Orchestra Premaman : AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

Execution Copy

AGREEMENT AND PLAN OF MERGER

Among

DESTINATION MATERNITY CORPORATION, ORCHESTRA-PRÉMAMAN S.A.

and

US OP CORPORATION

Dated as of December 19, 2016

TABLE OF CONTENTS

Page

ARTICLE I The Merger 2

1. The Merger 2

2. Closing 2

3. Effective Time 2

4. The Certificate of Incorporation of the Surviving Corporation 2

5. The Bylaws of the Surviving Corporation 3

6. Directors of the Surviving Corporation 3

7. Officers of the Surviving Corporation 3

ARTICLE II Merger Consideration; Effect of the Merger on Capital Stock 3

1. Merger Consideration; Conversion of Shares of Company Common Stock 3

2. Conversion of Shares of Company Common Stock 3

3. Cancellation of Excluded Shares 3

4. Merger Sub; Surviving Corporation 3

5. Treatment of Stock Plans. 4

6. Tax Consequences of the Merger 5

ARTICLE III Delivery of Merger Consideration; Procedures for Surrender 5

1. Exchange Agent 5

2. Procedures for Surrender 6

3. Distributions with Respect to Unexchanged Shares of Company Common Stock; Voting 7

4. Transfers 7

5. Fractional ADSs 8

6. Termination of Exchange Fund 8

7. Lost, Stolen or Destroyed Certificates 9

8. Withholding Rights 9

9. Adjustments to Prevent Dilution 9

ARTICLE IV Representations and Warranties of Parent and the Company 9

1. Disclosure Letters; Standards 9

2. Representations and Warranties of Parent and the Company 10

ARTICLE V Representations and Warranties of Parent Regarding Merger Sub 26

5.1. Representations and Warranties of Parent Regarding Merger Sub 26

ARTICLE VI Covenants 27

1. Interim Operations 27

2. Acquisition Proposals; Change of Recommendation 31

3. Proxy/Prospectus Filing; Securities Note; Information Supplied 34

4. Stockholders/Shareholders Meetings 35

5. Cooperation; Efforts to Consummate 36

6. Status 38

7. Information; Access and Reports 38

8. Establishment of ADR Facility; Stock Exchange Listing and Delisting; Deregistration 39

9. Publicity 40

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10. Employee Benefits 40

11. Certain Tax Matters 42

12. Expenses 42

13. Indemnification; Directors' and Officers' Insurance 43

14. Takeover Statutes 44

15. Section 16 Matters 44

16. Stockholder Litigation 44

17. Transition Planning 44

ARTICLE VII Conditions 45

1. Conditions to Each Party's Obligation to Effect the Merger 45

2. Conditions to Obligations of Parent and Merger Sub to Effect the Merger 45

3. Conditions to Obligation of the Company to Effect the Merger 46

4. Frustration of Closing Conditions 46

ARTICLE VIII Termination 47

1. Termination 47

2. Effect of Termination and Abandonment 48

ARTICLE IX Miscellaneous and General 50

1. Survival 50

2. Amendment; Waiver 50

3. Counterparts 50

4. Governing Law and Venue; Submission to Jurisdiction; Selection of Forum;

   Waiver of Trial by Jury 51

5. Specific Performance 51

6. Notices 52

7. Definitions 53

8. Entire Agreement 61

9. Transfer Taxes 61

10. Third Party Beneficiaries 61

11. Fulfillment of Obligations 61

12. Severability 62

13. Interpretation; Construction 62

14. Successors and Assigns 63

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AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 19, 2016, is by and among Destination Maternity Corporation, a Delaware corporation (the "Company"), Orchestra-Prémaman S.A., a société anonyme organized under the laws of France ("Parent"), and US OP Corporation, a Delaware corporation and a direct wholly owned Subsidiary of Parent ("Merger Sub," with Parent, the Company and Merger Sub sometimes being hereinafter referred to individually as a "Party" and collectively referred to as the "Parties"). Capitalized terms, to the extent not otherwise defined, have the meanings ascribed to them in Section 9.7.

RECITALS

WHEREAS, the Parties intend that, on the terms and subject to the conditions set forth in this Agreement, Merger Sub shall merge with and into the Company (the "Merger"), with the Company surviving the Merger, pursuant to and in accordance with the provisions of the General Corporation Law of the State of Delaware (the "DGCL");

WHEREAS, the Board of Directors of the Company (the "Company Board") has unanimously (i) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger, upon the terms and conditions set forth in this Agreement, (ii) determined that this Agreement and the transactions contemplated by this Agreement are fair to, and in the best interests of, the Company and the holders of shares of the Company's common stock, par value $0.01 per share (the "Company Common Stock"), and (iii) resolved, subject to the terms of this Agreement, to recommend that the holders of shares of Company Common Stock adopt this Agreement;

WHEREAS, the Board of Directors of Parent (the "Parent Board") and the Board of Directors of Merger Sub have each unanimously approved this Agreement, determined that the consummation of the Merger is in the best interests (l'intérêt social in the case of Parent) of Parent and Merger Sub, and the Parent Board has resolved, subject to the terms of this Agreement, to recommend that the holders of Parent ordinary shares, with a nominal value of €1.20 per ordinary share (each, a "Parent Ordinary Share") approve the issuance of Parent Ordinary Shares in connection with the Merger and the By-Law Amendments upon the terms and conditions set forth in this Agreement;

WHEREAS, by virtue of the Merger, upon the terms and subject to the conditions set forth in this Agreement, the holders of shares of Company Common Stock shall receive American depositary shares, each of which represents one Parent Ordinary Share, to be issued by the Depositary Bank under the Deposit Agreement (the "ADSs"), as more particularly set forth in this Agreement;

WHEREAS, it is intended that, for U.S. federal income Tax purposes, the Merger shall (i) qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) not result in gain being recognized pursuant to Section 367(a)(1) of the Code by Persons who are stockholders of the Company immediately prior to the Effective Time (other than any such stockholder that would be a "five-percent transferee shareholder" (within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Parent following the Merger that does not enter into a five-year gain recognition agreement in the form provided in Treasury Regulations Section 1.367(a)-8), and the Parties intend that this Agreement be and hereby is adopted as a "plan of reorganization" within the meaning of Sections 354 and 361 of the Code;

WHEREAS, for purposes of French Law, the Merger shall be an exchange of shares pursuant to Article L.225-148 of the French Commercial Code in which outstanding capital stock of the Company is exchanged for Parent Ordinary Shares;

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