Exhibit 10.2


 


March 5, 2009


 


CONFIDENTIAL


 


Mr. Edward Schwartz


 


Dear
Ed:


 


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 March 4, 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 twelve (12) months at your annual base salary rate in effect
on the Termination Date totaling Four Hundred Thousand and 00/100 ($400,000.00)
, 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 Two Hundred Eighty Thousand Dollars ($280,000) paid
in equal installments over the twelve (12) month period described in Item (a) above,
in accordance with the Company’s usual payroll practices, subject to all
applicable withholding and reporting requirements.


 


(c)                                  The amount of
Seventy Thousand and 00/100 ($70,000.00), representing the AVCP bonus payment
for 2008 declared as payable to you by the Company’s Compensation
Committee.  This amount will be paid in
equal installments over the twelve (12) month period described in Item (a) above,
in accordance with the Company’s usual payroll practices, subject to all
applicable withholding; provided


 

















 


that the payments will be accelerated as follows: (i) after
payment pursuant to 1(g) below, the balance of the amount payable under
this paragraph will be paid at the next regularly scheduled payroll date,
subject to any delay in payment required under Section 409A, and (ii) any
amount subject to delay pursuant to Section 1(c)(i) will be paid on
the first payroll date that occurs on or after the date six (6) months and
one (1) day following your Termination Date.


 


(d)                                 The amount of Forty
Eight Thousand Three Hundred Twenty Nine and 00/100 Dollars ($48,329), 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 12-month period described in Item (a) above, in
accordance with the Company’s usual payroll practices, subject to all
applicable withholding and reporting requirements.


 


(e)                                  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.


 


(f)                                    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.               12-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.


 


(g)                                 The amount of Sixty
Nine Thousand One Hundred Ninety Seven and 00/100 Dollars ($69,197), adjusted
for gains and losses from February 27, 2009 to the date of distribution,
plus any contributions for the first quarter of 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 


 


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and reporting requirements; which amount shall be paid by the Company
to you in a lump sum during the first month after the Termination Date.


 


(h)                                 It is agreed
that on the Termination Date, you will be vested in 7,083 of the restricted
shares granted to you under the 2006 Long Term Equity Incentive Plan (comprised
of (i) 3,000 previously vested restricted shares from the September 1,
2007 grant, (ii) 1,750 restricted shares vesting as of the Termination
Date with respect to the September 1, 2007 grant, and (iii) 2,333
restricted shares vesting as of the Termination Date with respect to the April 2,
2008 grant).  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
Fifteen Thousand One Hundred Eighty Four and 00/100 Dollars ($15,184.00) 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 of TriMas and any of its subsidiaries
and affiliates 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 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” 


 


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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 Benefits payments provided for
under this Agreement, 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
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 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 


 


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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 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 


 


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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.  TriMas will provide you a written reference
for employment purposes under the signature of the President / Chief Executive
Officer that positively reflects your contributions and leadership during your
tenure with the Company. The Company will work with you to complete the letter
within fourteen (14) days of the expiration of the revocation period in
paragraph 10 below.


 


10.                                 Consideration
Time and Revocation Period.


 


(a)                                You acknowledge
you have sufficient time, totaling twenty-one (21) days from receipt of this
Agreement on March 4, 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.


 


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(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 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 


 


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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 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.


 


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   TriMas
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   3/5/09

  	
   

  	
  By:

  	
   /s/
  Joshua Sherbin

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   Joshua
  Sherbin

  
	
   

  	
   

  	
   

  	
  Title:

  	
   VP
  / General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Executive

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   3/5/09

  	
   

  	
   

  	
    /s/ Edward L.
  Schwartz

  



 


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