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 of Earliest Event Reported)
— April 22, 2019 (April 18, 2019)
MDC PARTNERS
INC.
(Exact Name of Registrant as Specified in
its Charter)
Canada
(Jurisdiction of Incorporation)
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001-13718
(Commission
File Number)
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98-0364441
(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 1.01 Entry Into a Material Definitive Agreement.
On April 19, 2019,
MDC Partners Inc. (the “
Company
”) entered into an agreement (the “
Agreement
”) with FrontFour
Capital Group LLC, on behalf of itself and its affiliates (collectively, “
FrontFour
”). FrontFour previously
delivered to the Company a shareholder requisition letter, dated December 31, 2018 (the “
Requisition Letter
”),
requisitioning a special meeting of shareholders to remove from the Company’s board of Directors (the “
Board
”)
Scott Kauffman, Clare Copeland and Irwin Simon, and to replace them with three dissident nominees: Kristen O’Hara, David
Moran and Stephen Loukas.
Pursuant to the Agreement,
FrontFour has irrevocably withdrawn the Requisition Letter and has agreed to immediately terminate all other solicitation and other
activities related to the Company’s 2019 annual meeting of shareholders (the “
2019 Annual Meeting
”). Specifically,
until the date that is the earlier to occur of (x) fifteen (15) days prior to the nomination deadline for directors at the 2020
annual general meeting of shareholders of the Company and (y) sixty (60) days prior to the date of the 2020 annual general meeting
of shareholders of the Company (the “
Restricted Period
”), FrontFour has agreed not to, among other things: (i)
engage in, participate in, or in any way initiate any proxy solicitation related to the Company; (ii) take action in any other
manner in order to vote, advise or influence the voting of any securities of the Company; (iii) requisition or call a meeting of
shareholders of the Company, (iv) nominate any candidate for election to the Board, (v) effect the removal of any member of the
Board or otherwise alter the composition of the Board; or (vi) submit any Company shareholder proposals.
Under the terms of
the Agreement, the Company agreed to include the following persons on the Company’s slate of director nominees standing for
election at the 2019 Annual Meeting: Mark J. Penn, Charlene Barshefsky, Daniel S. Goldberg, Bradley Gross, Desirée Rogers,
Irwin D. Simon, Kristen O’Hara, and a new Canadian resident to be chosen by the Company (a) who has appropriate industry
qualifications, (b) will be an independent director under the applicable Nasdaq rules, and (c) is reasonably acceptable to FrontFour
(such nominee and Ms. O’Hara, collectively, the “
New Directors
”). During the Restricted Period, FrontFour
has agreed to vote in favour of the election of all MDC management nominees and against the removal of any director recommended
by the Board at any annual or special meeting of shareholders during the Restricted Period.
Upon election to the
Board, the New Directors shall be entitled to the same protections, rights and benefits, including with respect to insurance, indemnification,
compensation and fees as are currently applicable to all non-affiliated directors of the Company.
Under the Agreement,
the Company and FrontFour have agreed to mutual non-disparagement provisions. The Company has also agreed to reimburse FrontFour
for up to $50,000 of its reasonable and documented expenses in connection with the Requisition Letter and the negotiation of, and
entry into, the Agreement.
The foregoing summary
description of the Agreement is qualified in its entirety by reference to the full text of the agreement. The Agreement is filed
as Exhibit 10.1 hereto and incorporated by reference herein.
Item
7.01 Regulation FD Disclosure.
Effective April 18,
2019, the Board appointed Mark J. Penn as Chairman of the Board.
On April 22, 2019,
the Company issued a press release announcing entry into the Agreement and Mark J. Penn’s appointment as Chairman of the
Board. A copy of such press release is furnished as Exhibit 99.1 hereto and incorporated herein by reference.
Item 9.01. Financial Statements and
Exhibits.
(d) Exhibits.
ADDITIONAL INFORMATION
AND WHERE TO FIND IT
This communication
does not constitute a solicitation of any vote or approval. This communication relates to the Agreement the Company entered into
with FrontFour relating to the withdrawal by FrontFour of its Requisition Letter and the Company’s slate of director nominees
standing for election at the 2019 Annual Meeting. In connection with the 2019 Annual 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, 19th 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, 2018, which was filed with the SEC on March 18, 2019 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: April 22, 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 10.1
DELIVERED BY E-MAIL
April 19, 2019
FrontFour Capital Group LLC
35 Mason Street, 4th Floor
Greenwich, CT 06830
United States
Attention: David A. Lorber and Stephen
E. Loukas
Dear Messrs. Lorber and Loukas:
This letter agreement
sets forth the understanding between MDC Partners Inc. (“
MDC
” or the “
Company
”) and FrontFour
Capital Group LLC (“
FrontFour
”), on its own behalf and on behalf of its affiliates, including FrontFour Master
Fund, Ltd., FrontFour Opportunity Fund and its separately managed accounts (collectively, the “
FrontFour Parties
”),
regarding certain changes to the composition of the board of directors of MDC (the “
Board
”), namely the inclusion
on the Company’s slate of director nominees standing for election at the annual and special meeting of shareholders of the
Company scheduled for June 4, 2019 (the “
2019 Meeting
”) of Kristen O’Hara and a new Canadian resident
to be chosen by MDC who has appropriate industry qualifications; will be an independent director under the applicable Nasdaq rules;
and is reasonably acceptable to FrontFour (the “
New Directors
”). FrontFour will be permitted to interview the
New Directors to confirm that they have appropriate industry qualifications. In consideration of the respective representations,
warranties, covenants, agreements and conditions hereinafter set forth and for other good and valuable consideration (the receipt
and sufficiency of which are acknowledged by each party hereto), the parties agree as follows:
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1.
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New Directors
. MDC and the Board shall include the New Directors as director nominees in
its proxy statement and management information circular for election at the 2019 Meeting and shall solicit proxies on behalf of
and recommend to its shareholders that they vote in favour of the management nominees, including the New Directors. Upon election
to the Board, the New Directors shall be entitled to the same protections, rights and benefits, including with respect to insurance,
indemnification, compensation and fees as are currently applicable to all non-affiliated directors of the Company, and shall be
required to comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to Board members,
and to preserve the confidentiality of Company business and information, including discussions or matters considered in meetings
of the Board or Board committees to the extent not disclosed publicly by the Company.
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2.
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Requisition
. The FrontFour Parties hereby automatically and without any further action,
and with immediate effect, irrevocably withdraw the shareholder requisition made by them on December 31, 2018, requisitioning a
special meeting of the shareholders of the Company.
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3.
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FrontFour Parties Standstill
. Upon acceptance of this letter agreement and until the date
that is the earlier to occur of (x) fifteen days prior to the nomination deadline for directors at the 2020 annual general meeting
of shareholders of MDC and (y) sixty (60) days prior to the date of the 2020 annual general meeting of shareholders of MDC (the
“
Restricted Period
”), except as contemplated in this letter agreement or with the prior written consent of MDC
(in its sole discretion), the FrontFour Parties shall not, directly or indirectly, do any of the following: (i) engage in, participate
in, or in any way initiate, directly or indirectly, any “solicitation” (as such term is defined in the
Canada Business
Corporations Act
(CBCA) and in any applicable securities laws) of proxies or consents with respect to the voting of any shares
of MDC; (ii) take action in any other manner in order to vote, advise or influence in any manner whatsoever any person, with respect
to the voting of any securities of MDC; (iii) deposit any shares of MDC in any voting trust or subject any shares of MDC to any
arrangement or agreement with respect to the voting of any such shares; (iv) seek, alone or in concert with others to, (A) requisition
or call a meeting of shareholders of MDC, (B) obtain representation on, or nominate or propose the nomination of any candidate
for election to the Board, or (C) effect the removal of any member of the Board or otherwise alter the composition of the Board;
(v) submit, or induce any person to submit, any shareholder proposal pursuant to the CBCA or applicable securities laws; (vi) make
any public or private disclosure of any consideration, intention, plan or arrangement inconsistent with any of the foregoing, except
as required by law; or (vii) enter into any discussions, agreements, understandings or encourage any person to take any action
inconsistent with the foregoing. The FrontFour Parties agree to vote in favour of the election of all MDC management nominees and
against the removal of any director recommended by the Board at any annual or special meeting of shareholders during the Restricted
Period.
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4.
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Board Composition
. The FrontFour Parties, the Company and the Board agree that the Company’s
slate of director nominees standing for election at the 2019 Meeting shall be comprised of eight (8) directors, consisting of Mark
J. Penn, Charlene Barshefsky, Daniel S. Goldberg, Bradley Gross, Desirée Rogers, Irwin D. Simon and the New Directors.
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5.
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Breach of Agreement
. A breach of any term of this letter agreement by the FrontFour Parties
on the one hand and MDC on the other hand or any of their respective representatives (with the FrontFour Parties on the one hand
and MDC on the other hand being responsible for the actions of their respective representatives), will immediately entitle the
other party to pursue equitable remedies (including specific performance or injunctive relief) in addition to any claim for damages
or any other legal remedy.
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6.
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Non-Disparagement
. Each party agrees during the Restricted Period that it shall not do,
say, publish, or communicate, in any media or forum, any matter or thing that would reasonably be expected to undermine, disparage
or reflect adversely on the reputation, qualifications, character, conduct or behaviour of any other party or any of its respective
current or former directors, officers, employees, agents or representatives in connection with any matter arising out of or relating
to MDC.
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7.
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Representations and Warranties
. Each of the FrontFour Parties on the one hand and MDC on
the other hand represents and warrants: (i) it has the power, capacity and authority to execute, deliver and carry out the terms
and provisions of this letter agreement and to consummate the transactions contemplated hereby; and (ii) this letter agreement
has been duly authorized, executed and delivered by it and constitutes a legal, valid and binding obligation enforceable against
it in accordance with its terms. The FrontFour Parties represent and warrant that as of the date hereof, the FrontFour Parties
beneficially own, directly or indirectly, an aggregate of approximately 4% of the Class A Subordinate Voting Shares of the Company
and such shares constitute all of the securities of the Company beneficially owned by the FrontFour Parties or in which the FrontFour
Parties have any interest or right to acquire, whether through derivative securities, voting agreements or otherwise.
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8.
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Assignment
. This letter agreement, including any of the rights, duties or obligations herein,
is not assignable or transferable by either party without the prior written consent of the other party, such consent shall not
be unreasonably withheld, conditioned or delayed. Any attempt to assign any of the rights, duties or obligations in this letter
agreement without such written consent is void.
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9.
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Reimbursement of Fees
. Promptly after the date hereof, MDC shall reimburse FrontFour up
to US$50,000 for legal fees and expenses incurred in connection with the matters addressed herein.
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10.
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Entire Agreement
. This letter agreement contains the entire understanding of the parties
hereto with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations, warranties,
covenants or other undertakings other than those expressly set forth in this letter agreement.
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11.
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Miscellaneous
. All modifications of and amendments to this letter agreement or any part
hereof must be in writing signed on behalf of all parties. Waivers of any terms and provisions of this letter agreement shall be
in writing signed on behalf of all parties. Time is of the essence.
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This letter agreement
shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein,
and the parties hereto hereby irrevocably attorn to the jurisdiction of the courts thereof.
Please sign this letter
agreement in the space provided below to confirm the mutual understandings and agreements contained herein, and return a signed
copy to the undersigned by e-mail to Mitchell Gendel at mgendel@mdc-partners.com on or before 5:00 p.m. (Eastern time) on April
19, 2019, failing which this letter shall be null and void. An executed copy of this letter agreement may be transmitted by email
and the transmission of a signature by such means constitutes effective delivery.
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Sincerely,
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MDC PARTNERS INC.
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By:
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/
s/ Mitchell Gendel
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Name: Mitchell Gendel
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Title: General Counsel
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Agreed and acknowledged as of this 19
th
day of April, 2019:
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FRONTFOUR CAPITAL GROUP LLC
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By
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/s/ Stephen Loukas
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Name: Stephen Loukas
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Title: Managing Member
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FRONTFOUR CAPITAL CORP.
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By
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/s/ Stephen Loukas
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Name: Stephen Loukas
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Title: Principal
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Exhibit 99.1
MDC Partners Announces Board Updates
MDC Reaches Agreement with FrontFour
Capital
Kristen O’Hara and Additional New
Independent Director
to be Added to Company Slate of 2019
Nominees
Mark Penn Appointed Chairman of the Board
of MDC
New York, NY, April 22, 2019 (NASDAQ: MDCA)
– MDC
Partners Inc. (“MDC Partners” or the “Company”) today announced several changes to its Board of Directors.
First, the Company has reached a settlement agreement (the “Agreement”) with FrontFour Capital Group LLC (“FrontFour”).
As part of the agreement, MDC will include Kristen O’Hara on its slate of director nominees for election at the 2019 Annual
Meeting. MDC will also include on its slate another nominee to be named, who will be a Canadian resident chosen by the Company
with significant industry experience. FrontFour will take part in the selection process for this second nominee.
Separate from the settlement, MDC also announced today that
Chief Executive Officer Mark Penn has been appointed Chairman of the Board of Directors.
“We are pleased to have reached this constructive outcome
with FrontFour, and to welcome Kristen O’Hara as a nominee to our board,” said Mark Penn, Chairman and CEO of MDC Partners.
“Kristen’s experience in marketing leadership roles at top companies across the media sector will be highly beneficial
as we continue to evolve our business and we look forward to her perspectives. These changes are consistent with my belief in the
importance of having directors with first-rate industry experience as we remain focused on maximizing value for all shareholders.”
As previously disclosed, directors Scott Kauffman and Clare
Copeland will not stand for election at the 2019 meeting. The Company will file its proxy statement reflecting the updated slate
of directors by April 30, 2019.
"FrontFour believes in the significant potential of MDC
under the leadership of its refreshed board,” said Stephen Loukas of FrontFour. "We look forward to working with Mark
Penn and the rest of MDC’s executive leadership team in order to unlock value across the Company’s exceptional network
of agencies.”
Under the agreement, FrontFour immediately withdrew its requisition
for a special meeting, and committed to support all of MDC’s nominees at the 2019 Annual Meeting. FrontFour has also agreed
to certain customary standstill provisions. The agreement will be included as an exhibit to a Current Report on Form 8-K, which
will be filed with the Securities and Exchange Commission.
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.
ADDITIONAL
INFORMATION AND WHERE TO FIND IT
This communication does not constitute
a solicitation of any vote or approval. This communication relates to the agreement the Company entered into with FrontFour and
the Company’s slate of director nominees standing for election at the Company’s 2019 Annual Meeting. In connection
with the Company’s 2019 Annual 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, 19th 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,
2018, which was filed with the SEC on March 18, 2019 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.
Media/Investor Contact:
Dan Zacchei/Erica Bartsch
Sloane & Company
212-446-1875
Dzacchei@sloanepr.com / IR@mdc-partners.com
or
Alexandra Delanghe
Chief Communications Officer
MDC Partners Inc.
646-429-1845
adelanghe@mdc-partners.com