Form S-8 Destination Maternity

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

DESTINATION MATERNITY CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		13-3045573
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

232 Strawbridge Drive,

Moorestown, NJ 08057

(Address, including zip code, of principal executive offices)

AMENDED AND RESTATED 2005 EQUITY INCENTIVE PLAN

(Full title of the plan)

Ronald J. Masciantonio

Executive Vice President & Chief Administrative Officer

232 Strawbridge Drive

Moorestown, NJ 08057

(Name and address of agent for service)

(856) 291-9700

(Telephone number, including area code, of agent for service)

 

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):

 

Large accelerated filer		☐		Accelerated filer		☒
Non-accelerated filer		☐  (do not check if a smaller reporting company)		Smaller reporting company		☐
				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 7(a)(2)(B) of the Securities Act.  ☐

 

 

 

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CALCULATION OF REGISTRATION FEE

 

Title of Securities to Be Registered		Amount to Be Registered (1)		Proposed Maximum Offering Price Per Share (2)		Proposed Maximum Aggregate Offering Price (2)		Amount of Registration Fee (2)
Common Stock, par value $0.01 per share		750,000 shares		$1.68		$1,260,000		$157

(1)

Pursuant to Rule 416 of the Securities Act of 1933, there shall also be deemed covered hereby such additional securities which become issuable under the Amended and Restated 2005 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration which results in an increase in the number of outstanding shares of the Registrant’s common stock.

(2)	Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act based on the average of the high and low prices of the shares of common stock, as reported by NASDAQ on October 16, 2017.

 

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EXPLANATORY NOTE

Pursuant to General Instruction E of Form S-8, this Registration Statement is being filed in order to register 750,000 additional shares of common stock, par value $0.01 per share (the “Common Stock”), of Destination Maternity Corporation (the “Company”), that are of the same class as the shares covered by the currently effective Registration Statement on Form S-8 of the Company relating to the Company’s Amended and Restated 2005 Equity Incentive Plan.

The contents of the Company’s Form S-8 Registration Statements No. 333-137136 filed with the Securities and Exchange Commission (the “Commission”) on September 6, 2006, 333-174059 filed with the Commission on May 9, 2011, and 333-186937 filed with the Commission on February 28, 2013, as the same may be hereafter amended, are incorporated by reference into this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.				Exhibits.
				The exhibits listed as part of this registration statement are as follows:

 

Exhibit Number		Description
5.1		Opinion of Pepper Hamilton LLP as to the validity of the securities being registered.
23.1		Consent of KPMG LLP.
23.2		Consent of Pepper Hamilton LLP (included in Exhibit 5.1 hereto).
24.1		Powers of Attorney (included on the signature page hereto).

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant, Destination Maternity Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Moorestown, New Jersey, on October 19, 2017.

 

 

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POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints David Stern and Ronald J. Masciantonio, or either of them acting individually, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming all that such attorney-in-fact and agent or his substitutes may 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 in the capacities indicated on the date indicated below:

 

Signature		Title		Date
/s/ B. Allen Weinstein		Interim Chief Executive Officer, Director (Principal Executive Officer)		October 19, 2017
B. Allen Weinstein
/s/ David Stern		Executive Vice President & Chief Financial Officer (Principal Financial Officer)		October 19, 2017
David Stern
/s/ David L. Courtright		Senior Vice President & Chief Accounting Officer (Principal Accounting Officer)		October 19, 2017
David L. Courtright
/s/ Michael Blitzer		Director		October 19, 2017
Michael Blitzer
/s/ Barry Erdos		Director		October 19, 2017
Barry Erdos
/s/ Melissa Payner-Gregor		Director		October 19, 2017
Melissa Payner-Gregor

 

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EXHIBIT INDEX

 

Exhibit Number		Description
5.1		Opinion of Pepper Hamilton LLP as to the validity of the securities being registered.
23.1		Consent of KPMG LLP.
23.2		Consent of Pepper Hamilton LLP (included in Exhibit 5.1 hereto).
24.1		Powers of Attorney (included on the signature page hereto).

 

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3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103-2799

215.981.4000

Fax 215.981.4750

Exhibit 5.1

October 19, 2017

Destination Maternity Corporation

232 Strawbridge Drive

Moorestown, NJ 08057

 

		Re:				Registration Statement on Form S-8

Ladies and Gentlemen:

Reference is made to a registration statement on Form S-8 (the “Registration Statement”) of Destination Maternity Corporation, a Delaware corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the registration by the Company of an additional Seven Hundred Fifty Thousand (750,000) shares of common stock, par value $0.01 per share (the “Shares”), of the Company issuable under the Company’s Amended and Restated 2005 Equity Incentive Plan (the “Plan”).

In this connection, 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, and such other documents and corporate records relating to the Company as we have deemed appropriate for the purpose of rendering the opinion expressed herein. The opinion expressed herein is based exclusively on the applicable provisions of the Delaware General Corporation Law and federal securities laws as in effect on the date hereof.

On the basis of the foregoing, we are of the opinion that the Shares, when issued and paid for in accordance with the Plan, will be legally issued, fully paid and non-assessable.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.

Very truly yours,

/s/ Pepper Hamilton LLP

Pepper Hamilton LLP

 

Philadelphia

Boston

Washington, D.C.

Los Angeles

New York

Pittsburgh

 

Detroit

Berwyn

Harrisburg

Orange County

Princeton

Silicon Valley

Wilmington

www.pepperlaw.com

Exhibit 23.1

KPMG LLP

1601 Market Street

Philadelphia, PA 19103-2499

Consent of Independent Registered Public Accounting Firm

The Board of Directors

Destination Maternity Corporation:

We consent to the incorporation by reference in the registration statement on Form S-8 of Destination Maternity Corporation of our reports dated April 13, 2017, with respect to the consolidated balance sheets of Destination Maternity Corporation and subsidiaries as of January 28, 2017 and January 30, 2016, and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity and cash flows for each of the years in the two-year period ended January 28, 2017, the four months ended January 31, 2015 and the year ended September 30, 2014, and the related financial statement schedule, and the effectiveness of internal control over financial reporting as of January 28, 2017, which reports appear in the January 28, 2017 annual report on Form 10-K of Destination Maternity Corporation.

/s/ KPMG LLP

Philadelphia, Pennsylvania

October 19, 2017

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