MOTHERS WORK, INC. CONFIDENTIALITY AGREEMENT
Exhibit
99.1
MOTHERS
WORK, INC.
March 10,
2008
Crescendo
Partners II, L.P., Series K
Crescendo
Investments II, LLC
Crescendo
Partners III, L.P.
Crescendo
Investments III, LLC
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
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.
CRESCENDO PARTNERS II, LP
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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
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
CRESCENDO PARTNERS II, LP
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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.
CRESCENDO PARTNERS II, LP
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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.
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Very
truly yours,
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MOTHERS
WORK, INC.
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By:
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/s/
Xxx X. Xxxxxxxx
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Name:
Xxx X. Xxxxxxxx
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Title:
Chief Executive Officer
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CRESCENDO PARTNERS II, LP
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Accepted
and agreed as of the date first written above:
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CRESCENDO
PARTNERS II, L.P., SERIES K
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By:
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Crescendo
Investments II, LLC
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General
Partner
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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CRESCENDO
INVESTMENTS II, LLC
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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CRESCENDO
PARTNERS III, L.P.
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By:
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Crescendo
Investments III, LLC
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General
Partner
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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CRESCENDO
INVESTMENTS III, LLC
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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