**Exhibit10.41**

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**EXECUTIONCOPY**

 

**AMERICANSKIING COMPANY**

 

**PHANTOM EQUITY PLAN**

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# SECTION 1.                                Purpose.  The purpose of the American Skiing CompanyPhantom Equity Plan (the “Plan”) is to attract, motivate and retain keyemployees who are primarily responsible for the long-term performance ofAmerican Skiing Company and to align their interest with that of theshareholders of the Company.

 

# SECTION 2.                                Definitions.  As used in the Plan, the following termsshall have the meanings set forth below:

 

#### (a)                                  Award.  The award granted to a Participant by theCommittee on a specific date, the terms and conditions of which shall be setforth in such Participant’s Award Agreement.

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#### (b)                                 AwardPercentage.  The percentage of theTotal Plan Pool with respect to which a Participant may be entitled to paymentas set forth in the Award Agreement evidencing an Award granted to aParticipant pursuant to the Plan.

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#### (c)                                  AwardAgreement.  The written agreementevidencing an Award granted hereunder, which shall be executed or otherwiseacknowledged in writing by a Participant.

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#### (d)                                 Board.  The Board of Directors of the Company.

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#### (e)                                  Cause.  Cause shall have the meaning set forth inany employment agreement in effect as of a specific date, entered into by andbetween the Participant and the Company and in the event that no suchemployment agreement has been entered into with respect to a Participant,“Cause” means the Participant’s: (i) failure or refusal to satisfactorily perform or observe any of hisduties, responsibilities or obligations to the Company, (ii) gross negligencein performing his duties or any willful and intentional act of the Participantinvolving malfeasance, fraud, theft, misappropriation of funds, embezzlement ordishonesty affecting the Company; or (iii) conviction of, or a plea of guiltyor nolo contendere to, an offense which is a felony in the jurisdictioninvolved or any lesser crime involving Company property.

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(f)                                    Change inControl.  Unless otherwise definedin the applicable Award Agreement, Change in Control means the occurrence ofany one of the following events:

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(1)                                  The acquisition(other than from the Company) by any person of fifty (50%) percent or more ofthe combined voting power of the Company’s then outstanding voting securities,other than any person, entity or entities holding fifty (50%) percent or moreof such combined voting power on the date hereof provided; however,that the Participant and the Company hereby agree and acknowledge that Oak HillCapital Partners L.P. and/or 

 

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its affiliates as of the Effective Date of the Plan owns at least 50%of the combined voting power of the Company’s outstanding voting securities; or

 

(2)                                  The individuals whowere members of the Board (the “Incumbent Board”) during the previous twelve(12) month period, cease for any reason to constitute at least a majority ofthe Board; or

 

(3)                                  Approval bystockholders of the Company, and the consummation by the Company of (a) amerger or consolidation involving the Company in which the stockholders of theCompany, immediately before such merger or consolidation do not, as a result ofsuch merger or consolidation, own, directly or indirectly, more than sixtypercent (60%) of the combined voting power of the then outstanding votingsecurities of the corporation resulting from such merger or consolidation insubstantially the same proportion as their ownership of the combined votingpower of the securities of the Company outstanding immediately before suchmerger or consolidation or (b) a complete liquidation or dissolution of the Companyor an agreement for the sale or other disposition of all or substantially allof the assets of the Company.

 

#### (g)                                 Company.  The American Skiing Company, a Delawarecorporation.

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#### (h)                                 Committee.  The Compensation Committee of the Board.

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#### (i)                                     EffectiveDate. [                         ,2001].

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#### (j)                                     GoodReason.  Good Reason shall have themeaning set forth in any written employment agreement entered into by andbetween the Participant and the Company and if no such agreement has beenentered into, with such Participant, the applicable Award Agreement shall notand shall not be deemed to contain any provisions related to Good Reason.

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#### (k)                                  Participant.  Any current or prospective employee of theCompany who is eligible for, and is selected by the Committee to be granted, anAward under the Plan and who has executed an Award Agreement.

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#### (l)                                     Plan.  This American Skiing Company Phantom EquityPlan.

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#### (m)                               TotalEnterprise Value.  The totalpurchase price paid for the Company (or in the absence of an acquisition of theCompany, the total value of the Company determined by an independent thirdparty selected in good faith by the Committee in its sole discretion) at thetime of a Valuation Event.

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#### (n)                                 TotalEquity Pool Value.  The TotalEnterprise Value of the Company minus the value of outstanding debt of theCompany which shall be determined by the Committee in good faith.  For purposes of the Plan and any Awardsgranted hereunder,

 

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#### including withoutlimitation determining Total Equity Pool Value, the liquidation value of anypreferred stock of the Company, held by any stockholder shall not constituteoutstanding debt of the Company.

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#### (o)                                 TotalPlan Pool.  The total amount of cashto be paid to all Participants on a Valuation Event.  The Total Plan Pool shall be no less than $2 million and nogreater than $32 million determined as follows:

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Total Plan Pool = $2 million + (A x B)

 

Where “A” equals “Total Equity Value” and “B” equals “Total PoolPercentage”, each as set forth in the following chart:

 
| **(A) Total Equity Value** |   | **(B) Total  Pool Percentage** |   |
|----------------------------|--------|--------------------------------|--------|
| $1.00                      |   | 0.00                           | %      |
| $50 million                |   | 1.50                           | %      |
| $100 million               |   | 2.00                           | %      |
| $150 million               |   | 2.25                           | %      |
| $200 million               |   | 2.50                           | %      |
| $250 million               |   | 3.00                           | %      |
| $300 million               |   | 3.50                           | %      |
| $400 million               |   | 5.00                           | %      |
| $500 million and above     |   | 6.00                           | %      |

 

#### (p)                                 ValuationEvent.  (1) a sale or disposition ofa significant Company operation or property as determined by the Board; (2) amerger, consolidation or similar event of the Company other than one (i) inwhich the Company is the surviving entity or (ii) where no Change of Controlhas occurred; (3) a public offering of equity securities by the Company thatyields net proceeds to the Company in excess of $50 million; or (4) a Change ofControl.

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#### (q)                                 VestedPercentage.  The extent to which anAward is vested on any given date pursuant to the terms of the applicable AwardAgreement.

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# SECTION 3.                                Administration.

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#### (a)                                  ThePlan shall be administered by the Committee. The majority of the members of the Committee shall constitute a quorum.  The acts of a majority of the memberspresent at any meeting at which a quorum is present or acts approved in writingby a majority of the Committee shall be deemed the acts of the Committee.

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#### (b)                                 Subjectto the provisions of the Plan and applicable law, the Committee shall have thepower, in addition to other express powers and authorizations conferred on theCommittee by the Plan, to:  (i)designate Participants; (ii) determine the type or types of Awards 

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to be granted to a Participant;(iii) determine rights, payments and how other matters are to be calculated inconnection with Awards; (iv) determine the terms and conditions of any Awards,including, without limitation, vesting; (v) determine whether, to what extent,and under what circumstances Awards and other amounts payable with respect toan Award shall be deferred either automatically or at the election of theholder thereof or of the Committee; (vii) interpret, administer, reconcile any inconsistency,correct any default and/or supply any omission in the Plan and any instrumentor agreement relating to, or Awards granted under the Plan; (viii) establish,amend, suspend, or waive such rules and regulations and appoint such agents asit shall deem appropriate for the proper administration of the Plan; and (ix)make any other determination and take any other action that the Committee deemsnecessary or desirable for the administration of the Plan.

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#### (b)                                 Unlessotherwise expressly provided in the Plan, all designations, determinations,interpretations, and other decisions under or with respect to the Plan or anyAward or any documents evidencing any and all Awards shall be within the solediscretion of the Committee, and shall be final, conclusive, and binding uponall parties, including, without limitation, the Company, any Participant, anyholder or beneficiary of any Awards, and any shareholder.

 

#### (c)                                  Nomember of the Committee shall be liable for any action or determination made ingood faith with respect to the Plan or any Award hereunder.

 

# SECTION 4.                                Eligibility.  Any employee (including any prospectiveemployee) of the Company and/or its subsidiaries shall be eligible to bedesignated as a Participant in the Plan by the Committee and to be granted anAward hereunder.

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# SECTION 5.                                Awards.

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#### (a)                                  Grant.  Subject to the provisions of the Plan, theCommittee shall determine the Participants to whom Awards shall be granted andthe conditions and limitations applicable to the Award, including, withoutlimitation, the Award Percentage, and any vesting requirements associatedtherewith.

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#### (b)                                 Payment.  Unless otherwise provided in the applicableAward Agreement, Payment under each Award shall be as follows:

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##### (i)                                     inthe form of cash and shall be made as soon as practicable, but in no event morethan 30 days following a Valuation Event; and

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##### (ii)                                  equalto an amount determined as follows:  theproduct of (A) the Vested Percentage and (B) the Award Percentage multiplied bythe Total Plan Pool (“Payment Amount”).

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#### (c)                                  Notwithstandingthe foregoing, in the event that the Board determines in good faith thatpayment of any Payment Amount in cash would have a material detrimental 

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effect on the Company or isprohibited under the terms of any legal or contractual restriction to which theCompany is subject, then the Company shall be entitled to make all or anyportion of such payments in the form of notes, equity securities or acombination thereof.

 

#### (d)                                 TheAward Agreement may, but shall not be required, to contain provisions relatedto vesting on a termination of employment.

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#### (e)                                  Inthe event of a termination of the Participant’s employment, the Company shallhave the right, exercisable within sixty (60) days, or such other time periodas may be specified in the Award Agreement to cancel an Award in exchange forthe Payment Amount determined as if a Valuation Event had occurred on the dateof such termination.

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# SECTION 6.                                Confidentiality.  As a condition to each Participant’s rightto receive and retain any Award granted under the Plan, a Participant may berequired to sign the Company’s policy statement or agreement regardingconfidentiality as may be in effect generally for employees of the Company fromtime to time.

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# SECTION 7.                                Amendment andTermination.

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#### (a)                                  Amendmentsto the Plan.  The Committee mayamend, alter, suspend, discontinue, or terminate the Plan or any portionthereof at any time; provided that any such amendment, alteration,suspension, discontinuance, or termination that would materially adverselyaffect the rights of any Participant with respect to any outstanding Awardgranted under the Plan shall not to that extent be effective without thewritten consent of the affected Participant.

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#### (b)                                 Amendmentsto Awards.  The Committee may waiveany conditions or rights under, amend any terms of, or alter, suspend,discontinue, cancel or terminate, any Award theretofore granted, prospectivelyor retroactively; provided that any such waiver, amendment, alteration,suspension, discontinuance, cancellation or termination not expresslycontemplated by the Plan that would materially adversely affect the rights ofany Participant or other holder of an Award theretofore granted shall not tothat extent be effective without the written consent of the affectedParticipant or holder.

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# SECTION 8.                                General Provisions.

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#### (a)                                  Nontransferability.  No Award may be assigned, alienated,pledged, attached, sold or otherwise transferred or encumbered by a Participantother than by will or by the laws of descent and distribution, and any suchpurported assignment, alienation, pledge, attachment, sale, transfer orencumbrance shall be void and unenforceable against the Company.

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#### (b)                                 NoRights to Awards.  No Person shallhave any claim to be granted any Award, and there is no obligation foruniformity of treatment of Participants, or holders or beneficiaries ofAwards.  The terms and conditions ofAwards and the Committee’s 

 

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determinations andinterpretations with respect thereto need not be the same with respect to eachParticipant (whether or not such Participants are similarly situated).

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#### (c)                                  TaxWithholding.  A Participant may berequired to pay to the Company and the Company shall have the right and ishereby authorized to withhold from any payment due or transfer made under anyAward or under the Plan or from any compensation or other amount owing to aParticipant the amount (in cash, securities, or other property) of any applicablewithholding taxes in respect of an Award, its vesting or settlement in cash orin kind, or any payment or transfer under an Award or under the Plan and totake such other action as may be necessary in the opinion of the Company tosatisfy all obligations for the payment of such taxes.

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#### (d)                                 OtherCompensation Arrangements.

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##### (i)                                     Nothingcontained in the Plan shall prevent the Company or any affiliate from adoptingor continuing in effect other compensation arrangements, which may, but neednot, provide for the grant of options, securities and other types of awards,and such arrangements may be either generally applicable or applicable only inspecific cases.

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##### (ii)                                  Neitherthe grant of Awards hereunder nor the payment of any amounts in respect of anyAwards shall be taken into account in determining a Participant’s right toreceive any additional benefits or compensation under any other plan orarrangement.

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#### (e)                                  NoRight to Service or Employment.  Thegrant of an Award shall not be construed as giving a Participant the right tobe retained in the employ or service of the Company or any affiliate.  Further, the Company or its affiliates mayat any time terminate a Participant from any service relationship ordiscontinue, free from any liability or any claim under the Plan, unlessotherwise expressly provided in the Plan or in any Award Agreement.

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#### (f)                                    AwardsAs An Unsecured Promise; Insolvency.

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##### (i)                                     TheCompany shall not be required to and shall not segregate any funds representingAwards granted hereunder, and nothing in the Plan or any Award Agreement shallbe construed as providing for such segregation.

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##### (ii)                                  Nothingin the Plan or any Award Agreement, and no action taken pursuant to theirrespective terms, shall create or be construed to create a trust or escrowaccount of any kind, or a fiduciary relationship between the Company or itsaffiliates, on the one hand, and any Participant, or any other person on theother hand.

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##### (iii)                               The Participants andtheir beneficiaries and any other persons entitled to payment in respect of anAward granted hereunder shall rely solely on the unsecured promise of theCompany to make the payments required under the terms of any Award, but shallhave the right to enforce such a claim in the same manner as any unsecuredgeneral creditor of the Company. Neither the Participants shall have any preferred claim on, or anybeneficial 

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ownership in, any assets of theCompany.  Any rights created under thePlan or any Award shall be mere unsecured contractual rights of theParticipants against the Company.

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#### (g)                                 Conflicts.  In the event of a conflict between the termsof the Plan and any Award Agreement, the terms of the Plan shall prevail.

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#### (h)                                 GoverningLaw.  Unless otherwise provided inthe applicable Award Agreement, the validity, construction, and effect of thePlan and any rules and regulations relating to the Plan and any Award Agreementshall be determined in accordance with the laws of the State of Utah applicableto agreements made and to be performed entirely within such state withoutregard to the choice of law principles thereof.

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#### (i)                                     Headings.  Headings are given to the Sections andsubsections of the Plan solely as a convenience to facilitate reference.  Such headings shall not be deemed in any waymaterial or relevant to the construction or interpretation of the Plan or anyprovision thereof.

 

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