Exhibit 10.1


 


January 13, 2009


 


CONFIDENTIAL


 


Mr. Grant
H. Beard


 


Dear Grant:


 


The purpose of this letter (“Agreement”) is to confirm our
understanding and agreements regarding your separation from employment with
TriMas Corporation (“Company” or “TriMas”). 
For purposes of this Agreement, TriMas or Company includes all of its
subsidiaries and affiliates.


 


1.                                       Employment
and Severance Benefits


 


Your employment with TriMas will end on January 13, 2009 (the “Termination
Date”), and the termination of your employment is intended to constitute a “separation
from service” as defined under Internal Revenue Code Section 409A and
Treasury regulations issued under that section (collectively “Section 409A”).  Effective as of the Termination Date, TriMas
will discontinue your compensation and benefits, and you shall cease to accrue
additional benefits under any qualified or nonqualified retirement or incentive
plans of the Company.


 


In exchange for the agreements contained herein and after this
Agreement becomes binding, TriMas will, subject to the six month delay and
separation pay limitation described in Paragraph 15 below, pay you the
following severance benefits (“Benefits”):


 


(a)                                  Base
salary continuation for twenty-four (24) months at your annual base salary rate
in effect on the Termination Date, subject to all applicable withholding and
reporting requirements.  Payment of this
benefit will commence on the first regular payroll date following Termination
Date and will be paid in accordance with the Company’s usual payroll practices.


 


(b)                                 An
amount equal to one (1) year’s bonus under the Annual Value Creation Plan
(“AVCP”) at your target level for 2009 of Eight Hundred and Seventy-Five
Thousand Dollars ($875,000) paid in equal installments over the twenty-four
(24) month period described in Item (a) above, in accordance with the
Company’s usual payroll practices, subject to all applicable withholding and
reporting requirements.  In addition, you
will receive the AVCP bonus payment for 2008 if such bonus is declared but not
paid before the Termination Date.


 


(c)                                  The
amount of Thirty-One Thousand One Hundred and Sixty-Four Dollars ($31,164),
representing one (1) year’s AVCP bonus at your target level for 2009,
prorated for the number of days that you were employed during 2009.  The amount is calculated by multiplying the
full year target bonus by a fraction, the


 

















 


numerator of which is the number of days
during 2009 that you were employed and the denominator of which is 365.  This amount will also be paid in equal
installments over the 24-month period described in Item (a) above, in
accordance with the Company’s usual payroll practices, subject to all
applicable withholding and reporting requirements.


 


(d)                                 Executive
level outplacement services, as determined by the Company, will be provided to
you by an outplacement firm selected by the Company until the earlier of the
12-month anniversary of the Termination Date or the date on which you accept an
offer of employment.


 


(e)                                  Provided
that you timely elect to continue health care coverage under COBRA and subject
to the Company’s COBRA policies, reimbursement of COBRA premiums to the extent
described below for medical benefits under Company group benefits (including
health, dental and prescription plans) as defined by the plan documents, until
the earliest of:


 


i.                                          the
termination of the COBRA period;


 


ii.                                       24-months
following the Termination Date; or


 


iii.                                  the
date on which you become eligible to receive any medical benefits under any
plan or program of any other employer.


 


You will be responsible for payment of the COBRA premium and will be
reimbursed monthly by the Company for the portion of the premium that the
Company would have paid if you had continued to be an employee of the
Company.  If you do not become eligible
for medical benefits of another employer and the COBRA period expires before 24
months have lapsed, during the remaining portion of the 24-month period, the
Company shall monthly pay you an amount in cash equal to the amount that the
Company would have paid for your coverage if you had continued as an employee
of the Company.


 


(f)                                    The
amount of Two Hundred and Fifty-One Thousand One Hundred and Seventy-Eight and
59/100 Dollars ($251,178.59), adjusted for gains and losses from January 13,
2009 to the date of distribution, plus any contributions for the fourth quarter
of 2008 or for 2009 to the Termination Date to be paid as full satisfaction of
all your rights and benefits under the Executive Retirement Program, subject to
all applicable withholding and reporting requirements; which amount shall be
paid by the Company to you in a lump sum on the first payroll date that occurs
on or after the date six (6) months and one (1) day following your
Termination Date.


 


(g)                                 The
benefits to which you are entitled under the defined benefits portion of the
Benefits Restoration Plan, to be paid in the form and at the time permitted
under the Benefits Restoration Plan. The net present value of such benefit as
of 


 


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December 31, 2008 is $24,684. A payment
of Sixteen Thousand Eight Hundred and Seventy-Eight Dollars ($16,878), adjusted
for gains or losses in 2009, in accordance with the terms of the Benefits
Restoration Plan for partial years, which amount shall be paid by the Company to
you in a lump sum on the first payroll date that occurs on or after the date
six (6) months and one (1) day following your Termination Date.  The payments under this provision shall be in
full satisfaction of all your rights under the TriMas Benefits Restoration Plan
and shall be subject to all applicable withholding and reporting requirements.


 


(h)                                 It
is agreed that on the Termination Date, you will be vested in 16,082 of the
restricted shares granted to you under the 2006 Long Term Equity Incentive Plan.  If the applicable performance targets for
2008 were satisfied, you will also vest on the Termination Date in a portion of
the performance units granted to you under the 2006 Long Term Equity Plan.  Your rights with respect to such restricted
shares and units shall be in accordance with the terms of the 2006 Long Term
Equity Plan.  All other grants of
restricted shares or performance units by the Company under any plan have
lapsed or will lapse as of the Termination Date.


 


(i)                                     The
amount of Twenty Five Thousand Dollars ($25,000), which shall be paid on the
next normal payroll date following the Termination Date, as consideration for
your surrender, effective as of the Termination Date, of any and all rights to
stock options, whether vested or unvested, granted to you under the 2002
Long-Term Equity Incentive Plan and all agreements evidencing awards of such
options; provided that this consideration shall not be paid unless this
Agreement is signed within the time period set forth is Section 10(a) and
is not revoked under Section 10(b) below.  If stock options are not surrendered in
accordance with this section, they will expire 90 days following the
Termination Date.  In addition, the
Company will pay you Five Thousand Six Hundred and Nine Dollars ($5,609) for
your accrued and unused vacation time for calendar year 2009.  This payment will be made at the next normal
payroll date following the Termination Date, subject to all applicable
withholding and reporting requirements.


 


The amount, time and form of Benefits described in this Paragraph 1 are
subject to the terms and conditions set forth in this Agreement, including
adjustments described in Paragraph 15 to the extent required to comply with Section 409A.


 


2.                                       Resignation
as Officer and Director; Termination of Other Benefits.  You agree to sign a written letter of
resignation as an officer and director in a form acceptable to the Board.  Your rights to any accrued and vested
benefits under a qualified retirement plan shall be determined in accordance
with the applicable plan document. 
Except as provided herein, you will not receive any other payments or
benefits and your right to participate in or to receive any and all TriMas
benefits will terminate on the Termination Date.   No amounts paid under this Agreement shall
constitute compensation for purposes of any benefit plan.  Notwithstanding the foregoing or anything
else in this Agreement to the contrary, that certain Indemnification Agreement
between 


 


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you and the Company, dated November 1, 2006, shall remain
unmodified and in full force and effect.


 


3.                                       Taxes.  Any payments made by TriMas hereunder are
subject to applicable federal, state and local tax withholding.  You agree that you are exclusively liable for
the payment of any federal, state, local or other taxes that may be due as a
result of any benefits received by you as provided in this Agreement.


 


4.                                       Confidentiality.  Upon the Termination Date, you will return to
TriMas all originals and copies of TriMas documents and all TriMas
property.  You will continue to treat as
strictly confidential all Confidential Information.  You acknowledge that TriMas would be
immediately and irreparably harmed by an unauthorized disclosure of
Confidential Information in such manner and extent that it would be difficult
or impossible to ascertain with certainty the exact financial or economic
damages.  For purposes of this Agreement,
“Confidential Information” includes, but is not limited to, information
(whether in tangible form or oral) relating to TriMas’ business, finances,
customers, suppliers, property, employees, technical information, concepts,
ideas, trade secrets, plans, formulas, drawings, designs, processes,
procedures, inventions, specifications, prototypes, samples, parts, data, and
manufacturing techniques.


 


5.                                       Non-Competition.  You accept the following covenants
restricting competition with the Company:


 


(a)                                  You
acknowledge and recognize the highly competitive nature of the business of
Company and accordingly agree that for the duration of the twenty-four (24)
month period following the Termination Date you shall not engage, either
directly or indirectly, as a principal for your own account or jointly with
others, or as a stockholder in any corporation or joint stock association, or
as a partner or member of a general or limited liability entity, or as an
employee, officer, director, agent, consultant or in any other advisory
capacity in any business which designs, develops, manufacturers, distributes,
sells or markets the type of products or services sold, distributed or provided
by Company during the twelve (12) month period prior to the Termination Date (“the
Business”); provided that nothing herein shall prevent you from (i) owning,
directly or indirectly, not more than five percent (5%) of the outstanding
shares of, or any other equity interest in, any entity engaged in the Business
and listed or traded on a national securities exchange or in an
over-the-counter securities market, or (ii)  engaging, directly or
indirectly, as a partner, stockholder, member, manager, employee, officer,
director, agent, consultant or in any other advisory capacity in any entity
engaged in the Business, provided that not more than 5% of the gross revenue of
such entity (or any subsidiary or affiliate of such entity) is attributable to
the types of products or services sold, distributed, or provided by Company
during the twelve (12) month period prior to the Termination Date.  You will cooperate with Company regarding
validation of the exceptions in the foregoing sentence.


 


(b)                                 It
is expressly understood and agreed that although you and Company consider the
restrictions contained in this Section to be reasonable, if a final
judicial determination is made by a court of competent jurisdiction that the
time or territory or any other restriction contained in this Agreement is an
unenforceable restriction against you, the provisions of this Section shall


 


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not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.  Alternatively, if any tribunal of competent
jurisdiction finds that any restriction contained in this Agreement is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.


 


6.                                       Non-Solicitation.  For the duration of the Benefits payments
provided for under this Agreement or for the twenty-four (24) month period
following the Termination Date, whichever is longer, you shall not (i) directly
or indirectly employ or solicit, or receive or accept the performance of
services by, any active employee of TriMas or any of its subsidiaries who is
employed primarily in connection with the Business on the Termination Date,
except in connection with general, non-targeted recruitment efforts such as
advertisements and job listings, or directly or indirectly induce any employee
of TriMas to leave TriMas, or assist in any of the foregoing, or (ii) solicit
for business (relating to the Business) any person who is a customer or former
customer of TriMas or any of its subsidiaries, unless such person shall have
ceased to have been such a customer for a period of at least six (6) months.


 


7.                                       Cooperation.


 


(a)                                  You
agree that you will not in any way criticize, disparage, attempt to discredit,
demean or otherwise call into disrepute TriMas. 
Your obligations hereunder with respect to TriMas include its
successors, assigns, officers, directors, employees or agents, or any of TriMas’
products or services.


 


(b)                                 You
agree that you will not assist any party other than TriMas in any claim,
litigation, proceeding or investigation against TriMas or other Released
Parties (as defined below), except as required by law.  You further agree that if you believe any
such action is required by law, you will first afford TriMas the opportunity to
raise and obtain a ruling on any claim of attorney-client or other privilege,
attorney work product protection, contractual or other defense that may be
applicable.


 


(c)                                  You
agree to cooperate with TriMas and the Released Parties (i) in any existing
or future claim, litigation, proceeding, investigation or other judicial,
administrative or legislative matter in which TriMas may desire your
assistance, and (ii) with TriMas’ reasonable requests for assistance with
the transition of your duties or ordinary course assistance with administrative
matters relating to your services.  No
additional consideration will be provided for such assistance, but TriMas will
pay or reimburse you for reasonable expenses incurred by you in providing such
assistance.


 


8.                                       Release;
Acknowledgments.


 


(a)                                  You
release and discharge TriMas, its shareholders, directors, officers, agents,
employees (current and former), subsidiaries and any and all affiliate
companies, as well as any predecessors and successors to TriMas (collectively,
the “Released Parties”), for yourself, your


 


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spouse, heirs, agents and assignees, from all claims, liabilities,
demands, and causes of action, fixed or contingent and known or unknown,
arising from your employment, or any condition or benefit related to your
employment or as a result of your separation from employment, which you ever
had, now have or may have as of the date of signature of this Agreement; except
that nothing herein shall be construed as a release by you of your rights under
this Agreement.  This includes, but is
not limited to (i) claims arising under any written or oral agreement
regarding compensation, benefits, or options or equity grants (including, but
not limited to, the TriMas Executive Severance/Change of Control Policy, the
Executive Retirement Program, the TriMas Benefits Restoration Plan, the 2002
Long Term Equity Incentive Plan, and the 2006 Long Term Equity Incentive Plan);
(ii) claims arising under federal, state, or local workplace law,
including, without limitation, Title VII of the Civil Rights Act of 1964 or any
analogous state civil rights statutes (including, without limitation, the
Michigan Elliott-Larsen Civil Rights Act), the Age Discrimination in Employment
Act (“ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), the Americans
with Disabilities Act, the Michigan Persons With Disabilities Civil Rights Act,
the Family and Medical Leave Act, the Fair Labor Standards Act, the National
Labor Relations Act, the Employee Retirement Income Security Act, and the
Michigan Whistle Blowers’ Protection Act; and (iii) claims for breach of
express or implied contract, breach of promise, promissory estoppel, loss of
income, back pay, reinstatement, front pay, impairment of earning capacity,
wrongful termination, defamation, libel, slander, discrimination, damage to
reputation, fraud, violation of public policy, retaliation, negligent or
intentional infliction of mental or emotional distress, intentional tort or any
other federal, state or local common law or statutory claims, and all other
claims and rights, whether in law or equity. 
It is the intention of the parties that this paragraph will be construed
as broadly as permissible by law; however, this paragraph does not include
claims arising under state workers’ compensation laws and state unemployment
laws.  This paragraph also does not
affect your right to file a charge or otherwise participate in an EEOC
proceeding insofar as it is required by current EEOC regulations.  You understand that TriMas will assert this
Agreement as an affirmative defense against any claim asserted by you in any
forum.


 


(b)                                 In
signing this Agreement, you agree to waive any rights you might have to pursue
any claims against the Released Parties through any alternative dispute
resolution process, or through any court or administrative agency, to the
extent permitted by law, and further agree not to bring any suit or action in
any court or administrative agency, to the extent permitted by law, against any
of the Released Parties, arising out of or relating to the subject matter of
this Agreement.


 


(c)                                  You
acknowledge that this Agreement provides additional and sufficient
consideration for the release contained herein.


 


9.                                       References.  If you seek a reference for employment
purposes, you agree to direct inquiries to TriMas’ Human Resources
Department.  References to be provided by
TriMas regarding you shall be limited to dates of employment, positions held
and compensation.  Those making such inquiries
will be advised that it is the general policy of TriMas to provide only such
neutral references in response to employment inquiries.


 


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10.                                 Consideration
Time and Revocation Period.


 


(a)                                  You
acknowledge you have sufficient time, totaling twenty-one (21) days from
receipt of this Agreement on January 13, 2009 to determine if you wish to
accept the terms.  In the event you sign
and return this Agreement before that time, you certify, by such execution, that
you knowingly and voluntarily waive the right to the full time period, for
reasons personal to you, with no pressure by TriMas to do so.  TriMas has made no promises, inducements or
threats to cause you to sign this Agreement before the end of the twenty-one
(21) day period.


 


(b)                                 You
understand that you may revoke this Agreement for a period of seven (7) calendar
days following your execution of the Agreement. 
You understand that any revocation, in order to be effective, must be:
in writing and either (1) postmarked within seven (7) days of your
execution of the Agreement and addressed to General Counsel, TriMas
Corporation, 39400 Woodward, Suite 130, Bloomfield Hills, MI  48304 or (2) hand-delivered within seven
(7) days of your execution of the Agreement to TriMas’ General Counsel at
the address listed above.  If revocation
is by mail, certified mail, return receipt requested is required to show proof
of mailing.


 


(c)                                  No
payments or benefits under this Agreement shall be made to you until after the
seven (7) day revocation period has expired.  If you do not revoke this Agreement within
the seven (7) day revocation period, then this Agreement shall become
fully and finally effective and the payments and benefits provided hereunder
will be made to you in accordance with this Agreement.


 


11.                                 Complete
Agreement.  In executing this
Agreement, you are doing so knowingly and voluntarily and agree that you have
not relied upon any oral statements by TriMas or its representatives, and that
this Agreement, when signed by both parties, supersedes any and all prior
written agreements between the parties regarding the terms of your employment
or the termination of such employment. 
Any modification of this Agreement must be made in writing and signed by
you and an authorized representative of TriMas and must specifically refer to
and expressly modify this Agreement.


 


12.                                 Choice
of Law.  This Agreement shall be
deemed to be made and entered into in the State of Michigan and shall in all
respects be interpreted, enforced and governed under the laws of the State of
Michigan, except if applicable federal law provides differently.


 


13.                                 Attorney.  You acknowledge that you have had the
opportunity to review this Agreement with an attorney of your choosing and at
your cost, and have been encouraged and given ample time to consult with your
own legal counsel prior to executing this Agreement.


 


14.                                 Consequences
of Violation of Promise; Remedies. 
If you break the promise in Section 8 of this Agreement and file a
lawsuit based on legal or equitable claims that you have released, it is
expressly understood and agreed that the release and discharge is a complete
defense to the lawsuit. If litigation is brought to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable legal fees and
costs incurred in the litigation.  You
acknowledge and


 


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agree that Company’s remedies at law for a breach or threatened breach
of any of the provisions of Sections 4, 5, 6, or 7 would be inadequate and, in
recognition of this fact, you agree that, in the event of such a breach or
threatened breach, in addition to any remedies at law, you shall forfeit all
payments of Benefits otherwise due under this Agreement and shall return any
payments of Benefits made under the Agreement. 
Moreover, Company, without posting any bond, shall be entitled to seek
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which
may then be available.


 


15.                                 Section 409A.


 


(a) Notwithstanding anything to the contrary in this Agreement, if
you are a “specified employee” within the meaning of Section 409A and the
Treasury Regulations and any guidance promulgated thereunder on the Termination
Date, the Benefits otherwise payable to you pursuant to this Agreement within
the first six (6) months following your termination of employment will
become payable on the first payroll date that occurs on or after the date six (6) months
and one (1) day following your Termination Date.  All other payments will be payable in
accordance with the payment schedule applicable to each payment.  Notwithstanding anything herein to the
contrary, if you die following your Termination Date but prior to the six (6) month
anniversary of your Termination Date, then any payments delayed in accordance
with this paragraph will be payable in a lump sum as soon as administratively
practicable after the date of your death and all other payments will be payable
in accordance with the payment schedule applicable to each payment or
benefit.  Each payment and benefit
payable under this Agreement is intended to constitute separate payments for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.


 


(b) Any amount paid under the Agreement that satisfies the
requirements of the “short-term deferral” rule set forth in Section 1.409A-l(b)(4) of
the Treasury Regulations will not be subject to the delay described in Item (a) above.


 


(c) Any amount paid under the Agreement that qualifies as a
payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of
the Treasury Regulations that does not exceed two (2) times the maximum
amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17)
of the Code for the year in which your employment is terminated will not be
subject to (a) above.


 


(d) The foregoing provisions are intended to comply with the
requirements of Section 409A so that none of the severance payments and
benefits to be provided hereunder will be subject to the additional tax imposed
under Section 409A, and ambiguities herein will be interpreted to so
comply.  You and the Company agree to
work together in good faith and to take such reasonable actions as are
necessary, appropriate or desirable to avoid imposition of any additional tax
or income recognition prior to actual payment to you under Section 409A.  Notwithstanding any portion of this
Agreement, the Company does not guarantee a particular tax effect.  The Company shall not be liable for any
payment that is determined to result in an additional tax, penalty, or interest
under Section 409A of the Code, nor for reporting in good


 


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faith any payment made under this Agreement as an amount includible in
gross income under Section 409A of the Code.  You shall remain liable for all taxes,
interest or penalties imposed under Section 409A of the Code.


 


 


	
   

  	
   

  	
   

  	
   

  	
  TriMas Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
    1/30/09

  	
   

  	
  By:

  	
  /s/ Joshua Sherbin

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Joshua Sherbin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  VP/ General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Executive

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
    1/30/09

  	
   

  	
   

  	
  /s/ Grant Beard

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
       Grant
  Beard

  	
   

  



 


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