UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or
15(d)
of the Securities Exchange Act of 1934
Date of Report (Date Earliest Event reported)
— January 18, 2019 (January 18, 2019)
MDC PARTNERS INC.
(Exact name of registrant as specified in
its charter)
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Canada
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001-13718
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98-0364441
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(Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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745 Fifth Avenue, 19
th
Floor,
New York, NY 10151
(Address of principal executive offices and zip code)
(646) 429-1800
(Registrant’s Telephone Number)
Check the appropriate box below if the Form 8−K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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x
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Soliciting
material pursuant to Rule 14a−12 under the Exchange Act (17 CFR 240.14a−12)
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Pre−commencement
communications pursuant to Rule 14d−2(b) under the Exchange Act (17 CFR 240.14d−2(b))
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¨
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Pre−commencement
communications pursuant to Rule 13e−4(c) under the Exchange Act (17 CFR 240.13e− 4(c))
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Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange
Act.
¨
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year
Effective January 18,
2019, the Board of Directors (the “Board”) of MDC Partners Inc. (the “Company”) adopted By-Law No. 2 (the
“Advance Notice By-Law”) to require advance notice for the nomination by shareholders of persons for election to the
Board of Directors at any annual or special meeting of shareholders of the Company.
For shareholder nominations
that are not made pursuant to a proposal or a requisition of shareholders made, in each case, in accordance with the provisions
of the Canada Business Corporations Act (the “Act”) , the Advance Notice By-Law (i) imposes a deadline by which nominating
shareholders must provide written notice to the Company that they intend to nominate persons for election at any annual or special
meeting of shareholders and (ii) sets forth specific information about the nominating shareholder and about the proposed nominee
director that a nominating shareholder must include in such written notice for such nomination to be properly brought before such
annual or special meeting. To be timely, such written notice must be provided to the Company not less than 30 days prior to any
annual meeting or annual and special meeting (or, if the meeting date is publicly announced less than 50 days prior to such meeting,
within 10 days of the public announcement) and not less than 15 days prior to any special meeting that is not also an annual meeting.
The Company plans to
submit the Advance Notice By-Law to the Company’s shareholders at the next meeting of such shareholders for ratification
by ordinary resolution as contemplated by section 103 of the Act.
The Advance Notice
By-Law is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 8.01 Other Events
Press Release Announcing Date of Annual and Special
Meeting of Shareholders
On January 18, 2019,
the Company issued a press release announcing that the Board had set June 4, 2019 as the date for a combined Annual and Special
Meeting of its shareholders. The Special Meeting has been called in response to a requisition by FrontFour Capital Group LLC. A
copy of this press release is attached as Exhibit 99.1 hereto.
Item 9.01. Financial Statements and
Exhibits.
(d) Exhibits.
ADDITIONAL INFORMATION
AND WHERE TO FIND IT
This communication
does not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities or a solicitation of
any vote or approval. This communication relates to a By-Law adopted by the Company and a combined Annual and Special Meeting of
Shareholders. In connection with this By-Law and this combined Annual and Special Meeting, the Company may file one or more proxy
statements or other documents with the Securities and Exchange Commission (the “SEC”). This communication is not a
substitute for any proxy statement or other document the Company may file with the SEC in connection with the foregoing matters.
INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS THAT MAY BE FILED WITH
THE SEC CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Any
definitive proxy statement(s) (if and when available) will be mailed to shareholders of the Company. Investors and security holders
will be able to obtain free copies of these documents (if and when available) and other documents filed with the SEC by the Company
through the website maintained by the SEC at
http://www.sec.gov
. Copies of the documents filed with the SEC by the Company
will be available free of charge on the Company’s internet website at
http://www.mdc-partners.com
or upon written
request to: Secretary, MDC Partners Inc., 745 Fifth Avenue, 19
th
Floor, New York, New York 10151, or by telephone at
(646) 429-1800.
Participants in
Solicitation
The Company, its directors
and certain of its executive officers may be considered participants in the solicitation of proxies in connection with the foregoing
matters. Information regarding the persons who may, under the rules of the SEC, be deemed participants in such solicitation in
connection with the foregoing matters will be set forth in the proxy statement if and when it is filed with the SEC. Information
regarding the persons who may, under the rules of the SEC, be considered participants in the solicitation of the shareholders of
the Company in connection with the foregoing matters is set forth in its Annual Report on Form 10-K for the fiscal year ended December
31, 2017, which was filed with the SEC on March 1, 2018 and its proxy statement for its 2018 annual meeting of shareholders, which
was filed with the SEC on April 27, 2018.
These documents can
be obtained free of charge from the sources indicated above. Additional information regarding the participants in the proxy solicitation
and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement
and other relevant materials to be filed with the SEC when they become available.
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed by the undersigned hereunto duly authorized.
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Date: January 18, 2019
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MDC Partners Inc.
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By:
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/s/ Mitchell Gendel
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Mitchell Gendel,
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General Counsel
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Exhibit 3.1
BY-LAW
NO. 2
ADVANCE NOTICE BY-LAW
(Adopted by the Board of Directors of MDC Partners Inc.
(the “Corporation”)
with
immediate effect on January 18, 2019)
Article 1
NOMINATION OF DIRECTORS
Section 1.1
Subject only to the
Canada Business Corporations Act
(the “
Act
”),
applicable securities laws and the articles of the Corporation, only persons who are nominated in accordance with the procedures
set out in this Section 1.1 shall be eligible for election as directors to the board of directors (the “
Board
”)
of the Corporation. Nominations of persons for election to the Board may only be made at an annual meeting of shareholders, or
at a special meeting of shareholders called for any purpose at which the election of directors is a matter specified in the notice
of meeting, as follows:
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(a)
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by or at the direction of the Board or an authorized officer of the Corporation, including pursuant
to a notice of meeting;
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(b)
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by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance
with the provisions of the Act or a requisition of shareholders made in accordance with the provisions of the Act; or
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(c)
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by any person entitled to vote at such meeting (a “
Nominating Shareholder
”),
who: (A) is, at the close of business on the date of giving notice provided for in Section 1.3 below and on the record date
for notice of such meeting, either entered in the securities register of the Corporation as a holder of one or more shares carrying
the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such meeting; and (B) has given
timely notice in proper written form as set forth in this Article 1.
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Section 1.2
For the avoidance of doubt, the foregoing Section 1.1 shall be the exclusive means for any person to bring nominations
for election to the Board before any annual or special meeting of shareholders of the Corporation.
Section 1.3
In addition to any other applicable requirement, for a nomination made by a Nominating Shareholder to be timely notice (a
“
Timely Notice
”), the Nominating Shareholder’s notice must be received
by the corporate secretary of the Corporation at the principal executive offices of the Corporation:
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(a)
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in the case of an annual meeting of shareholders (including an annual and special meeting), not
later than the close of business on the 30
th
day before the date of the meeting; provided, however, if the date (the
“
Notice Date
”) on which the first public announcement made by the Corporation of the date of the annual meeting
is less than 50 days prior to the meeting date, not later than the close of business on the 10
th
day following the Notice
Date;
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(b)
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in the case of a special meeting (which is not also an annual meeting) of shareholders called for
any purpose which includes the election of directors to the board, not later than the close of business on the 15
th
day following the day on which the first public announcement of the date of the special meeting is made by the Corporation.
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Section 1.4
To be in proper written form, a Nominating Shareholder’s notice to the corporate secretary must comply with this Section
and disclose or include, as applicable:
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(a)
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as to each person whom the Nominating Shareholder proposes to nominate for election as a director
(a “
Proposed Nominee
”):
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(i)
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their name, age, business and residential address;
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(ii)
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the principal occupation, business or employment both presently and for the past five years;
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(iii)
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whether the Proposed Nominee is a “resident Canadian” within the meaning of the Act;
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(iv)
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the number of securities of each class of voting securities of the Corporation or any of its subsidiaries
beneficially owned, or controlled or directed, directly or indirectly, by the Proposed Nominee, as of the record date for the meeting
of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such
notice;
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(v)
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a description of any relationships, agreements, arrangements, or understandings (including financial,
compensation or indemnity related) between the Proposed Nominee or any affiliates or associates of, or any person or entity acting
jointly or in concert with, the Proposed Nominee or the Nominating Shareholder, in connection with the Proposed Nominee’s
nomination and election as director; and
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(vi)
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any other information that would be required to be disclosed in a dissident proxy circular or other
filings required to be made in connection with the solicitation of proxies for election of directors pursuant to the Act or applicable
securities law;
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(b)
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as to each Nominating Shareholder giving the notice and each beneficial owner, if any, on whose
behalf the nomination is made:
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(i)
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their name and address;
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(ii)
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the number of securities of each class of voting securities of the Corporation or any of its subsidiaries
beneficially owned, or controlled or directed, directly or indirectly, by the Nominating Shareholder or any other person with whom
the Nominating Shareholder is acting jointly or in concert with respect to the Corporation or any of its securities, as of the
record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred)
and as of the date of such notice;
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(iii)
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full particulars of any proxy, contract, arrangement, agreement or understanding pursuant to which
such person, or any of its affiliates or associates, or any person acting jointly or in concert with such person, has any interests,
rights or obligations relating to the voting of any securities of the Corporation or the nomination of directors to the board;
and
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(iv)
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any other information relating to such person that would be required to be included in a dissident
proxy circular or other filings required to be made in connection with solicitations of proxies for election of directors pursuant
to the Act or as required by applicable securities law;
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Reference to “Nominating Shareholder”
in this Section 1.4 shall be deemed to refer to each shareholder that nominated or seeks to nominate a person for election
as director in the case of a nomination proposal where more than one shareholder is involved in making the nomination proposal.
Section 1.5
To be considered timely and in proper form, a Nominating Shareholder’s notice shall be promptly updated and supplemented
if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record
date for the meeting.
Section 1.6
Notwithstanding any other provision in the Corporation’s by-laws, any notice, or other document or information required
to be given to the corporate secretary pursuant to this Article 1 may only be given by personal delivery or facsimile transmission,
and shall be deemed to have been received and made only at the time it is served by personal delivery to the corporate secretary
at the address of the principal executive offices of the Corporation, or sent by facsimile transmission (provided that receipt
of confirmation of such transmission has been received); provided that if such delivery or electronic communication is made on
a day which is a not a business day or later than 5:00 p.m. (New York City time) on a day which is a business day, then such delivery
or electronic communication shall be deemed to have been made on the next following day that is a business day.
Section 1.7
Additional Matters
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(1)
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The chair of any meeting of shareholders of the Corporation shall have the power to determine whether
any proposed nomination is made in accordance with the provisions of this Article 1
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and if any proposed nomination
is not in compliance with such provisions, must declare that such defective nomination shall not be considered at any meeting of
shareholders.
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(2)
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The board may, in its sole discretion, waive any requirement of this Article 1.
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(3)
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For the purposes of this Article 1, “public announcement” means disclosure in
a press release disseminated by the Corporation through a national news service in Canada, or in a document filed by the Corporation
for public access under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com or with the U.S.
Securities and Exchange Commission at www.sec.gov.
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(4)
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This Article 1 is subject to, and should be read in conjunction with, the Act and the articles.
If there is any conflict or inconsistency between any provision of the Act or the articles and any provision of this Section, the
provision of the Act or the articles will govern.
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Article 2
ANNUAL OR SPECIAL MEETINGS OF SHAREHOLDERS
Section 2.1
No business may be transacted at an annual or special meeting of shareholders other than business that is either (i) specified
in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise
properly brought before the meeting by or at the direction of the Board, or (iii) otherwise properly brought before the meeting
by any shareholder of the Corporation who complies with the proposal procedures set forth in Section 2.2 below.
Section 2.2
For
business to be properly brought before a meeting by a shareholder of the Corporation, such shareholder must submit a proposal
to the Corporation for inclusion in the Corporation’s management proxy circular in accordance with the requirements of the
Act; provided that any proposal that includes nominations for the election of directors shall also comply with the requirements
of Article 1.
Exhibit 99.1
MDC PARTNERS INC. SETS JUNE 4, 2019
FOR ANNUAL AND SPECIAL MEETING OF SHAREHOLDERS
New York, NY,
January 18, 2019 (NASDAQ: MDCA)
– MDC Partners Inc. (“
MDC Partners
” or the “
Company
”)
announced today that the Company has set June 4
,
2019 for a combined Annual and Special Meeting of Shareholders. The Special
Meeting has been called in response to a requisition by FrontFour Capital Group LLC.
The Board of directors
of the Company has determined that, rather than incur the additional expense and disruption that would be associated with holding
two shareholder meetings in quick succession, it would be in the best interests of the Company to hold the requisitioned meeting
at the same time as the annual meeting takes place in June.
The Company also
announced that its Board approved the adoption of an advance notice by-law, establishing a framework requiring advance notice for
the nomination of directors by shareholders of MDC Partners. The advance notice by
-
law
is effective immediately and will be presented to shareholders for confirmation at the Annual and Special Meeting. The full text
of the advance notice by
-l
aw will be available under the Company’s
EDGAR profile at www.sec.gov and under the Company’s SEDAR profile at www.sedar.com.
As previously announced, MDC’s Board
of Directors continues to explore and evaluate potential strategic alternatives. This ongoing review process is proceeding in parallel
with the Company’s previously announced search to identify a successor Chief Executive Officer. The Company does not intend
to disclose developments or comment further regarding its strategic review or CEO search until such time as its Board of Directors
has determined the outcome of the process or otherwise has determined that further disclosure is appropriate or required.
The Company has retained Kingsdale Advisors
as its strategic shareholder and communications advisor and Stikeman Elliott LLP as its legal advisors.
About MDC Partners
Inc.
MDC Partners
is one of the most influential marketing and communications networks in the world. As “The Place Where Great Talent Lives,”
MDC Partners 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 drives creative excellence,
business growth and measurable return on marketing investment for over 1,700 clients worldwide. For more information about MDC
Partners and its partner firms, visit our website at www.mdc-partners.com and follow us on Twitter at
http://www.twitter.com/mdcpartners
.
Media/Investor
Contact:
Dan Zacchei/Erica
Bartsch
Sloane & Company
212-446-1875
Dzacchei@sloanepr.com
/ IR@mdc-partners.com