Exhibit 4.1
THIRD
Supplemental Indenture
This Third Supplemental
Indenture, dated as of February 8 2021 (this “Supplemental Indenture”), among MDC Partners Inc., a corporation
continued under the laws of Canada (the “Company”), the Note Guarantors party hereto and The Bank of New York
Mellon, a New York banking corporation, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, each
of the Company, the Note Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of March 23,
2016 (the “Original Indenture” as supplemented by that certain first supplemental indenture dated as of September 16,
2020 and as amended by that certain second supplemental indenture, dated as of January 13, 2021, the “Indenture”),
providing for the issuance of 7.500% Senior Notes due 2024 of the Company (the “Notes”);
WHEREAS, pursuant
to a transaction agreement dated as of December 21, 2020 (the “Transaction Agreement”), Stagwell Media
LP (“Stagwell”) is expected to contribute to the Company or its subsidiaries a portfolio of marketing services
companies, and, in consideration for such contribution, Stagwell is expected to subscribe for and be issued, directly or indirectly,
certain equity securities in the Company, which will, in aggregate, result (unless the Proposed Waivers and Amendments become operative
as herein provided) in a Change of Control occurring, in each case following a reorganization of the Company and its subsidiaries
(the “Proposed Transaction”);
WHEREAS, in
connection the Proposed Transaction, and among such other steps as are set out in the Transaction Agreement and the Statement,
it is anticipated that the Company will incorporate a new, wholly-owned Delaware limited liability company (“New MDC”);
the Company will domesticate as a Delaware corporation and discontinue as a Canadian corporation (the “Redomiciliation”);
New MDC will in turn convert from a Delaware limited liability company into a Delaware corporation and incorporate a new, wholly
owned Delaware limited liability company (“Merger Sub 1”); Merger Sub 1 will merge with and into the Company
with the Company surviving as a direct and wholly-owned subsidiary of New MDC (the “Merger”); Company will convert
from a Delaware corporation into a Delaware limited liability company (the “LLC Conversion”); the capitalization
of the Company will be amended such that its capital comprises three series of equity, being (i) common equity; (ii) preferred
interests on terms that are materially the same as the series 4 interests presently issued by the Company; and (iii) preferred
interests on terms that are materially the same as the series 6 interests presently issued by the Company; and, at completion of
the Proposed Transaction, and in consideration for the contribution to the Company of the assets of Stagwell that are the subject
of the Proposed Transaction, the Company will issue to Stagwell equity interests representing up to approximately 74 per cent.
of the economic interests of the common equity of Company, and will acquire, indirectly and through the subsidiary entities acquired
at the step above, the rights and obligations under a credit agreement entered into between, among others, Stagwell Marketing Group
LLC as borrower, the guarantors and lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as agent (together,
the “Proposed Transaction Steps”);
WHEREAS, Section 9.2
(With Consent of Holders) of the Indenture permits (i) the Company, the Note Guarantors and the Trustee to amend or
supplement the Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority
in principal amount of the then Outstanding Notes (the “Required Consents”) and (ii) subject to Section 6.4
(Waiver of Past Defaults) of the Indenture, the Holders of Required Consents to waive compliance by the Company and the
Note Guarantors with any provision of the Indenture or the Notes;
WHEREAS, the
Company has solicited (the “Consent Solicitation”) consents (the “Consents”) upon the terms,
and subject to the conditions set forth in, that certain consent solicitation statement, dated as of January 21, 2021 (as
amended, restated and supplemented from time to time, the “Statement”) from each Holder of the Notes to waive
certain provisions of the Indenture and effect certain amendments to the Indenture as described in the Statement and set forth
below (the “Proposed Waivers and Amendments”);
WHEREAS, pursuant
to the Consent Solicitation, there have been validly delivered to the Company the consents of at least a majority in principal
amount of the then Outstanding Notes to effect the Proposed Waivers and Amendments;
WHEREAS, by
delivery of their Consents, Holders of the Notes have authorized and directed the Trustee to enter into the Supplemental Indenture
to give effect to the Proposed Waivers and Amendments;
WHEREAS, pursuant
to Section 9.6 (Trustee to Sign Amendments and Supplements) of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture;
WHEREAS, the
Company has requested and hereby requests that the Trustee join with it in the execution of this Supplemental Indenture and all
acts and things necessary to make this Supplemental Indenture a legal, valid and binding obligation of the Company and the Note
Guarantors have been done and performed;
NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Note Guarantors and the Trustee hereby agree as follows:
ARTICLE I
Section 1.1. Defined
terms. Unless otherwise defined in this Supplemental Indenture, terms defined in the Original Indenture are used herein as
therein defined.
Section 1.2 Effectiveness;
conditions precedent. This Supplemental Indenture (and the Proposed Amendments set forth in Section 3.1 hereof and the
Proposed Waivers set forth in Section 2.1 hereof) shall become effective upon the execution and delivery of this Supplemental
Indenture by the parties listed on the signature pages hereof; provided; however, the Proposed Amendments and Waivers will
become operative and the terms of the Indenture shall be waived, amended, supplemented, modified or deleted as provided for in
Section 2.1 and Section 3.1 hereof, at the time (the “Operative Time”) if and when the Company makes
an announcement via press release and sends a notice via DTC informing Holders and the Trustee that the Proposed Amendments and
Waivers are operative and when the closing of the Proposed Transaction is expected to occur. The Trustee may conclusively presume
that the Operative Time shall not have occurred unless and until the Trustee receives from the Company an Officers’ Certificate
stating that the Operative Time has occurred.
ARTICLE II
Section 2.1 Waivers
of the Indenture. Effective as of the date hereof without any further action by any party hereto, but operative only from
the Operative Time, the Holders have agreed by delivery of the Required Consents to pre-emptively waive:
(a) any
breach of Section 3.3 (Corporate Existence) of the Indenture as may arise from the Proposed Transaction, in particular
in respect of the Redomiciliation, the Merger and/or the LLC Conversion;
(b) all
requirements of Section 3.19 (Limitation on Designation of Unrestricted Subsidiaries) of the Indenture in connection
with the designation of New MDC as an Unrestricted Subsidiary following its incorporation;
(c) any
requirement under Section 4.1(a)(2) of the Indenture in relation to the Merger, and accordingly the Officers’ Certificate
and Opinion of Counsel required to be delivered under Section 4.1(a)(5) of the Indenture in respect of the Merger shall
not be required to cover compliance with Section 4.1(a)(2) of the Indenture;
(d) all
requirements of Section 3.21 (Change of Control) of the Indenture in relation to the Proposed Transaction including,
without limitation, that the Company make a Change of Control Offer (as defined in the Indenture) within 30 days (or otherwise)
following the closing of the Proposed Transaction; and
(e) any
and all other Defaults or Events of Default that may result from the Proposed Transaction Steps relating to the Proposed Transaction.
ARTICLE III
Section 3.1 Amendments
to the Indenture. Effective as of the date hereof without any further action by any party hereto, but operative only from
the Operative Time, the Indenture is hereby amended as follows:
(a) Section 1.01
(Definitions) of the Indenture is hereby amended by adding the following definitions in the corresponding alphabetical order.
“Assumed
Tax Liability” means, with respect to any member of the Company as of any Tax Distribution Date, an amount equal to the
federal, state and local income taxes (including any applicable estimated taxes) reasonably estimated in good faith would be due
from such member for all taxable periods (or portions thereof) of ending on such Tax Distribution Date, (i) assuming such
member were a corporation who earned solely the items of income, gain, deduction, loss, and/or credit allocated to such member
for such taxable periods (or portions thereof) and (ii) assuming that such member is subject to tax at the Assumed Tax Rate.
For purposes of determining the Assumed Tax Liability of any member, (i) any adjustments by reason of Sections 734 or 743
of the Code shall not be taken into account, and (ii) losses allocated by the Company to the direct or indirect parent of
the Company to the extent such losses are able to reduce the tax liability of such parent for such taxable period shall be taken
into account.
“Assumed
Tax Rate” means, for any taxable period, the highest marginal effective rate of federal, state, local and non-U.S. income
tax applicable to the direct or indirect parent of the Company for such taxable period.
“Preferred
Interests” means the series 4 and series 6 preferred interests of the Company having the rights set out in an LLC agreement
in respect of the Company and to be issued on terms that are materially similar to the terms of the series 4 and series 6 preferred
shares of the direct or indirect parent of the Company but redeemable by the Company in the event of the redemption of such shares.
“Stagwell
Credit Facility” means the amended and restated credit agreement among the Stagwell Marketing Group LLC as borrower,
the guarantors and lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as agent dated November 13, 2020,
and all amendments thereto, together with the related documents thereto (including, without limitation, any Guarantee agreements
and security documents), as such agreement may be amended (including any amendment and restatement thereof), supplemented or otherwise
modified or replaced from time to time;
“Stagwell
Facilities” means each of the Stagwell Credit Facility and the Stagwell Term Facility;
“Stagwell
Term Facility” means the credit agreement among the Stagwell Marketing Group LLC as borrower, the guarantors and lenders
from time to time party thereto, and JPMorgan Chase Bank, N.A., as agent JPMorgan Chase Bank, N.A. and Citizens Bank, N.A. as joint
bookrunners and joint lead arrangers dated November 13, 2020, and all amendments thereto, together with the related documents
thereto (including, without limitation, any Guarantee agreements and security documents), as such agreement may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified or replaced from time to time;
“Tax
Distributions” means, on any Tax Distribution Date, distributions by the Company (i) to the direct or indirect parent
of the Company’s Assumed Tax Liability attributable to any preferred units of the Company held by such parent during the
fiscal year or other taxable period to which the tax-related distributions relates; and (ii) then, to members of the Company
on a pro rata basis in accordance with the number of common units of the Company owned by each such member, in an amount sufficient
to cause the direct or indirect parent of the Company to receive a distribution equal to all of such parent’s remaining Assumed
Tax Liability (including estimated tax liabilities) during the fiscal year or other taxable period to which the tax-related distribution
relates.
“Tax
Distribution Date” means any date that is two Business Days prior to the date on which estimated federal income tax payments
are required to be made by calendar year corporate taxpayers and the due date for federal income tax returns of corporate calendar
year taxpayers (without regard to extensions).
“Tax
Receivable Agreement” means an income tax receivable agreement, in customary form and substance, pursuant to which certain
members or former members of the Company are entitled to receive from the direct or indirect parent of the Company 85% of the tax
savings realized by such parent resulting from taxable exchanges of equity interests in the Company by such member or former member
for shares of such parent and related tax basis adjustments.
(b) Section 1.01
(Definitions) of the Indenture is hereby amended by deleting the definitions referred to below and replacing them in full
with the following definitions in the corresponding alphabetical order.
“Bank
Credit Facility” means the amended and restated credit agreement dated as of March 20, 2013 among the Company, Maxxcom
Inc., as borrower, the guarantors and lenders from time to time party thereto, and Wells Fargo Capital Finance, LLC, as agent,
and all amendments thereto, together with the related documents thereto (including, without limitation, any Guarantee agreements
and security documents), as such agreement may be amended (including any amendment and restatement thereof), supplemented or otherwise
modified or replaced from time to time by one or more credit agreements, including the Stagwell Facilities, or any indentures or
commercial paper facilities, including any agreement or indenture adding Subsidiaries of the Company as additional borrowers or
guarantors thereunder or extending the maturity of, refinancing, replacing, increasing the amount outstanding or otherwise restructuring
all or any portion of the Indebtedness under such agreement(s) or any successor or replacement agreement(s) and whether
by the same or any other agent, trustee, lender or group of lenders or investors, including the Stagwell Facilities.
“Disqualified
Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder
thereof, in any case, on or prior to the date that is one year after the final maturity date of the Notes. For the avoidance of
doubt, “Disqualified Capital Stock” shall not include the Preferred Interests or equity interests of minority holders
of Capital Stock of Restricted Subsidiaries of the Company by virtue of put and call arrangements and Management Appreciation Interests.
“Permitted
Holders” means (1) Stagwell Media LP, Stagwell Blocker LLC, Omnicom Group Inc., The Interpublic Group of Companies, Inc.,
WPP plc, Publicis Groupe S.A., Havas S.A. and Dentsu Inc. and (2) any Person at least 80% of the outstanding Capital Stock
of which is owned by one or more Persons described in clause (1) above; provided, that, a Rating Decline shall not have occurred
in connection with the transaction (including any Incurrence of Indebtedness used to finance the acquisition thereof) involving
such Permitted Holder that would have resulted in a Change of Control (but for the terms of this definition).
(c) Section 1.01
(Definitions) of the Indenture is hereby amended by adding the following wording (which shall qualify such definition in
its entirety) immediately following part (10)(b) of the definition of Indebtedness set out therein.
provided, however, that notwithstanding the foregoing, Indebtedness
shall be deemed not to include obligations under or in respect of the Tax Receivable Agreement.
(d) Section 3.3
(Corporate Existence) of the Indenture is hereby restated as follows.
Section 3.3 Corporate
Existence. Subject to Article IV, the Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence or existence as a limited liability company or partnership.
(e) Paragraph
(a)(3) of Section 3.8 of the Indenture is hereby restated as follows.
(a)(3) Indebtedness
Incurred (1) by the Company or any Note Guarantor (or, in the case of the Stagwell Facilities, any Restricted Subsidiary pending
its addition as a Note Guarantor in accordance with Section 10.7) pursuant to the Bank Credit Facility (including any Guarantees
in respect thereof) and the issuance and creation of letters of credit and bankers’ acceptances thereunder and (2) by
the Company or any Restricted Subsidiary pursuant to one or more additional revolving credit facilities (including any Guarantees
in respect thereof) permitted under the Bank Credit Facility, in an aggregate principal amount at any time outstanding not to exceed
the greater of (x) 1.75 times the Consolidated EBITDA of the Company for the applicable Four Quarter Period as of the date
of determination and (y) $325.0 million, less the amount of any permanent repayments or reductions of commitments in respect
of such Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to comply with the provisions of Section 3.12;
provided that the aggregate principal amount of Indebtedness Incurred under clause (2) by Restricted Subsidiaries that are
not Note Guarantors shall not exceed $25.0 million;
(f) Part (b) of
Section 3.10 (Limitation on Restricted Payments) of the Indenture is hereby amended by the restatement of paragraphs
(11) and (12), the inclusion of a new paragraph (13), and the restatement of the wording immediately following such paragraph as
follows.
(11) any repurchase
of Management Appreciation Interests for fair value to the extent such Management Appreciation Interests represent economic interests
in a Restricted Subsidiary retained by its owners at the time such Restricted Subsidiary became a Restricted Subsidiary of the
Company;
(12) other
Restricted Payments taken together with all other Restricted Payments made pursuant to this clause (12) not to exceed $40.0 million
in the aggregate.; and
(13) the payment
by the Company, directly or indirectly, to or on behalf of the direct or indirect parent of the Company, of (i) solely with
respect to taxable periods after the Company becomes an entity that is disregarded as separate from such direct or indirect parent
of the Company, payments or disbursements to or on behalf of such parent in satisfaction of obligations due from such parent under
the Tax Receivable Agreement to the extent such payments relate to tax savings actually realized by such parent in such taxable
period (without duplication of any items taken into account under clause (ii)); (ii) Tax Distributions; and (iii) management
fees in connection with its activities and services as a holding company of the Company and its Subsidiaries or other amounts the
proceeds of which are used to pay taxes and other fees required to maintain the corporate existence of such parent company, and
general corporate and overhead expenses (including salaries and other compensation of employees) incurred in the ordinary course
of the business of such Parent Company; provided, that payments under clause (iii) shall only be permitted to the extent amounts
described in clause (iii) exceed the lesser of (x) amount of tax benefits subject to the Tax Receivables Agreement that
the direct or indirect parent of the Company is permitted to retain pursuant to the terms of the Tax Receivable Agreement and (y) the
excess of the amount distributed to such direct or indirect parent in respect of clause (i) and (ii) hereof minus such
direct or indirect parent’s Assumed Tax Liability (for this purpose calculated taking into account basis adjustments under
section 743 or 734 of the Code).
In determining
the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (1) (without
duplication for the declaration of the relevant dividend), (7) and (10) above will be included in such calculation and
amounts expended pursuant to clauses (2) through (6), (8), (9), (11), (12) and (13) will not be included in such calculation.
(g) Parts
(d) and (e) of Section 3.16 (Ongoing Reporting) of the Indenture are hereby restated as follows.
(d) The
Company will be deemed to be in compliance with this Section 3.16 with respect to the Notes if the direct or indirect parent
of the Company delivers to the Trustee within the time periods specified in Section 3.16(c) copies of its annual reports
and the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which such direct or indirect parent is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act or which such direct or indirect parent would be required to file with the Commission if it were
subject to Section 13 or 15(d) of the Exchange Act, provided that, where the annual or quarterly financial statements
of such direct or indirect parent, on a consolidated basis, do not, in the reasonable judgment of the Company, in all material
respects reflect the financial position of the Company, on a consolidated basis, for such relevant period, the Company shall further
and within the time periods specified in Section 3.16(c) deliver to the Trustee reconciliations, whether in narrative
format or otherwise, between the financial statements of such parent and the financial position of the Company, on a consolidated
basis, for such relevant period.
(e) The
Company will be deemed to be in compliance with this Section 3.16 with respect to the Notes if the Company, or the direct
or indirect parent of the Company, shall have filed such annual reports and the information, documents and other reports with the
Commission using its Electronic Data Gathering, Analysis and Retrieval System or any successor system, and, where the Company is
required to deliver the reconciliations referred to in Section 3.16(d), the Company will be deemed to be in compliance with
such requirement where such reconciliations are included in the annual reports or information, documents or other reports filed
with the Commission in accordance with the proceeding provisions of this Section 3.16(e) or posted on its website (if
not filed with the Commission).
(h) Paragraph
(4) of part (c) of Section 10.2 (Limitation on Liability; Termination, Release and Discharge) of the Indenture
is hereby restated as follows.
(4) the
Company has notified the Trustee in writing of the release or discharge of such Note Guarantor from its Guarantee, or its obligations
as a co-borrower or to grant Liens under, any Bank Credit Facility, as the case may be (including by reason of the termination
thereof unless such Note Guarantor provides a Guarantee or Lien or becomes a co-borrower in respect of a replacement or refinancing
Bank Credit Facility), following any such release or discharge; provided that if such Note Guarantor has Incurred any Indebtedness
or issued any Preferred Stock under Section 3.8(a) or Section 3.8(b)(8) (to the extent it is Refinancing Indebtedness
in respect of Indebtedness originally Incurred under Section 3.8(a) or Section 3.8(b)(1)) or Section 3.8(b)(18)
in reliance on its status as a Note Guarantor, such Note Guarantor has been released or discharged from such Indebtedness or Preferred
Stock or it is otherwise permitted to be Incurred by a Restricted Subsidiary that is not a Note Guarantor under such covenant
(d) Section 10.7
(Additional Note Guarantees) of the Indenture is hereby restated as follows.
Section 10.7 Additional
Note Guarantees. Within a reasonable period of time after any Restricted Subsidiary that is not a Note Guarantor Guarantees,
or becomes a co-borrower under or grants Liens to secure, any Bank Credit Facility, or a Person that has Guaranteed a Bank Credit
Facility becomes a Restricted Subsidiary, the Company will cause such Restricted Subsidiary (an “Additional Note Guarantor”)
to grant a guarantee (an “Additional Note Guarantee”) of the Guaranteed Obligations under this Indenture and
the Notes to the same extent that the Note Guarantors have guaranteed the Guaranteed Obligations under this Indenture and the Notes
by executing a supplemental indenture substantially in the form of Exhibit D and providing the Trustee with an Officers’
Certificate and Opinion of Counsel; provided, however, that each Additional Note Guarantor will be automatically and unconditionally
released and discharged from its obligations under such Additional Note Guarantee only in accordance with Section 10.2. Only
the Trustee and such Additional Note Guarantor shall be required to sign the Additional Note Supplemental Indenture that causes
such Additional Note Guarantor to become a Note Guarantor. Any future Note Guarantees provided by Restricted Subsidiaries of the
Company organized in Sweden may be Limited Guarantees that are limited on a basis consistent with the Limited Guarantee provided
by the Limited Guarantor organized in such jurisdiction on the Issue Date.
ARTICLE IV
Section 4.1 References
to Indenture. All references to the “Indenture” in the Indenture or in any other document executed or delivered
in connection therewith shall, from and after the execution and delivery of this Supplemental Indenture, be deemed a reference
to the Indenture as amended hereby, unless the context expressly requires otherwise.
Section 4.2 Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 4.3 Severability.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to
the extent of such invalidity, illegality or unenforceability.
Section 4.4 Ratification
of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated
and delivered shall be bound hereby.
Section 4.5 Duplicate
and Counterpart Originals. The parties may sign any number of copies of this Supplemental Indenture. One signed copy is
enough to prove this Supplemental Indenture. This Supplemental Indenture may be executed in any number of counterparts, each of
which so executed shall be an original, but all of them together represent the same agreement.
The exchange of copies
of this Supplemental Indenture and of signature pages by facsimile or electronic (i.e., “pdf” or “tif”)
transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may
be used in lieu of the original Supplemental Indenture for all purposes. The exchange of copies of this Supplemental Indenture
and of signature pages that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic
signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign), in each case that is approved
by the Trustee, shall constitute effective execution and delivery of this Supplemental Indenture for all purposes. Signatures of
the parties hereto that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic signing
created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign), in each case that is approved
by the Trustee, shall be deemed to be their original signatures for all purposes of this Supplemental Indenture as to the parties
hereto and may be used in lieu of the original.
Anything in this Supplemental
Indenture or the Notes to the contrary notwithstanding, for the purposes of the transactions contemplated by this Supplemental
Indenture, the Notes and any document to be signed in connection with the Indenture or the Notes (including the Notes and amendments,
supplements, waivers, consents and other modifications, Officers’ Certificates, Company Orders and Opinions of Counsel and
other documents) or the transactions contemplated hereby may be signed by manual signatures that are scanned, photocopied or faxed
or other electronic signatures created on an electronic platform (such as DocuSign) or by digital signature (such as Adobe Sign),
in each case that is approved by the Trustee, and contract formations on electronic platforms approved by the Trustee, and the
keeping of records in electronic form, are hereby authorized, and each shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as the case may be.
Section 4.6 Headings.
The headings of the Sections in this Supplemental Indenture have been inserted for convenience of reference only, are not intended
to be considered as a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 4.7 The
Trustee. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
The recitals and statements herein are deemed to be those of the Company and the Note Guarantors and not those of the Trustee,
and the Trustee assumes no responsibility for their correctness.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have
caused this Supplemental Indenture to be duly executed as of the date first written above.
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MDC PARTNERS INC.
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as Company
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By:
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/s/
David Ross
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Name:
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David Ross
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Title:
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Executive Vice President, General
Counsel and Secretary
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[Signature Page to
Third Supplemental Indenture]
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6 DEGREES INTEGRATED COMMUNICATIONS CORP.
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COLLE & MCVOY LLC
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KENNA COMMUNICATIONS GP INC.
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72ANDSUNNY PARTNERS LLC
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CONCENTRIC PARTNERS LLC
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KENNA COMMUNICATIONS LP
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72ANDSUNNY NL B.V.
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CRISPIN PORTER & BOGUSKY LTD.
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By: Kenna Communications GP Inc.
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7THFL LLC
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CRISPIN PORTER & BOGUSKY LLC
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Its general partner
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ACCUMARK PARTNERS INC.
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DONER PARTNERS LLC
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KIRSHENBAUM BOND SENECAL & PARTNERS LLC
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ACE CONTENT LLC
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DOTGLU LLC
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KWT GLOBAL LLC (f/k/a KWITTKEN LLC)
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ALLISON & PARTNERS LLC
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FORSMAN & BODENFORS AKTIEBLOAG
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LAIRD + PARTNERS NEW YORK LLC
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ALLISON+PARTNERS UK LIMITED
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FORSMAN & BODENFORS FACTORY AB
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LAURIE, FOARD + WHEELER LLC
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ANOMALY B.V.
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FORSMAN & BODENFORS STUDIOS AB
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LEGEND PR PARTNERS, LLC
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ANOMALY INC.
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GALE PARTNERS INC.
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MAXXCOM GLOBAL MEDIA LLC
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ANOMALY UK LIMITED as member for and on behalf of ANOMALY LONDON LLP
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GALE PARTNERS LLC
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MAXXCOM (USA) FINANCE COMPANY
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ANOMALY PARTNERS LLC
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GALE PARTNERS LP (f/k/a GALE 43 PARTNERS LP)
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MAXXCOM (USA) HOLDINGS INC.
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ANOMALY PARTNERS LA LLC
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HECHO STUDIOS LLC
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MAXXCOM INC.
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ANOMALY UK LIMITED
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HELLO DESIGN, LLC
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MDC ACQUISITION INC.
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ATTENTION PARTNERS LLC
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HPR PARTNERS, LLC
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MDC CANADA GP INC.
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BOOM MARKETING INC.
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INSTRUMENT LLC
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MDC CORPORATE (US) INC.
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BRUCE MAU DESIGN INC.
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IR OLDCO LLC (f/k/a SLOANE & COMPANY LLC)
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MDC EUROPE LTD.
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BRUCE MAU DESIGN (USA) LLC
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KBP HOLDINGS LLC
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MDC GALE43 GP INC.
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BRUCE MAU HOLDINGS LTD.
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KBS+P CANADA LP
KBS+P CANADA SEC
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MDC INNOVATION PARTNERS LLC
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By: MDC Canada GP Inc.
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MDC PARTNERS UK HOLDINGS LTD.
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Its general partner
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MONO ADVERTISING, LLC
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NORTHSTAR RESEARCH PARTNERS (USA) LLC
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UNION ADVERTISING CANADA LP
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NEW TEAM LLC
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PLUS PRODUCTIONS, LLC
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By: MDC Canada GP Inc.
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NORTHSTAR MANAGEMENT HOLDCO INC.
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REDSCOUT LLC
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Its general partner
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NORTHSTAR RESEARCH GP LLC
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RELEVENT PARTNERS LLC
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UNIQUE INFLUENCE PARTNERS LLC
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NORTHSTAR RESEARCH HOLDINGS CANADA INC.
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SOURCE MARKETING LLC
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VARICK MEDIA MANAGEMENT LLC
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NORTHSTAR RESEARCH HOLDINGS USA LP
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STORYLINE STRATEGIES LLC (f/k/a LUNTZ GLOBAL PARTNERS LLC)
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VERITAS COMMUNICATIONS INC.
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By: Northstar Research GP LLC
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STUDIO PICA INC.
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VITRO PARTNERS LLC
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Its general partner
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TARGETCAST LLC
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VITROROBERTSON LLC
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NORTHSTAR RESEARCH PARTNERS INC.
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TC ACQUISITION INC.
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YAMAMOTO, INC. (f/k/a YAMAMOTO MOSS MACKENZIE, INC.)
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NORTHSTAR RESEARCH PARTNERS (UK) LIMITED
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THE ARSENAL LLC
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Y MEDIA LABS LLC
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TRADE X PARTNERS LLC
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ZYMAN GROUP, LLC
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On behalf of each of the above Note Guarantors
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By:
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/s/
David Ross
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Name:
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David Ross
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Title:
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Authorized Signatory
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[Signature Page to Third Supplemental
Indenture]
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THE BANK OF NEW YORK MELLON,
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as Trustee
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By:
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/s/
Francine Kincaid
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Name:
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Francine Kincaid
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Title:
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Vice President
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[Signature Page to Third Supplemental
Indenture]
Exhibit 99.1
FOR IMMEDIATE ISSUE
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FOR:
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MDC Partners Inc.
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CONTACT:
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Erica Bartsch
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One World Trade Center, FL. 65
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Sloane & Company
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New York, NY 10007
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212-446-1875
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IR@mdc-partners.com
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MDC Partners Inc. Announces Execution
of Supplemental Indenture in Respect of Consent Solicitation
New York, New York
(February 8, 2021) — MDC Partners Inc. (the “Issuer”) announced
today that it executed a supplemental indenture in respect of its 7.500% Senior Notes due 2024, CUSIP C5429X AJ5 (Regulation
S) and 552697 AQ7 (Rule 144A) (the “Notes”) and has made a cash
payment to holders of the Notes as of 5:00 p.m., New York City time, on January 20, 2021 (the “Record Date”),
both pursuant to the solicitation of consents from holders of the Notes described in the consent solicitation statement dated January
21, 2021 (the “Consent Solicitation Statement”) previously provided by the Company to the holders of the Notes.
The Issuer solicited
consents from holders of the Notes to certain proposed amendments and waivers (the “Proposed Amendments and Waivers”)
to the indenture dated March 23, 2016 (the “Indenture”) described
in the Consent Solicitation Statement. The Issuer previously announced the expiration of the solicitation at 5:00 p.m., New York
City time, on February 4, 2021 and its receipt and acceptance of consents from holders of
at least a majority in principal amount of the Notes outstanding as of the Record Date. Capitalized terms used but not defined
in this announcement have the meaning assigned to them in the Consent Solicitation Statement.
In
accordance with the terms of the solicitation, on February 8, 2021, the Issuer, each of the guarantors identified as Note Guarantors
in the Indenture and The Bank of New York Mellon, as trustee under the Indenture, entered into the Third Supplemental Indenture
with respect to the Proposed Amendments and Waivers, and the Issuer paid to holders of the Notes as of the Record Date $20
in respect of each $1,000 principal amount of Outstanding Notes held by the relevant holder as of the Record Date.
As further described
in the Consent Solicitation Statement, the Proposed Amendments and Waivers are effective with respect to all holders of the Notes,
including non-consenting holders and all subsequent holders of the Notes, but not operative. The Proposed Amendments and Waivers
will only become operative if and when the Issuer makes an announcement that the Proposed Amendments and Waivers are operative
and when the closing of the proposed transaction between the Issuer and Stagwell Media LP (as more fully described and defined
in the Consent Solicitation Statement, the “Proposed Transaction”) is expected to occur (the “Operative
Time Announcement”). The Issuer may elect, in its sole discretion, when and whether the Operative Time Announcement is
made. In the event that the Issuer does not make an Operative Time Announcement, or if the Proposed Transaction is not consummated,
or the Notes are redeemed (or will be redeemed pursuant to an irrevocable notice of redemption), defeased or discharged prior to
the time at which the Operative Time Announcement may otherwise be made, the holders of the Notes will have no entitlement to the
Operative Time Payment referred to in the Consent Solicitation Statement.
Holders are referred
to the Consent Solicitation Statement for the detailed terms and conditions of the solicitation and the matters referred to above.
The Issuer has retained
Global Bondholder Services Corporation to serve as Information Agent and Tabulation Agent for the solicitation. Questions may be
directed to the Information and Tabulation Agent at (866) 794-2200 (toll free) or contact@gbsc-usa.com.
The Issuer has retained
Moelis & Company LLC to serve as Solicitation Agent. Questions concerning the terms of the solicitation should be directed
to the Solicitation Agent at (212) 833-3800.
Neither
the Consent Solicitation Statement nor any documents related to the solicitation have been filed with, or reviewed or approved
by, any federal or state securities commission or regulatory authority of any country. No authority has passed upon the accuracy
or adequacy of the Consent Solicitation Statement or any documents related to the solicitation, and it is unlawful and may be a
criminal offense to make any representation to the contrary.
About the Issuer
MDC
Partners Inc. is one of the most influential marketing and communications networks in the world. As “The Place Where Great
Talent Lives,” MDC Partners Inc. is celebrated for its innovative advertising, public relations, branding, digital, social
and event marketing agency partners, which are responsible for some of the most memorable and effective campaigns for the world's
most respected brands. By leveraging technology, data analytics, insights and strategic consulting solutions, MDC Partners Inc.
drives creative excellence, business growth and measurable return on marketing investment for over 1,700 clients worldwide. For
more information about MDC Partners Inc. and its partner firms, visit our website at www.mdc-partners.com and follow us on Twitter
at http://www.twitter.com/mdcpartners.
Forward-Looking Statements
This
communication may contain certain forward-looking statements (collectively, “forward-looking statements”) within
the meaning of Section 27A of the U.S. Securities Act of 1933, as amended and Section 21E of the U.S. Exchange Act and the United
States Private Securities Litigation Reform Act of 1995, as amended, and “forward-looking information” under applicable
Canadian securities laws. Statements in this document that are not historical facts, including statements about the Issuer’s
or Stagwell’s beliefs and expectations and recent business and economic trends, constitute forward-looking statements. Words
such as “estimate,” “project,” “target,” “predict,” “believe,” “expect,”
“anticipate,” “potential,” “create,” “intend,” “could,” “should,”
“would,” “may,” “foresee,” “plan,” “will,” “guidance,”
“look,” “outlook,” “future,” “assume,” “forecast,” “focus,”
“continue,” or the negative of such terms or other variations thereof and terms of similar substance used in connection
with any discussion of current plans, estimates and projections are subject to change based on a number of factors, including those
outlined in this section. Such forward-looking statements may include, but are not limited to, statements related to: future financial
performance and the future prospects of the respective businesses and operations of the Issuer, Stagwell and the combined company;
information concerning the Proposed Transaction; the anticipated benefits of the Proposed Transaction; the likelihood of the Proposed
Transaction being completed; the anticipated outcome of the Proposed Transaction; the tax impact of the Proposed Transaction on
the Issuer and shareholders of the Issuer; the timing of the shareholder meeting to approve the Proposed Transaction; the shareholder
approvals required for the Proposed Transaction; regulatory and stock exchange approval of the Proposed Transaction; and the timing
of the implementation of the Proposed Transaction. A number of important factors could cause actual results to differ materially
from those contained in any forward-looking statement, including the risks identified in our filings with the SEC. These forward-looking
statements are subject to various risks and uncertainties, many of which are outside the Issuer’s control. Important factors
that could cause actual results and expectations to differ materially from those indicated by such forward-looking statements include,
without limitation, the risks and uncertainties set forth under the section entitled “Risk Factors” in the Proxy Statement/Prospectus
and under the caption “Risk Factors” in the Issuer’s Annual Report on Form 10-K for the year-ended December 31,
2019 under Item 1A, in the Issuer’s Quarterly Report on Form 10-Q for the three-months ended March 31, 2020 under Item 1A,
in the Issuer’s Quarterly Report on Form 10-Q for the six-months ended June 30, 2020 under Item 1A and in the Issuer’s
Quarterly Report on Form 10-Q for the nine-months ended September 30, 2020 under Item 1A. These and other risk factors include,
but are not limited to, the following:
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·
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an inability to realize expected benefits of the Proposed
Transaction or the occurrence of difficulties in connection with the Proposed Transaction;
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·
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adverse tax consequences in connection with the Proposed
Transaction for the Issuer, its operations and its shareholders, that may differ from the expectations of the Issuer or Stagwell,
including that future changes in tax law, potential increases to corporate tax rates in the United States and disagreements with
the tax authorities on the Issuer’s determination of value and computations of its tax attributes may result in increased
tax costs;
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·
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the occurrence of material Canadian federal income tax (including
material “emigration tax”) as a result of the Proposed Transaction;
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·
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the impact of uncertainty associated with the Proposed Transaction
on the Issuer’s and Stagwell’s respective businesses;
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·
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direct or indirect costs associated with the Proposed Transaction,
which could be greater than expected;
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·
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the risk that a condition to completion of the Proposed Transaction
may not be satisfied and the Proposed Transaction may not be completed; and
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·
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the risk of parties challenging the Proposed Transaction
or the impact of the Proposed Transaction on the Issuer’s debt arrangements.
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You
can obtain copies of the Issuer’s filings under its profile on SEDAR at www.sedar.com, its profile on the SEC’s website
at www.sec.gov or its website at www.mdc-partners.com. The Issuer does not undertake any obligation to update any forward-looking
statements as a result of new information, future developments or otherwise, except as expressly required by law. All forward-looking
statements in this communication are qualified in their entirety by this cautionary statement.
Additional Information and Where to
Find It
In connection with
the Proposed Transaction, the Issuer and New MDC LLC (“New MDC”) filed with the SEC a registration statement
on Form S-4 (the “Form S-4”) that includes a proxy statement of the Issuer (the “Proxy Statement”
and, together with the Form S-4, the “Proxy Statement/Prospectus”). This communication is not a substitute for
the Proxy Statement/Prospectus or any other document the Issuer may file with the SEC in connection with the Proposed Transaction.
Once effective, the Issuer will mail the Proxy Statement/Prospectus to its shareholders in connection with the votes to approve
certain matters in connection with the Proposed Transaction.
INVESTORS AND SECURITYHOLDERS
OF THE ISSUER ARE URGED TO READ CAREFULLY THE PROXY STATEMENT/PROSPECTUS REGARDING THE PROPOSED TRANSACTION IN ITS/THEIR ENTIRETY
(INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) OR ANY DOCUMENTS WHICH ARE INCORPORATED BY REFERENCE IN THE PROXY STATEMENT/PROSPECTUS,
BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. You may obtain, free of charge, copies of the Proxy
Statement/Prospectus and other relevant documents filed by the Issuer or New MDC with the SEC, at the SEC’s website at www.sec.gov.
In addition, investors and securityholders are able to obtain free copies of the Proxy Statement/Prospectus and other relevant
documents filed by the Issuer or New MDC with the SEC and from the Issuer’s website at http://www.mdc-partners.com.
The URLs in this announcement
are intended to be inactive textual references only. They are not intended to be active hyperlinks to websites. The information
on such websites, even if it might be accessible through a hyperlink resulting from the URLs or referenced herein, is not and shall
not be deemed to be incorporated into this announcement. No assurance or representation is given as to the suitability or reliability
for any purpose whatsoever of any information on such websites.
No Offer or Solicitation
This communication
does not constitute an offer to buy or exchange, or the solicitation of an offer to sell or exchange, any securities, nor shall
there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration
or qualification under the securities laws of any such jurisdiction. This communication is not a substitute for any prospectus,
proxy statement or any other document that the Issuer or New MDC may file with the SEC in connection with the Proposed Transaction.
No money, securities or other consideration is being solicited, and, if sent in response to the information contained herein, will
not be accepted.
No offering of securities
shall be made except by means of a prospectus meeting the requirements of the U.S. Securities Act of 1933, as amended. The Proposed
Transaction and distribution of this document may be restricted by law in certain jurisdictions and persons into whose possession
any document or other information referred to herein should inform themselves about and observe any such restrictions. Any failure
to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction. No offering of securities
will be made directly or indirectly, in or into any jurisdiction where to do so would be inconsistent with the laws of such jurisdiction.
Participants in the Solicitation
The Issuer, New MDC
and their respective directors and executive officers and other members of management and employees, may be deemed to be participants
in the solicitation of proxies from the Issuer’s shareholders with respect to the approvals required to complete the Proposed
Transaction. More detailed information regarding the identity of these potential participants, and any direct or indirect interests
they may have in the Proposed Transaction, by security holdings or otherwise, is set forth in the Proxy Statement/Prospectus filed
with the SEC. Information regarding the Issuer’s directors and executive officers is set forth in the definitive proxy statement
on Schedule 14A filed by the Issuer with the SEC on May 26, 2020 and in the Annual Report on Form 10-K filed by the Issuer with
the SEC on March 5, 2020. Additional information regarding the interests of participants in the solicitation of proxies in respect
of the Special Meeting is included in the Proxy Statement/Prospectus filed with the SEC. These documents are available to the shareholders
of the Issuer free of charge from the SEC’s website at www.sec.gov and from the Issuer’s website at www.mdc-partners.com.
You must not construe
the contents of this document as legal, tax, regulatory, financial, accounting or other advice, and you are urged to consult with
your own advisors with respect to legal, tax, regulatory, financial, accounting and other consequences of the Proposed Transaction,
the suitability of the Proposed Transaction for you and other relevant matters concerning the Proposed Transaction.