Exhibit 10.17


 


EXECUTION COPY


 


 


Bristol West Holdings, Inc.


 


 


Dated as of January 1, 2004


 


James
R. Fisher


c/o
Fisher Capital Corp. LLC


8
Clarke Drive


Cranbury,
New Jersey 08512


 


Dear
Jim:


 


On behalf of Bristol West Holdings, Inc. (the “Company”), I am pleased
to offer you a position as the Chairman and Chief Executive Officer of the
Company on the terms and conditions set forth in this letter.  You shall have such duties, responsibilities
and authorities as the board of directors of the Company (the “Board”) shall
determine are appropriate for your position, and you shall devote your
reasonable business time to such duties, responsibilities and authorities.  Notwithstanding the foregoing, the Company
hereby acknowledges and agrees that during the term of your employment with the
Company, you may engage in certain investment and advisory activities related
to your position with Fisher Capital Corp. LLC, which activities are not
connected with your employment with the Company and for which you may receive
compensation from sources that are not affiliated with the Company.


 


With respect to compensation for your services as the Chief Executive
Officer of the Company, subject to your continued employment with the Company,
you will receive the following compensation and benefits, from which the
Company shall be entitled to withhold any amounts required by applicable law:


 


                                                            (i)   As of
the date hereof, the Company shall pay you a one-time signing bonus for
entering into this letter agreement in an amount equal to $175,000.


 


                                                                (ii)  Beginning on January 1, 2004, the Company shall pay you a base
salary (“Base Salary”) at the rate of $700,000 per annum. Your Base Salary
shall be payable quarterly in arrears within ten (10) business days after the
end of each such quarter.


 


(iii)  You
will be eligible to participate in the Company welfare, pension and other
employee benefit programs that are generally made available to the Company’s
other senior executive officers.


 


(iv)  You
will be eligible to earn an annual bonus award pursuant to the Company’s annual
incentive program in such amount, if any, as may be determined by the
compensation committee of the Board (or, if necessary, such other committee
that satisfies the requirements of Section 162(m) of the Internal Revenue Code
and the regulations thereunder) (the “Committee”) in its sole discretion and
recommended by the Committee to the Board for approval thereof. Any such bonus
award will be payable only upon the Company’s achievement of certain annual
performance targets, as established by the Committee.


 


                Subject
to the terms and conditions set forth in this letter agreement, the term of
your employment with the Company hereunder shall be deemed to have begun on
January 1, 2004 and shall end on June 30, 2005 (the “Initial Term”); provided,
however, that commencing on June 30, 2005 and on each June 30
thereafter, the term of your employment hereunder shall be automatically
extended for an additional one-year period (each such period, an “Extended
Term”).  Notwithstanding the foregoing,
your employment hereunder will terminate upon the earliest to occur of: (i) the
expiration of the Initial Term or any Extended Term, as applicable, in the
event that you or the Company provides the other party with 


 

















 


written notice of nonrenewal of such term
no later than thirty (30) days prior to the commencement of any Extended Term;
(ii) termination of your employment by the Company with or without Cause (as
defined below) at any time following written notice to you thereof; or (iii) termination
of your employment by you for any reason following thirty (30) days advance
written notice to the Company thereof (except in the case of your death or
permanent disability (as defined below)).


 


If, during the
Initial Term or any Extended Term, your employment is terminated for any reason
by you or by the Company as provided above (including upon the nonrenewal of
the term of your employment hereunder by either party), you will be entitled to
receive such payments (including any accrued but unpaid Base Salary) and/or
benefits, if any, as to which you may be entitled (or may have accrued) as of
the date of termination under the Company’s employee benefit plans and programs
(collectively the “Accrued Benefits”). 
Also in the event of any termination of your employment, any Company
Stock or options to purchase Company Stock that you hold, directly or
indirectly, will be governed by the terms of the applicable agreements under
which you hold such Company Stock and/or options.


 


In addition to
the foregoing, if, during the Initial Term or any Extended Term, your
employment is terminated (i) by the Company without Cause as provided above
(which in no event shall include the nonrenewal of the term of your employment
hereunder by the Company or any termination due to your permanent disability)
or (ii) by you for any reason as a result of an Associates Sale (as defined
below), following thirty (30) days advance written notice of such termination
delivered to the Company not earlier than the date the Associates Sale occurs,
subject to your continued compliance with the confidentiality and
nondisparagement covenants contained herein (as described below), for the
remainder of the Initial Term or the Extended Term, as applicable (in either
case without any extensions thereof) the Company shall provide you with the
following: (x) continued payment to you of your then Base Salary, payable as
set forth above, and (y) subject to your electing to continue to receive group
health insurance coverage from the Company pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1986 (“COBRA”), continued group health insurance
coverage at the same rates as you paid immediately prior to such termination,
if any (such coverage, at such rates, your “Medical Coverage”). These severance
payments and benefits are in lieu of any other severance payments or benefits
to which you may be entitled under any other Company severance plan or
policy.  For purposes of this paragraph,
“Associates Sale” shall mean the sale or other disposition (either in one
transaction or in a series of transactions) of all of the shares of common
stock in the Company (“Company Stock”) that Bristol West Associates LLC
(“Associates”) owns, directly or indirectly.


 


For purposes of this letter agreement, (i) “Cause” shall mean (A) your
willful and continued failure to perform your material duties with respect to
the Company or its subsidiaries which continues beyond 10 days after a written
demand for substantial performance is delivered to you by the Company, (B) your
willful misconduct involving dishonesty or breach of trust in connection with
your employment which results in a demonstrable injury (which is other than de
minimis or insignificant) to the Company, (C) conviction for any felony or
misdemeanor involving moral turpitude, or (D) any material breach of your covenant not
to disclose Confidential Information or not to disparage the Company and its
Beneficiaries, as provided below and (ii) “permanent disability” shall mean you are unable
to engage in the activities required by your job by reason of any medically
determined physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months.


 


Upon any termination of your employment with the Company, you agree to
resign, as of the date of such termination and to the extent applicable, from
any board of directors or committees of the Company or its affiliates on which
you serve and any board, committees or other organizations on which you serve
in a representative capacity of the Company or its affiliates.


 


 


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                As
a condition of your employment, you agree that you shall not at any time during
or after your employment with the Company disclose any Confidential Information
(as hereinafter defined) pertaining to the business of the Company or any of
its subsidiaries, except (i) when required by applicable law or (ii) in
connection with any strategic transaction involving the Company and only after
receipt of authorization from the Board to disclose such Confidential
Information.  For the purposes of this
letter agreement, “Confidential Information” shall mean all non-public
information concerning the financial data, strategic business plans, and other
non-public, proprietary and confidential information of the Company, its
subsidiaries, Associates, and their affiliates as in existence as of the date
of your termination of employment. You also hereby agree not to issue any press
release or otherwise make any private or public statement (whether oral, in
writing or in any other form), directly or through any person or entity, which
is derogatory, disparaging or damaging to, which alleges improper conduct by, or
which is reasonably likely to result in or could reasonably be determined to be
intended to cause damage or embarrassment to, the Company, its successors,
subsidiaries, affiliates, officers, directors, employees, shareholders,
representatives, agents, servants and assigns, or anyone acting on their behalf
(the “Beneficiaries”), other than any such statement that may be required by
applicable law.


 


During the term of your employment with
the Company and for 12 months thereafter, you agree that you shall not, without
the Board’s written consent, directly or indirectly (i) be engaged in any
business that is principally engaged, within the United States, in the
principal business of the Company and its subsidiaries at the relevant time or
(ii) solicit or offer employment to any person who has been employed by the
Company or any of its subsidiaries at any time during the 12 months immediately
preceding such solicitation. Notwithstanding anything herein to the contrary,
you shall be permitted to provide services, directly or indirectly, to Kohlberg
Kravis Roberts & Co., L.P. or any affiliate thereof and continue to manage
and direct your personal investments without limitation thereof.


 


All notices or
communications hereunder shall be in writing, addressed: (i) to the Company at
its principal corporate headquarters, to the attention of the Board, and (ii)
to you at the most recent residential address contained within the personnel
records of the Company (or to such other address as such party may designate in
a notice duly delivered as described below). 
Any such notice or communication shall be delivered by telecopy, by
hand, by courier or sent certified or registered mail, return receipt
requested, postage prepaid, addressed as above, and in the case of delivery other
than by hand, the third business day after the actual date of mailing shall
constitute the time at which notice was given.


 


Any controversy or claim arising out of or relating to this letter
agreement or the breach of this letter agreement that cannot be resolved by you
and the Company, including any dispute as to the calculation of any payments
hereunder, and the terms of this letter agreement, shall be exclusively resolved by way of confidential arbitration in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, which arbitration shall take place in New
York, New York.  This letter agreement
shall be construed, interpreted and governed in accordance with the laws of New
York.


 


This letter agreement contains the entire understanding of the parties
with respect to your employment with the Company and there are no restrictions,
agreements, promises, warranties, covenants or undertakings between the parties
with respect to the subject matter herein other than those expressly set forth
herein.  This letter agreement may not
be altered, modified or amended, except by written instrument signed by the
parties hereto and may be executed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.  The failure
of a party to insist upon strict adherence to any term of this letter agreement
on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence to
that term or any other term of this letter agreement.


 


 


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This letter agreement shall not be assignable by you but may be
assigned by the Company to an entity, which is a successor in interest to
substantially all of the Company Stock or assets of the Company.


 


If the foregoing terms and conditions are acceptable and agreed to by
you, please sign on the line provided below to signify such acceptance and
agreement and return the executed copy to the undersigned.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BRISTOL
  WEST HOLDINGS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Alexis S. Oster

  
	
   

  	
   

  	
   

  	
  Name:
  Alexis S. Oster

  
	
   

  	
   

  	
   

  	
  Title:
  Secretary

  
	
   

  	
   

  	
   

  	
   

  



 


 


Accepted
and Agreed as of this ___ day of January, 2004


 


 


	
  /s/
  James R. Fisher

  	
   

  
	
  James
  R. Fisher

  	
   

  



 


 


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