Schedule 13d
| Filed by: | DESTINATION MATERNITY CORP |
| Subject Company: | DESTINATION MATERNITY CORP |
| Filed as of Date: | 11/10/2009 |
| View Original Filing on Edgar's | |
Exhibit 99.1
November
6, 2009
Crescendo
Partners II, L.P., Series K
Crescendo
Investments II, LLC
Crescendo
Partners III, L.P.
Crescendo
Investments III, LLC
825 Third
Avenue, 40th Floor
New York,
NY 10022
Dear Sir
or Madam:
You have
previously entered into that certain Confidentiality Agreement with Destination
Maternity Corporation, previously known as Mothers Work, Inc., (the "Company"),
dated March 10, 2008 (the "Confidentiality Agreement") pursuant to which you and
your directors, partners, officers, employees, agents, affiliates and advisors
(including, without limitation, attorneys, accountants, consultants, bankers and
financial advisors) (collectively "Representatives") agreed to take or abstain
from taking certain actions as set forth in such agreement. You and your
Representatives further agree to the undertakings and other terms and provisions
set forth in this letter agreement. All capitalized terms used in this letter
agreement and not otherwise defined shall have the respective meanings assigned
to such terms in the Confidentiality Agreement.
You
hereby agree that the terms of the Confidentiality Agreement remain in full
force and effect in accordance with its terms, except to the extent specifically
otherwise provided in this letter agreement.
You
hereby agree to vote only for the nominees selected by the Company's Board of
Directors (the "Board") for election to the Board at the 2010 Annual Meeting of
Stockholders, provided such nominees include Arnaud Ajdler or any of your other
Representatives.
You
hereby agree that neither you nor any of your affiliates (as defined in rule
12b-2 under the Securities Exchange Act of 1934, as amended), will (and you and
they will not assist or encourage others to), directly or indirectly, take any
action prior to the election of directors at the 2011 Annual Meeting of
Stockholders to seek the removal of any current member of the Board or any
director elected to the Board at the 2010 Annual Meeting of Stockholders;
provided, however, that nothing in this letter agreement shall limit your right
to nominate a slate of director candidates for election at the 2011 Annual
Meeting of Shareholders, subject to compliance with applicable provisions of the
Company's By-Laws and the Confidentiality Agreement.
The
Company hereby agrees to use commercially reasonable efforts to recruit two new
directors for election to the Board at the 2010 Annual Meeting of Stockholders
(collectively, the "10th and
11th
Directors"), one of whom shall be a director whom the Board determines qualifies
as an "audit committee financial expert," as that term is defined in Item
407(d)(5) of Regulation S-K, to chair the Board's Audit Committee; and the other
of whom shall be a person experienced in matters relating to the Company's
business. To the extent either or both of the 10th and
11th
Directors are not identified in time for inclusion in the Company's proxy
statement for the 2010 Annual Meeting of Stockholders, the Company agrees to use
commercially reasonable efforts to identify and appoint such 10th or
11th
Director(s) (as applicable) to the Board as soon thereafter as is reasonably
practicable. The nomination of the 10th and
11th
Director will require the unanimous approval of the Nominating and Corporate
Governance Committee. In addition, prior to the 2011 Annual Meeting of
Stockholders, any increase in the size of the Board and the filling of any
vacancy on the Board shall require the unanimous approval of the Nominating and
Corporate Governance Committee.
Upon Mr.
Ajdler's re-election to the Board at the 2010 Annual Meeting of Stockholders,
the Company agrees to use commercially reasonable efforts to cause Mr. Ajdler to
be appointed as Chairman of the Compensation Committee at the first Board
meeting following the 2010 Annual Meeting of Stockholders. The Company agrees
that the Board shall take no action to remove Mr. Ajdler, at any time prior to
the 2011 Annual Meeting of Stockholders, as (i) Chairman of the Compensation
Committee, (ii) a member of the Nominating and Corporate Governance Committee or
(iii) a member of the Compensation Committee.
For so
long as Mr. Ajdler serves as a member of the Board, in the event that the date
on which the Company notifies you of the slate of director candidates nominated
for election at any meeting of stockholders occurring in 2011 or thereafter (the
"Notification Date") occurs fewer than 10 days before the deadline for
stockholders to nominate candidates for election as a director at such meeting
of stockholders in accordance with the Company's By-Laws, Crescendo shall be
entitled to an extension of time, until the close of business on the 10th day
following the Notification Date, for the submission of any such director
candidates along with all other information required by the By-Laws in
connection therewith, and any such submission by Crescendo by the 10th day
following the Notification Date shall be considered timely for purposes of the
By-Laws.
It is
further understood and agreed that money damages would not be a sufficient
remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to seek equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach by
you of this letter agreement but shall be in addition to all other remedies
available at law or equity to the Company.
The
Company has agreed to reimburse you for your reasonable out-of-pocket fees and
expenses incurred in connection with the negotiation and execution of this
letter agreement, including any filings with the SEC that may be required in
connection with this letter agreement, provided that such reimbursement will not
exceed $20,000 in the aggregate.
The
Company agrees that as a condition of issuing any press release announcing this
letter agreement, any of the terms contained in this letter agreement, or
matters related to the resolutions of the Board approving this letter agreement
and the declassification of the Board, such press release shall be reasonably
acceptable to the Crescendo Parties. The Crescendo Parties agree that as a
condition of issuing any press release announcing this letter agreement, any of
the terms contained in this letter agreement, or matters related to the
resolutions of the Board approving this letter agreement and the
declassification of the Board, such press release shall be reasonably acceptable
to the Company.
This
letter agreement is for the benefit of the Company, and its directors, officers,
stockholders, owners, affiliates, and agents, and shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to its principles or rules regarding conflicts of laws. All disputes
arising from or relating to this letter agreement shall be heard exclusively in
a court of competent jurisdiction within the State of Delaware, and the parties
hereto consent to personal jurisdiction in such courts for such purposes, and
further waive all objections on grounds of improper venue or forum non
conveniens.
Please
confirm your agreement with the foregoing by signing and returning one copy of
this letter to the undersigned, whereupon this letter agreement shall become a
binding agreement among you and the Company.
|
Very
truly yours,
|
|
DESTINATION
MATERNITY CORPORATION
|
|
By:
/s/ Edward M.
Krell
|
|
Name:
Edward M. Krell
|
|
Title:
Chief Executive Officer
|
Accepted
and agreed as of the date
first
written above:
CRESCENDO
PARTNERS II, L.P., SERIES K
By:
Crescendo Investments II, LLC
General
Partner
By: /s/ Eric
Rosenfeld
Name:
Eric Rosenfeld
Title:
Managing Member
CRESCENDO
INVESTMENTS II, LLC
By: /s/ Eric
Rosenfeld
Name:
Eric Rosenfeld
Title:
Managing Member
CRESCENDO
PARTNERS III, L.P.
By:
Crescendo Investments III, LLC
General
Partner
By: /s/ Eric
Rosenfeld
Name:
Eric Rosenfeld
Title:
Managing Member
CRESCENDO
INVESTMENTS III, LLC
By: /s/ Eric
Rosenfeld
Name:
Eric Rosenfeld
Title:
Managing Member
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