As Filed with the Securities and Exchange Commission on September 19, 1996
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
MOTHERS WORK, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 13-3045573
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
456 North 5th Street
Philadelphia, Pennsylvania 19103
(215) 873-2200
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Rebecca C. Matthias, President
456 North 5th Street
Philadelphia, Pennsylvania 19103
(215) 873-2200
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effectiveness of this Registration Statement.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration number of the earlier effective registration statement for the same
offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities To Be Price Per Offering Registration
To be Registered Registered Share (1) Price (1) Fee
<S> <C> <C> <C> <C>
Common Stock 200,000 $15.00 $3,000,000.00 $1035.00
====================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933
solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED SEPTEMBER 19, 1996
PROSPECTUS
MOTHERS WORK, INC.
This Prospectus relates to the resale by the Selling Shareholders of a
total of 200,000 shares of Common Stock, $.01 par value per share (the "Common
Stock") of Mothers Work, Inc. (the "Company").
The Company will not receive any proceeds from the sale of shares of Common
Stock by Selling Shareholders. See "Selling Shareholders."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
PROSPECTIVE PURCHASERS SHOULD CONSIDER THE RISKS SET FORTH UNDER "RISK
FACTORS" COMMENCING ON PAGE 2.
The shares offered by the Selling Shareholders hereby will be sold at
market prices on The Nasdaq Stock Market ("Nasdaq") or in private sales at
prevailing market prices or negotiated prices. Selling Shareholders may pay
commissions or other compensation to broker-dealers in connection with such
sales, which may be in excess of customary commissions charged for Nasdaq
transactions. See "Selling Shareholders."
The Common Stock is traded on Nasdaq under the symbol MWRK. On September
16, 1996, the closing sales price of the Common Stock, as reported by Nasdaq,
was $15.00.
The date of this Prospectus is September ___, 1996
<PAGE>
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the Common Stock offered by this Prospectus.
Acquisition of New Business Line
Prior to the acquisition of Episode U.S.A., Inc. ("Episode") on May 30,
1996, the Company's sole business was as a specialty retailer of maternity
clothing. The Company has only been involved in the marketing and retailing of
bridge women's apparel and accessories since the acquisition of Episode. The
operations of the bridge women's apparel and accessories business will be
subject to numerous risks, unanticipated operating problems and lack of
experience. As a result of this limited experience in the bridge women's apparel
business, there can be no assurance that its intended activities will be
successful or result in profitable operations. In addition, the integration of
Episode will require substantial management time and other resources.
Leverage and Liquidity
The Company became highly leveraged after completion of the offering of
12 5/8% Senior Unsecured Notes (the "Notes") in 1995. As of June 30, 1996, the
Company's total indebtedness was approximately $99,097,830, its shareholders'
equity was approximately $37,007,219 and the Company's total assets were
approximately $162,601,587, of which approximately $48,229,444 would have been
intangible assets. As of June 30, 1996, the Company's consolidated EBITDA was
approximately $21,943,302; earnings available to cover fixed charges exceeded
fixed charges by approximately $5,219,486 and the ratio of EBITDA to interest
expense, net was 1.33.
Concurrent with the Episode acquisition, and in order to provide the
Company with additional borrowing capacity under its working capital revolving
line of credit facility with Meridian Bank ("Working Capital Facility"), the
Working Capital Facility was increased from $15.0 million to $20.0 million. The
Working Capital Facility expires in August 1998 and provides for a revolving
credit and letter of credit facility and for an additional $4.0 million letter
of credit to collateralize an Industrial Revenue Bond. The Company had $1.5
million in borrowings and $6.8 million in additional letters of credit issued
under the Working Capital Facility at June 30, 1996.
The Company's ability to satisfy its obligations will be dependent upon its
future performance, which is subject to general economic conditions and to
financial, business and other factors, including factors beyond the Company's
control There can be no assurance that the combination of the net proceeds from
the offering of Notes, internally generated funds, trade credit, and the
borrowing capacity under the Working Capital Facility will provide sufficient
capital resources to finance the Company's operations in the future, or that, if
there is a need for additional borrowings, that alterative sources of financing
would be available.
Dependence on Key Personnel
The success of the Company's business will continue to be dependent upon
Dan and Rebecca Matthias, the Chairman and Chief Executive Officer and the
President and Chief Operating Officer of the Company, respectively, and on other
key personnel. The Company believes that to succeed in the future it must
continue to attract, retain and motivate additional highly skilled
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<PAGE>
management personnel and store managers. The loss of key personnel or the
inability to attract and retain key employees in the future could have a
material adverse effect on the Company.
Competition
The maternity apparel industry and women's bridge apparel industry are
highly competitive with respect to price, quality and style of merchandise and
store location. The Company faces competition for customers and store locations
from various full-price maternity clothing chains, a number of off-price
specialty retailers and catalog retailers, as well as from local, regional and
national department stores and women's and, to some extent, men's clothing
stores, many of which have significantly greater financial and other resources
than the Company. The retailing business is affected by changes in consumer
tastes, demographic trends and the type, number and location of competing
stores. Additionally, since there are few barriers to entry into the retail
clothing business, the Company may face future competition from participants not
currently in the maternity market, such as certain large national specialty
stores and department store chains.
Fashion Risk
The women's apparel business (both maternity and bridge apparel) is
affected by changes in consumer tastes requiring the Company to keep up to date
on, and to some extent anticipate, emerging fashion trends. The failure to do so
may adversely affect the Company's operating results. With respect to maternity
apparel, the regular women's apparel market occasionally shifts toward
looser-fitting styles. During these times, pregnant women have a greater
opportunity to substitute regular market apparel for maternity wear. Such a
shift may adversely affect the Company's operating results.
Other Business Factors
The Company's future performance will be subject to a number of factors
beyond its control, including economic downturns and demographic changes. The
Company's business depends upon sustained demand for upscale maternity clothing.
In the event that such demand were to decline for any reason, such as a decrease
in the number of pregnancies among women in the Company's customer base, the
Company's operating results could be adversely affected.
USE OF PROCEEDS
The Company will receive no proceeds from any sales of Common Stock
hereunder by the Selling Shareholders.
THE COMPANY
Mothers Work, Inc. together with its subsidiaries is the largest specialty
retailer of maternity clothing in the United States. The Company operates 440
retail locations under the Mothers Work(R), A Pea in the Pod(R), Maternity
Works(R), Mimi Maternity(R), Maternite by Mothers Work(R) and
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<PAGE>
Motherhood(R) concepts offering a full range of career, casual and special
occasion maternity wear. The Company situates its stores primarily in regional
shopping malls and, to a lesser extent, in central business districts within
major metropolitan areas, and in factory-direct outlet centers. The Company is
vertically-integrated, performing design, manufacturing, distribution and sales
functions in-house.
The Company currently operates maternity retail stores under five store
concepts which, although having different merchandising and marketing
strategies, all sell clothing that is designed to meet an expecting mother's
entire lifestyle needs including her career requirements, as well as her casual
and special occasion needs. Mothers Work, the Company's original concept,
markets conservative yet fashionable clothing. Mimi Maternity, which was
developed in 1990, is designed to meet the needs of fashion forward women who
are willing to spend more to make a fashion statement. A Pea in the Pod markets
the most upscale of the Company's fashions including a premium or "bridge"
merchandise selection manufactured by the Company, including the Company's Mimi
Maternity line of clothing, and certain designer labels. Motherhood, the
Company's newest concept, markets a moderately-priced line of maternity clothing
in regional malls and department stores. Finally, Maternity Works, a chain of
factory-direct outlet stores, serves the woman who seeks upscale apparel during
her pregnancy but cannot or will not purchase at full retail prices.
Recently, the Company entered into a new line of business involving bridge
women's apparel and accessories. On May 31, 1996, the Company acquired Episode
U.S.A., Inc., a company involved in the bridge women's apparel and accessory
retail business. The Company currently operates 25 retail locations under the
Episode concept.
The principal executive office of the Company is located at 456 North 5th
Street, Philadelphia, Pennsylvania 19103 and its telephone number is (215)
873-2200.
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-3 with the
Securities and Exchange Commission (the "Commission") relating to the shares of
Common Stock offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement, certain portions of which
have been omitted pursuant to the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
securities offered hereby.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports and other information with the Commission. Proxy statements concerning
the Company, reports and other information filed by the Company can be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices in New York (7 World Trade Center, Suite 1300, New York, New York 10048)
and Chicago (Citicorp Center, 500 W. Madison St., Suite 1400, Chicago, Illinois
60661-2511). Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. In addition, registration statements and certain other filings
made with the Commission through its Electronic Data Gathering, Analysis and
Retrieval ("EDGAR") system are publicly available through the Commission's site
on the Internet's World Wide Web located at http://www.sec.gov. This
Registration Statement, including all exhibits thereto and amendments thereof,
has been filed with the Commission through EDGAR.
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<PAGE>
The Company will furnish, without charge, to any person to whom a copy of
this Prospectus is delivered, upon such person's written or oral request, a copy
of any and all of the documents that have been incorporated by reference in the
Registration Statement and herein (not including exhibits to such documents,
unless such exhibits are specifically incorporated by reference into such
documents). Any such request should be directed to the Vice President - Finance,
Mothers Work, Inc., 456 North 5th Street, Philadelphia, Pennsylvania 19103,
phone number: (215) 873-2200.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the year ended September
30, 1995.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1995, March 31, 1996 and June 30, 1996, and the Company's Current
Report or Form 8-K filed on June 17, 1996, and the amendments thereto, filed on
June 18, 1996 and August 14, 1996.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission, including any
amendments or reports filed for the purpose of updating such description.
(d) In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering shall be deemed to be incorporated by reference
herein from their respective dates of filing.
Any statements contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
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<PAGE>
SELLING SHAREHOLDERS
The following table sets forth the names of the Selling Shareholders and
certain information regarding the beneficial ownership of the Company's Common
Stock by the Selling Shareholders as of September 17, 1996, and as adjusted to
reflect the sale of the shares offered by this Prospectus:
<TABLE>
<CAPTION>
Number of Beneficial Ownership
Shares After Offering
Beneficially ----------------------
Owned Prior To Number of Number of Percentage (if
Name Offering Shares Offered Shares greater than 1%)
---- -------- -------------- ------ ----------------
<S> <C> <C> <C> <C>
Strathclyde Pension Fund 8,600 7,400 1,200 ___
- Smaller Overseas Portfolio
Fleming American Investment 32,200 26,400 5,800 ___
Trust PLC
Fleming Fledgling Investment 6,500 5,600 900 ___
Trust PLC
Fleming Overseas Investment 15,800 13,700 2,100 ___
Trust PLC
Fleming Select American Smaller 7,000 6,100 900 ___
Companies Fund
S&P American Smaller 57,500 50,700 6,800 ___
Companies Fund
FFF American Fledgling 80,300 69,500 10,800 ___
Fund
FFF US Discovery Fund 163,600 20,600 143,000 4.0%
</TABLE>
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<PAGE>
PLAN OF DISTRIBUTION
The Selling Shareholders or their pledgees, donees, transferees or other
successors in interest, may sell all, a portion or none of the securities
offered by them hereby from time to time. Any such sales may be in one or more
transactions on Nasdaq at prices prevailing at the times of such sales or in
private sales of the securities at prices related to the prevailing market
prices or at negotiated prices. The sales may involve (a) a block transaction in
which the broker or dealer so engaged will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to facilitate
the transaction, (b) a purchase by a broker or dealer as principal and resale by
such broker or dealer for its account pursuant to this Prospectus, or
(c) ordinary brokerage transactions in which the broker solicits purchasers.
Broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions (which compensation may be in excess of customary
commissions). The Selling Shareholders and any broker-dealers that participate
in the distribution of the shares may be deemed to be underwriters and any
commissions received by them and any profit on the resale positioned by them
might be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the "Act").
There can be no assurance that the Selling Shareholders will sell any or
all of their shares of Common Stock offered hereby. The Company will receive no
proceeds from any sales of Common Stock hereunder by the Selling Shareholders.
The Registration Statement of which this Prospectus is a part has been
filed with the Commission by the Company in accordance with certain subscription
agreements between the Company and certain of the Selling Shareholders, pursuant
to which the Company has agreed to pay the filing fees, costs and expenses
associated with such Registration Statement. The Company has also agreed to
indemnify such Selling Shareholders for certain civil liabilities in connection
with such Registration Statement and the securities offered hereby, including
liabilities under the Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for
the Company by Pepper, Hamilton & Scheetz, 3000 Two Logan Square, Philadelphia,
PA 19103. Elam M. Hitchner, III, a partner of Pepper, Hamilton & Scheetz, and a
member of the Company's Board of Directors, owns options to purchase 6,000
shares of Common Stock.
EXPERTS
The consolidated financial statements of Mothers Work, Inc. included in
Mothers Work, Inc.'s Annual Report (Form 10-K) for the year ended September 30,
1995, have been audited by Arthur Andersen LLP, independent public accountants,
as indicated in their report with respect thereto, and incorporated by reference
herein in reliance upon the authority of said firm as experts in accounting and
auditing in giving said reports.
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<PAGE>
=========================================================================
No dealer, salesman or other person has been authorized to give
any information or to make any representations other than those
contained in this Prospectus in connection with the offer made
hereby, and, if given or made, such information or
representations must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, the securities
offered hereby to any person in any state or other jurisdiction
in which such offer or solicitation is unlawful. The delivery of
this Prospectus at any time does not imply that information
contained herein is correct as of any time subsequent to its
date.
- -------------------
TABLE OF CONTENTS
Page
----
Risk Factors............................................2
Use of Proceeds.........................................3
The Company.............................................3
Available Information...................................4
Incorporation of Certain
Documents by Reference................................5
Selling Shareholders....................................6
Plan of Distribution....................................7
Legal Matters...........................................7
Experts.................................................7
MOTHERS WORK, INC.
- -------------------
PROSPECTUS
- -------------------
September __, 1996
=========================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee...................... $ 1,035.00 *
Accounting fees and expenses.............. $ 4,000.00**
Legal fees and expenses................... $ 5,000.00**
Miscellaneous............................. $ 250.00**
----------
Total................................ $10,285.00**
==========
* Actual
** Estimated
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if such
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. In the case of an action other than an action by or in the right
of the corporation, the termination of such action by judgment, order,
settlement, conviction, or upon plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
In the case of an action by or in the right of the
corporation, Section 145 empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action in any of the capacities set forth above against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, except that indemnification is not permitted in
respect of any claim, issue or matter as to which such person is adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery, or the court in which such action or suit was brought determines
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
deems proper.
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<PAGE>
Section 145 further provides: that a Delaware corporation is
required to indemnify a director, officer, employee or agent against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with any action, suit or proceeding or in defense of any claim, issue
or matter therein as to which such person has been successful on the merits or
otherwise; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
that indemnification provided for by Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer against any
such liability asserted against him in any such capacity or arising out of his
status as such whether or not the corporation would have the power to indemnify
him against liability under Section 145. A Delaware corporation may provide
indemnification only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct. Such
determination is to be made (i) by the board of directors by a majority vote of
a quorum consisting of directors who were not party to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by stockholders.
Article Twelve of the Company's Certificate of Incorporation
provides that the Company shall, to the full extent permitted by the Delaware
General Corporation Law, as amended from time to time, indemnify all persons
which it has the power to indemnify pursuant thereto. In addition, Article V,
Section 1 of the Company's By-Laws provides that each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another Company or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, shall be indemnified and held harmless by the Company to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights that said law permitted the Company to provide prior to
such amendment), against all expenses (including attorneys' fees, judgments,
fines and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith. Article V, Section 5 of the
By-Laws provides that expenses incurred by an officer or director in defending a
civil, criminal, administrative or investigative action, suit or proceeding may
be paid by the Company in advance of final disposition upon receipt of an
undertaking by or on behalf of such person to repay such amount if it ultimately
is determined that he is not entitled to be indemnified by the Company. The
Company may, by action of its Board of Directors, provide indemnification to
employees and agents of the Company with the same scope and effect as the
foregoing indemnification of directors and officers. The foregoing right to
indemnification and advancement of expenses is not exclusive.
The directors and officers of the Company and its subsidiaries
are covered by policies of insurance under which they are insured, within limits
and subject to certain limitations, against certain expenses in connection with
the defense of actions, suits or proceedings, and certain liabilities which
might be imposed as a result of such actions, suits or proceedings, in which
they are parties by reason of being or having been directors or officers; the
Company ius similarly insured, with respect to certain payments it might be
required to make to its directors or officers under the applicable statutes and
its charter provisions.
II-2
<PAGE>
Additionally, Article Thirteen of the Company's Certificate of
Incorporation limits the liability of the Company's directors under certain
circumstances. Article Thirteen states that a director of the company shall have
no personal liability to the Company or its stockholders for monetary damages
for breach of his fiduciary duty as a director, provided, however, that Article
Thirteen does not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Company or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of a law; (iii) for the unlawful payment of
dividends or unlawful stock repurchases under Section 174 of the General
Corporation Law of the State of Delaware; or (iv) for any transaction from which
the director derived an improper personal benefit.
For the undertakings with respect to indemnification, see Item
17 herein.
Item 16. Exhibits
5 Opinion of Pepper, Hamilton & Scheetz
23.1 Consent of Arthur Andersen LLP (included on page II-5).
23.2 Consent of Pepper, Hamilton & Scheetz (to be included in Exhibit 5).
24 Power of Attorney (included on pages II-6 and II-7).
- ----------------------
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the provisions discussed in Item
15 of this Registration Statement, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement: (i) to include any prospectus required
by Section 10(a)(3) of the Act; (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement (notwithstanding the foregoing, any increase or decrease
in volume of Securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement); and (iii) to
include any material
II-3
<PAGE>
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement; provided, however, that clauses (i) and (ii) above do
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement; (2) that, for
the purpose of determining any liability under the Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated
November 14, 1995 included in Mothers Work, Inc.'s Form 10-K for the year ended
September 30, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Philadelphia, Pa.
September 13, 1996
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Philadelphia, Pennsylvania, on September 19, 1996.
MOTHERS WORK, INC.
By: /s/ DAN W. MATTHIAS
-------------------------------
Dan W. Matthias, Chairman of
the Board and Chief Executive
Officer (the principal executive
officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Dan W. Matthias and Rebecca C.
Matthias, and each or any of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, or any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons on
September 19, 1996 in the capacities indicated.
/s/ DAN W. MATTHIAS
------------------------------------
Dan W. Matthias, Chairman of
the Board and Chief Executive
Officer (the principal
executive officer)
/s/ REBECCA C. MATTHIAS
------------------------------------
Rebecca C. Matthias, President,
Chief Operating Officer and Director
[EXECUTIONS CONTINUED]
II-6
<PAGE>
/s/ THOMAS FRANK
----------------------------
Thomas Frank, Vice President
Finance and Chief Accounting
Officer (the principal
financial officer and the
principal accounting
officer)
/s/ VERNA K. GIBSON
----------------------------
Verna K. Gibson, Director
/s/ JOSEPH A. GOLDBLUM
----------------------------
Joseph A. Goldblum, Director
/s/ ELAM M. HITCHNER, III
----------------------------
Elam M. Hitchner, III, Director
/s/ WALTER F. LOEB
----------------------------
Walter F. Loeb, Director
/s/ MARSHA R. PERELMAN
----------------------------
Marsha R. Perelman, Director
/s/ WILLIAM L. RULON-MILLER
----------------------------
William L. Rulon-Miller, Director
II-7
EXHIBIT 5
September 19, 1996
Mothers Work, Inc.
456 N. 5th Street
Philadelphia, PA 19103
Gentlemen:
We have acted as special counsel to Mothers Work, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") of a
registration statement (the "Registration Statement") of the Company on Form S-3
under the Securities Act of 1933, as amended (the "Act"). The Registration
Statement registers the proposed offer and sale by certain shareholders of the
Company (the "Selling Shareholders") of 200,000 shares (the "Shares") of the
Company's Common Stock, par value $.01 per share (the "Common Stock").
In connection with our representation of the Company, we have
examined the Registration Statement, including the exhibits thereto, the
originals or copies, certified or otherwise identified to our satisfaction, of
the Certificate of Incorporation and the By-Laws of the Company, as amended to
date, resolutions of the Company's Board of Directors and such other documents
and corporate records relating to the Company and the initial issuance and sale
of the Shares as we have deemed appropriate. In the foregoing examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as copies of originals. The opinion expressed herein
is based exclusively on the applicable provisions of the laws of the United
States of America and the Delaware General Corporation Law as in effect on the
date hereof.
On the basis of the foregoing, we are of the opinion that the
Shares have been validly issued and are fully paid and nonassessable.
We hereby consent to the reference to our firm under the
caption "Legal Matters" in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement. Such consent does not
constitute a consent under Section 7 of the Act, since we have not certified any
part of such Registration Statement and do not otherwise come within the
categories of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
PEPPER, HAMILTON & SCHEETZ
