Stagwell Inc S-4/A, filed Sep 3, 2020
Stagwell Inc (STGW)
As filed with the Securities and Exchange Commission on September 2, 2020
Registration No. 333-248499
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
Form S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MDC PARTNERS INC.
(Exact Name of Registrant as Specified in Its Charter)
| Canada* | 7311 | 98-0364441 | ||
| (State or Other Jurisdiction of Incorporation) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
330
Hudson Street, 10th Floor, New York, New York 10013
(646) 429-1800
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Jonathan B. Mirsky
General Counsel
330
Hudson Street, 10th Floor, New York, New York 10013
(646) 429-1800
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copies of all communications to:
| Craig B. Brod Adam E. Fleisher Kimberly R. Spoerri |
Grant McGlaughlin Gesta Abols Alex Nikolic | |
| Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza |
Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 | |
| New York, New York 10006 (212) 225-2000 |
Toronto, Ontario, M5H 2T6 (416) 366-8381 |
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective and the consummation of the domestication transaction covered hereby.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earliest effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
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 ¨ | Accelerated filer x | |
| Non-accelerated Filer ¨ | Smaller reporting company x |
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. ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-border Issuer Tender Offer) ¨
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ¨
Explanatory Note
MDC Partners Inc. (the “Registrant”) has prepared this Amendment No. 1 (this “Amendment”) to the Registration Statement (the “Registration Statement”) on Form S-4 (File No. 333-248499) solely for the purpose of filing an updated consent of the Registrant’s independent registered public accounting firm as set forth in Exhibit 23.1 to this Amendment to correct the following typographical errors that were included in Exhibit 23.1 (the “Exhibit”) to the Registration Statement on Form S-4 originally filed on August 31, 2020 (the “Original Filing”): (i) the reference in the Exhibit to the date of the matters discussed in Notes 1, 4, 5, 6, 8, 10, 17, 21 and 22, which is being amended from August 24, 2020 to August 31, 2020, and (ii) the date of the consent of our Independent Public Registered Accounting Firm referenced in the Exhibit, which is being amended from August 24, 2020 to August 31, 2020. Except for the foregoing amended information, this Amendment does not amend or update any other information contained in the Original Filing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Under Section 124 of the CBCA, the Registrant may indemnify a present or former director or officer of the Registrant or another individual who acts or acted at the Registrant’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Registrant or other entity. The Registrant may not indemnify an individual unless the individual (i) acted honestly and in good faith with a view to the best interests of the Registrant, or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Registrant’s request, and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the conduct was lawful. The aforementioned individuals are entitled to the indemnification described above from the Registrant as a matter of right if they were not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done and if the individual fulfills conditions (i) and (ii) above. The Registrant may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding; however, the individual shall repay the moneys if the individual does not fulfill the conditions set out in (i) and (ii) above. The indemnification or the advance of any moneys may be made in connection with a derivative action only with court approval and only if the conditions in (i) and (ii) above are met. Under the CBCA, the Registrant may purchase and maintain insurance for the benefit of any of the aforementioned individuals against any liability incurred by the individual in their capacity as a director or officer of the Registrant, or in their capacity as a director or officer, or similar capacity, of another entity, if the individual acted in such capacity at the Registrant’s request.
The by-law of the Registrant provides that, subject to the limitations contained in the CBCA but without limit to the right of the Registrant to indemnify any person under the CBCA or otherwise, the Registrant shall indemnify every director and officer of the Company and his or her heirs, executors, administrators and other legal personal representatives, against any liability and all costs, charges and expenses that he or she sustains or incurs in respect of any action, suit or proceeding that is proposed or commenced against him or her for or in respect of anything done or permitted by him or her in respect of the execution of the duties of his or her office; and all other costs, charges and expenses that he or she sustains or incurs in respect of the affairs of the Company.
See above under the heading “Description of Capital Stock — Limitations of Liability and Indemnification Matters” for a description of indemnification provisions and arrangements that will be applicable following the completion of the U.S. Domestication.
Item 21. Exhibits and Financial Statement Schedules.
(a) See Exhibit Index.
Item 22. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement (notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement); and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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(2) That, for the purpose of determining any liability under the Securities Act, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(5) That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the Registrant undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(6) That every prospectus (i) that is filed pursuant to paragraph (5) above, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to this registration statement and will not be used until such amendment has become effective, and that for the purpose of determining liabilities under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one (1) Business Day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(8) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective.
(9) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its legal counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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EXHIBIT INDEX
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* Filed electronically herewith.
† Indicates management contract or compensatory plan
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 September 2, 2020.
| MDC PARTNERS INC. | |
| /s/ Frank Lanuto | |
| Frank Lanuto | |
| Chief Financial Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| /s/ Vincenzo DiMaggio | |
| Vincenzo DiMaggio | |
| Chief Accounting Officer | |
| Date: September 2, 2020 | |
| * | |
| Mark Penn | |
| Chief Executive Officer and Chairman of the Board | |
| Date: September 2, 2020 | |
| * | |
| Ambassador Charlene Barshefsky | |
| Director | |
| Date: September 2, 2020 | |
| * | |
| Asha Daniere | |
| Director | |
| Date: September 2, 2020 | |
| * | |
| Bradley Gross | |
| Director | |
| Date: September 2, 2020 | |
| * | |
| Wade Oosterman | |
| Director | |
| Date: September 2, 2020 | |
| * | |
| Desirée Rogers | |
| Director | |
| Date: September 2, 2020 | |
| * | |
| Irwin D. Simon | |
| Lead Independent Director | |
| Date: September 2, 2020 |
*Signed by Frank Lanuto pursuant to a Power of Attorney.
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, as amended, the Authorized Representative has duly caused this registration statement to be signed on its behalf by the undersigned, solely in its capacity as the duly authorized representative of MDC Partners Inc. in the United States, on September 2, 2020.
| MDC PARTNERS INC. | |||
| By: | /s/ Frank Lanuto | ||
| Name: | Frank Lanuto | ||
| Title: | Chief Financial Officer | ||
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 this Registration Statement on Form S-4 of MDC Partners Inc. (the “Company”) of our reports dated March 5, 2020, relating to the consolidated financial statements (except for matters discussed in Notes 1, 4, 5, 6, 8, 10, 17, 21 and 22 as to which the date is August 31, 2020), the effectiveness of MDC Partners 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, 2019. Our report on the effectiveness of internal control over financial reporting expresses an adverse opinion on the effectiveness of MDC Partners Inc.'s internal control over financial reporting as of December 31, 2019.
We also consent to the reference to us under the caption “Experts” in the Registration Statement.
/S/ BDO USA, LLP
New York, New York
August 31, 2020