Exhibit 10.1


 


MOTHERS WORK, INC.


CONFIDENTIALITY
AGREEMENT


 


March 10, 2008


 


Crescendo Partners II, L.P., Series K


Crescendo Investments II, LLC


Crescendo Partners III, L.P.


Crescendo Investments
III, LLC


825 Third Avenue, 40th
Floor


New York, NY 10022


 


Dear Sir or Madam:


 


You may have access to certain information concerning the business,
financial condition, operations, assets and liabilities of Mothers Work, Inc.
(the “Company”) which is confidential non-public information (“Company
Information”).  You and your directors,
partners, officers, employees, agents, affiliates and advisors (including,
without limitation, attorneys, accountants, consultants, bankers and financial
advisors) (collectively “Representatives”) agree to treat any Company
Information which has been or is furnished or otherwise disclosed to you by the
Company or its Representatives in accordance with the provisions of this letter
agreement, and to take or abstain from taking certain other actions hereinafter
set forth.


 


The term “Company Information” also shall be deemed to include all
notes, analyses, compilations, studies, interpretations or other documents
prepared by you or your Representatives which contain, reflect, or are based
upon, in whole or in part, the information furnished or otherwise disclosed to
you or your Representatives by the Company or its Representatives.  The term “Company Information” does not
include information which: (i) is or becomes generally available to the
public other than as a result of a disclosure by you or your Representatives; (ii) was
within your possession prior to its being furnished to you by or on behalf of
the Company, provided that the source of such information was not known by you
to be bound by a confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, the Company or any other party with
respect to such information; (iii) becomes available to you on a
non-confidential basis from a source other than the Company or any of its
Representatives, provided that such source is not known by you to be bound by a
confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, the Company or any other party with respect
to such information; or (iv) was independently developed by you or any of
your Representatives without reference to or use of the Company Information.


 

















 


You hereby agree that you and your Representatives will keep
confidential all Company Information and that you and your Representatives will
not disclose any of the Company Information in any manner whatsoever unless the
Company gives its prior consent to disclosure of such information; provided, however,
Mr. Ajdler, so long as he is a member of the Company’s Board of Directors,
will be subject to the same requirements regarding confidentiality of Company
Information as applicable to all other members of the Board of Directors. 
In any event, you shall be responsible for any breach of this letter
agreement by any of your Representatives.


 


In the event that you or any of your Representatives are requested or
required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Company Information, you shall provide
the Company with prompt written notice of any such request or requirement so
that the Company may, if available, seek a protective order or other appropriate remedy
and/or waive compliance with the provisions of this letter agreement.  If, in the absence of a protective order or
other remedy or the receipt of a waiver by the Company, you or any of your
Representatives are nonetheless, based upon the advice of your outside counsel,
legally compelled to disclose Company Information to any tribunal or else stand
liable for contempt or suffer other censure of penalty, you or your
Representatives may, without liability hereunder, disclose to such tribunal
only that portion of the Company Information, including, without limitation, by
cooperating with the Company to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Company
Information by such tribunal.


 


At any time upon the request of the Company for any reason, and upon
termination of our relationship, you will promptly deliver to the Company all
Company Information (and all copies thereof) furnished to you or any of your
Representatives by or on behalf of the Company pursuant hereto.  In the event of such a decision or request,
all other Company Information prepared by you or any of your Representatives
shall be destroyed and no copy thereof shall be retained.  Notwithstanding the return or destruction of
the Company Information, you and your Representatives will continue to be bound
by your obligations of confidentiality and other obligations hereunder.


 


You hereby agree that if and only as long as Arnaud Ajdler or any of
your other Representatives is a member of the Company’s Board of Directors,
neither you nor any of your affiliates (as defined in rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), will (and
you and they will not assist or encourage others to), directly or indirectly,
unless specifically requested in writing to do so in advance or consented prior
thereto in writing by the Company: (a) take any action that would result
in a Triggering Event, as defined in the Amended and Restated Rights Agreement,
dated as of October 9, 2005, between the Company and StockTrans, Inc.,
as the same may be amended or replaced from time to time; (b) seek to
inspect, by demand, legal proceeding, or otherwise, for any purpose, the
Company’s books and records or otherwise seek to exercise any rights under Section 220
of the Delaware General Corporation Law; (c) propose that any action be
taken by the stockholders of the Company, whether at a meeting of stockholders,
by written consent, or otherwise; (d) make, or in


 


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any way participate in, any “solicitation” of “proxies”
(as such terms are defined under Regulation 14A of the Exchange Act) to vote or
seek to advise or influence in any manner whatsoever any person or entity with
respect to the voting of any securities of the Company; or (e) enter into
any discussions, negotiations, arrangements or understandings with or advise,
assist or encourage any third party with respect to any of the actions
discussed in the foregoing clauses (a) through (d);  provided, however,
that nothing herein will limit the ability of Mr. Ajdler to (i) review
the Company’s books
and records in his capacity as a member of the Company’s Board of Directors, (ii) propose
to other members of the Board of Directors that certain actions be taken by the
stockholders confidentially and in his capacity as a member of the Board of
Directors or (iii) exercise his 
rights as a member of the Board of Directors while serving as a member
of the Board of Directors.


 


It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.


 


It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such
breach.  Such remedies shall not be
deemed to be the exclusive remedies for a breach by you of this letter
agreement but shall be in addition to all other remedies available at law or
equity to the Company.  In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that you or any of your Representatives have breached
this letter agreement, then you shall be liable and pay to the Company the
reasonable legal fees incurred by the Company in connection with such
litigation, including any appeal therefrom.


 


The Company has agreed to reimburse you for your
reasonable out-of-pocket fees and expenses incurred on or before the date
hereof in connection with your Schedule 13D, and the negotiation and execution
of this Agreement and all related activities and matters, provided that such
reimbursement will not exceed $15,000 in the aggregate.


 


This letter agreement is for the benefit of the Company, and its
directors, officers, stockholders, owners, affiliates, and agents, and shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to its principles or rules regarding conflicts of
laws.


 


You hereby acknowledge that you are aware, and that you will advise
your Representatives, that the United States securities laws prohibit any
person who has received material, non-public information which is the subject
of this letter agreement from purchasing or selling securities of the Company or
from communicating such information to any other person under circumstances in
which it is reasonably foreseeable that such person is likely to purchase or
sell such securities.


 


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Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement among you and the Company.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  MOTHERS WORK, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dan W. Matthias

  
	
   

  	
   

  	
  Name: Dan W. Matthias

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 


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  Accepted and agreed as
  of the date first written above:

  	
   

  
	
   

  	
   

  	
   

  
	
  CRESCENDO PARTNERS II,
  L.P., SERIES K

  	
   

  
	
  By:

  	
  Crescendo Investments
  II, LLC

  	
   

  
	
   

  	
  General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Eric Rosenfeld

  	
   

  
	
   

  	
  Name: Eric Rosenfeld

  	
   

  
	
   

  	
  Title: Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
  CRESCENDO INVESTMENTS
  II, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Eric Rosenfeld

  	
   

  
	
   

  	
  Name: Eric Rosenfeld

  	
   

  
	
   

  	
  Title: Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
  CRESCENDO PARTNERS III, L.P.

  	
   

  
	
  By:

  	
  Crescendo Investments
  III, LLC

  	
   

  
	
   

  	
  General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Eric Rosenfeld

  	
   

  
	
   

  	
  Name: Eric Rosenfeld

  	
   

  
	
   

  	
  Title: Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
  CRESCENDO INVESTMENTS
  III, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Eric Rosenfeld

  	
   

  
	
   

  	
  Name: Eric Rosenfeld

  	
   

  
	
   

  	
  Title: Managing Member

  	
   

  



 


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