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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): March 29, 2022

 

Midwest Holding Inc.

(Exact name of registrant as specified in its charter)

 

delaware   001-39812   20-0362426
(State or other jurisdiction
of incorporation)
  (Commission File Number)   (IRS Employer Identification No.)

 

2900 South 70th Street, Suite 400

Lincoln, Nebraska 68506

(Address of principal executive offices) (Zip Code)

 

(402) 489-8266

(Registrant’s telephone number, including area code)

 

  Not Applicable  
  (Former name or former address, if changed since last report)  

 

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 (see General Instruction A.2. below):\

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
  

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
  

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2 (b))
  

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4 (c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered
Voting Common Stock, $0.001 par value MDWT NASDAQ Stock Market LLC

 

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 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Effective March 31, 2022, the Company’s Chief Risk Officer, Eric Del Monaco, resigned as an employee of the Company to spend time with his family and to pursue other interests. In connection with the terms of his Employment Agreement, the Company entered into a Severance Agreement and Release (the “Agreement”) with Mr. Del Monaco. The following is a summary of the material terms of the Agreement and is qualified in its entirety by reference to the full text of the Agreement, a copy of which is filed as Exhibit 10.1 to this Report. Pursuant to the Agreement, Mr. Del Monaco will receive:

 

a.his semi-monthly base salary through September 30, 2022, for an aggregate total of $125,000 and his pro-rata annual bonus through the effective date of his resignation for an aggregate total of $62,500, less applicable taxes, deductions and withholdings (the “Severance”);

 

b.pro-rated vesting of his restricted stock award through the effective date which equates to additional vesting of 1,163 shares of the Company’s voting common stock; and

 

c.reimbursement from the Company of the monthly premium payable to continue his participation in the Company’s group health plan through September 30, 2022, provided that he is eligible and remains eligible for COBRA coverage; and provided, further, that in the event he obtains other employment that offers group health benefits, such continuation of coverage by the Company shall then cease.

 

In addition, the Company agreed to reduce Mr. Del Monaco’s non-compete obligation from six months to three months, thus expiring on June 30, 2022.

 

Also on March 31, 2022, Debra Havranek, our Principal Accounting Officer, announced her retirement effective June 30, 2022. In connection therewith, the Company entered into an Employee Separation Agreement with Ms. Havranek which provides as follows:

 

a.payment to Ms. Havranek of her 2021 bonus of $100,000 which was conditioned on filing of the Company’s Annual Report on 10-K;

 

b.during her final few months of employment, Ms. Havranek will begin to assist with the transition of her duties and the Company has agreed to pay Ms. Havranek a conditional bonus of $50,000 on July 15, 2022, if the Company believes that the transition process has been successfully completed; and

 

c.beginning on July 1, 2022, Ms. Havranek has agreed to provide consulting services on an as needed basis, and the Company has agreed to pay Ms. Havranek a final payment of $50,000 upon the termination of the consulting arrangement on September 30, 2022, if the consulting work requested has been performed in a satisfactory manner.

 

The separation agreement also contains standard liability release and confidentiality provisions.

 

The foregoing are summaries of the material terms of the Agreement with Mr. Del Monaco and Employee Separation Agreement with Ms. Havranek and each is qualified in its entirety by reference to the full text of the applicable agreements, copies of which are filed as Exhibits 10.1 and 10.2 to this Report.

 

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Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

The following exhibits are included with this Current Report on Form 8-K:

 

Exhibit No.   Description
10.1    Severance Agreement and Release between Midwest Holding Inc. and Eric Del Monaco effective March 31, 2022.
10.2   Employee Separation Agreement between Midwest Holding Inc. and Debra Havranek dated March 31, 2022.
104   Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Dated: April 4, 2022.

 

  MIDWEST HOLDING INC.
   
  By: /s/ Georgette C. Nicholas
  Name: Georgette C. Nicholas
  Title: Chief Executive Officer

 

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Exhibit 10.1

 

SEVERANCE AGREEMENT AND RELEASE

 

This Severance Agreement and Release (this "Agreement") is entered into by and between Eric Del Monaco ("Employee") and Midwest Holding Inc. (the "Company"). Employee and the Company are sometimes collectively referred to as the "Parties." All terms not otherwise defined herein shall have the same meaning as set forth in the Employment Agreement between the Parties dated November 16, 2020 (the “Employment Agreement”).

 

1.               Employee's employment with the Company is terminated effective March 31, 2022 (the "Termination Date"). The Parties have agreed to avoid and resolve any alleged existing or potential disagreements between them arising out of or connected with Employee's employment with the Company and the termination of such employment. The Company expressly disclaims any wrongdoing or any liability to Employee. The Employee expressly disclaims any wrongdoing or any liability to the Company.

 

2.                 The Company acknowledges that it will pay Employee for Base Salary earned through the Termination Date and reimburse Employee for properly documented and timely submitted business expenses, if any, pursuant to the Company's expense reimbursement policies. All benefits that Employee currently receives from the Company shall terminate on the Termination Date; provided, however, that Employee's health and dental benefits (if applicable) may continue, consistent with Company policy, through the last day of the month that includes the Termination Date. Moreover, the termination of any health insurance benefits is subject to Employee's rights under the Consolidated Omnibus Budget Reconciliation Act ("COBRA").

 

3.                 In exchange for Employee's execution of this Agreement, and Employee's performance of his obligations hereunder, the Company agrees to provide Employee the following severance benefits after the expiration of the revocation period described in Paragraph 20, below, at which time this Agreement becomes effective ("Effective Date"), provided Employee has not revoked this Agreement as described in Paragraph 20:

 

·Continued payment of Base Salary, on a semi-monthly basis, subject to applicable withholding and authorized deductions and in accordance with the Company’s usual and customary payroll practices, through September 30, 2022, for the total of an additional One Hundred Twenty-Five Thousand and 00/100 Dollars ($125,000.00);

 

·Subject to Employee’s timely election of coverage under COBRA, the Company will reimburse Employee the monthly premium payable to continue his participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Employee for a period of six (6) months through September 30, 2022, provided, that Employee is eligible and remains eligible for COBRA coverage; and provided further, that in the event the Employee obtains other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease. Employee shall provide the Company within two (2) business days written notice that he has accepted an employment offer from a prospective employer;

 

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·The Company shall pay Employee his pro-rata Annual Bonus through the date of termination equaling Sixty-Two Thousand Five Hundred and 00/100 Dollars ($62,500.00), subject to applicable withholding and authorized deductions and in accordance with the Company’s usual and customary payroll practices, such payment to be made within two payroll periods of the Termination Date;

 

·Continued vesting of a pro-rated portion of the restricted shares of Company stock due through March 31, 2022 (for clarity, Employee shall vest in an additional 1,163 shares so that Employee on the Termination Date shall be vested in a total of 5,812 restricted shares); and

 

·The Company agrees to reduce the Employee’s Non-Competition obligation, as set forth in Section 12 of his Employment Agreement, from six (6) months to three (3) months, thus expiring on June 30, 2022.

 

Employee specifically acknowledges and agrees that this consideration exceeds the amount Employee would otherwise be entitled to receive upon termination of Employee's employment and that such severance benefits are in exchange for entering into and performing this Agreement. Employee agrees that Employee will not at any time seek consideration from the Company other than what is set forth in this Agreement. Employee specifically acknowledges and agrees that the Company has made no representations to Employee regarding the tax consequences of any amounts received by Employee or for Employee's benefit pursuant to this Agreement, and Employee has not relied on any representation or lack of representation by the Company. Employee remains wholly responsible for the tax consequences regarding the amounts to be received.

 

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4.                 Except to the extent prohibited by law, Employee and Employee's heirs, executors, administrators, successors and assigns hereby fully RELEASE the Company and each of its direct and indirect subsidiaries, affiliates and parents and each of their respective predecessors, successors and past and present direct and indirect stakeholders, directors, officers, employees, contractors, representatives, agents and assigns (the "Company Releasees") from any and all claims, complaints, causes of action or demands, of whatever kind or nature, that Employee now has or has ever had against the Company or any of the Company Releasees, arising from or relating to Employee's employment with or discharge from the Company, whether known or unknown to Employee at the time of Employee's execution of this Agreement, including, but not limited to: wrongful or tortious termination, specifically including, but not limited to, actual or constructive termination in violation of public policy; military leave, reinstatement, or related rights; claims under common law, statute or contract, specifically including, but not limited to, implied or express employment contracts and/or estoppel; discrimination, retaliation and/or any other claims under any federal, state or local statute or regulation, specifically including but not limited to any claims Employee may have under the WARN Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, 42 U.S.C. Section 1981, the Family and Medical Leave Act, and the Employee Retirement Income Security Act, all as amended; any and all claims brought under any applicable state or local employment, discrimination or other statutes; any claims brought under any federal, state or local statute or regulation with respect to nonpayment of wages, severance pay, or other compensation (including, but not limited to, bonuses); and libel, slander, fraud, misrepresentation, or breach of contract other than a breach of this Agreement. THIS AGREEMENT CONTAINS A GENERAL RELEASE OF ALL CLAIMS. This release specifically excludes claims, charges, complaints, causes of action or demands of whatever kind or nature: (a) that arise after the Termination Date, including the right to enforce this Agreement; (b) that cannot be released as a matter of law, including Employee's rights to COBRA, workers' compensation, and unemployment insurance; (c) to accrued, vested benefits under any employee benefit, stock, savings, insurance or pension plan of the Company; or (d) to indemnification, contribution, advancement or defense as provided by and in accordance with the terms of the Company by-laws, articles of incorporation, liability insurance coverage, the Employment Agreement (including the First Amendment to the Employment Agreement) or applicable law.

 

Except to the extent prohibited by law, The Company, on behalf of itself and the Company Releasees, hereby fully RELEASES Employee and Employee's heirs, executors, administrators, successors and assigns from any and all claims, complaints, causes of action or demands, of whatever kind or nature, that the Company Releasees now have or have ever had against the Employee, arising from or relating to Employee's employment with or discharge from the Company, whether known or unknown to the Company at the time of the Company’s execution of this Agreement.

 

5.                  Nothing in this Agreement shall preclude or interfere with Employee's rights under federal, state or local civil rights or employment discrimination laws to file a complaint with any federal, state or local agency or self-regulatory organization charged with enforcing such laws, including, but not limited, to the Equal Employment Opportunity Commission ("EEOC"). Nor shall this Agreement be construed to prevent Employee from assisting in, cooperating with or participating in any investigations or proceedings by such agency or self-regulatory organization pursuant to a lawful subpoena or equivalent order. None of the foregoing acts by Employee shall constitute a breach of any non- disparagement, confidentiality or cooperation clauses or any other clause of this Agreement. Notwithstanding the foregoing, Employee acknowledges and agrees that Employee hereby waives any and all rights Employee may have to recovery of any damages (whether monetary or otherwise) in connection with any complaint or charge Employee may file pursuant to this Paragraph and that the amount specified in Paragraph 3 herein is sufficient consideration for any such claims.

 

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6.                  Employee represents and warrants that Employee has no pending disputes, differences, grievances, charges, complaints, litigation, lawsuits, or actions against any of the Company Releasees or with any local, state or federal agency or court arising from or related to Employee's employment relationship with or separation from the Company. Employee hereby warrants and represents that Employee has not assigned, alienated, hypothecated or in any other way transferred (in whole or in part) to any other person, organization or entity any claims, demands, losses, actions or rights of action against the Company, known or unknown, of whatever character and nature, arising from or related in any way to Employee's employment with or separation from the Company, or any claim Employee may have against any of the Company Releasees.

 

7.                 Employee affirmatively states and represents that upon Employee's receipt of pay for Employee's hours worked through Termination Date, as provided in Paragraph 2 above, Employee will have received all compensation to which Employee became entitled during Employee's employment with the Company and that no other wages or compensation remain payable to Employee.

 

8.                 Employee will not make any disparaging remarks regarding the Company, its business, products and services, or any of its directors, officers, employees, contractors, representatives, agents and assigns, to any third party, whether in private or in public. Likewise, the Company, through its senior management, will not make any disparaging remarks regarding Employee, whether in private or in public. Nothing in this Paragraph is intended to restrict Employee from engaging in activity protected by the National Labor Relations Act.

 

9.                  Employee will not disclose any Confidential Information (as herein defined) and (a) shall not permit any third party access to the Confidential Information; (b) shall use the same degree of care to protect the Confidential Information as the Company uses to protect its Confidential Information; and (c) shall take any other actions that are reasonable, necessary or appropriate to ensure the continued confidentiality and protection of the Confidential Information. "Confidential Information" means proprietary information of the Company, including, but not limited to, customer information, customer or vendor lists or information obtained through customer, customer or vendor contacts, trade secrets, business plans, marketing plans, financial information or reports and any other information relating to the business of the Company or any affiliate that would be detrimental to the Company if disclosed or to any other third party; provided, however, that "Confidential Information" shall not include information that is (i) part of the public domain (other than as a result of a breach of this Agreement); (ii) generally known within the industry; or (iii) known to Employee prior to his employment with the Company. Employee shall treat all Confidential Information and all other nonpublic information obtained during Employee's employment by the Company as confidential and shall not, without written authorization from the Company, release or share such information with any third party, except as may be required by law or pursuant to an order by any court or tribunal of competent jurisdiction.

 

10.             Employee affirmatively states and represents that the Company has not taken any retaliatory personnel action against Employee because Employee disclosed, or threatened to disclose, to any appropriate governmental agency, an activity, policy, or practice of the Company that Employee believes to be in violation of a law, rule, or regulation; for providing information to, or testifying before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the Company; or for objecting to, or refusing to participate in, any activity, policy, or practice by the Company which Employee believes to be in violation of a law, rule, or regulation.

 

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11.             Employee warrants that Employee has, or, prior to becoming entitled to any payment hereunder, Employee shall, deliver to the Company all memoranda, notes, plans, records, reports, computer files, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information, or the business of the Company that Employee may then possess or have under his/her control; provided, however, nothing herein shall prevent Employee from retaining documents related to his compensation and benefits. If Employee fails or refuses to comply with the provisions of this Paragraph, the Company may, at its option, cancel and revoke this Agreement.

 

12.             The Company requests that prior to reporting any actual or perceived violation of law to any governmental entity, Employee first notify the Company of any potential legal or compliance issue to allow the Company the opportunity to investigate and appropriately report any compliance matter brought to its attention by Employee. Nothing in this Paragraph is intended to impede Employee's right to report possible violations of law that are protected under the whistleblower provisions of local, state or federal law, including reports to any governmental agency or entity, and Employee is not required to seek the Company's permission prior to making such reports.

 

13.              Employee acknowledges receipt of notice that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. In addition, Employee has been given notice that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Finally, Employee acknowledges receipt of notice that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.

 

14.             In response to inquiries regarding Employee's employment with the Company, the Company, by and through its speaking agent(s), agrees to provide a neutral reference and to report the following information: Employee's date of hire, the date Employee's employment ended, and Employee's rates of pay.

 

15.             Employee warrants that no promise or inducement has been offered for this Agreement other than as set forth herein and that this Agreement is executed without reliance upon any other promises or representations, oral or written.

 

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16.             This Agreement constitutes the entire understanding between the Parties on the subject matter contained herein and supersedes all negotiations, representations, prior discussions and preliminary agreements between the Parties with respect to the subject matter herein. This Agreement does not supersede any agreements, including, but not limited to, the Proprietary Matters Agreement or any restrictive covenants that were in effect immediately prior to the date of this Agreement and which, by their terms, survive the termination of Employee's employment. Employee acknowledges that provisions contained within any agreements that Employee signed with the Company and which expressly survive Employee's employment, shall remain in full force and effect and survive his/her employment with the Company as provided by the terms of any such agreements. Such terms are expressly incorporated herein.

 

17.             If any provision of this Agreement or compliance by Employee or the Company with any provision of this Agreement constitutes a violation of any law, or is or becomes unenforceable or void, then such provision, to the extent only that it is in violation of law, unenforceable or void, shall be modified to the extent necessary so that it is no longer in violation of law, unenforceable or void, and such provision will be enforced to the fullest extent permitted by law. If such modification is not possible, such provision, to the extent it is in violation of law, unenforceable or void, will be deemed severable from the remaining provisions of this Agreement, which remaining provisions will remain binding on both Employee and the Company.

 

18.             This Agreement will be governed by the laws of the State of Delaware (without regard to its choice-of-law provisions), which Employee agrees bears a substantial relationship to the Parties and to this Agreement. The state and federal courts located in Wilmington, Delaware shall have exclusive jurisdiction of any lawsuit arising from or relating to Employee's employment with, or termination from, the Company, or arising from or relating to this Agreement, and Employee expressly consents to personal jurisdiction in Delaware courts and waives any right to contest the same. The prevailing party in any such lawsuit will be entitled to an award of attorneys' fees and reasonable litigation costs. The foregoing excludes any claim challenging the validity of Employee's waiver of rights under the Age Discrimination in Employment Act or charge asserting age discrimination.

 

19.             Employee agrees that Employee will indemnify and hold the Company harmless from and against any and all losses, liabilities, costs, damages or expenses incurred by the Company or any Company Releasee (including, without limitation, reasonable attorneys' fees) arising out of or resulting from any material breach, and failure to cure, of this Agreement by Employee. Employee further agrees that if Employee challenges this Agreement, files any claims against the Company arising from or relating to Employee's employment with, or termination from, the Company, excluding any claim challenging the validity of Employee's waiver of rights under the Age Discrimination in Employment Act, or otherwise fails to abide by the terms of this Agreement, as determined by a court of competent jurisdiction, (a) Employee will return all moneys and benefits received by Employee from the Company pursuant to this Agreement and (b) the Company may elect, at its option and without waiver of any other rights or remedies it may have, not to pay or provide any unpaid moneys or benefits.

 

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20.             Employee specifically agrees and acknowledges that (A) Employee's waiver of rights under this Agreement is knowing and voluntary as required under the Older Workers' Benefit Protection Act and Age Discrimination in Employment Act; (B) Employee understands the terms of this Agreement; (C) Employee has been advised in writing by the Company to consult with an attorney prior to executing this Agreement; (D) the Company has given Employee a period of up to twenty-one (21) days within which to consider this Agreement and that if Employee executes this Agreement within such period, Employee waives the remainder of the period and that modifications to this Agreement during such period, whether material or immaterial, do not restart the running of such period; (E) following Employee's execution of this Agreement, Employee has seven (7) days in which to revoke Employee's agreement to this Agreement and that if Employee chooses not to so revoke, this Agreement shall then become effective and enforceable and the payment and extension of benefits listed below shall then be made to Employee in accordance with the terms of this Agreement; and (F) nothing in this Agreement shall be construed to prohibit Employee from filing a charge or complaint, including a challenge to the validity of the waiver provision of this Agreement, with the Equal Employment Opportunity Commission or participating in any investigation conducted by the Equal Employment Opportunity Commission; provided, however, that Employee has waived any right to monetary relief. To cancel this Agreement, Employee understands that Employee must deliver a written revocation to Jeff Norris, Vice President of Human Resources, jnorris@midwestholding.com, by 5:00 p.m. on the seventh day after Employee executes this Agreement. If Employee revokes this Agreement, it will not become effective or enforceable and Employee will not be entitled to any of the benefits set forth in this Agreement.

 

21.             EMPLOYEE ACKNOWLEDGES AND AGREES THAT EMPLOYEE HAS CAREFULLY READ AND VOLUNTARILY SIGNED TIDS AGREEMENT, THAT EMPLOYEE HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF EMPLOYEE'S CHOICE, AND THAT EMPLOYEE SIGNS TIDS AGREEMENT WITH THE INTENT OF RELEASING THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AGENTS AND ASSIGNS FROM ANY AND ALL CLAIMS.

 

22.             This Severance Agreement and Release shall inure to the benefit of and be binding upon the Parties, as well as their successors, heirs and assigns.

 

23.             This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, including any signed electronic facsimile copies of this Agreement, and all such counterparts together shall be deemed to constitute one and the same instrument.

 

24.             Changes in this Agreement, whether by additions, waivers, deletions, amendments or modifications, may be accomplished only by a writing signed by both Employee and the Company.

 

[signature page follows]

 

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ACCEPTED AND AGREED TO:

 

Midwest Holding Inc.    
     
/s/ Georgette Nicholas   /s/ Eric Del Monaco
Georgette Nicholas   Eric Del Monaco
Chief Executive Officer    
     
Date: March 29, 2022   Date: March 29, 2022

 

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Exhibit 10.2

 

EMPLOYEE SEPARATION AGREEMENT

 

Midwest Holding Inc.

2900 South 70th Street, Suite 400

Lincoln, Nebraska 68510

 

March 31, 2022

 

Debra Havranek

19882 Chicago St

Omaha, NE 68022

 

Dear Debra:

 

This Separation Agreement is entered into by and between you (“You” or “Employee”) and the Employer. The term “Party” or “Parties” as used herein refer to Employee, Employer or both, as may be appropriate.

 

Per your conversation with Eric Berg on March 18, 2022, we accept your notice of Retirement effective June 30, 2022. As of April 1, 2022, the Employee will work remotely, unless otherwise requested by the Employer and conduct a smooth transition of authority as assigned by the Employer. This letter confirms our discussion regarding your retirement and includes a Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”).

 

 

1.Last Day of Employment. Your employment with the Employer terminates effective June 30, 2022 (the “Separation Date”).

 

2.Benefits. All benefits and perquisites of employment will cease as of the Separation Date, June 30, 2022. At that time, you may choose to continue certain of your health coverage benefits at your own expense by electing to obtain coverage under COBRA. Information regarding COBRA will be provided to you by the Employer in a separate document. Employee understands and agrees that Employee’s right to benefits under Employer’s health and benefit program, if any shall be limited to those set forth under COBRA.

 

3.Consideration. In consideration for signing this Separation Agreement and complying with is terms, the Parties agree to the following;

 

a.An initial lump sum payment of $100,000 less applicable withholdings and deductions on April 15, 2022.

 

b.From April 1, 2022, until May 15, 2022, the Employee will act as the lead CAO. During this time the Employee will engage in the transition to assist with preparing the quarterly statements including but not limited to;

 

i.disclosing locations, data and formatting of all finance and accounting related information;

 

ii.train staff, explain and document what they do in close and;

 

iii.work to ensure there is no disparagement of the company.

 

c.From May 16, 2022, until June 30, 2022, the Employee support the accounting and finance team in the background as a resource to provide support or answer questions, including but not limited to assisting with the transition to the new Vice President of Accounting and Finance.

 

d.On July 15, 2022, the Employee will receive an additional lump sum payment of $50,000 less applicable withholdings and deductions if, in the view of the Employer all transitions have been successfully executed to a reasonable standard.

 

e.Beginning on July 1, 2022, the Employee will transition to a consulting role which will terminate on September 30, 2022.

 

i.The Employer agrees to pay the Employee an hourly fee of $125.00 for consulting work in the event the Employer seeks consultation by the Employee on an as needed basis. The total fee is to be paid by the 15th of the month following the month in which services are rendered.

 

 

 

ii.Billable hours are only to be worked at the request of the Employer. All hours are to be tracked by both parties and will be approved by CEO or CFO for payment.

 

iii.The consulting agreement will end on September 30, 2022. At that point, the Employee will be paid an additional final lump sum of $50,000, less applicable withholdings and deductions, on October 15, 2022.

 

1.This final payment is not contingent on working consulting hours, but on continuing the same standard of quality work at a reasonable standard and only when asked by the Employer.

 

f.The Separation Payment schedule shall be paid only if you do not revoke this Separation Agreement, in accordance with the terms set forth herein.

 

4.No Consideration Absent Execution of this Separation Agreement. Employee understands and agrees that Employee would not receive the consideration specified in Section 3 above except for Employee’s execution of this Separation Agreement and fulfillment of the promises contained herein.

 

5.General Release of Claims, Claims Not Released and Related Provisions.

 

a.General Release of Claims. Employee, individually and on behalf of Employee’s heirs, executors, administrators, representatives, attorneys, successors and assigns hereby knowingly and voluntarily releases and forever discharges Employer, including without limitation its predecessors, successors, insurers, assigns, subsidiaries, parent companies, affiliates, partners, attorneys, officers, directors, owners, agents or current or former employees, both individually and in their business capacities and their employee benefit programs and any of its trustees, administrators, fiduciaries and insurers of such plans and programs (collectively, “Released Parties”) to the fullest extent permitted by law and from any and all claims of any kind whatsoever, known and unknown, asserted and unasserted which Employee has or may have against the Released Parties as of the date of this Separation Agreement.

 

b.Claims Not Released. You are not waiving any rights you may have to: (a) your own vested accrued employee benefits under the Employer’s health, welfare or retirement benefit plans as of the Separation Date; (b) benefits and/or the right to seek benefits under applicable workers’ compensation and/or unemployment compensation statutes; (c) pursue claims which by law cannot be waived by signing this Separation Agreement; and/or (d) enforce this Separation Agreement and/or challenge the validity of this Separation Agreement.

 

c.Government Agencies. Nothing in this Separation Agreement prohibits or prevents you from filing a charge with or participating, testifying or assisting in the investigation, hearing, whistleblower proceeding or other proceeding before any federal, state or local government agency nor does anything in this Separation Agreement preclude, prohibit or otherwise limit in any way your rights and abilities to contact, report matters or to otherwise participate in any whistleblower program administered by such agencies. However, to the maximum extent permitted by law you agree that if such an administrative claim is made, you shall not be entitled to recover any individual monetary relief or individual remedies.

 

d.Class Action Waiver. To the extent permitted by law, Employee waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim which Employee or any other employee (whether current, past or future) of the Employer is a party (or potential party).

 

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6.Acknowledgements and Affirmations. By executing this Separation Agreement, you affirm (1) you have not filed, caused to be filed or presently are a party to any claim against the Employer or any Released Party and that you are not presently a party to any claim, complaint or action against any of the Released Parties in any forum or form, (2) that you have been paid and/or have received all compensation, wages, bonuses, commissions and/or benefits which are due and payable as of the date you sign this Separation Agreement, (3) that you have been granted, or have not been denied, any leave to which you were entitled to under any of: (i) the Family and Medical Leave Act or (ii) any related state or local leave or disability accommodation law, (4) that you have no known workplace injuries or occupation diseases, (5) that you have not been retaliated against for reporting any allegations of wrongdoing by the Employer or any Released Party, (6) that all of the Employer’s decisions regarding your pay and benefits through the Separation Date were not discriminatory based on age, mental and physical disability, medical condition, race, color, sex, gender, gender identification or expression, sexual orientation, marital status, pregnancy, religion, national origin, denial of medical or family care leave, pregnancy disability leave or another classification protected (or that may be protected) by law.

 

7.Consideration and Revocation Periods. You understand and acknowledge that your release of claims under the Age Discrimination in Employment Act (as amended from time to time, the “ADEA”) is subject to special waiver protection. Therefore, in accordance with ADEA you specifically agree that you knowingly and voluntarily release and waive any rights or claims of discrimination under the ADEA. In particular, you represent and acknowledge that you understand the following: (a) you are not waiving rights or claims for age discrimination under the ADEA that may arise after the date you sign this Separation Agreement, (b) you are waiving rights or claims for age discrimination under the ADEA in exchange for the Separation Payment described herein, (c) you have been given an opportunity to consider fully the terms of this Separation Agreement for 21 days although you are not required to wait 21 days before signing this Separation Agreement and (d) you understand that you have seven calendar days after you sign this Separation Agreement to revoke your Separation Agreement as to your release of claims under the ADEA.

 

Any such revocation must be in writing and delivered to the address below.

 

Midwest Holding Inc.

Attention: Georgette Nicholas (CEO)

2900 South 70th Street, Suite 400

Lincoln, NE 68506

 

The revocation must state “I hereby revoke my acceptance of our Separation Agreement and General Release of All Claims.”

 

The portion of this Separation Agreement that pertains to payment of the Separation Payment and the release of claims under the ADEA shall not become effective or enforceable until the seven-day revocation period has expired, but all other provisions of this Separation Agreement will become effective upon your execution of this Separation Agreement.

 

8.No Admission of Wrongdoing. You acknowledge and agree that nothing contained in this Separation Agreement shall constitute or be treated as an admission by the Employer or any Released Party of any wrongdoing, liability or of any violation of law. The Parties agree that neither this Separation Agreement nor the furnishing of consideration for this Separation Agreement shall be deemed or construed at any time for any purpose as an admission by the Released Parties of wrongdoing or evidence of any liability or unlawful conduct of any kind.

 

9.Limited Disclosure. Employee agrees that he or she will not publicize or disclose or cause or knowingly permit the publication or disclosure of any term and provision contained in this Separation, including its existence or contents or any related negotiations (collectively, “Confidential Information”) to any person, firm, organization or entity of any type whatsoever without the prior written consent of the Employer, unless compelled by operation of law, or if such disclosure is made in confidence to his or her spouse, physician or accountant.

 

10.Return of Employer Property, Non-Disclosure of Confidential and Employer Information. Within seven days of your execution of this Separation Agreement, you will return any and all of Employer’s documents and property currently in your possession (collectively “Employer Property”). You represent and agree that you will not disseminate or use for any other purpose any Employer Property. You also represent and agree that to the best of your knowledge and belief you have not retained and will not retain any electronic and paper copies, duplicates, reproductions or excerpts of Employer Property or Employer Information (as define below).

 

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The term “Employer Information” means proprietary and confidential information belonging to the Employer or any of the Released Parties, including, without limitation, identification of and information about policies, securities, loans and other assets held by the party and its customers and all know-how, processes, guidelines, techniques, strategies, trading information, research, ideas, concepts, product plans, products, client and investor lists and client and investor information, markets, developments, formulas, technology, test results, test procedures, findings, reports, materials, samples, compositions, drawings, designs, marketing, finances, procedures, business operations and other business information, whether written, graphic, or oral, that Employee had access to not generally available to the public.

 

You acknowledge and agree that the Employer derives independent economic value from the Employer Information not being known to the public or to other persons or businesses who can obtain value from its disclosure or use. You acknowledge and agree that in the course of your employment you have obtained Employer Information. You understand and agree that such Employer Information was provided to you only for use as an employee of the Employer. Accordingly, Employee hereby understands and agrees to:

 

(i)Keep such Employer Information confidential at all times,

 

(ii)Not disclose or communicate Employer Information to any 3rd party, and

 

(iii)Not make use of Employer Information on Employee’s own behalf or on behalf of any 3rd party.

 

In view of the nature of Employee’s employment and the nature of the Employer Information that Employee received (or may have received) during the course of Employee’s employment, Employee agrees that any unauthorized disclosure of Employer Information or other violation or threatened violation of this Separation Agreement would cause irreparable damage to the confidential or trade secret status of Employer Information and to the Employer (or any Released Party) shall be entitled to an injunction without posting any bond or security prohibiting Employee from any disclosure, attempted disclosure of Employer Information or any violation or threatened violation of this Separation Agreement. The undertakings set forth in this Section shall survive the termination of this Separation Agreement and/or other arrangements in the Separation Agreement. You also affirm that you are in possession of all of your property that you had at Employer’s premises and that Employer is not in possession of any of your property.

 

11.Non-Disparagement. Except as expressly provided for in this Separation Agreement, you agree you will not, either directly or indirectly, make any disparaging statements about the Employer or its owners, management, employees, customers, financial condition, past or current business practices, services or products to any person, whether written or oral unless otherwise required under applicable law.

 

12.Entire Agreement. This Separation Agreement sets forth the entire agreement between the Parties and supersedes any prior agreements or understandings between the Parties (except as set forth in Section 13 below, which are incorporated by reference herein). Employee also acknowledges that Employee has not relied on any representations, promises or agreements of any kind made in connection with this Separation Agreement, other than as set forth herein.

 

13.Pre-Existing Agreements. Notwithstanding the foregoing, the Parties agree that the terms and conditions set forth in any employee proprietary information agreement etc. by and between the Employer and you shall remain in full force and effect in accordance with its terms and shall in no way be amended, altered or modified by this Separation Agreement and shall stand alone, operate individually and shall be enforced separately without reference to or effect by this Separation Agreement.

 

14.Governing Law and Interpretation. This Separation Agreement shall be construed with the laws of the State of Nebraska. You understand and agree that this Separation Agreement cannot be amended other than as set forth herein and shall be construed as a whole according to its fair meaning, and not in favor of or against any party. If any provision of this Separation Agreement is found to be invalid, unenforceable or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Separation Agreement shall remain in full force and effect.

 

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In the event of a breach of any provision of this Separation Agreement, any Party may institute an action specifically to enforce any terms of this Separation Agreement or seek damages for breach. If any legal action is brought on or with respect to this Separation Agreement, the prevailing party, as determined by the finder of fact, shall be entitled to recover its legal fees including attorney’s fees and the costs of suit from the other party.

 

15.Amendment. This Separation Agreement may not be modified, altered or changed except in writing signed by both Parties wherein specific reference is made to this Separation Agreement.

 

16.Acknowledgement. By your signature below, you acknowledge that:

 

(i)You have carefully read and reviewed this Separation Agreement.

 

(ii)You have been advised to consult with an attorney of your choosing before you sign this Separation Agreement;

 

(iii)You are fully aware of the Separation Agreement’s contents and legal effect;

 

(iv)You have chosen to enter into this Separation Agreement freely, without coercion and based upon your own judgment and not in reliance upon any promises by the Employer or any Released Party other than as set forth herein; and

 

Please indicate your agreement with the terms above by signing below and returning this Separation Agreement to me no later than Monday April 4, 2022.

 

Sincerely

 

  By: /s/ Jeffrey Norris  

 

Name: Jeffrey Norris

 

Title: Vice President of Human Resources

 

My acknowledgement and acceptance of the above terms is signified by my signature below. Furthermore, I acknowledge that I have read and understand this Separation Agreement and that I sign this release of claims voluntarily, with full appreciation that at no time in the future may I pursue any of the rights that I have waived in this release. Having elected to execute this Separation Agreement, I freely and knowingly, after due consideration, enter into this Separation Agreement intending to waive and release all claims I have or might have against the Released Parties as of the date of the execution of this Separation Agreement.

 

  Accepted by: /s/ Debra Havranek  

 

Name: Debra Havranek

 

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