby shall be
disregarded in the reading and interpretation of the Employment Agreement,
amended hereby. Terms used but not defined herein shall have those respective
meaning 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 Agreement as
of the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By:_____________________________________
Timothy F. Finley, Chairman, Chief
Executive Officer and President
________________________________________
HENRY C. SCHWARTZ