Form DEFA14A Destination Maternity

October 4, 2017 5:12 PM

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): September 28, 2017

 

 

DESTINATION MATERNITY CORPORATION

(Exact name of Registrant as specified in Charter)

 

 

 

Delaware   0-21196   13-3045573

(State or Other Jurisdiction

of Incorporation or Organization)

 

Commission

File number

 

(I.R.S. Employer

Identification Number)

232 Strawbridge Drive

Moorestown, NJ 08057

(Address of Principal Executive Offices)

(856) 291-9700

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 8.01 Other Events.

On September 28, 2017, Destination Maternity Corporation (the “Company”) received a letter (the “Demand Letter”) from a law firm on behalf of a stockholder. The Demand Letter identified purchases and sales in Company common stock by Orchestra-Prémaman S.A. (“Orchestra”) and Yeled Invest S.à.r.l. (“Yeled”) that occurred within a six-month period and that the law firm claimed may have triggered a requirement that Orchestra and Yeled disgorge all profits to the Company resulting from those transactions pursuant to Section 16(b) of the Securities Exchange Act of 1934 (“Section 16(b)”).

On October 3, 2017, the Company sent a copy of the Demand Letter to Orchestra and Yeled and we requested that Orchestra and Yeled provide the Company with their analysis of whether the purchases and sales that occurred within a six-month period triggered a profit that is required to be disgorged under Section 16(b), and if so, we requested a calculation of the amount of such profit as well as immediate payment of such profit to the Company as required under Section 16(b).

A copy of the Demand Letter and our subsequent request letter are filed as exhibits to this Form 8-K as Exhibits 99.1 and 99.2, respectively.

Important Additional Information

Destination Maternity, its directors and certain of its executive officers may be deemed to be participants in the solicitation of proxies from Destination Maternity stockholders in connection with the matters to be considered at Destination Maternity’s 2017 Annual Meeting to be held on October 19, 2017. On September 21, 2017, Destination Maternity filed a definitive proxy statement (the “Proxy Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) in connection with any such solicitation of proxies from Destination Maternity stockholders. INVESTORS AND STOCKHOLDERS ARE STRONGLY ENCOURAGED TO READ THE PROXY STATEMENT AND ACCOMPANYING WHITE PROXY CARD WITH RESPECT TO THE 2017 ANNUAL MEETING, AND OTHER DOCUMENTS FILED WITH THE SEC, CAREFULLY AND IN THEIR ENTIRETY AS THEY CONTAIN IMPORTANT INFORMATION. Detailed information regarding the identity of potential participants, and their direct or indirect interests, by security holdings or otherwise, is set forth in the Proxy Statement and other materials to be filed with the SEC in connection with Destination Maternity’s 2017 Annual Meeting. Stockholders may obtain the Proxy Statement, any amendments or supplements to the Proxy Statement and other documents filed by Destination Maternity with the SEC for no charge at the SEC’s website at www.sec.gov. Copies will also be available at no charge at the Investor Relations section of our corporate website at http://investor.destinationmaternity.com.


ITEM 9.01. Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description

99.1    Letter to Destination Maternity Corporation re: Section 16 Demand, dated September 28, 2017
99.2    Letter from Destination Maternity Corporation to Orchestra-Prémaman S.A. and Yeled Invest S.à.r.l. re: Section 16 Demand, dated October 3, 2017


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned duly authorized.

 

Date: October 4, 2017    

DESTINATION MATERNITY

CORPORATION

    By:   /s/ David Stern
      David Stern
     

Executive Vice President &

Chief Financial Officer

Exhibit 99.1

 

LOGO    Attorneys at Law   
hunterkmiec.com   

James A Hunter

255 West 94th Street, No. 10M

New York, New York 10025

t 646 666 0122

f 646 462 3356

hunter@hunterkmiec.com

admitted in new york only

  

Keenan D Kmiec

14020 Old Harbor Lane, No. 107

Marina Del Rey, California 90292

t 917 859 7970

f 646 462 3356

kmiec@hunterkmiec.com

admitted in california and dc only

September 28, 2017

The Board of Directors

Destination Maternity Corporation

232 Strawbridge Drive

Moorestown, New Jersey 08057

Fax: (856) 291-9918

E-Mail: rmasciantonio@destinationmaternity.com

investor_relations@destinationmaternity.com

BY FAX, E-MAIL, AND FIRST-CLASS MAIL

Ladies and Gentlemen:

Our firm represents Donna Ann Gabriele Chechele, a stockholder of Destination Maternity Corporation (the “Company”) as of the date hereof. We have been engaged by Ms. Chechele to investigate possible “short-swing” trading the Company’s common stock under Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Act”), 15 U.S.C. § 78p(b).

Based on our investigation, we believe that Orchestra-Premaman S.A. (the “Insider”) may be liable to the Company under Section 16(b) of the Act for the profit realized from the transactions in the Company’s common stock set forth on Exhibit A hereto. We hereby request that the Company seek an accounting and disgorgement of all profit recoverable from the Insider under the Act as a result of all such transactions. Based solely on our investigation and the information available to us as of the date hereof, we currently estimate the total profit recoverable from the Insider at not less than $200,462.

The transactions set forth on Exhibit A hereto were not reported under Section 16(a) of the Act. Although the Insider disclosed those transactions in statements filed under Section 13(d) of the Act, it is possible that additional transactions remain undisclosed. Accordingly, we hereby further request that the Company conduct a thorough investigation of the trading activities of the Insider during all periods not barred by the statute of limitations.

*            *             *


The Board of Directors

Destination Maternity Corporation

September 28, 2017

Page 2

 

Please be advised that, unless the requests herein are satisfactorily addressed within 60 days of the date hereof, we are authorized to pursue all remedies provided under the Act. Kindly contact me if you would like to discuss this matter further.

Very truly yours,

/s/ James A. Hunter

James A. Hunter


Exhibit A

Transactions by Orchestra-Premaman S.A.

in the Common Stock of Destination Maternity Corporation

 

Date

of Transaction

  

Transaction

  

Number of Shares

   

Price

per Share (USD)

 
12/09/2015    Purchase
of Common Stock
     559,311  (1)    $ 8.2541  (2) 
12/10/2015    Purchase
of Common Stock
     87,353     $ 8.2233  (2) 
12/11/2015    Purchase
of Common Stock
     155,422     $ 8.8835  (2) 
12/14/2015    Purchase
of Common Stock
     78,889     $ 9.2610  (2) 
05/02/2016    Sale
of Common Stock
     1,921,820     $ 9.4200  

 

(1) This purchase is matchable with the Insider’s sale on May 2, 2016 to the extent of any shares acquired after the Insider became a beneficial owner of more than 10% of the Company’s common stock. We reserve the right to disaggregate the reported transaction and treat it as separate purchases to the maximum extend permitted by law.
(2) Average price per share.

Exhibit 99.2

DESTINATION

MATERNITY

CORPORATION

232 Strawbridge Dr., Moorestown, NJ 08057 ◆ 856.291.9700 ◆ destinationmaternitycorp.com

Ronald J. Masciantonio

direct dial: (856) 291-9900

rmasciantonio@DestinationMaternity.com

October 3, 2017

BY FEDERAL EXPRESS

 

Pierre Mestre, Chairman

Orchestra-Prémaman S.A.

ZAC Saint-Antoine

200 avenue des Tamaris

34130 SAINT AUNES France

 

Fons Mangen, Director

Carine Reuter-Bonert, Director

Yeled Invest S.à r.l.

318 Rue de Neudorf

L-2222, Luxembourg

 

  Re: Claim under Section 16(b) of the U.S. Securities Exchange Act of 1934

Ladies and Gentlemen:

Enclosed please find a copy of a letter (the “Demand Letter”), dated September 28, 2017, from the law firm of Hunter & Kmiec to the Board of Directors of Destination Maternity Corporation (the “Company”). The Demand Letter identifies purchases and sales in Company common stock by Orchestra-Prémaman S.A. (“Orchestra”) and Yeled Invest S.à.r.l. (“Yeled”) that occurred within a six-month period and that appear to have triggered a requirement that Orchestra and Yeled disgorge all profits to the Company resulting from those transactions pursuant to Section 16(b) of the U.S. Securities Exchange Act of 1934 (“Section 16(b)”).

Upon a review of the disclosures in the Schedule 13D and amendments thereto filed by Orchestra and Yeled with the Securities and Exchange Commission (the “SEC”), the assertions in the letter appear to be valid, and it would thus appear that Orchestra and Yeled have engaged in short-swing trading resulting in profits that are required to be disgorged and paid over to the Company pursuant to Section 16(b). In addition, it appears that Orchestra and Yeled have failed to file any Form 3 or Forms 4 with the SEC reporting the acquisition of greater than 10% of the Company’s common stock and all subsequent transactions in Company equity securities, as required by Section 16(a) of the U.S. Securities Exchange Act of 1934.

We request that Orchestra and Yeled report to us details of all acquisitions and dispositions of Company equity securities, commencing with the transaction that resulted in either Orchestra or Yeled acquiring beneficial ownership (within the meaning of Rule 16a-1(a)(1)) in excess of 10% of the Company’s common stock. Based on your Schedule 13D filings, this date appears to be no later than December 9, 2015. For ordinary brokerage

 

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www.pepperlaw.com


Orchestra-Prémaman S.A.

Yeled Invest S.à.r.l

Page 2

October 3, 2017

 

transactions and the sale from Orchestra to Yeled that was completed on May 2, 2016, the requested details include the date, the number of shares acquired or disposed of, and the per share price paid or received.

We note that in the Schedule 13D amendment filed by Orchestra with the SEC on May 2, 2016, a Share Transfer Agreement is attached which reflects the sale of shares by Orchestra to Yeled, as well as the grant of an option by Yeled to Orchestra to reacquire the shares within a 24-month period. We request an explanation of the details of the underlying sale and option transaction between Orchestra and Yeled.

We further request your analysis of whether the purchases and sales that occurred within a six-month period triggered a profit that is required to be disgorged under Section 16(b), and if so, we request a calculation of the amount of such profit as well as immediate payment of such profit to the Company as required under Section 16(b). The Company will take your analysis into account but will not be bound by your analysis, and any payment made by you will not foreclose the right of the Company to demand additional amounts if our analysis of the transactions engaged in by Orchestra and Yeled in Company equity securities yields a higher calculation of disgorgeable profit.

 

Sincerely,
/s/ Ronald J. Masciantonio
Ronald J. Masciantonio
Executive Vice President & Chief Administrative Officer

Categories

SEC Filings