Exhibit
10.34


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


EXECUTIVE
EMPLOYMENT AGREEMENT, made as of January 15,2002 by and between AMERICAN SKIING
COMPANY, a Delaware corporation (the “Company”), and Mark Miller (the
“Executive”).


 


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 agrees to continue to employ the
Executive, and the Executive agrees to continue to be so employed by the
Company, upon the terms and subject to the conditions set forth herein,
commencing on September 30, 2001 (the “Commencement Date”) and ending on
September 30, 2004 unless earlier terminated in accordance with Section 4 of
this Agreement; provided, however, that such term shall automatically be
extended for additional one year (1) year periods unless, not later than sixty
(60) days prior to the expiration of the initial period (or any extension
thereof pursuant to this Section 1), either party hereto shall provide written
notice of its or his desire not to extend the term hereof to the other party
hereto (the initial period together with each one-year 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 Operating Officer and Executive Vice President of the
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.


 


(b)
During the Term, the Executive agrees to devote his full business time and best
efforts and attention to the business and affairs of the Company and to
faithfully and diligently perfonn, to the best of his ability, all of his
duties and responsibilities hereunder. Nothing in this Agreement shall 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 his personal investments and affairs; provided that such
activities do not involve a conflict of interest with the interests of the
Company or, individually or collectively, interfere materially with the
performance by the Executive of his duties and responsibilities under this
Agreement. Notwithstanding the foregoing and except as expressly provided
herein, during the


 

















 


 


Term,
the Executive 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.


 


(c)
The Executive’s office and place of rendering his 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.


 

















 


3.
Salary: Additional Compensation:
Perquisites 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
$300,000. Subject to annual review, such Base SaJary may be increased from time
to time. 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 (August 1st through July 31) during the
Term, the Executive shall be eligible to receive a bonus from the Company (the
"Annual Bonus”). The award and amount of the Annual Bonus shall be
contingent upon the Company’s achievement of predefined operating or
performance goals and other criteria established by the Compensation Committee
of the Board consistent with the adopted annual incentive plan program of the
Company, which shall give the Executive the opportunity to earn a maximum
Annual Bonus equal to 70% of Base Salary. Notwithstanding the above, the
Executive shall receive a guaranteed annual bonus for Fiscal Year 2002 of
$100,000. For Fiscal Year 2003, the Executive shall receive a guaranteed
$100,000 bonus plus whatever the Executive is eligible to receive under the
adopted annual incentive plan of the Company. The guaranteed annual bonus
payment for Fiscal Year 2002 shall be paid upon the earlier of November 1, 2002
or the date the company makes payment under the adopted annual incentive plan
of the Company for Fiscal Year 2002. The guaranteed annual bonus payment for
Fiscal Year 2003 shall be paid upon the earlier of November 1, 2003 or the date
the company makes payment under the adopted annual incentive plan of the
Company for Fiscal Year 2003.


 


(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.


 


(d)Equity. 


 


(i)
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 twelve and one
half percent


 


 


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(12.5%).
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.


 


(ii)
The Executive has previously been granted options to purchase a tota1of 100,000
and 175,000 shares of the Company’s common stock on December 7, 1998 and
January 27, 2000 respectively. The terms and conditions of such option shall
continue to be governed by the Stock Option Agreements executed by and between
the Company and the Executive dated as of December 7, 1998 and January 27,
2000.


 


(e)
Expenses. The Company shall reimburse the Executive, in accordance with
its standard policies from time to time in effect, for all out-of-pocket
business expenses as may be incurred by the Executive in the performance of his
duties under this Agreement.


 


(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
his 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 it’s officers and directors.


 


(h)
Relocation and Housing. The Company will provide the Home Sale Platinum
relocation package ( see attached schedule) which includes Guaranteed Home
Sale. Home to be purchased on the following terms:


 


Executive
is currently marketing his home and will continue to make every effort to sell
his home prior to relocation. Home is currently being marketed for $330,000 .


 


The
Company guarantees to purchase the home on 30 days notice anytime after March
30, 2002 for a price of $315,000. This provision supercedes the normal
appraisal process for determining the sales price.


 


Costs
of selling old home and closing costs of new home to be covered as provided for
under the Platinum relocation package with the exception of all costs
associated with temporary living assistance which will be provided for under
the following sub- section (i).


 


(i)
In addition, the Company will provide a fixed allowance of $25k to be used over
a period of up to 12 months beginning on January 1st, 2002 for temporary
housing and living expenses. In addition, the Company shall reimburse the
Executive for reasonable


 


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relocation
expenses in connection with his relocation to the Salt Lake City, Park City
Utah area in accordance with the Company’s executive relocation policy.


 


(j)
Signing and Retention Bonus. Upon the execution of this Agreement, the
Company shaJI pay to the Executive a signing bonus of $100,000 and the Company
will also pay $200,000 (the “Retention Payment”) into an escrow account.
Provided that the Executive remains an employee of the Company or any of its
subsidiaries through April 30, 2002, escrow company shall release the Retention
Payment to the Executive. The Retention Payment shall be released from escrow
immediately upon the earliest to occur of the following events: (A) a Change of
Control (as defined in Section 4(f) of this Agreement) or (B) the Executive’s
termination of employment with the Company pursuant to Section 4(a), (c),(d) or
(e) or (C) April 30,2002. Nothing in this Section 3(i) shall limit or otherwise
mitigate the Company’s obligation to make any payments or provide any benefits
required by Section 4 of this Agreement.


 


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 his
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 equal to (i)
the Executive’s Annual 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 plus (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 tenninated
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 the date of such tennination. For purposes of this Agreement, “Cause”
shall mean the Executive’s (i) willful and intentional failure or refusal to
perform or observe any of his 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


 


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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 or any lesser crime involving Company property.


 


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(f) 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; provided,
however that the employee may terminate voluntarily anytime after September 30,
2004 and in addition to the accrued and unpaid compensation the employee will
receive a lump sum payment of $250,000 upon such termination.


 


(d)
Termination By the Company without Cause (other than on account of death or
disability) or by the Executive for Good Reason. Subject to Section 4(e)
hereof, 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 times the sum of (i) the Executive’s Base Salary as in effect on
the date of such termination and (ii) the amount of the Executive’s Annual
Bonus for the fiscal year preceding such termination. In addition, the Company
shall continue in effect the Executive’s health benefits until the earlier of:
(x) 180 days following such termination or (y) the date on which the Executive
obtains comparable or superior health insurance coverage from a subsequent
employer.


 


(e)
Termination following a Change in Control. If, within one (1) year
following a Change in Control (as such term is defined in Section 4(f) hereof),
the Term is terminated by the Executive for Good Reason or by the Company
without Cause (other than on account of death or disability), the Executive
shall receive a lump sum equal to two (2) times the sum of (i) the Executive’s
Annual Base Salary in effect as of the date of such termination and (ii) the
amount of the Executive’s Annual Bonus for the fiscal year preceding such
termination. In addition, the Company shall continue in effect the Executive’s
health insurance benefits until the earlier of: (x) one year following such
termination or (y) the date on which the Executive obtains comparable or
superior health insurance coverage from a subsequent employer.


 


(f)
Definitions. For purposes of this Agreement, the following terms shall
have the mean set forth in this Section 4(f):


 


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(i)
“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
Section 2(a) hereof, (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; or (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;


 


(ii)
“Change in Control” shall
means the occurrence of anyone of the following events


 


(A)
the acquisition (other than from the Company) by any “Person” (as the term is
used for purposes of Section 13(d) or 14(d) of the Exchange Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
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 (50)
percent or more of such combined voting power on the date hereof provided;
however, that for purposes of this Agreement, the parties hereby agree and
acknowledge that Oak Hill  Capital
Partners L.P. and/or its affiliates as of the date hereof owns at least 50% of
the combined voting power of the Company’s outstanding voting securities; or


 


(B)
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; provjded, however, that if the election, or
nomination for election by the Company’s stockholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a member of the
Incumbent Board; or


 


(C)
approval by stockholders of the Company of (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 (60%) percent 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


 


(g)
Mitigation. Under no circumstances shall the Executive, upon termination
of his 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 Section
4.


 


(h)
Notwithstanding the previous provisions, if payments made pursuant to this
Section 4 are considered “parachute payments” under Section 2800 of the
Internal


 


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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 2800 without causing any loss of
deduction to the Company under such section; but  only if, by reason of such reduction, the net
after tax benefit of Executive shall exceed the net after tax benefit if such
reduction were not made. “Net after tax benefit” for purposes of this Agreement
shall mean the sum of (i) the total amounts payable to Executive under Section
4, plus (ii) all other payments and benefits which the Executive receives or
then is entitled to receive from the Company that would constitute a “parachute
payment” within the meaning of Section 2800 of the Code, less (iii) the amount
of federal income taxes payable with respect to the foregoing calculated at the
minimum marginal income tax rate for each year in which the foregoing shall be
paid to Executive (based upon the rate in effect for such year as set forth in
the Code at the time of termination of Executive’s employment), less (iv) the
amount of excise taxes imposed with respect to the payments and benefits
described in (i) and (ii) above by Section 4999 of the Code.


 


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 his 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 reasonabJe measures to protect, including, but not limited to, trade
secrets, techniques, know-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


 


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other
appropriate protectjon of such information) or (v) known to Executive prior to
his employment with the Company.


 


6.
Nonsolicitation


 


(a)
Executive agrees that during the Employment Term and for a period of twelve
(12) months following termination of employment (the “Restrictive
Period"), the Executive shall not (i) directly or indirectly, (A) solicit
or encourage any employee of the Company to leave the employment of the
Company, or (B) hire any such employee who has left the employment of the
Company (other than as a result of the termination of such employment by the
Company) within one (1) year 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 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 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 Perfonnance. 


 


(a)
The Executive acknowledges that the services to be rendered by him 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 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 excessiveJy 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 such company.


 


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9.
Notices. All notices required or pennitted 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 (1) 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:


 


PO
Box 111


405
Paris Hill Rd. Paris, Me 04271


 


If
to the Company, to:


 


American
Skiing Company PO Box 450


Bethel,
ME 04217 Attn: CEO


 


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 Delaware, 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. Judgement 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 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.


 


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(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 any Stock Option Agreement
entered into by and between the Executive and the Company) 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]


 


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  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Mark Miller
                                     3/12/02

  	
   

  
	
   

  	
  Mark Miller

  
	
   

  	
  AMERICAN
  SKIING COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  B.J.
  Fair                                          3/12/02

  	
   

  
	
   

  	
  By:
  B.J. Fair, Chief Executive Officer

  



 


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