As filed with the Securities and Exchange Commission on August 17, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MDC PARTNERS INC.
(Exact Name of Registrant as Specified in its Charter)
| Canada | 98-0364441 | |
| (State or Other Jurisdiction of | (I.R.S. Employer Identification Number) | |
| Incorporation or Organization) |
745 Fifth Avenue, 19 th Floor, New York, NY 10151
(646) 429-1800
(Address of Registrant’s Principal Executive Offices and Zip Code)
MDC PARTNERS INC.
2016 STOCK INCENTIVE PLAN (AS AMENDED ON JUNE 6, 2018)
(Full Title of the Plan)
Mitchell Gendel, Esq.
General Counsel
745 Fifth Avenue, 19 th Floor, New York, NY 10151
(646) 429-1803
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copies of all communications to:
| Risë Norman | Dee Rajpal |
| Simpson Thacher & Bartlett LLP | Stikeman Elliot LLP |
| 425 Lexington Avenue | 5300 Commerce Court West, 199 Bay Street |
| New York, NY 10017 | Toronto, ON M5L 1B9 |
| (212) 455-2000 | (416) 869-5500 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | x | Accelerated filer | ¨ |
| Non-accelerated filer | ¨ | 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. ¨
| CALCULATION OF REGISTRATION FEE | ||||||||||||||||||
|
Name of Plan |
Title of Securities to be registered |
Number of Securities to be Registered (1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
|||||||||||||
| 2016 Stock Incentive Plan (As amended on June 6, 2018) | Class A Subordinate Voting Shares, No Par Value | 1,250,000 | $ | 4.85 | (2) | $ | 6,062,500 | (2) | $ | 754.78 | ||||||||
| (1) | Together with an indeterminate number of additional Class A Subordinate Voting Shares (“Shares”) that may be necessary to adjust the number of Shares reserved for issuance pursuant to the 2016 Stock Incentive Plan (as amended on June 6, 2018) (the “2016 Plan”) of MDC Partners Inc. (“the Registrant”) as a result of stock splits, stock dividends or similar adjustments of the outstanding Shares. |
| (2) | Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(h) and Rule 457(c) under the Securities Act of 1933, as amended (the “Securities Act”) and based upon the average of the high and low prices of the Shares as reported on the NASDAQ on August 15, 2018. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 1,250,000 Class A Subordinate Voting Shares, no par value (the “Shares”), of MDC Partners Inc. (the “Registrant”) pursuant to the MDC Partners Inc. 2016 Stock Incentive Plan (as amended on June 6, 2018) (the “Plan”). In accordance with Section E of the General Instructions to Form S-8, the contents of the registration statement on Form S-8 previously filed by Registrant with the Securities and Exchange Commission (the “Commission”) on June 27, 2016 (File No. 333-212261) are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of such previously-filed registration statement are modified as set forth in this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is not filed as part of this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents, which previously have been filed by the Registrant with the Commission, are incorporated herein by reference and made a part hereof:
(i) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed by the Registrant with the Commission on March 1, 2018 (the “Annual Report”);
(ii) The Registrant’s Quarterly Reports on Form 10-Q filed by the Registrant with the Commission on May 10, 2018 and August 7, 2018;
(iii) The Registrant’s Current Reports on Form 8-K filed with the Commission on April 2, 2018, April 26, 2018, June 7, 2018, June 18, 2018 and July 30, 2018 (other than the portions of those reports not deemed to be filed); and
(iv) The description of the Registrant’s Class A Subordinate Voting Shares contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-13718), filed with the Commission on October 13, 1998, as amended from time to time.
All reports and other documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment hereto, which indicates that all securities offered hereunder have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
For purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Nothing in this Registration Statement shall be deemed to incorporate information furnished but not filed with the Commission pursuant to Item 2.02 or Item 7.01 of Form 8-K.
| Item 4. | Description of Securities. |
Not required to be filed with this Registration Statement in accordance with Section E of the General Instructions to Form S-8.
| Item 5. | Interests of Named Experts and Counsel. |
Not required to be filed with this Registration Statement in accordance with Section E of the General Instructions to Form S-8.
| Item 6. | Indemnification of Directors and Officers. |
Not required to be filed with this Registration Statement in accordance with Section E of the General Instructions to Form S-8.
| Item 7. | Exemption From Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
See the Exhibit Index immediately preceding the signature pages hereto, which is incorporated by reference as if fully set forth herein.
| Item 9. | Undertakings. |
Not required to be filed with this Registration Statement in accordance with Section E of the General Instructions to Form S-8.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 New York, State of New York, on the 17th day of August, 2018.
| MDC PARTNERS INC. | ||||
| By: | /s/ Scott L. Kauffman | |||
| Name: | Scott. L Kauffman | |||
| Title: | Chairman and Chief Executive Officer | |||
Each person whose signature appears below on this Registration Statement hereby constitutes and appoints David Doft and Mitchell Gendel with full power to act as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities (unless revoked in writing) to sign any and all amendments (including post-effective amendments thereto) to this Registration Statement to which this power of attorney is attached, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting to such attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agents, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
Pursuant to the requirements of the Securities Act, this Form S-8 Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Scott L Kauffman | Chairman and Chief Executive | August 17, 2018 | ||
| (Scott L. Kauffman) | Officer | |||
| /s/ David Doft | Chief Financial Officer | August 17, 2018 | ||
| (David Doft) | ||||
| /s/ Vincenzo DiMaggio | Chief Accounting Officer | August 17, 2018 | ||
| (Vincenzo DiMaggio) | ||||
| /s/ Clare Copeland | Director | August 17, 2018 | ||
| (Clare Copeland) | ||||
| /s/ Bradley Gross | Director | August 17, 2018 | ||
| (Bradley Gross) | ||||
| /s/ Daniel Goldberg | Director | August 17, 2018 | ||
| (Daniel Goldberg) | ||||
| /s/ Larry Kramer | Director | August 17, 2018 | ||
| (Larry Kramer) | ||||
| /s/ Anne Marie O’Donovan | Director | August 17, 2018 | ||
| (Anne Marie O’Donovan) | ||||
| /s/ Desiree Rogers | Director | August 17, 2018 | ||
| (Desiree Rogers) | ||||
| /s/ Irwin D. Simon | Presiding Director | August 17, 2018 | ||
| (Irwin D. Simon) | ||||
| /s/ Mitchell Gendel | Authorized U.S. Representative | August 17, 2018 | ||
| (Mitchell Gendel, Esq.) |
Exhibit 5.1
|
Stikeman Elliott LLP Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, ON Canada M5L 1B9
Main: 416 869 5500 Fax: 416 947 0866 www.stikeman.com |
August 17, 2018
The Board of Directors of MDC Partners Inc.
725 Fifth Avenue, 19 th Floor
New York, NY 10151
United States
Dear Sirs and Mesdames:
| Re: | MDC Partners Inc. – Registration Statement on Form S-8 re 2016 Stock Incentive Plan |
We have acted as Canadian counsel for MDC Partners Inc. (the “ Company ”), a company incorporated under the Canada Business Corporations Act, in connection with the Registration Statement on Form S-8 (the “ Registration Statement ”) being filed by the Company under the Securities Act of 1933, as amended (the “ Securities Act ”), with respect to an additional 1,250,000 class A subordinate voting shares of the Company (the “ Plan Shares ”), which may be issued by the Company pursuant to the Company’s 2016 Stock Incentive Plan (the “ Plan ”).
Documentary Review
We have examined copies of the following documents:
| (a) | the Plan; and |
| (b) | the Registration Statement. |
Reliances
For the purposes of this opinion, we have also examined and relied upon originals or copies of the following documents (collectively, the “ Corporate Documents ”):
| (a) | a certificate of an officer of the Company dated the date hereof (the “ Officer’s Certificate ”) certifying certain matters including, among other things: |
| (i) | the articles of the Company (the “ Articles ”); |
| (ii) | the by-laws of the Company (the “ By-Laws ”); and |
| (iii) | the resolutions of the board of directors of the Company relating to the Registration Statement and passed on July 26, 2018; and |
| (b) | a certificate of compliance dated the date hereof issued pursuant to the Canada Business Corporations Act relating to the Company. |
A duplicate copy of the Officer’s Certificate is delivered contemporaneously with this opinion. We have relied upon the Corporate Documents without independent investigation of the matters provided for in them for the purpose of providing our opinion expressed below. We have not conducted a review of the minute books of the Company.
Assumptions
In examining all documents and in providing our opinion below we have assumed that:
| (a) | all individuals had the requisite legal capacity; |
| (b) | all signatures are genuine; |
| (c) | all documents submitted to us as originals are complete and authentic and all photostatic, certified, telecopied, notarial or other copies conform to the originals; |
| (d) | all facts set forth in the official public records, certificates and documents supplied by public officials or otherwise conveyed to us by public officials are complete, true and accurate as of the date hereof; and |
| (e) | all facts set forth in the Officer’s Certificate are complete, true and accurate. |
Jurisdiction and Effective Date
Our opinion below is expressed only with respect to the laws of the province of Ontario and of the laws of Canada applicable therein and is being furnished in accordance with the requirements of Item 601(b)(5). Any reference to the laws of Ontario includes the laws of Canada that apply in Ontario.
Our opinion is expressed with respect to the laws of Ontario in effect on the date of this opinion and we do not accept any responsibility to update this opinion, take into account or inform the addressees, or any other person authorized to rely on this opinion, of any changes in law, facts or other developments subsequent to this date that do or may affect the opinion we express, nor do we have any obligation to advise you of any other change in any matter addressed in this opinion or to consider whether it would be appropriate for any other person other than the addressees to rely on our opinion.
Opinion
Based upon and subject to the foregoing and to the qualifications set forth herein, we are of the opinion that upon due exercise or settlement, as applicable, of equity-based awards properly granted under the Plan in accordance with the terms of, and subject to the conditions contained in the Plan, including, if applicable, receipt by the Company in full of the exercise price relating to such awards, the underlying Plan Shares will be validly issued as fully paid and non-assessable shares of the Company.
Limitation
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
This opinion is rendered solely to the addressee hereof in connection with the Registration Statement on Form S-8 and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Registration Statement or the Plan Shares. It may not be quoted, in whole or in part, or otherwise referred to or used for any purpose without our prior written consent.
| Yours truly, | |
| /s/ Stikeman Elliott LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
MDC Partners Inc.
New York, New York
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our reports dated March 1, 2018, relating to the consolidated financial statements, the effectiveness of MDC Partner Inc.’s internal control over financial reporting and schedules of MDC Partners Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017.
/s/BDO USA, LLP
New York, New York
August 17, 2018