Exhibit 10.1


 


 





AGREEMENT AND RELEASE


 


The following agreement and release (the
“Agreement”) is made and entered into on this 7th day of December, 2015 by and between Robert J.
Keller (“Executive”) and Escalade, Incorporated, an Indiana corporation (“Escalade”) regarding
Executive’s termination from all positions held by Executive with Escalade and its various subsidiaries and affiliates. Escalade
and Executive are sometimes referred to collectively as the “parties” and individually as a “party,”
and the term “Company” shall mean Escalade and its various subsidiaries and affiliates collectively.





Recitals:


 


A.Executive is the Chief Executive Officer and President
of Escalade, a director of Escalade, and an officer and/or director of various subsidiaries and affiliates of Escalade; and


 


B.Executive’s employment with the Company has
terminated; and


 


C.Executive and the Company are parties to that certain
Executive Severance Agreement dated as of September 14, 2012 (the “Executive Agreement”), which Executive Agreement
represents the parties’ mutual agreement with respect to all matters related to Executive’s termination of employment
with the Company. All capitalized terms used in this Agreement and not defined herein shall have the meaning set forth in the Executive
Agreement.


 


NOW, THEREFORE, in consideration of the
mutual promises contained in this Agreement, the Company and Executive agree as follows:


 


1.Termination. Executive hereby affirms his termination
without cause from his positions as Chief Executive Officer and President of Escalade and from all other executive officer and
director positions that he holds with Escalade and any of Escalade’s subsidiaries and their affiliates, effective as of December
7, 2015 (the “Employment End Date”). Executive acknowledges and agrees as of the Employment End Date he also
retires as a trustee or other administrator of any and all Company benefit plans, including without limitation the Company’s
retirement plan. Executive and the Company agree that Executive’s resignation as a Director of Escalade is not related to
any disagreement between them (other than as may relate to the termination of the Executive’s employment with the Company).


 


2.Compensation and Benefits.
Provided that Executive fulfills his obligations as set forth in this Agreement, the Company shall pay to Executive the following
Severance Benefits:


 


(a)the Company shall continue to pay the Executive his
Base Salary and continue his Employee Benefits through the end of the Company’s 2015 fiscal year;


 


(b) the Company will pay Executive the
amount of Two Hundred Seventy Five Thousand Dollars ($275,000.00), which amount the Company and Executive agree represents the
full incentive compensation amount payable to Executive for the Company’s 2015 fiscal year, payable upon the later of 75
days of the end of the Company’s 2015 fiscal year or the date the Company makes incentive payments to other employees receiving
similar Incentives;


 



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(c) the Company will pay Executive additional
payments equal to one year Base Salary, payable in accordance with the regular payroll practices of the Company as applicable to
the Executive immediately prior to the Employment End Date;


 


(d) all equity incentive awards granted
to the Executive and outstanding as of the Employment End Date shall be treated in the manner set forth in the applicable Incentive
Compensation Plan of the Company, provided, however, that all such equity incentive awards held by the Executive that have not
vested prior to the Employment End Date shall vest in full immediately prior to termination and shall be exercisable for a period
of 90 days thereafter or, in the event of Executive’s death, for such longer period of time as permitted by the Incentive
Compensation Plan;


 


(e) with respect to the Executive and
his family members who are covered by the Company’s medical plan as of the Employment End Date, subject to meeting ongoing
eligibility requirements, the Executive and those family members shall be entitled to the continuation of such health care benefits
under the provisions of the Consolidated Omnibus Budget Reconciliation Act or any substantially equivalent successor law (“COBRA”)
and the Company will pay the applicable COBRA premiums on his behalf for 12 months following the Employment End Date (and the Executive
shall be responsible for all COBRA premiums thereafter); and


 


(f)Executive may retain his Company issued
laptop, iPad, and cell phone at no cost to Executive.


 


3.Executive’s Obligations. In consideration
of the payments and benefits provided in Section 2 above, Executive will:


 


(a)fully cooperate and assist the Company with any litigation
matters or regulatory or agency proceedings for which his testimony or cooperation is requested by Company following the Employment
End Date, provided that he is reimbursed for any reasonable and necessary expenses incurred as a result of his cooperation and
assistance, and further provided that the Company and Executive shall discuss in advance of Executive’s providing any such
cooperation and assistance the anticipated time commitment that would likely be required of Executive with respect to any such
matter and shall mutually determine whether Executive should be compensated for his time and the amount of any such compensation,
it being understood and agreed that if the parties cannot reach agreement as to any such compensation, then the Company shall not
request, and Executive shall not be required, to provide cooperation and assistance with respect to such litigation or proceeding;


 


(b)sign all necessary resignations from the boards of
directors and/or all other officer, employee and trustee positions of the Company, but in any event Executive shall be deemed to
have resigned any such executive officer, director and trustee positions as of the Employment End Date;


 



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(c)through the Employment End Date, continue to comply
with the Company’s Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to employees
of the Company including, without limitation, no destruction of any documents belonging to or relating to the Company or Executive’s
employment with the Company, whether in paper, electronic, digital or any other format, unless such destruction is approved in
advance and observed by an officer of the Company specifically designated and authorized by Escalade’s Board of Directors;


 


(d)comply with all laws relating to the
Company’s business and operations as applicable to Executive and the Company; and


 


(e)comply with all covenants contained in the Executive
Agreement and in this Agreement, including without limitation Sections 4, 5 and 6 hereof.


 


4.Mutual Nondisparagement.


 


(a)Executive’s Covenant. Beginning on the
Employment End Date, Executive shall not make, participate in the making of, or encourage any other person to make, any statements,
written or oral, which criticize, disparage, or defame the reputation of, or which embarrass the Company, its subsidiaries and
their affiliates or any of their respective present, former or future directors, officers, executives, employees and/or shareholders.


 


(b)Company’s Covenant. Beginning on the
Employment End Date, the Company shall not, and shall instruct the members of Escalade’s Board of Directors and executive
officers not to, make, participate in the making of, or encourage any employees or any other person to make, any statements, written
or oral, which criticize, disparage, or defame the reputation of, or which are intended to embarrass, the Executive.


 


5.Confidentiality. Executive understands and
agrees that:


 


(a) Escalade is required to describe the
material terms of this Agreement in a Current Report on Form 8-K to be filed with the Securities and Exchange Commission no later
than four (4) business days after this Agreement is signed by the Executive and Escalade, and that the Company will attach this
Agreement in its entirety as an Exhibit to such public filing;


 


(b)Executive has been through the Employment
End Date in the course of employment with the Company entrusted with or obtained access to information proprietary to the Company
with respect to the following (all of which information is referred to hereinafter collectively as the "Information"):
the organization and management of the Company; the names, addresses, buying habits, and other special information regarding past,
present and potential customers, employees and suppliers of the Company; customer and supplier contracts and transactions or price
lists of the Company and their suppliers; products, services, programs and processes sold, licensed or developed by the Company;
technical data, plans and specifications, present and/or future development projects of the Company; financial and/or marketing
data respecting the conduct of the present or future phases of business of the Company; computer programs, systems and/or software;
ideas, inventions, trademarks, trade secrets, business information, know-how, processes, improvements, designs, redesigns, discoveries
and developments of the Company; and other information considered confidential by any of the Company or its customers or suppliers.
At all times through the Employment End Date and thereafter, Executive agrees to retain the Information in absolute confidence
and not to disclose the Information to any person or organization except as required in the performance of Executive's duties for
the Company as provided in this Agreement, without the express written consent of the Company; provided that Executive’s
obligation of confidentiality shall not extend to any Information which becomes generally available to the public other than as
a result of disclosure by Executive; and


 



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(c)Executive and the Company agree that
effective upon the Company’s filing of its Form 10-K for its 2015 fiscal year, Executive will no longer be privy to material,
non-public information regarding the Company. Accordingly, the Company agrees that Executive shall not be subject to the Company’s
Insider Trading Policy thereafter, provided, however, that if and to the extent that Executive may from time to time acquire knowledge
of material, non-public information regarding the Company, Executive acknowledges and agrees that he may not trade based upon such
information and must comply with all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally
provide material, non-public information to Executive following the Employment End Date except in connection with such events,
actions or circumstances that would require stockholder approval and the Company has made a good faith determination that it is
necessary and appropriate to disclose such information to Executive given his then current ownership of Escalade common stock,
and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures of material, non-public information
to Executive.


 


6.Covenant Not to Compete, No Interference;
No Solicitation. At all times through the twelfth month following the Employment End Date (or if this period is unenforceable
by law, then for such shorter period as shall be enforceable):


 


(a)Executive will not engage in any business
offering products or services related to the current business of the Company, whether as a principal, partner, joint venture, agent,
employee, salesman, consultant, director or officer, where such business or business activity is in competition with the Company
in any geographic market where the Company does business; provided, however, that Executive shall not be prohibited from performing
services for a subsidiary or division of a competitive business, as long as such subsidiary or division is not in competition with
the Company and the Executive abides by all other provisions of this Agreement including without limitation Sections 4, 5, 6(b)
and 6(c);


 


(b)Executive will not interfere with or adversely affect,
either directly or indirectly, the Company’s relationships with any person, firm, association, corporation or other entity
which is known by Executive to be, or is included on any listing to which Executive had access during the course of his employment
as a customer, client, supplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to
divert or change, any such relationship to the detriment of the Company or to the benefit of any other person, firm, association,
corporation or other entity; and 


 



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(c)Executive will not induce, seek to induce or participate
directly or indirectly with any third party in seeking to induce, any other employee of the Company to terminate his or her employment
relationship with the Company, provided, however, that this restriction shall not prohibit Executive from hiring any employee who
seeks employment from Executive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited
basis as long as such employment is not in competition with any business or operations of the Company.


 


Executive acknowledges and agrees that the
covenants, restrictions, agreements, and obligations set forth herein are founded upon valuable consideration, and, with respect
to the covenants, restrictions, agreements, and obligations set forth in this Section 6 are reasonable in duration and geographic
scope. The time period and geographical area set forth in this Section 6 are each divisible and separable, and, in the event that
the covenants not to compete and/or not to divert business or employees contained therein are judicially held invalid or unenforceable
as to such time period and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time
period(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court of competent
jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in requesting such court
to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent compatible with the then
applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove stated shall not include any period
of violation or period of time required for litigation or arbitration to enforce such restrictions or covenants.


 


7.Tax Liability; Tax Withholding. Executive acknowledges
and agrees that he is responsible for the payment of all taxes relating to the consideration to be provided to him as contemplated
by this Agreement, including the payment of any taxes relating to his exercise of stock options and his receipt of any stock, cash
or other consideration relating to any other equity incentive awards he may have received from the Company. Notwithstanding any
other provision of this Agreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits
received pursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or
regulation.


 


8.No Mitigation; No Offset. In no event shall
Executive be obligated to seek other employment or to take any other action that would mitigate the amounts payable to Executive
under this Agreement. In the event that Executive would obtain subsequent employment, the Company may not offset any compensation
or other amounts earned by Executive from such subsequent employment or engagement of his services against the Executive’s
entitlements under this Agreement. Moreover, subject to Executive’s compliance with the covenants set forth in Sections 4,
5 and 6 of this Agreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services
as may arise from the Company’s customers, vendors, employees and affiliates.


 


9.Section 16 Reports. Executive and the Company
agree that notwithstanding Executive’s termination as an executive officer and a director of Escalade as of the Employment
End Date, Executive may continue to be subject to the reporting requirements of Section 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder for up to six months following the Employment End Date. Accordingly, Executive
agrees to provide timely notice to Escalade’s chief financial officer of all transactions undertaken by Executive in Escalade
common stock, including the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during
the six month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16 reports
with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month period, the Company acknowledges
that Executive will no longer be deemed an affiliate of the Company and, absent Executive being in possession of material, non-public
information concerning the Company, may freely engage in trades of Escalade securities.


 



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10.Remedies.


 


(a)Arbitration; Submission to Jurisdiction. Any
dispute that may arise between the Company and Executive relating to this Agreement and the subject matter hereof shall be settled
by binding arbitration in accordance with Section 9 of the Executive Agreement.


 


(b)Injunctive Relief. Executive agrees that in
the event of any actual or threatened breach by him of any of the provisions contained in this Agreement, including those covenants
specifically set forth in Sections 3, 4, 5 and 6 hereof, the Company shall be entitled to seek immediate temporary injunctive and
other equitable relief, without the necessity of showing actual monetary damages, subject to hearing as soon thereafter as possible.
In the event of such injunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period
equal to the respective period during which Employee is in breach thereof, in order to provide for injunctive relief and specific
performance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to Executive
pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to provide the benefits specified
in Section 2 hereof, Executive may seek specific performance in addition to monetary damages and Executive will not be subject
to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall be construed as prohibiting Executive or the Company
from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of any damages which
it is able to prove.


 


11.Mutual Release. In consideration of the payments
and benefits set forth in this Agreement, such payments and benefits being good and valuable consideration:


 


(a)Release by Executive. Subject
to Section 10(b), Executive, on his own behalf and on behalf of his heirs, administrators, executors, successors, assigns and personal
representatives, covenants not to sue and hereby fully and forever releases, acquits and discharges the Company, its shareholders,
directors, officers, employees, agents, representatives, insurance carriers, and their successors and assigns (collectively the
“Releasees”), from any and all claims, demands, actions and causes of action of every kind, nature or description (collectively
“claims”) that Executive may have had, may now have, or may hereafter have against Releasees, including without limitation
any and all claims in any way related to or based upon Executive’s employment with the Company through the Employment End
Date and/or the cessation of Executive’s service as an employee, executive officer and director of the Company, including
without limitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising
under any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in Employment
Act as amended (“ADEA”); Older Workers’ Benefit Protection Act (“OWBPA”); Americans with Disabilities
Act (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of
1964; the Civil Rights Acts of 1991; the Employee Retirement Income Security Act (“ERISA”); 42 U.S.C. § 1981;
29 U.S.C. § 206(d)(1); Section 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana’s fair employment
practices statutes; any other federal, state or local law dealing with employment discrimination; and any federal or state “Whistleblower”
law, existing as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this release
would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In addition, this Section
11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any social security, workers' compensation
or unemployment laws, or under the terms of any employee pension or welfare or benefit plans or programs of the Company, which
may be payable now or in the future to Executive.


 



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(b)Acknowledgements
by Executive. Executive specifically acknowledges and agrees that: (i) Executive is waiving claims under the foregoing laws,
including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or claims is knowing and voluntary; (iii) this Agreement
is written in a manner that Executive understands; (iv) the Company has hereby advised Executive to consult with an attorney before
executing this Agreement and that Executive has so consulted; (v) the waiver of rights under Section 11(a) does not waive rights
or claims arising after the date of this Agreement; (vi) Executive has been given a period of 21 days within which to consider
this Agreement; (vii) for a period of seven days following Executive’s execution of this Agreement, Executive may revoke
this Agreement and this Agreement will not become enforceable or effective until the revocation period expires; and (viii) the
waiver of rights in Section 11(a) is in exchange for consideration in addition to anything of value to which Executive was already
entitled to receive.


 


(c)Release by the Company. Subject
to Section 10(b), the Company, on behalf of itself and its successors and assigns, covenants not to sue and hereby fully and forever
releases, acquits and discharges Executive and his successors and assigns, from any and all claims, demands, actions and causes
of action of every kind, nature or description (collectively “claims”) that the Company may have had, may now have,
or may hereafter have against Executive, including without limitation any and all claims in any way related to or based upon Executive’s
employment with the Company, its subsidiaries and affiliates through the Employment End Date and/or the cessation of Executive’s
service as an executive officer or director of the Company, including without limitation any claims for breach of contract, implied
contract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local ordinance,
existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement, this release would
not bar an action by the Company against Executive to enforce its term(s) or any applicable laws.


 


(d)Unknown Claims. This Agreement covers both
claims that Executive and/or the Company know about and those that Executive and/or the Company may not know about. The parties
hereto expressly waive all rights afforded by any statute that limits the effect of a release with respect to unknown claims. Each
of Executive and the Company understand the significance of its respective release of unknown claims and the waiver of statutory
protection against a release of unknown claims. However, this release shall not apply to any claim based on the fraud or intentional
misconduct of the other party or to any act that is determined to be a criminal act under any federal, state or local law committed
or perpetrated by Executive or the Company at any time prior to and through the Employment End Date. Neither Executive nor the
Company, based on the knowledge of Escalade’s Board of Directors and of the Company’s executive officers other than
Executive, is currently aware of any fraud or intentional misconduct of the other party to this Agreement.


 



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(e)Future Claims Related to Employee and/or Shareholder
Status. Notwithstanding any provision of this Section 11 that may be construed to the contrary, Executive and the Company agree
that neither Executive nor the Company waive or release the other party hereto from any claim that may arise based on events occurring
after the Employment End Date. Executive and the Company further agree that Executive may not, based upon Executive’s status
as a shareholder of the Company, assert any claim subsequent to the Employment End Date against the Company or any Releasees relating
to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive in this Agreement
or is in any way related to the event of Executive’s retirement from the Company.


 


12.Future Service as Employee, Executive Officer
or Director. Executive agrees that his termination as an employee, executive officer and director of the Company is irrevocable,
and that the Company shall have no obligation whatsoever to rehire, reappoint or elect Executive to any such officer, director
or other position with the Company. Executive further agrees that if he would seek any such position and is not so hired, nominated,
appointed or elected, Executive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate,
appoint or elect.


 


13.Binding Effect; Authority. This Agreement
shall bind the Executive’s heirs, executors, administrators, personal representatives, spouse, dependents, successors and
assigns. Escalade represents and warrants to Executive that the individual signing this Agreement on behalf of the Company is duly
authorized to enter into this Agreement and to bind the Company hereunder.


 


14.Non-Admission. This Agreement shall not be
construed as an admission by either party of any wrongdoing or any violation of any federal, state or local law, regulation or
ordinance, and the parties specifically disclaim any wrongdoing or violation.


 


15.Assignability. Neither this Agreement, nor
any right or interest hereunder, shall be assignable by Executive, his beneficiaries or legal representatives, without the prior
written consent of an executive officer of Escalade.


 


16.Entire Agreement. This Agreement sets forth
the entire agreement between the parties with respect to the subject matter hereof and supersedes any other written or oral promises
concerning the subject matter of this Agreement except as expressly stated otherwise herein or except as expressly stated otherwise
in the Executive Agreement. The terms of this Agreement may not be modified other than in a writing signed by the parties.


 



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17.Governing Law. This Agreement shall in all
respects be interpreted, enforced and governed by the laws of the State of Indiana without giving effect to provisions thereof
regarding conflict of laws.


 


In Witness Whereof, the parties have entered
into this Agreement and Release as of this 7th day of December, 2015.


 


 


	 	/s/
Robert J. Keller


Robert
J. Keller


 


 


ESCALADE,
INCORPORATED


 


 


By:
/s/ Richard D. White


Name:
Richard D. White


Title:
Chairman of the Board








 


 





 



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