Exhibit 10.38


 


FOURTH AMENDMENT TO THE

TRIMAS CORPORATION

2006 LONG TERM EQUITY INCENTIVE PLAN


 


Pursuant to Section 11.8
of the TriMas Corporation 2006 Long Term Equity Incentive Plan (the “2006
Equity Plan”) and resolutions adopted by the Compensation Committee of TriMas
Corporation (the “Corporation”) on September 10, 2008, effective September 10,
2008, the 2006 Equity Plan is hereby amended for Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) as set forth below:


 


1.             Subsection (h) “Cause” of Section 1.4
shall be amended and restated to read as follows:


 


               (h)           “Cause”
means (i) a Participant’s conviction of or plea of guilty or nolo contendere to a crime constituting a felony under the
laws of the United States or any State thereof or any other jurisdiction in
which the Corporation or its Subsidiaries conduct business; (ii) a
Participant’s willful failure or refusal to perform his or her duties to the
Corporation or its Subsidiaries and failure to cure such breach within thirty
(30) days following written notice thereof from the Corporation; (iii) a
Participant’s willful failure or refusal to follow directions from the Board
(or direct reporting executive) and failure to cure such breach within thirty
(30) days following written notice thereof from the Board; or (iv) a
Participant’s breach of fiduciary duty to the Corporation or its Subsidiaries
for personal profit.  Any failure by the
Corporation or a Subsidiary to notify a Participant after the first occurrence
of an event constituting Cause shall not preclude any subsequent occurrences of
such event (or a similar event) from constituting Cause.


 


2.            Subsection 2.4(a)(i) of
Section 2.4 “Payment for Option Shares” shall be amended and restated to
read as follows:


 


               (i) 
delivery to the Corporation of outstanding shares of Common Stock on such terms
and conditions as may be specified in the Participant’s Agreement;


 


3.             Subsection (c) of Section 2.4
“Payment for Option Shares” shall be amended by the addition of the following
sentence at the end of the paragraph to read as follows:


 


Provided;
however, that a buy-out shall not be permitted unless the per share Fair Market
Value of the Corporation’s Common Stock on the date of the buyout exceeds the
per share exercise price of the Option.


 


4.             Subsection (iii) shall be
added to Section 5.2(b) “Terms of Performance Awards” to read as
follows:


 


               (iii)          Payment of a Performance Award shall
be made following a determination by the Administrator that the performance
targets were attained and shall be paid within 2-1/2 months after the later of
the end of the fiscal or


 


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5.            The last sentence in
Section 9.2 “Restricted Stock and Restricted Stock Units” shall be amended
and restated in its entirety to read as follows:


 


The
Administrator shall not waive any restrictions on a Code Section 162(m) Restricted
Stock or Restricted Stock Unit Award, but the Administrator may provide in a
Participant’s Code Section 162(m) Restricted Stock or Restricted
Stock Unit Agreement or otherwise that upon the Employee’s termination of
employment due to (a) death, (b) Disability or (c) for Awards
with performance periods commencing before January 1, 2009, involuntary
termination by the Corporation without Cause (as determined by the
Administrator) prior to the attainment of the associated performance goals and
restrictions, that the performance goals and restrictions shall be deemed to
have been satisfied on terms determined by the Administrator


 


6.             The last sentence in Section 9.3
“Performance Awards” shall be amended and restated to read as follows:


 


Notwithstanding
the foregoing, the Administrator shall not waive any restrictions on a Code Section 162(m) Performance
Award, but the Administrator may provide in a Participant’s Code Section 162(m) Performance
Share Agreement or otherwise that upon the Employee’s termination of employment
due to (a) death, (b) Disability or (c) for Awards with
performance periods commencing before January 1, 2009, involuntary
termination by the Corporation without Cause (as determined by the
Administrator), prior to the attainment of the associated performance goals and
restrictions, that the performance goals and restrictions shall be deemed to
have been satisfied on terms determined by the Administrator.


 


7.             Section 9.5 “Other Provisions”
shall be amended by the addition of a new sentence at the end of the paragraph
to read as follows:


 


For purposes
of Code Section 409A, a leave of absence shall not be considered a
termination of employment if the leave duration either is six (6) months
or less (up to twenty-nine (29) for disability) or reemployment upon expiration
of such leave is guaranteed by statute or contract.


 


8.             The second sentence of Section 11.7
“Withholding Taxes” shall be amended and restated to read as follows:


 


To fulfill the
withholding obligation, a Participant may tender previously-acquired shares of
Common Stock or have shares of stock withheld from the exercise, provided that
the shares have an aggregate Fair Market Value sufficient to satisfy in whole
or in part the applicable withholding taxes.


 


9.             Section 11.9 “Code Section 409A”
shall be amended by the addition of the following sentence at the beginning of
the paragraph to read as follows:


 


Between January 1,
2005 and the effective date of this Amendment, the Plan was administered in
good faith compliance under Code Section 409A, taking into 


 


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account the
statutory language, legislative history and interim guidance issued by the
Internal Revenue Service relating to Code Section 409A.


 


10.           Section 11.9 “Code Section 409A”
shall be amended by the addition of the following sentences at the end of the
paragraph to read as follows:


 


Although
payments under the Plan are intended to be exempt from or in compliance with
Code Section 409A and the provisions of the Plan are to be construed
accordingly, in no event shall the Corporation or a Subsidiary be responsible
for any tax or penalty owed by a Participant or Beneficiary with regard to Plan
payments.


 


This FOURTH
Amendment to the TriMas Corporation 2006 Long Term Equity Incentive Plan is
hereby adopted on the 10th day of September, 2008.


 


 


	
   

  	
  TRIMAS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua
  A. Sherbin

  
	
   

  	
   

  	
  Joshua A.
  Sherbin

  
	
   

  	
  Its:

  	
  Vice
  President, Secretary and General Counsel

  



 


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