EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective as of the 2nd day of January 2002, by and
between NICOLET NATIONAL BANK (the "Bank"), and W. XXXXX XXXX, a resident of the
State of Wisconsin (the "Executive").
RECITALS:
The Bank desires to employ the Executive as Senior Vice President;
Commercial Lender of the Bank and the Executive desires to accept such
employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and
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their variant forms shall have the meaning set forth below:
1.1 "AGREEMENT" shall mean this Agreement and any exhibits incorporated
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herein together with any amendments hereto made in the manner described in this
Agreement.
1.2 "AREA" shall mean the geographic area within the boundaries of
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northeastern Wisconsin. It is the express intent of the parties that the Area
as defined herein is the area where the Executive performs or performed services
on behalf of the Bank under this Agreement as of, or within a reasonable time
prior to, the termination of the Executive's employment hereunder.
1.3 "BANK INFORMATION" means Confidential Information and Trade Secrets.
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1.4 "BUSINESS OF THE BANK" shall mean the business conducted by the
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Bank, which is the business of commercial banking.
1.5 "CAUSE" shall mean:
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1.5.1 With respect to termination by the Bank:
(a) A material breach of the terms of this Agreement by the
Executive, including, without limitation, failure by the Executive to
perform his duties and responsibilities in the manner and to the
extent required under this Agreement, which remains uncured after the
expiration of thirty (30) days following the delivery of written
notice of such breach to the Executive by Bank.
(b) Conduct by the Executive that amounts to fraud,
dishonesty or willful misconduct in the performance of his duties and
responsibilities hereunder;
(c) A conviction of a crime that is substantially related to
the Executive's duties and responsibilities with the Bank (e.g., an
act of dishonesty, fraud, theft, etc.); the Bank also retains the
right to suspend the Executive without pay in the event of an arrest
while the Bank investigates the circumstances of the arrest so as to
determine whether the arrest is substantially related to the
Executive's position with the Bank.
(d) Conduct by the Executive that amounts to gross and
willful insubordination or inattention to his duties and
responsibilities hereunder; or
(e) Conduct by the Executive that results in removal from his
position as an officer or executive of Bank pursuant to a written
order by any regulatory agency with authority or jurisdiction over
Bank.
1.5.2 With respect to termination by the Executive:
(a) A material modification to the Executive's job title(s) or
position(s) of responsibility or the scope of his authority or
responsibilities under this Agreement without the Executive's written
consent, which modification is not cured to the reasonable
satisfaction of the Executive within thirty (30) days after written
notice thereof from the Executive to the Executive Vice
President/Senior Lending Officer and/or President/CEO of the Bank;
(b) Following a Change of Control, a change in supervision so
that the Executive no longer reports to the person(s) or entity to
whom he reported immediately prior to the Change of Control, which
change in supervision is effected without the Executive's written
consent;
(c) Following a Change of Control, a change in supervisory
authority so that the holder of any position who normally reported to
the Executive immediately prior to the Change of Control no longer
reports to the Executive on a regular basis, which change in
supervisory authority is effected without the Executive's written
consent;
(d) Following a Change of Control, any change in the Executive's
office location such that the Executive is required to report
regularly to a location that is beyond a 25-mile radius from the
Executive's office location immediately prior to the Change of
Control, which change in office location is effected without the
Executive's written consent; and
(e) Following a Change of Control, any material reduction in
salary, bonus opportunity or other benefits provided for in Section 4
below from the level in effect immediately prior to the Change of
Control.
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1.6 "CHANGE OF CONTROL" means any one of the following events:
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(a) The acquisition by any person or persons acting in
concert of the then outstanding voting securities of either the Bank,
if, after the transaction, the acquiring person (or persons) owns,
controls or holds with power to vote thirty-three and one-third
percent (33 1/3%) or more of any class of voting securities of the
Bank;
(b) Within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of the Bank immediately
before the beginning of such twelve-month period (the "Incumbent
Directors") shall cease to constitute at least a majority of that
Board of Directors; provided that any director who was not a director
as of the Effective Date shall be deemed to be an Incumbent Director
if that director were elected to the Board of Directors by, or on the
recommendation of or with the approval of, at least two-thirds (2/3)
of the directors who then qualified as Incumbent Directors; and
provided further that no director whose initial assumption of office
is in connection with an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Securities Exchange Act of 1934) relating to the election of
directors shall be deemed to be an Incumbent Director;
(c) A reorganization, merger or consolidation, with respect
to which persons who were the stockholders of the Bank immediately
prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than fifty percent (50%) of the
combined voting power entitled to vote in the election of directors of
the reorganized, merged or consolidated company's then outstanding
voting securities; or
(d) The sale, transfer or assignment of all or substantially all
of the assets of the Bank to any third party.
1.7 "CONFIDENTIAL INFORMATION" means data and information relating to
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the business of the Bank (which does not rise to the status of a Trade Secret)
which is or has been disclosed to the Executive or of which the Executive became
aware as a consequence of or through the Executive's relationship to the Bank
and which has value to the Bank and is not generally known to its competitors.
Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public by the Bank (except where such public
disclosure has been made by the Executive without authorization) or that has
been independently developed and disclosed by others, or that otherwise enters
the public domain through lawful means.
1.8 "DISABILITY" shall mean the inability of the Executive to perform
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each of his material duties under this Agreement for the duration of the
short-term disability period under the Bank's policy then in effect (or, if no
such policy is in effect, a period of one-hundred eighty (180) consecutive days)
as certified by a physician chosen by the Bank and reasonably acceptable to the
Executive.
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1.9 "TRADE SECRETS" means Bank information including, but not limited
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to, technical or nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans or lists of actual or potential customers or suppliers
which:
(a) Derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its
disclosure or use; and
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2. DUTIES.
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2.1 POSITION. The Executive is employed initially as the Senior Vice
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President; Commercial Lender of the Bank, subject to the direction of the
Executive Vice President-Senior Lending Officer of the Bank or its designee(s)
and shall perform and discharge well and faithfully the duties which may be
assigned to him from time to time by the Bank in connection with the conduct of
its business. The duties and responsibilities of the Executive are set forth on
Exhibit A attached hereto.
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2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
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specifically assigned to the Executive pursuant to Section 2.1 hereof, the
Executive shall:
(a) Devote substantially all of his time, energy and skill
during regular business hours to the performance of the duties of his
employment (reasonable vacations and reasonable absences due to
illness excepted) and faithfully and industriously perform such
duties;
(b) Diligently follow and implement all reasonable and lawful
management policies and decisions communicated to him by the Executive
Vice President-Senior Lending Officer of the Bank; and
(c) Timely prepare and forward to the Executive Vice
President-Senior Lending Officer of the Bank all reports and
accountings as may be requested of the Executive.
2.3 PERMITTED ACTIVITIES. The Executive shall devote his entire
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business time, attention and energies to the Business of the Bank and shall not
during the Term be engaged (whether or not during normal business hours) in any
other business or professional activity, whether or not such activity is pursued
for gain, profit or other pecuniary advantage; but this shall not be construed
as preventing the Executive from:
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(a) Investing his personal assets in businesses which (subject
to clause (b) below) are not in competition with the Business of the
Bank and which will not require any services on the part of the
Executive in their operation or affairs and in which his participation
is solely that of an investor; and
(b) Purchasing securities in any corporation whose securities
are regularly traded provided that such purchase shall not result in
him collectively owning beneficially at any time five percent (5%) or
more of the equity securities of any business in competition with the
Business of the Bank;
3. TERM AND TERMINATION.
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3.1 TERM. This Agreement shall remain in effect for the Term.
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While this Agreement remains in effect, it shall automatically renew each day
after the date of this Agreement so that the Term remains a three-year term from
day-to-day hereafter unless the Bank or the Executive gives written notice to
the other of its intent that the automatic renewals shall cease. In the event
such notice of non-renewal is properly given, this Agreement and the Term shall
expire on the third anniversary of the thirtieth (30th) day following the date
such written notice is received.
3.2 TERMINATION. During the Term, the employment of the Executive
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under this Agreement may be terminated only as follows:
3.2.1 By the Bank:
(a) For Cause, upon written notice to the Executive pursuant to
Section 1.5.1 hereof, where the notice has been approved by a
resolution passed by two-thirds (2/3) of the directors of the Bank
then in office;
(b) Without Cause at any time, provided that the Bank shall give
the Executive thirty (30) days' prior written notice of its intent to
terminate, in which event the Bank shall be required to continue to
meet its obligations to the Executive under Section 4.1 for a period
equal to the lesser of (i) twelve (12) months following the
termination or (ii) the remaining Term of the Agreement; or
(c) Upon the Disability of Executive at any time, provided that
the Bank shall give the Executive thirty (30) days' prior written
notice of its intent to terminate, in which event, the Bank shall be
required to continue to meet its obligations under Section 4.1 for a
period of six (6) months following the termination or until the
Executive begins receiving payments under the Company's long-term
disability policy, whichever occurs first.
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3.2.2 By the Executive:
(a) For Cause, in which event the Bank shall be required to
continue to meet its obligations under Section 4.1 for a period equal
to the lesser of (i) twelve (12) months following the termination or
(ii) the remaining Term of the Agreement; or
(b) Without Cause or upon the Disability of the Executive,
provided that the Executive shall give the Bank sixty (60) days' prior
written notice of his intent to terminate.
3.2.3 At any time upon mutual, written agreement of the parties.
3.2.4 Notwithstanding anything in this Agreement to the contrary,
the Term shall end automatically upon the Executive's death.
3.3 CHANGE OF CONTROL. If, following a Change in Control, the
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Executive terminates his employment with the Bank under this Agreement for Cause
within six (6) months, the Executive, or in the event of his subsequent death,
his designated beneficiaries or his estate, as the case may be, shall receive,
as liquidated damages, in lieu of all other claims, a severance payment equal to
one and one-half (1.5) times the Executive's then current Base Salary and bonus
then in effect, if any, to be paid in full on the last day of the month
following the date of termination. In no event shall the payment(s) described in
this Section 3.3 exceed the amount permitted by Section 280G of the Internal
Revenue Code, as amended (the "Code"). Therefore, if the aggregate present
value (determined as of the date of the Change of Control in accordance with the
provisions of Section 280G of the Code) of both the severance payment and all
other payments to the Executive in the nature of compensation which are
contingent on a change in ownership or effective control of the Bank or in the
ownership of a substantial portion of the assets of the Bank (the "Aggregate
Severance") would result in a "parachute payment," as defined under Section 280G
of the Code, then the Aggregate Severance shall not be greater than an amount
equal to 2.99 multiplied by Executive's "base amount" for the "base period, " as
those terms are defined under Section 280G of the Code. In the event the
Aggregate Severance is required to be reduced pursuant to this Section 3.3, the
Executive shall be entitled to determine which portions of the Aggregate
Severance are to be reduced so that the Aggregate Severance satisfies the limit
set forth in the preceding sentence. Notwithstanding any provision in this
Agreement, if the Executive may exercise his right to terminate employment under
this Section 3.3 or under Section 3.2.2(a), the Executive may choose which
provision shall be applicable.
3.4 EFFECT OF TERMINATION. Upon termination of the Executive's
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employment hereunder, the Bank shall have no further obligations to the
Executive or the Executive's estate with respect to this Agreement, except for
the payment of salary, bonus and deferred compensation, if any, accrued pursuant
to Sections 4.1, 4.2 and 4.3 hereof and unpaid as of the effective date of the
termination of employment and payments set forth in Sections 3.2.1(a), (c);
Section 3.2.2(a); Section 3.3; and Section 4.4, as applicable. Nothing
contained herein shall limit or impinge upon any other rights or remedies of the
Bank or the Executive under any other agreement or plan to which the Executive
is a party or of which the Executive is a beneficiary.
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4. COMPENSATION. The Executive shall receive the following salary and
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benefits during the Term, except as otherwise provided below:
4.1 BASE SALARY. During the Initial Term, the Executive shall be
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compensated at a base rate of $125,000 per year (the "Base Salary"). The
Executive's Base Salary shall be reviewed by the Executive Vice President-Senior
Lending Officer and President/CEO of the Bank at least annually, and based on
its evaluation of Executive's performance, the Executive Vice President-Senior
Lending Officer may recommend to the President/CEO and Executive Committee of
the Bank that the Executive's Base Salary be increased in such amount, if any,
as may be determined by the Board of Directors of the Bank. Base Salary shall
be payable in accordance with the Bank's normal payroll practices.
4.2 INCENTIVE COMPENSATION. The Executive shall be eligible to
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receive annual bonus compensation, if any, as determined by the Incentive
Compensation Plan of the Bank pursuant to any incentive compensation program as
may be adopted from time to time by the Bank.
4.3 STOCK OPTIONS. The Bank has an stock incentive plan and will grant
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to the Executive pursuant to such stock incentive plan an incentive stock option
to purchase, at a per share purchase price equal to $10.00, 7,250 shares of the
Bank's common stock. The option generally will become vested and exercisable in
thirty-three and one-third percent (33 1/3%) annual increments, commencing on
the first anniversary of the option grant date and continuing for the next two
(2) successive anniversaries until the option is fully vested and exercisable.
The option shall expire generally upon the earlier of ninety (90) days following
termination of employment or upon the tenth anniversary of the option grant
date. The option will be issued by the Bank pursuant to its stock incentive
plan and subject to the terms of a related stock option agreement.
4.4 AUTOMOBILE. Beginning as of the Agreement Date, the Bank will
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provide Executive with an automobile to be used for business and personal
purposes. The Bank shall determine the make and model of the automobile. The
Bank will pay expenses associated with the operation, maintenance, repair and
insurance for the automobile.
4.5 BUSINESS EXPENSES; MEMBERSHIPS. The Bank specifically agrees to
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reimburse the Executive for:
(a) Reasonable and necessary business (including travel)
expenses incurred by him in the performance of his duties hereunder,
as approved by the Board of Directors of the Bank;
(b) Reasonable dues and business related expenditures, including
initiation fees, associated with memberships, as selected by the
Executive, in a single country club and professional associations
which are commensurate with his position; and
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Provided, however, that the Executive shall, as a condition of reimbursement,
submit verification of the nature and amount of such expenses in accordance with
reimbursement policies from time to time adopted by the Bank and in sufficient
detail to comply with rules and regulations promulgated by the Internal Revenue
Service.
4.6 VACATION. On a non-cumulative basis, the Executive shall be
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entitled to four (4) weeks of vacation in each successive twelve-month period
during the Term, during which his compensation shall be paid in full.
4.7 BENEFITS. In addition to the benefits specifically described in
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this Agreement, the Executive shall be entitled to such benefits as may be
available from time to time to executives of the Bank similarly situated to the
Executive. All such benefits shall be awarded and administered in accordance
with the Bank's standard policies and practices. Such benefits may include, by
way of example only, profit sharing plans, retirement or investment funds,
dental, health, life and disability insurance benefits and such other benefits
as the Bank deem appropriate.
4.8 WITHHOLDING. The Bank may deduct from each payment of compensation
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hereunder all amounts required to be deducted and withheld in accordance with
applicable federal and state income, FICA and other withholding requirements.
5. BANK INFORMATION.
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5.1 OWNERSHIP OF BANK INFORMATION. All Bank Information received or
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developed by the Executive while employed by the Bank will remain the sole and
exclusive property of the Bank.
5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
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(a) To hold Bank Information in strictest confidence;
(b) Not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Bank Information or any physical embodiments of Bank
Information; and
(c) In any event, not to take any action causing or fail to take
any action necessary in order to prevent any Bank Information from losing
its character or ceasing to qualify as Confidential Information or a Trade
Secret.
In the event that the Executive is required by law to disclose any Bank
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written notice
is given to the Bank when the Executive becomes aware that such disclosure has
been requested and is required by law. This Section 5 shall survive for a
period of twelve (12) months following termination of this Agreement for any
reason with respect to Confidential Information, and shall survive termination
of this Agreement for any reason for so long as is permitted by applicable law,
with respect to Trade Secrets.
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5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the Bank,
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and in any event upon termination of his employment with the Bank, the Executive
will promptly deliver to the Bank all property belonging to the Bank, including,
without limitation, all Bank Information then in his possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the
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Bank hereunder and, in the event of his termination:
- By the Bank for Cause pursuant to Section 3.2.1(a),
- By the Executive without Cause pursuant to Section 3.2.2(b), or
- By the Executive in connection with a Change of Control pursuant to Section
3.3,
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Bank), within the Area, either directly
or indirectly, on his own behalf or in the service or on behalf of others, be
employed as an executive employee or in any other capacity which involves duties
and responsibilities similar to those undertaken for the Bank (including as an
organizer or proposed executive officer of a new financial institution), engage
in any business which is the same as or essentially the same as the Business of
the Bank.
7. NON-SOLICITATION OF CUSTOMERS. The Executive agrees that during his
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employment by the Bank hereunder and, in the event of his termination:
- By the Bank for Cause pursuant to Section 3.2.1(a),
- By the Executive without Cause pursuant to Section 3.2.2(b), or
- By the Executive in connection with a Change of Control pursuant to Section
3.3,
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Bank), within the Area, on his own
behalf or in the service or on behalf of others, solicit, divert or appropriate
or attempt to solicit, divert or appropriate, any business from any of the
Bank's customers, including actively sought prospective customers, with whom the
Executive has or had material contact during the last two (2) years of his
employment, for purposes of providing products or services that are competitive
with the Business of the Bank.
8. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that during his
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employment by the Bank hereunder and, in the event of his termination:
- By the Bank for Cause pursuant to Section 3.2.1(b),
- By the Executive without Cause pursuant to Section 3.2.2(b), or
- By the Executive in connection with a Change of Control pursuant to Section
3.3,
for a period of twelve (12) months thereafter, he will not, within the Area, on
his own behalf or in the service or on behalf of others, solicit, recruit or
hire away or attempt to solicit, recruit or hire away, any employee of the Bank
to another person or entity providing products or services that are competitive
with the Business of the Bank, whether or not:
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- Such employee is a full-time employee or a temporary employee of the Bank,
- Such employment is pursuant to written agreement, and
- Such employment is for a determined period or is at will.
9. REMEDIES. The Executive agrees that the covenants contained in Sections
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5 through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Bank, and that irreparable loss and damage will be suffered by
the Bank should he breach any of the covenants. Therefore, the Executive agrees
and consents that, in addition to all the remedies provided by law or in equity,
the Bank shall be entitled to a temporary restraining order and temporary and
permanent injunctions to prevent a breach or contemplated breach of any of the
covenants. The Bank and the Executive agree that all remedies available to the
Bank or the Executive, as applicable, shall be cumulative.
10. SEVERABILITY. The parties agree that each of the provisions included in
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this Agreement is separate, distinct and severable from the other provisions of
this Agreement and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of this Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with and valid and enforceable
under the law or public policy.
11. NO SET-OFF BY THE EXECUTIVE. The existence of any claim, demand, action
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or cause of action by the Executive against the Bank, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Bank of any of its rights hereunder.
12. NOTICE. All notices and other communications required or permitted
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under this Agreement shall be in writing and, if mailed by prepaid first-class
mail or certified mail, return receipt requested, shall be deemed to have been
received on the earlier of the date shown on the receipt or three (3) business
days after the postmarked date thereof. In addition, notices hereunder may be
delivered by hand or overnight courier, in which event the notice shall be
deemed effective when delivered. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Bank, to it at:
Xxxx Xxxxxx Xxx 00000
Xxxxx Xxx, Xxxxxxxxx 00000-0000
(ii) If to the Executive, to him at:
000 Xxxxxxxx Xxxxxxx
XxXxxx, XX 00000
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement
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or any of its rights and obligations hereunder without the written consent of
the other party to this Agreement; provided, however, that the rights and
obligations of the Bank shall apply to its successor(s) and the rights of the
Executive shall inure to the benefit of the heirs or the estate of the
Executive.
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14. WAIVER. A waiver by one party to this Agreement of any breach of this
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Agreement by the other party to this Agreement shall not be effective unless in
writing, and no waiver shall operate or be construed as a waiver of the same or
another breach on a subsequent occasion.
15. ARBITRATION. Any controversy or claim arising out of or relating to
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this contract, or the breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
only in a state court of Wisconsin or the federal court for the Eastern District
of Wisconsin. The Bank and the Executive agree to share equally the fees and
expenses associated with the arbitration proceedings.
16. ATTORNEYS' FEES. In the event that the parties have complied with this
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Agreement with respect to arbitration of disputes and litigation ensues between
the parties concerning the enforcement of an arbitration award, the party
prevailing in such litigation shall be entitled to receive from the other party
all reasonable costs and expenses, including without limitation attorneys' fees,
incurred by the prevailing party in connection with such litigation, and the
other party shall pay such costs and expenses to the prevailing party promptly
upon demand by the prevailing party.
17. APPLICABLE LAW. This Agreement shall be construed and enforced under
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and in accordance with the laws of the State of Wisconsin.
18. INTERPRETATION. Words importing any gender include all genders. Words
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importing the singular form shall include the plural and vice versa. The terms
"herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms refer
to this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. ENTIRE AGREEMENT. This Agreement embodies the entire and final
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agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Bank or the Executive unless made in writing and signed by both parties. All
prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or
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shall be construed to confer upon or give to any person, firm or other entity,
other than the parties hereto and their permitted assigns, any rights or
remedies under or by reason of this Agreement.
21. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6,
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7, 8 and 9 shall survive the termination of the employment of the Executive
hereunder for the period designated under each of those respective sections.
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IN WITNESS WHEREOF, the Bank and the Executive have executed and delivered
this Agreement as of the date first shown above.
THE BANK:
NICOLET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxx
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Print Name: Xxxxxx X. Xxxxxx
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Title: President and CEO
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THE EXECUTIVE:
/s/ W. Xxxxx Xxxx
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W. XXXXX XXXX
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