Eminence Capital Enters Standstill Agreement with Men's Wearhouse (MW)

February 25, 2014 6:07 AM EST

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On February 24, 2014, Men's Wearhouse (NYSE: MW) amended its January 6, 2014 offer to acquire Jos. A. Bank (Nasdaq: JOSB) to, among other things, increase the offer price from $57.50 to $63.50 per share (the "Amendment") and announced a willingness to further increase the price to $65.00 per share. On February 24, 2014, Eminence Capital and certain of its affiliates (the "Eminence Parties") entered into an agreement with the Issuer and Java Corp., a Delaware corporation wholly owned by the Issuer (the "Agreement"). Pursuant to the Agreement, the Eminence Parties agreed to, among other things, (i) cease all efforts in furtherance of the preliminary solicitation statement filed by the Eminence Parties with the SEC on November 15, 2013 and any related solicitation of the Issuer's stockholders in connection therewith, (ii) withdraw its demand to inspect the stockholder list and books and records of the Issuer and (iii) a customary standstill provision, which is described in more detail below. During the Standstill Period (as defined in the Agreement), the Eminence Parties agreed not to, among other things: (i) solicit or participate in the solicitation of proxies or written consents of the Issuer's stockholders; (ii) form or join in any group with respect to the Common Stock other than solely with the Eminence Parties or their respective affiliates; (iii) without the prior written approval of the board of directors of the Issuer (the "Board"), effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or knowingly support, assist or facilitate any other person to effect or seek, offer or propose to effect, or cause or participate in, any (subject to certain exceptions) (a) tender offer or exchange offer, merger, acquisition or other business combination involving the Issuer or its subsidiaries; (b) form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Issuer or (c) form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (iv) as a result of acquiring beneficial ownership of any Voting Securities (as defined in the Agreement), become a beneficial owner of more than 10% of the Issuer's Common Stock. Further, pursuant to the Agreement, until the end of the Standstill Period, the Eminence Parties shall cause, in the case of all shares owned of record, and shall instruct the record owner, in the case that the Eminence Parties beneficially own, but does not own of record, such shares of Common Stock, to be present for quorum purposes and to be voted, at each meeting of stockholders (x) for all of the directors nominated by the Board for election and (y) in accordance with the recommendation of the Board on any proposals of any other stockholder of the Issuer that is also proposing one or more nominees for election to Board at such meeting.

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Eminence Capital, Definitive Agreement

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