Jos. A. Bank Clothiers Inc. Sunday stepped up the rhetoric in its resistance to The Men’s Wearhouse Inc.’s $1.61 billion cash tender offer, accusing its rival’s directors of both inconsistency and failure to meet their fiduciary obligations.

This story first appeared in the February 3, 2014 issue of WWD. Subscribe Today.

The sharply worded letter was in response to one MW sent to Bank’s independent directors on Thursday. In its letter Sunday, Hampstead, Md.-based Bank declined to form a special committee to consider the MW proposal to pay Bank shareholders $57.50 a share. Bank noted that a “substantial majority” of the board — all but two of its seven members, chairman Robert Wildrick and president and chief executive officer Neal Black — are independent and that allegations of a conflict of interest are “baseless.”

Bank’s board also questioned how MW, wary of possible antitrust concerns when Bank fired the first shot in the battle of the two men’s wear retailers with its offer to take over MW back in October, could be unconcerned about them now that it’s pursuing Bank.

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“Men’s Wearhouse has yet to explain why the concerns it raised just seven weeks before its offer for Jos. A. Bank do not apply to its offer for Jos. A. Bank,” the letter read.

Furthermore, Bank’s directors wondered how the Federal Trade Commission’s second request for information from MW about its tender offer for Bank could have been “expected,” as MW said in its letter last week. “Our two companies’ stockholders should understand that second requests are issued in less than 2 percent of all transactions filed with the government and a high percentage of those transactions are never completed,” the Bank letter asserted. “If you were expecting a second request, why did you not warn investors that this was likely to occur?”

The latest salvo from Bank came as rumblings continued about its interest in making an acquisition — either of MW or someone else.

Officials at both Bank and Destination XL Group Inc. denied reports that Bank was interested in acquiring the big and tall specialty retailer. Meanwhile, representatives at Bank and Financo Inc., which is advising Bank, had no comment on a Wall Street Journal report that Bank was in discussions about buying Eddie Bauer, the majority of which is owned by Golden Gate Capital.

Golden Gate was set to provide financing for Bank in its pursuit of a $2.4 billion acquisition of MW, the first act in the face-off between the two retailers. Officials at Golden Gate couldn’t be reached for comment.

Bank also took aim Sunday at Eminence Capital, the activist investment firm headed by ceo Ricky Sandler that is MW’s largest shareholder, with 9.9 percent of its shares, and also holds a 4.9 percent stake in Bank.

Eminence clearly wants MW and Bank to become a single entity and has agitated for talks between the two. On Jan. 22, Eminence said it had nominated Bruce Klatsky and Norman Matthews to run for seats on Bank’s board if for any reason the two nominees advanced by MW, Arthur Reiner and John Bowlin, are not in the running for the two slots at the time of Bank’s annual meeting later this year.

The seats in play are currently occupied by Wildrick and Black, who are scheduled to stand for reelection later this year.

Bank’s directors said in their nearly 1,100-word letter Sunday that Eminence “has been arguing first for Jos. A. Bank’s acquisition of Men’s Wearhouse and then Men’s Wearhouse’s acquisition of Jos. A. Bank in order to avoid a potentially large loss on its high-risk arbitrage play, buying Men’s Wearhouse shares betting that a deal would happen.”

Before making its offer to buy Bank for $1.61 billion through a tender offer to shareholders, MW in November offered to buy its rival for $55 a share, or $1.54 billion, a bid rejected on Dec. 23.

Eminence had no comment at press time.

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