Exhibit

10.37




 




EXECUTIVE EMPLOYMENT AGREEMENT




 




EXECUTIVE EMPLOYMENT AGREEMENT, made as of November 7, 2002 by and

between AMERICAN SKIING COMPANY, a Delaware corporation (the “Company”), and

Helen E. Wallace (the “Executive”), and individual residing at 12033 Louise

Ave., Granada Hills, CA 91344.




 




WHEREAS, the Company desires to employ the Executive and the Executive

desires to continue to be so employed, on the terms and subject to the

conditions set forth in this agreement (the “Agreement”).




 




NOW, THEREFORE, in consideration of the mutual covenants set forth

herein and for other good and valuable consideration the parties hereto hereby

agree as follows:




 




1.             Employment:

Term. The Company hereby employs the Executive, and the Executive agrees to

be employed by the Company, under the terms and subject to the conditions set

forth herein, commencing on or before December 5, 2002 (the “Commencement

Date”) for an initial term of three (3) years.




 




Unless earlier terminated in accordance with Section 4 of this Agreement,

such term shall automatical1y be extended for an additional three (3) year

period unless, not 1ater than one year prior to the expiration of the initial

period, either party hereto shall provide written notice of its or her desire

not to extend the term hereof to the other party hereto (the initial period

together with any extension shall be referred to hereinafter as the “Term”).




 




2.             Position:

Conduct.




 




(a) During the Term, the Executive will hold the title and office of,

and serve in the position of, Chief Financial Officer and Senior Vice President

of American Skiing Company. The Executive shall undertake the responsibilities

and exercise the authority customarily performed, undertaken and exercised by

persons situated in a similar executive capacity, and shall perform such other

specific duties and services (including service as an officer, director or

equivalent position of any direct or indirect subsidiary without additional

compensation) as the Board of Directors of the Company (the “Board”) or Chief

Executive Officer of the Company (the “CEO”) shall reasonably request. The

Executive shall report directly to the CEO of the Company.




 




During the Term, the Executive shall be responsible for, but not

limited to, the following: all finance, and accounting and information system

management activities. These include: corporate reporting, operational finance,

tax, cash-management, risk management, payroll, accounts payable, general and

property accounting, internal auditing, financial systems and budgetary

controls. Direct reports include the Vice President of Operations Finance, the

Vice President of Finance and Accounting and the Vice President of Information

Systems. The total finance and accounting organization includes accounting

staff at the resort locations in Vermont, Maine, New Hampshire, Colorado and

Utah.




 




The Executive agrees to devote her ful1 business time and best efforts

and attention to the business and affairs of the Company and to faithful1y and

diligently perform, to the best of her ability, al1 of her duties and

responsibilities hereunder. Nothing in this Agreement shal1 preclude the

Executive from devoting reasonable time and attention to (i) serving, with the

approval of the Board, as a director, trustee or member of any committee of any

organization, (ii) engaging in charitable and community activities and (iii)

managing her personal investments and affairs; provided that such activities do

not involve a conflict of interest with the interests of the Company or,

individual1y or col1ectively, interfere material1y with the performance by the

Executive of her duties and responsibilities under this Agreement.

Notwithstanding the foregoing and except as expressly provided herein, during

the Term (when the Executive holds the above position), the Executive 




 




1





























 




may not accept employment with any other individual or entity, or

engage in any other venture which is directly or indirectly in conflict or

competition with the business of the Company.




 




(b) The Executive’s office and place of rendering her services under

this Agreement shall be in the principal executive offices of the Company,

which shall be in the Salt Lake City/ Park City, Utah area. Under no

circumstances shall the Executive be required to relocate from the Salt Lake

City/Park City Utah area or provide services under this Agreement in any other

location other than in connection with reasonable and customary business

travel. During the Term, the Company shall provide the Executive with executive

office space, and administrative and secretarial assistance and other support

services consistent with her position and with her duties and responsibilities

hereunder.




 




3.             Salary:

Additional Compensation. Prerequisites and Benefits. 




 




(a) During the Term, the Company shall pay the Executive a base salary

(the “Base Salary”) at an annual rate of not less than Two Hundred Fifty Nine

Thousand dollars ($259,000.00). Subject to annual review by the Compensation

Committee of the Company’s Board in consultation with the Chief Executive

Officer, such Base Salary may be increased from time to time, but not decreased

without the prior consent of the Executive. Base Salary shall be paid in

periodic installments in accordance with the Company’s standard practice, but

not less frequently than semi-monthly.




 




(b) Bonus. For each fiscal year during the Term (commencing with

the Company’s fiscal year 2003), the Executive will be eligible to receive a

bonus from the Company. The award and amount of such bonus shall be based upon

the achievement of predefined operating or performance goals and other criteria

established by the Compensation Committee, which goals shall give the Executive

the opportunity to earn a bonus in the following amounts: target- fifty percent

(50%) of Base Salary and maximum bonus amount- seventy-five percent (75%) of

Base Salary. For the Company’s 2003 fiscal year, Executive shall be entitled to

the greater of the calculated payment under the Company’s incentive

compensation plan or $50,000. In addition, the Executive shall receive, 30 days

after commencement of employment, a signing bonus equal to $30,000.




 




(c) Employee Benefits. During the Term, the Executive shall

participate in all plans now existing or hereafter adopted by the Company for its

management employees or the general benefit of its employees, such as any

pension, profit-sharing, bonuses, stock option or other incentive compensation

plans, life and health insurance plans, or other insurance plans and benefits

on the same basis and subject to the same qualifications as other senior

executive officers. During the Term, Executive will also be entitled to

participate in all other employee benefits programs now existing or hereafter

adopted by the Company for its management employees, including, but not limited

to skiing/snowboarding privileges at Company owned - resorts

and discounts for Perfect Turn clinics, Company owned ASC retail stores and

restaurants.




 




(d) Equity. The Executive shall be eligible for participation in the Company’s Phantom Equity Plan, as amended

from time to time by the Compensation Committee of the Board (the “Equity

Plan”) at a participation percentage equal to nine and one- half percent

(9.5%). The terms of such participation shall be governed by the Equity Plan and

an award agreement entered into by and between the Executive and the Company.




 




(e) Expenses. The Company shall reimburse the Executive, in

accordance with its standard policies from time to time in effect, for an

out-of-pocket business expenses as may be incurred by the Executive in the

performance of her duties under this Agreement.




 




2





























 




(f) Vacation. The Executive shall be entitled to vacation time

to be credited and taken in accordance with the Company’s policy from time to

time in effect for senior executives, which in any event shall not be less than

a total of four (4) weeks per calendar year.




 




(g) Indemnification. To the fullest extent permitted by

applicable law, the Executive shall be indemnified and held harmless by the

Company against any and all judgments, penalties, fines, amounts paid in

settlements, and other reasonable expenses (including, without limitation,

reasonable attorney’s fees and disbursements) actually incurred by the

Executive in connection with any threatened, pending or completed action, suit

or proceeding (whether civil, criminal, administrative, investigative or other)

for any action or omission in her capacity as a director, officer or employee

of the Company except any action which would otherwise constitute “Cause” (as

such term is defined in Section 4(b) of this Agreement). Indemnification under

this Section 3(g) shall be in addition to, and not in lieu of, any other

indemnification by the Company of its officers and directors.




 




(h) COBRA Reimbursement. 

The Company will reimburse Executive for COBRA payments under the

Executive’s current benefit plan until the Executive is eligible for benefits

under the Company’s plan.




 




(i) Relocation Expenses. The Company will reimburse Executive

for reasonable costs of moving household goods from Executive’s current

residence in Granada Hills, CA, to Park City/Salt Lake City, UT in accordance

with the Company’s relocation policy for a period of up to one year from start

date. The Company will provide temporary housing for Executive and her family

for a period of ninety (90) days from Executive’s start date. In the event the

Executive does not find housing within the first ninety (90) days, then the

temporary housing allowance will be extended in additional thirty (30) day

increments, not to exceed one hundred eighty (180) days of temporary housing.

In addition, the Company will reimburse.




 




Executive for two (2) round trip coach class tickets per month for the

first ninety (90) days of employment for travel between Park City and Los

Angeles, California. In the event that Executive terminates employment without

Good Reason within the first twelve (12) months of the date of this Agreement,

the after-tax portion of any relocation costs paid to Executive or made on

Executive’s behalf shall be reimbursed to the Company on a prorated basis,

commencing at the first of the month following the month in which Executive’s

employment is terminated. By way of example, if Executive commences employment

on November 29,2002 resigns without Good Reason on April 15, 2003, Executive

will reimburse to the Company seven-twelfth’s of the after-tax amount for any

relocation costs that Executive received or was paid on Executive’s behalf by

the Company.




 




4.             Termination and

Severance. 




 




(a) Death or Disability. The Term shall terminate immediately

upon the Executive’s death or, upon thirty (30) days prior written notice by

the Company, in the case of a determination of the Executive’s Disability. As

used herein the term “Disability” means the Executive’s inability to perform

her duties and responsibilities under this Agreement for a period of more than

120 consecutive days, or for more than 180 days, whether or not continuous,

during any 365-day period, due to physical or mental incapacity or impairment.

A determination of Disability will be made by a physician reasonably

satisfactory to both the Executive and the Company and paid for by the Company

whose decision shall be final and binding on the Executive and the Company; provided

that  if the parties

cannot agree as to a physician, then each shall select and pay for a physician

and these two together shall select a third physician whose fee shall be borne

equally by the Executive and the Company and whose determination of Disability

shall be binding on the Executive and the Company.




 




If the Term is terminated upon the Executive’s death or Disability, the

Company shall pay to the Executive’s estate or the Executive, as the case may

be, a lump sum payment of an amount equal to (i) the 




 




3





























 




Executive’s Base Salary through such termination date, (ii) a pro rata

portion of the Executive’s Annual Bonus with respect to the fiscal year in

which the termination occurred and (iii) any accrued but unpaid vacation

through the date of such termination.




 




(b) Termination for Cause. The Term may be terminated by the

Company upon notice (as set forth in this Section 4(b)) to the Executive upon

the occurrence of any event constituting “Cause” as defined below. If the Term

is terminated by the Company for Cause, the Company will pay the Executive an

aggregate amount equal to the Executive’s accrued and unpaid Base Salary and

vacation pay through too date of such termination. For purposes of this Agreement,

“Cause” shall mean the Executive’s (i) willful and intentional failure or

refusal to perform or observe any of her material duties, responsibilities or

obligations set forth in this Agreement; provided, however, that the

Company shall not be deemed to have Cause pursuant to this clause (i) unless

the Company gives the Executive written notice that the specified conduct has

occurred and making specific reference to this Section 4(b) (i) and the

Executive fails to cure the conduct within thirty (30) days after receipt of

such notice; (ii) any willful and intentional act of the Executive involving

malfeasance, fraud, theft, misappropriation of funds, embezzlement or

dishonesty affecting the Company; or(iii) the Executive’s conviction of, or a

plea of guilty or nolo contendere to, an offense which is a felony in the

jurisdiction involved.




 




Termination of the Executive for Cause shall be communicated by a

Notice of Termination. For purposes of this Agreement, a “Notice of

Termination” shall mean delivery to the Executive of a copy of a resolution

duly adopted by the affirmative vote of the majority of the entire membership

of the Board that the Executive was guilty of conduct constituting Cause and

specifying the particulars thereof in detail, including, with respect to any

termination based upon conduct described in clause (i) above, that the

Executive failed to cure such conduct during the thirty-day period following the date on which the Company gave written notice of the conduct referred to in such clause (i). For

purposes of this Agreement, no such purported termination of the Executive’s

employment shall be effective without such Notice of Termination.




 




(c) Termination by the Executive without Good Reason. If the

Term is terminated by the Executive other than because of death, Disability or

for Good Reason (as such term is defined in Section 4(e) hereof, the Company

shall pay to the Executive an aggregate amount equal to the Executive’s accrued

and unpaid Base Salary and vacation through the date of such termination.




 




(d) Termination By the Company without Cause (other than on account

of death or Disability) or by the Executive for Good Reason. If the Term is

terminated by the Company without Cause (other than by reason of death or

Disability), or if the Executive terminates the Term for Good Reason (as

defined below), the Company shall pay the Executive a lump sum equal to one

hundred percent (100%) of the Executive’s Base Salary as in effect on the date

of such termination.




 




(e) Definition of “Good Reason”. For purposes of this Agreement,

“Good Reason” shall mean the occurrence of any of the following, without the

prior written consent of the Executive: (A) assignment of the Executive of

duties materially inconsistent with the Executive’s position as described in

Sections 2(a) and 2(b) hereof, or assignment of the Executive to report to an

executive of the Company other than the Chief Executive Officer (so long as

such position exists within the Company); (B) any significant diminution in the

Executive’s duties or responsibilities, other than in connection with the

termination of the Executive’s employment for Cause, Disability or as a result

of the Executive’s death or by the Executive other than for Good Reason; (C)

the change in the location of the Company’s principal executive offices or the

Executive’s principal place of employment to a location outside the Salt Lake

City/Park City, Utah area; or (D) the material breach by the Company of this

Agreement; provided, however, that Good Reason shall not exist pursuant

to this clause unless the Executive gives the Company written notice that the

specified conduct or breach has occurred and the Company fails to cure the

conduct or breach within thirty (30) days of receipt of such notice.




 




4





























 




(f) Mitigation. Under no circumstances shall the Executive, upon

termination of her employment hereunder, be required to seek alternative

employment and, in the event the Executive does secure other employment, no

other compensation or other benefits received in respect of such employment

shall be set-off or in any other way limit or reduce the obligations of the

Company under this Agreement.




 




(g) Notwithstanding the previous provisions, if payments made pursuant

to this Section 4 are considered “parachute payments” under Section 2800 of the

Internal Revenue Code of 1986, as amended (the “Code”) then the sum of such

parachute payments plus any other payments made by the Company to the Executive

which are considered parachute payments shall be limited to the greatest amount

which may be paid to the Executive under Section 280G of the Code without

causing any loss of deduction to the Company under such section or Excise Tax

to the Executive pursuant to Section 4999 of the Code.




 




(h) Phantom Equity Plan: This Agreement shall not in any way

limit or reduce the obligations of the Company with respect to the Executive

and/or the Executive’s rights with respect to the Company set forth in the

Equity Plan further described herein. All severance, compensation payments and

bonuses and benefits described herein are in addition to and not in lieu of any

other benefits or termination conditions to which the Executive may be entitled

under the Equity Plan.




 




(i) Change in Control: If a Change in Control occurs, then any

award under the Equity Plan shall become fully vested. “Change in Control”

shall mean the occurrence of any of the following: (i) The acquisition (other

than from the Company) by any “Person” of fifty (50%) percent or more of the

combined voting power of the Company’s then outstanding voting securities,

other than any Person holding fifty percent or more of such combined voting

power on the date hereof, provided; however, that for purposes of this

offer letter, the parties hereby agree and acknowledge that Oak Hill Capital

Partners L.P. and/or its affiliates as of the date of this offer letter owns at

least 50% of the combined voting power of the Company’s outstanding voting

securities; (ii) the individuals who were members of the Board (the “Incumbent

Board”) during the previous twelve (12) month period, cease for any reason to

constitute at least a majority of the Board and at least a majority of the

Board was not nominated for election to the board of directors with the approval

of at least two-thirds of the Incumbent Board; or (iii) approval by

stockholders of the Company of (a) a merger or consolidation involving the

Company in which the stockholders of the Company, immediately before such

merger or consolidation do not, as a result of such merger or consolidation,

own, directly or indirectly, more than sixty percent (60%) of the combined

voting power of the then outstanding voting securities of the corporation

resulting from such merger or consolidation in substantially the same

proportion as their ownership of the combined voting power of the securities of

the Company outstanding immediately before such merger or consolidation or (b)

a complete liquidation or dissolution of the Company or an agreement for the

sale or other disposition of all or substantially all of the assets of the

Company.




 




5.             Confidential

Information. 




 




The Executive acknowledges that the Company and its subsidiaries or

affiliated ventures (“Company Affiliates”) own and have developed and compile,

and will in the future own, develop and compile certain Confidential

Information and that during the course of her rendering services hereunder

Confidential Information will be disclosed to the Executive by the Company

Affiliates. The Executive hereby agrees that, during the Term and for a period

of three years thereafter, he will not use or disclose, furnish or make

accessible to anyone, directly or indirectly, any Confidential Information of

Company Affiliates.




 




As used herein, the term “Confidential Information” means any trade

secrets, confidential or proprietary information, or other knowledge, know-how,

information, documents or materials, owned developed or possessed by Company

Affiliate pertaining to its businesses the confidentiality of which such

company takes reasonable measures to protect, including, but not limited to,

trade secrets, techniques, know-




 




5





























 




how (including designs, plans, procedures, processes and research

records), software, computer programs, innovations, discoveries, improvements,

research, developments, test results, reports, specifications, data, formats,

marketing data and business plans and strategies, agreements and other forms of

documents, expansion plans, budgets, projections, and salary, staffing and

employment information. Notwithstanding the foregoing, Confidential Information

shall not in any event include information which (i) was generally known or

generally or generally available to the public prior to disclosure to the

Executive, (ii) becomes generally known or generally available to the public

subsequent to its disclosure to the Executive through no wrongful act of the

Executive, (iii) is or becomes available to the Executive from sources other

than the Company Affiliates which sources are not known to the Executive to be

under any duty of confidentiality with respect thereto, (iv) the Executive is

required to disclose by applicable law or regulation or by order of any court

or federal, state or local regulatory or administrative body (provided that the

Executive provides the Company with prior notice of the contemplated disclosure

and reasonably cooperates with the Company, at the Company’s sole expense, in

seeking a protective order or other appropriate protection of such information)

or (v) known to the Executive prior to her employment with the Company.




 




6.             Nonsolicitation.




 




(a) The Executive recognizes and acknowledges that the services to be

performed by her hereunder are special, unique and extraordinary and the

Executive further acknowledges and recognizes the highly competitive nature of

the business of the Company. The Executive understands that (i) the provisions

of this Section 6 do not impose a greater restraint than is necessary to

protect the goodwill or other business interests of the Company, (ii) such

provisions contain reasonable limitations as to time and scope of activity to

be restrained, (iii) such provisions are not harmful to the general public,

(iv) such provisions are not unduly burdensome to the Executive, and (v) the

consideration provided hereunder is sufficient to compensate the Executive for

the restrictions contained in such provisions. Accordingly, the Executive

agrees that during the Employment Term and for a period of twelve (12) months

following termination of employment (the “Restrictive Period”), the Executive

will not (i) directly or indirectly solicit or encourage any employee of the

Company to leave the employment of the Company, or (ii) directly hire any such

employee who bas left the employment of the Company (other than as a result of

the termination of such employment by the Company) within three (3) months

after the termination of such employee’s employment with the Company, and (ii)

directly or indirectly, solicit or encourage to cease to work with the Company

any consultant then under contract with the Company.




 




(b) It is expressly understood and agreed that although the Executive

and the Company consider the restrictions contained in this Section 6 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

the Agreement is an unenforceable restriction against the Executive, the

provisions of the Agreement 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 court of competent jurisdiction finds that any

restriction contained in the 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.




 




7.             Specific

Performance. 




 




(a) The Executive acknowledges that the services to be rendered by her

hereunder are of a special, unique, extraordinary and personal character and

that the Company would sustain irreparable harm in the event of a violation by

the Executive of Section 5 or 6 of this Agreement. Therefore, in addition to

any other remedies available, the Company shall be entitled to specific

enforcement and/or injunction from any court of competent jurisdiction

restraining the Executive from committing or continuing any such violation of

this 




 




6





























 




Agreement

without proving actual damages or posting a bond or other security. Nothing

herein shall be construed as prohibiting the Company from pursuing any other

remedies available to it for such breach or threatened breach, including the

recovery of damages.




 




(b) If any of the restrictions on activities of the Executive contained

in Section 6 hereof shall for any reason be held by a court of competent

jurisdiction to be excessively broad, such restrictions shall be construed so

as thereafter to be limited or reduced to be enforceable to the maximum extent

comparable with the applicable law as it shall then appear; it being understood

that by the execution of this Agreement the parties hereto regard such restrictions

as reasonable and compatible with their respective rights.




 




8. Withholding. The parties agree that all payments to be made

to the Executive by the Company pursuant to the Agreement shall be subject to

all applicable withholding obligations of the Company.




 




9. Notices. All notices required or permitted hereunder shall be

in writing and shall be deemed given and received when delivered personally,

four (4) days after being mailed if sent by registered or certified mail,

postage pre-paid, or by one (I) day after delivery if sent by air courier (for

next-day delivery) with evidence or receipt thereof or by facsimile with

receipt confirmed by the addressee. Such notices shall be addressed

respectively:




 




If to the Executive, to:




 




Helen E. Wallace




12033 Louise Avenue




Granada Hills, CA 91344




 




If to the Company, to:




 




American Skiing Company




136 Heber Ave, #303




Park City, Utah 84060




Attn: General Counsel




 




or

to any other address of which such party may have given notice to the other

parties in the manner specified above.




 




10.           Miscellaneous. 




 




(a) This Agreement is a personal contract calling for the provisions of

unique services by the Executive, and the Executive’s rights and obligations

hereunder may not be sold, transferred, assigned, pledged or hypothecated by

the Executive. The rights and obligations of the Company hereunder will be

binding upon and run in favor of their respective successors and assigns.




 




(b) This Agreement shall be governed by and construed and enforced in

accordance with the internal laws of the State of Utah, without regard to

conflict of laws principles.




 




(c) Any controversy arising out of or relating to this Agreement or any

breach hereof shall be settled by arbitration in Salt Lake City, Utah by a

single neutral arbitrator in accordance with the Commercial Arbitration Rules

of the American Arbitration Association. Judgment upon any award rendered may

be entered in any court having jurisdiction thereof, except in the event of a

controversy relating to any alleged violation by the 




 




7





























 




Executive

of Section 6 or 7 hereof, in which case the Company shall be entitled to seek

injunction relief from a court of competent jurisdiction without the

requirement to seek arbitration.




 




(d) The headings of the various sections of this Agreement are for

convenience of reference only and shall not define or limit any of the terms or

provisions hereof.




 




(e) The provisions of this Agreement which by their terms call for

performance subsequent to the expiration or termination of the Term shall

survive such expiration or termination.




 




(f) This Agreement constitutes the entire agreement of the parties

hereto with respect to the subject matter hereof (other than the Equity Plan,

as further described herein) and supersedes all other prior agreements and

undertakings, both written and oral, among the parties with respect to the

subject matter hereof, all of which shall be terminated on the Commencement

Date. In addition, that parties hereto hereby waive all rights such party may

have under all other prior agreements and hereto hereby waive all rights such

party may have under all other prior agreements and undertakings, both written

and oral, among the parties hereto, or among the Executive, with respect to the

subject matter hereof.




 




 




[SIGNATURE PAGE FOLLOWS]




 




8





























 




	

   


  	

  EXECUTIVE


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  /s/ Helen E. Wallace


  	

   


  
	

   


  	

  Helen

  E. Wallace


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  AMERICAN

  SKIING COMPANY


  
	

   


  	

   


  
	

   


  	

  /s/ B.J. Fair


  	

   


  
	

   


  	

  By:

  B.J. Fair, Chief Executive Officer


  





 




9