As filed with the Securities and Exchange Commission
on July 1, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Midwest Holding Inc.
(Exact name of Registrant as specified in its
charter)
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Delaware
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20-0362426
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. employer identification no.)
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2900 South 70th Street, Suite 400
Lincoln, Nebraska 68506
(Address of Principal Executive Offices)(Zip
Code)
Midwest Holding Inc. 2020 Long-Term Incentive
Plan
(Full title of the plan)
A. Michael Salem
Michael Minnich
Co-Chief Executive Officers
2900 South 70th Street, Suite 400
Lincoln, Nebraska 68506
(Name and address of agent for service)
(402) 489-8266
(Telephone Number, including area code, of agent
for service)
The Commission is requested to send copies of
all communications to:
Reid A. Godbolt, Esq.
Jones & Keller, P.C.
1675 Broadway, 26th Floor
Denver, Colorado 80202
Telephone: (303) 573-1600
Facsimile: (303) 573-8133
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.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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¨
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Smaller
reporting company
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x
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Emerging growth company
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¨
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be
registered
(1)(2)
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Proposed maximum
offering price per share
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Proposed maximum
aggregate offering
price
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Amount of
registration
fee
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Voting Common Stock, $0.001 Par Value
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108,423 (3)
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$
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39.54(4)
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$
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4,287,045
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$
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468
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Voting Common Stock, $0.001 Par Value
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241,577 (5)
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$44.38 (6)
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$
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10,721,187
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$
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1,170
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Total
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350,000
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$
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15,008,232
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$
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1,638
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(1)
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This Registration Statement on Form S-8 relates to the 2020 Long-Term Incentive Plan (the “2020
Plan”) of Midwest Holding Inc. (the “Registrant” or the “Company”). An aggregate of 350,000 shares of voting
common stock, par value $0.001 per share (the “Voting Common Stock”) may be issued under the 2020 Plan. Registered in this
Registration Statement are (i) 108,423 shares of Voting Common Stock reserved for future issuance under the 2020 Plan and (ii) 241,577
shares of Voting Common Stock issuable upon the exercise or vesting of outstanding awards granted under the 2020 Plan.
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares of Voting Common Stock of the Company as may be issued
by reason of any stock dividend, stock split, recapitalization or other similar transaction.
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(3)
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Represents shares reserved for issuance pursuant to future awards under the 2020 Plan.
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(4)
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Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and
(h) of Rule 457 of the Securities Act on the basis of the average of the high and low sales prices of the Voting Common Stock
on the Nasdaq Capital Market on June 28, 2021, which date is within five business days prior to filing.
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(5)
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Represents shares of Voting Common Stock subject to stock options and other award that are outstanding
as of the date this Registration Statement is being filed.
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(6)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under
the Securities Act and based upon the weighted average exercise price or grant price of outstanding stock option awards and restricted
stock award.
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TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information
specified in Part I of Form S-8 will be sent or given to participants of the 2020 Long-Term Incentive Plan (the “Plan”)
of Midwest Holding Inc., a Delaware corporation (the “Company” or “Registrant”), as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required
to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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We are subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and in accordance therewith file reports, proxy statements and other information with the Commission. We hereby incorporate by reference
into this Registration Statement the following documents previously filed with the Commission:
In addition, all documents which we file with
the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than, in each case, information furnished rather
than filed) after the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered hereunder
have been sold or that deregisters all securities then remaining unsold under this Registration Statement, shall be deemed to be incorporated
by reference herein and to be part hereof from the respective dates of filing of such documents, provided that, unless specifically stated
to the contrary, documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not
be deemed incorporated by reference into or otherwise included in this Registration Statement. Any statement contained herein or in a
document incorporated herein by reference shall be deemed to be modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document incorporated herein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
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Item 4.
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Description of Securities
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers
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Section 145 of the
General Corporation Law of the State of Delaware (the “DGCL”) empowers a Delaware corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such
person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or other enterprise. A corporation may indemnify such person against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful. A corporation may, in advance of the final disposition of any civil, criminal, administrative
or investigative action, suit or proceeding, pay the expenses (including attorneys’ fees) incurred by any officer or director in
defending such action, provided that the officer or director undertakes to repay such amount if it shall ultimately be determined that
he or she is not entitled to be indemnified by the corporation.
A Delaware corporation
may indemnify officers and directors in an action by or in the right of the corporation to procure a judgment in its favor under the same
conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable
to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above,
the corporation must indemnify him or her against the expenses (including attorneys’ fees) which he or she actually and reasonably
incurred in connection therewith. The indemnification provided by the DGCL is not deemed to be exclusive of any other rights to which
those seeking indemnification may be entitled under any corporation’s bylaws, agreement, vote or otherwise.
The Company’s bylaws provide that the
registrant will indemnify any person made or threatened to be made a party to any action or proceeding by reason of the fact that he,
is or was a director or officer, and any director or officer who served any other company in any capacity at the registrant’s request,
to the fullest extent permitted by Section 145 of the DGCL.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to the Company’s directors, officers and controlling persons under
the provisions discussed above 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.
The Company also has the power to purchase and
maintain insurance for such directors and officers. Section 145 of the DGCL authorizes a corporation to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have
the power to indemnify him. The Company has obtained directors’ and officers’ liability insurance with respect to liabilities
arising out of certain matters, including matters arising under the Securities Act.
The Company has also entered into individual indemnification
agreements with our directors and executive officers. These agreements indemnify those directors and officers to the fullest extent permitted
by law against inordinate risks of claims and actions against them arising out of their service to and activities on our behalf.
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Item 7.
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Exemption from Registration Claimed
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Not applicable.
The following exhibits are filed as part of or incorporated by reference
into this Registration Statement:
* Filed
herewith.
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(a)
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The undersigned Registrant hereby undertakes:
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(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 of 1933 (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 prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 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;
Provided,
however, that Paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference
in the registration statement.
(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.
(b) The undersigned Registrant
hereby undertakes 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 section 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 Exchange Act) that is incorporated by reference in the 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.
(c) 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 Securities and Exchange Commission
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 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.
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 Bedford, State of New York, on July 1, 2021.
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MIDWEST HOLDING INC.
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By:
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/s/ A. Michael Salem
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A. Michael Salem
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Co-Chief Executive Officer
(Co-Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below hereby constitutes and appoints A. Michael Salem and Michael Minnich as his true and lawful attorney-in-fact
and agent, with full powers of substitution and re-substitution, for him in his name, place and stead, to sign in any and all capacities
any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with
all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact
and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of July 1, 2021.
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Signature
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Title
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/s/ Michael Minnich
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Michael Minnich
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Co-Chief Executive Officer (Co-Principal Executive Officer); Director
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/s/ A. Michael Salem
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A. Michael Salem
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Co-Chief Executive Officer (Co-Principal Executive Officer); Director
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/s/ Debra K. Havranek
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Debra K. Havranek
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Principal Financial Officer & Treasurer
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/s/ Douglas Bratton
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Douglas Bratton
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Director
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/s/ Nancy Callahan
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Nancy Callahan
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Director
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/s/ Diane Davis
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Diane Davis
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Director
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/s/ Sachin Goel
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Sachin Goel
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Director
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/s/ John T. Hompe
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John T. Hompe
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Director
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/s/ Firman Leung
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Firman Leung
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Director
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/s/ Jack Theeler
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Jack Theeler
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Director
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Exhibit 5.1 and 23.2
1675, 26th Floor
Denver, Colorado 80202
Telephone: (303) 573-1600
July 1,
2021
Midwest Holding Inc.
2900 South 70th Street, Suite 400
Lincoln, Nebraska 68506
Ladies and Gentlemen:
We have acted as counsel to Midwest Holding Inc.,
a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration
Statement”) filed on the date hereof by the Company with the Securities and Exchange Commission (the “Commission”)
to register under the Securities Act of 1933, as amended (the “Securities Act”), 350,000 shares (the “Shares”)
of the Company’s voting common stock, $0.001 par value per share (the “Common Stock”), which may be issued pursuant
to Midwest Holding Inc.’s 2020 Long-Term Incentive Plan (the “Plan”).We are furnishing this opinion letter pursuant
to Item 8 of Form S-8 and Item 601(b)(5) of the Commission’s Regulation S-K.
In connection with our opinion below, we have
examined the Certificate of Incorporation and the Bylaws, both as amended, of the Company, records of proceedings of the Board of Directors
of the Company deemed by us to be relevant to this opinion letter, the Plan and the Registration Statement. We also have made such further
legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein. In our
examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents
submitted to us as original documents and the conformity to original documents of all documents submitted to us as certified, conformed,
facsimile, electronic or photostatic copies.
As to certain factual matters relevant to this
opinion letter, we have relied conclusively upon originals or copies, certified or otherwise identified to our satisfaction, of such other
records, agreements, documents and instruments, including certificates or comparable documents of officers of the Company and of public
officials, as we have deemed appropriate as a basis for the opinion hereinafter set forth. Except to the extent expressly set forth herein,
we have made no independent investigations with regard to matters of fact, and, accordingly, we do not express any opinion as to matters
that might have been disclosed by independent verification.
Our opinion set forth below is limited to the
provisions of the Delaware General Corporation Law that, in our professional judgment, are normally applicable to transactions of the
type contemplated by the Plan, and we do not express any opinion herein concerning any other laws.
This opinion letter is provided for use solely
in connection with the transactions contemplated by the Registration Statement and may not be used, circulated, quoted or otherwise relied
upon for any other purpose without our express written consent. The only opinion rendered by us consists of those matters set forth in
the sixth paragraph hereof, and no opinion may be implied or inferred beyond the opinion expressly stated. Our opinion expressed herein
is as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may
come to our attention after the date hereof that may affect our opinion expressed herein.
Based on the foregoing, it is our opinion that
the Shares are duly authorized for issuance, and, when issued by the Company in accordance with the terms of the Plan and related award
agreements thereto, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion letter
as an exhibit to the Registration Statement and to the use of our name wherever appearing in the Registration Statement. In giving such
consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ Jones & Keller, P.C.
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JONES & KELLER, P.C.
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