0000914121-18-000714.txt : 20180416 0000914121-18-000714.hdr.sgml : 20180416 20180416083318 ACCESSION NUMBER: 0000914121-18-000714 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20180416 DATE AS OF CHANGE: 20180416 GROUP MEMBERS: PETER O'MALLEY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Destination Maternity Corp CENTRAL INDEX KEY: 0000896985 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-WOMEN'S CLOTHING STORES [5621] IRS NUMBER: 133045573 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43965 FILM NUMBER: 18755627 BUSINESS ADDRESS: STREET 1: 232 STRAWBRIDGE DRIVE CITY: MOORESTOWN STATE: NJ ZIP: 08057 BUSINESS PHONE: 856-291-9700 MAIL ADDRESS: STREET 1: 232 STRAWBRIDGE DRIVE CITY: MOORESTOWN STATE: NJ ZIP: 08057 FORMER COMPANY: FORMER CONFORMED NAME: MOTHERS WORK INC DATE OF NAME CHANGE: 19930205 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Miller Nathan G CENTRAL INDEX KEY: 0001720578 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 347 LUKES WOOD RD CITY: NEW CANAAN STATE: CT ZIP: 06840 SC 13D/A 1 dm43100581-sc13da5.htm AMENDMENT NO. 5



 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO § 240.13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
Destination Maternity Corporation
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
25065D100
(CUSIP Number)
Nathan G. Miller
347 Lukes Wood Road
New Canaan, CT 06840
(917) 826-0482

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
April 16, 2018
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ☐
 
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
*
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 
 
 
CUSIP No. 25065D100
 
 
       
  1 
NAME OF REPORTING PERSON
 
Nathan G. Miller
  2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) ☑        (b)  ☐ 
 
  3
SEC USE ONLY
 
    
  4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
PF
   5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
 
☐
  6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States
NUMBER OF
SHARES
 BENEFICIALLY  
OWNED BY
EACH
REPORTING
PERSON
WITH
 
7
SOLE VOTING POWER
 
1,136,727
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
1,136,727
10
SHARED DISPOSITIVE POWER
 
0
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,136,727
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
7.7%*
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
IN
*
The percentage calculations herein are based upon an aggregate of 14,677,265 shares of common stock, par value $0.01 per share, of Destination Maternity Corporation, outstanding as of April 11, 2018, as reported in the Issuer’s Preliminary Proxy Statement on Schedule 14A, filed with the SEC on April 13, 2018. The share amounts reported above do not reflect any DM Common Stock the Reporting Persons may be deemed to beneficially own as a result of membership in a “group” and each of the Reporting Persons expressly disclaim beneficial ownership of securities owned by the other Reporting Persons unless otherwise noted herein.
 
 
 
CUSIP No. 25065D100
 
 
       
  1 
NAME OF REPORTING PERSON
 
Peter O’Malley
  2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) ☑        (b)  ☐ 
 
  3
SEC USE ONLY
 
    
  4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
PF
   5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
 
☐
  6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States
NUMBER OF
SHARES
 BENEFICIALLY  
OWNED BY
EACH
REPORTING
PERSON
WITH
 
7
SOLE VOTING POWER
 
143,106
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
143,106
10
SHARED DISPOSITIVE POWER
 
0
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
143,106
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.0%*
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
IN
*
The percentage calculations herein are based upon an aggregate of 14,677,265 shares of common stock, par value $0.01 per share, of Destination Maternity Corporation, outstanding as of April 11, 2018, as reported in the Issuer’s Preliminary Proxy Statement on Schedule 14A, filed with the SEC on April 13, 2018. The share amounts reported above do not reflect any DM Common Stock the Reporting Persons may be deemed to beneficially own as a result of membership in a “group” and each of the Reporting Persons expressly disclaim beneficial ownership of securities owned by the other Reporting Persons unless otherwise noted herein.
 
 
This amendment No. 5 to Schedule 13D (this “Amendment No. 5”) relates to the Schedule 13D filed on December 26, 2017 (as amended and supplemented through the date of this Amendment No. 5, the “Schedule 13D”) by (i) Nathan G. Miller, a citizen of the United States of America, and (ii) Peter O’Malley, a citizen of the United States of America, relating to the common stock, par value $0.01 per share (the “DM Common Stock”), of Destination Maternity Corporation, a Delaware corporation (the “Issuer”).
Capitalized terms used but not defined in this Amendment No. 5 shall have the meanings set forth in the Schedule 13D.
Except as specifically amended by this Amendment No. 5, the Schedule 13D is unchanged.
Item 4.
Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following information:
On April 16, 2018, Mr. Miller sent a letter to the Board. The letter is attached hereto as Exhibit C and is incorporated by reference in this Item 4 in its entirety.
Item 5.
Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby amended and restated in its entirety to read as follows:
(a) - (b) As of the date hereof, (i) Mr. Miller is the direct beneficial owner of, and has sole power to vote, dispose or direct the disposition of 1,136,727 shares of DM Common Stock, representing 7.7% of the outstanding shares of DM Common Stock and (ii) Mr. O’Malley is the direct beneficial owner of, and has sole power to vote, dispose or direct the disposition of 143,106 shares of DM Common Stock, representing 1.0% of the issued shares of DM Common Stock, each based on an aggregate of 14,677,265 shares of DM Common Stock outstanding as of April 11, 2018, as reported in the Issuer’s Preliminary Proxy Statement on Schedule 14A, filed with the SEC on April 13, 2018. Mr. Miller and Mr. O’Malley are coordinating their activities with regard to a potential proxy contest, and as a result Mr. Miller and Mr. O’Malley may be deemed to have formed a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended. Each of the Reporting Persons expressly disclaims beneficial ownership of the DM Common Stock owned by the other Reporting Persons, except to the extent of such Reporting Person’s pecuniary interest therein.
(c) There were no reportable transactions effected by any Reporting Person within the last 60 days.
(d) No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, such shares of DM Common Stock owned by such Reporting Person.
 
Item 7.
Material to be Filed as Exhibits
Exhibit A
Joint Filing Agreement by and among the Reporting Persons, dated March 26, 2018*
Exhibit B
Letter, dated March 30, 2018*
Exhibit C
Letter, dated April 16, 2018
 
* Previously filed

SIGNATURE
After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: April 16, 2018
   
       
 
By:
/s/ Nathan G. Miller  
    Nathan G. Miller  
     
       
   
       
 
By:
/s/ Peter O'Malley  
    Peter O'Malley  
     
       
 
 
 
 


INDEX TO EXHIBITS
 
     
Exhibit
  
Description
Exhibit A
  
Joint Filing Agreement by and among the Reporting Persons, dated March 26, 2018*
Exhibit B
Exhibit C
 
  
Letter, dated March 30, 2018*
Letter, dated April 16, 2018
 
*Previously filed
 


 EX-99.1 2 dm43100583-exh_c.htm LETTER, DATED APRIL 16, 2018
Exhibit C
 
 
Nathan G. Miller
c/o NGM Asset Management, LLC
27 Pine Street, Suite 700
New Canaan, CT 06840
April 16, 2018
Via Federal Express

Board of Directors
Destination Maternity Corporation
232 Strawbridge Drive
Moorestown, NJ 08057
Ladies and Gentlemen:
 We are writing to express our concern regarding the recent actions by the board of directors (the “Board”) and management of Destination Maternity Corporation (the “Company”) to manipulate the composition of the Board. We are well past the director nominating deadline and are concerned that these governance shenanigans are an attempt to gain an improper advantage in the election of directors at the 2018 annual meeting of stockholders of the Company (the “2018 Annual Meeting”).
 On March 30, 2018, we requested that the Board act in the interest of all of the Company’s stockholders by committing to the use of a universal proxy card that would include all of the nominees proposed, regardless of who proposed such nominees. On April 4, 2018, despite the fact that universal proxy cards have been used successfully in electoral contests involving large companies with shares listed on the New York Stock Exchange, the Company notified us that it had rejected the use of a universal proxy card because its use could create “significant risk of confusion that could result in disenfranchisement of certain stockholders.”
 However, despite the Board’s professed sensitivity to the risk of confusing the Company’s stockholders, the Board and management of the Company have since engaged in a series of actions that would confuse even the most sophisticated of stockholders, a background of which is summarized below:

·
On April 3, 2018, after the deadline had passed for nominating candidates for election to the Board at the 2018 Annual Meeting, the Company announced that the size of the Board would be increased to six directors and that Pierre-André Mestre and Jean-Claude Jacomin would be appointed to fill the newly created vacancies pursuant to an agreement with Orchestra-Prémaman (“Orchestra”), a stockholder of the Company.
 
·
On April 12, 2018, in response to the Company’s expansion of the Board and pursuant to our rights as a stockholder under the Company’s bylaws, we notified the Company of our intention to nominate two additional individuals in addition to the three individuals we had previously identified for election to the Board at the 2018 Annual Meeting (collectively, the “Nominees”).
·
Later on April 12, 2018, the Company announced that Mr. Jacomin, who had been appointed to the Board only nine days earlier, had resigned as a member of the Board. Further, the Company announced that the size of the Board had been decreased from six to five directors. To further complicate matters, the Company stated that Orchestra would continue to have a right to name a substitute individual to replace Mr. Jacomin on the Board pursuant to Orchestra’s agreement with the Company. The Company has not announced who Orchestra intends to designate or when Orchestra will exercise this right, creating uncertainty as to both the Company’s slate of directors for election at the 2018 Annual Meeting and the number of directors that will be elected at the 2018 Annual Meeting.
 
·
On April 13, 2018, the Company announced for the third time in a two week period that the composition of the Board would change because Michael J. Blitzer would not be standing for reelection to the Board at the 2018 Annual Meeting. Instead of immediately reducing the size of the Board accordingly, as was done following Mr. Jacomin’s resignation, the Company announced that the size of the Board would only decrease from five to four directors upon the commencement of the 2018 Annual Meeting.
 
·
Later on April 13, 2018, Barry Erdos, the Chairman of the Board, sent a letter to Marla A. Ryan and Anne-Charlotte Windal, two of the Nominees. Despite having previously (i) rejected the use of a universal proxy card in which the stockholders of the Company would have the opportunity to vote for both Ms. Ryan and Ms. Windal and (ii) stated that neither individual was endorsed by the Board, Mr. Erdos asked Ms. Ryan and Ms. Windal if they would consider being added to the Company’s slate of nominees for election at the 2018 Annual Meeting.
 As a result of these governance shenanigans, the stockholders of the Company are left in a state of uncertainty in which even the most basic details regarding the election of directors at the 2018 Annual Meeting remain unknown. First, with its size changing from day to day, it is unclear what the size of the Board will be as of the 2018 Annual Meeting and afterwards. Second, the composition of the Company’s slate remains in flux, despite the fact that the Company has filed their preliminary proxy statement and the deadline to nominate directors has long since passed. Third, it is unclear whether Orchestra will appoint a new director pursuant to their agreement with the Company, and whether the Company will allow Orchestra to designate such director after the 2018 Annual Meeting, disenfranchising the stockholders of their right to vote on such director’s election to the Board.
For the benefit of all the stockholders of the Company, we ask that the Board refrain from engaging in any further manipulation of the Board’s composition and immediately clarify the uncertainties they have created. Accordingly, we are requesting that you provide us with an unequivocal statement regarding (i) the maximum number of Board seats that are up for election at the 2018 Annual Meeting, (ii) the maximum number of individuals we can nominate for election at the 2018 Annual Meeting and (iii) the maximum number of candidates we can include
2
on our proxy card for election at the 2018 Annual Meeting. In addition, the Board should clarify whether it intends to circumvent stockholder democracy by allowing Orchestra to wait until after the 2018 Annual Meeting to exercise their right to designate a second director.  Board seats are not an entitlement, despite the fact that the Board has been treating them as such, and we believe any Orchestra designee should be on the ballot for the 2018 Annual Meeting so that all directors can be held accountable to stockholders of the Company.  Immediate clarification of the foregoing uncertainties is necessary in order to remedy the confusion that the Board and the management of the Company has already caused and avoid the disenfranchisement that would result in the absence of clarification. It is our sincere hope that we can engage in a fair and transparent electoral contest going forward and that the merits of the nominees and their competing visions for the Company—not manipulation of the corporate electoral process—is what determines the outcome of the election.
 
 
Very truly yours,
         
         
/s/ Nathan G. Miller
    
 
  
Nathan G. Miller
    
 
  
 
    
 
  
 
 
 
3