Exhibit 10.2


 


RESTRICTIVE COVENANT AGREEMENT


 


THIS RESTRICTIVE COVENANT AGREEMENT (this “Agreement”)
is entered into by and between Mothers Work, Inc., a Delaware corporation
(the “Company”) and the undersigned individual (the “Employee”).


 


WHEREAS, in the course of his or her employment (or
continued employment) with the Company, the Employee will be provided with
access to the Company’s trade secrets and confidential information; and


 


WHEREAS, in an effort to protect the Company’s trade
secrets and confidential information, amongst other reasons, the Company and
the Employee desire to set forth in writing certain terms and conditions of
their employment relationship including, but not limited to, restrictions
imposed upon the Employee pertaining to use by the Employee of such
information.


 


NOW, THEREFORE, intending to be legally bound
hereby, the parties hereto agree as follows:


 


1.                                      CONFIDENTIAL INFORMATION: 
Confidential Information means information which the Company regards as
confidential or proprietary and which the Employee learns or develops during or
related to his or her employment, including, but not limited to, information
relating to:


 


a.              the Company’s products, suppliers, pricing,
costs, sourcing, design, fabric and distribution processes;


b.             the Company’s marketing plans and
projections;


c.              lists of names and addresses of the Company’s
employees, agents, factories and suppliers;


d.             the methods of importing and exporting used
by the Company;


e.              manuals and procedures created and/or used by
the Company;


f.                trade secrets or other information that is
used in the Company’s business, and which give the Company an opportunity to
obtain an advantage over competitors who do not know such trade secrets or how
to use the same; and


g.             software in various stages of development
(source code, object code, documentation, flow charts), specifications, models,
data and customer information.


 


The Employee assigns to Company any rights he or she
may have in any Confidential Information. 
The Employee shall not disclose any Confidential Information to any
third-party or use any Confidential Information for any purposes other than as
authorized by the Company.


 


The Employee agrees not to disclose to Company or
use for its benefit any confidential information that he or she may possess
from any prior employers or other sources.


 


2.                                      SURRENDER OF MATERIALS:  The
Employee hereby agrees to deliver to the Company promptly upon request or on
the date of termination of the Employee’s employment, all documents, copies
thereof and other materials in the Employee’s possession pertaining to the
business of the Company and its customers, including, but not limited to,
Confidential Information (and each and every copy, disk, abstract, summary or
reproduction of the same made by or for the Employee or acquired by the


 

















 


Employee). 
The Employee will be responsible for the value of all Company or
customer property that is not timely returned. 
The Employee authorizes the Company to deduct the fair market value of
such property from any monies owed to him or her.


 


3.                                      NON-COMPETITION AND NON-SOLICITATION:  The
Employee acknowledges that the Company has developed and maintains at great
expense, a valuable supplier network, supplier contacts, many of which are of
longstanding, product designs, and other information of the type described in
paragraph 1 of this Agreement, and that in the course of his or her employment
(or continued employment) by the Company, the Employee will be given
Confidential Information concerning such suppliers and products, including
information concerning such suppliers’ purchasing personnel, policies,
requirements, and preferences, and such product’s design, manufacture and
marketing.


 


a.              Accordingly, the Employee agrees that during
the period of his or her service with the Company and its affiliates, and for
the twenty-four (24) month period following immediately thereafter (regardless
of the reason for the cessation of such service and regardless of whether such
cessation was initiated by the Company or the Employee), the Employee will not
directly or indirectly:


 


(i) on the Employee’s behalf, or on behalf of
any other person or entity, perform any act with respect to the design,
manufacture, sale, attempted sale or promotion of the sale of any Conflicting
Product.


 


(ii) own, manage, operate, finance, join,
control, or participate in the ownership, management, operation, financing or
control of, or be connected as an officer, director, employee, partner,
principal, agent, representative, or consultant, or use or permit the Employee’s
name to be used in connection with:  (a) any
entity offering for sale or contemplating offering for sale any Conflicting
Product, (b) any Competing Business, or (c) any entity which would
require by necessity use of Confidential Information.


 


The term “Conflicting Product” shall mean any
product, process or service which is the same as, similar to, or in any manner
competitive with any Company product (which includes third-party products that
are distributed by Company), process, or service.  Conflicting Product includes, but is not
limited to maternity and nursing apparel and related accessories.


 


The term “Competing Business” shall mean any
business or enterprise engaged in the design, manufacture or sale of any
maternity or nursing apparel or related accessories, or in any other business
engaged in by the Company at the time of Employee’s termination of employment
from the Company within:  (x) a
state or commonwealth of the United States or the District of Columbia, or (y) any
foreign country, in which the Company has engaged in any such business within
the prior year or has undertaken preparations to engage.


 


b.  During the period of Employee’s service with
the Company and its affiliates, and for the twenty-four (24) month period
following immediately thereafter, the Employee will not induce, attempt to
induce (or in any way assist any other person in inducing or attempting to
induce) any employee, consultant, supplier, licensor, licensee, contractor,
agent, strategic partner, distributor or other person to terminate or modify
any agreement, arrangement, relationship or course of dealing with the Company.


 


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Further, during such period Employee will not
directly or indirectly, on Employee’s own behalf or on behalf of any other
person or entity, employ or solicit for employment any current or former
Company employee or agent.


 


c.              The Employee acknowledges that any breach by
him or her of the provisions of this Section 3 (the “Restrictive Covenants”),
whether or not willful, will cause continuing and irreparable injury to the
Company for which monetary damages alone would not be an adequate remedy.  The Employee shall not, in any action or
proceeding to enforce the Restrictive Covenants, assert the claim or defense
that such an adequate remedy at law exists.  If there is a breach or threatened breach of
any of the Restrictive Covenants, or any other obligation contained in this
Agreement, the Company shall be entitled to an injunction restraining the
Employee from any such breach without the necessity of proving actual damages,
and the Employee waives the requirement of posting a bond.  Nothing herein, however, shall be construed
as prohibiting the Company from pursuing other remedies for such breach or
threatened breach.


 


d.             The Employee agrees to disclose the existence
and terms of the Restrictive Covenants to any person for whom the Employee
performs services for during the 24 month period immediately following any
cessation of his or her service with the Company and its affiliates.


 


e.              The Employee acknowledges that the
Restrictive Covenants are reasonable and necessary to protect the legitimate
interests of the Company and its affiliates, that the duration and scope of the
Restrictive Covenants are reasonable given the Employee’s position within the
Company, and that the Company would not have promoted the Employee, entered
into that certain Employment Agreement between the Company and the Employee
dated on or about the date hereof (the “Employment Agreement”) or otherwise
agreed to provide the increased benefits and compensation described in the
Employment Agreement in the absence of the Employee’s execution of this
Agreement.


 


4.                                      OTHER CONDITIONS OF EMPLOYMENT:  The
Employee shall be subject to other terms and conditions of employment as set
forth in the prevailing Company: a) Team Member Handbook, b) insider trading
policies, and c) any other Company policies, all of which shall be subject to
interpretation and change from time to time at the sole discretion of the
Company.


 


5.                                      GOVERNING LAW AND RELATED MATTERS:  This
Agreement shall be governed by and construed and enforced in accordance with
the laws of the Commonwealth of Pennsylvania. 
The Employee agrees that in the event of any violation of this
Agreement, or any other matter arising out of or relating to this Agreement, an
action may be removed to or commenced by the Company in any federal or state
court of competent jurisdiction in the Commonwealth of Pennsylvania.  The Employee hereby waives, to the fullest
extent permitted by law, any objection that he or she may now or hereafter have
to such jurisdiction or to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that such suit, action or proceeding
has been brought in an inconvenient forum. 
The Employee agrees that effective service of process may be made upon
Employee by mail to any address Employee has provided to Company.  In the event the Company files suit against
the Employee for any reason, or in the event the Company is otherwise involved
in litigation concerning this Agreement or


 


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the employment relationship between the parties, and
a court of competent jurisdiction finds in favor of the Company on any such
matter, the Employee shall reimburse the Company its reasonable costs and
attorney’s fees incurred in connection with such suit.


 


The various parts of this Agreement are intended to
be severable.  Should any part be
rendered or declared invalid be reason of any legislation or by a decree of a
court of competent jurisdiction, such part shall be deemed modified to the
extent required by such legislation or decree and the invalidation or
modification of such part shall not invalidate or modify the remaining parts
hereof.  Without limiting the generality
of the foregoing, if the scope of any covenant contained in this Agreement is
too broad to permit enforcement to its full extent, such covenant shall be
enforced to the maximum extent permitted by law.  The Employee agrees that such scope may be
judicially modified accordingly.


 


6.                                      ASSIGNMENT:  The Company may assign its
rights under this Agreement to any affiliate or to any successor to its assets
and business by means of liquidation, dissolution, sale of assets or
otherwise.  The obligations of Employee
hereunder are personal to him or her and may not be assigned.


 


7.                                      ENTIRE AGREEMENT:  This
Agreement, together with the Employment Agreement, represents the full and
complete understanding between the Company and the Employee with respect to the
subject matter hereof and supersedes all prior representations and
understandings, whether oral or written and, except as provided for herein,
shall not be modified except upon written amendment executed by Employee and an
officer of Company holding the position of Vice President or above.


 


8.                                      ACKNOWLEDGMENTS:  The
Employee acknowledges that he or she was provided with an ample opportunity to
read, ask questions, seek clarification, and seek counsel with respect to this
Agreement before executing it.  The
Employee acknowledges that he or she has read this Agreement in its entirety
and understands all of its terms and conditions.  Finally, Employee acknowledges receipt of a
signed copy of this Agreement.


 


IN WITNESS WHEREOF, the parties have each executed
this instrument on the day and year written below, respectively.


 


	
  Mothers Work, Inc.

  	
   

  	
  Employee

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Edward M. Krell

  	
   

  	
  By:

  	
   /s/ Judd P. Tirnauer

  
	
  Title:

  	
   Chief Operating Officer

  	
   

  	
  Printed Name:

  	
  Judd P. Tirnauer

  
	
  Date:

  	
   July 23, 2008

  	
   

  	
  Date:

  	
   July 23, 2008

  
	
  Executed At:

  	
    Philadelphia, PA

  	
   

  	
  Executed At:

  	
    Philadelphia, PA

  
										



 


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