**Exhibit10.34**

 

EXECUTIVEEMPLOYMENT AGREEMENT

 

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

 

WHEREAS,the Company desires to employ the Executive and the Executive desires tocontinue to be so employed, on the terms and subject to the conditions setforth in this agreement (the “Agreement”);

 

NOW,Therefore, in consideration of the mutual covenants set forth herein and forother good and valuable consideration the parties hereto hereby agree asfollows:

 

1.Employment: Term. The Company hereby agrees to continue to employ theExecutive, and the Executive agrees to continue to be so employed by theCompany, upon the terms and subject to the conditions set forth herein,commencing on September 30, 2001 (the “Commencement Date”) and ending onSeptember 30, 2004 unless earlier terminated in accordance with Section 4 ofthis Agreement; provided, however, that such term shall automatically beextended for additional one year (1) year periods unless, not later than sixty(60) days prior to the expiration of the initial period (or any extensionthereof pursuant to this Section 1), either party hereto shall provide writtennotice of its or his desire not to extend the term hereof to the other partyhereto (the initial period together with each one-year extension shall bereferred to hereinafter as the “Term”).

 

2.Position: Conduct. 

 

(a)During the Term, the Executive will hold the title and office of, and serve inthe position of Chief Operating Officer and Executive Vice President of theCompany. The Executive shall undertake the responsibilities and exercise theauthority customarily performed, undertaken and exercised by persons situated ina similar executive capacity, and shall perform such other specific duties andservices (including service as an officer, director or equivalent position ofany direct or indirect subsidiary without additional compensation) as the Boardof Directors of the Company (the “Board”) or Chief Executive Officer of theCompany (the “CEO”) shall reasonably request. The Executive shall reportdirectly to the CEO of the Company.

 

(b)During the Term, the Executive agrees to devote his full business time and bestefforts and attention to the business and affairs of the Company and tofaithfully and diligently perfonn, to the best of his ability, all of hisduties and responsibilities hereunder. Nothing in this Agreement shall precludethe Executive from devoting reasonable time and attention to (i) serving, withthe approval of the Board, as a director, trustee or member of any committee ofany organization, (ii) engaging in charitable and community activities and(iii) managing his personal investments and affairs; provided that suchactivities do not involve a conflict of interest with the interests of theCompany or, individually or collectively, interfere materially with theperformance by the Executive of his duties and responsibilities under thisAgreement. Notwithstanding the foregoing and except as expressly providedherein, during the

 

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Term,the Executive may not accept employment with any other individual or entity, orengage in any other venture which is directly or indirectly in conflict orcompetition with the business of the Company.

 

(c)The Executive’s office and place of rendering his services under this Agreementshall be in the principal executive offices of the Company which shall be inthe Salt Lake City, Park City, Utah area. Under no circumstances shall theExecutive be required to relocate from the Salt Lake City, Park City Utah areaor provide services under this Agreement in any other location other than inconnection with reasonable and customary business travel.

 

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3.Salary: Additional Compensation:Perquisites and Benefits. 

 

(a)  During the Term, the Company shall pay theExecutive 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 timeto time. Base Salary shall be paid in periodic installments in accordance withthe Company’s standard practice, but not less frequently than semi-monthly.

 

(b)Bonus. For each fiscal year (August 1st through July 31) during theTerm, the Executive shall be eligible to receive a bonus from the Company (the"Annual Bonus”). The award and amount of the Annual Bonus shall becontingent upon the Company’s achievement of predefined operating orperformance goals and other criteria established by the Compensation Committeeof the Board consistent with the adopted annual incentive plan program of theCompany, which shall give the Executive the opportunity to earn a maximumAnnual Bonus equal to 70% of Base Salary. Notwithstanding the above, theExecutive 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 theadopted annual incentive plan of the Company. The guaranteed annual bonuspayment for Fiscal Year 2002 shall be paid upon the earlier of November 1, 2002or the date the company makes payment under the adopted annual incentive planof the Company for Fiscal Year 2002. The guaranteed annual bonus payment forFiscal Year 2003 shall be paid upon the earlier of November 1, 2003 or the datethe company makes payment under the adopted annual incentive plan of theCompany for Fiscal Year 2003.

 

(c)Employee Benefits. During the Term, the Executive shall participate inall plans now existing or hereafter adopted by the Company for its managementemployees 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 thesame basis and subject to the same qualifications as other senior executiveofficers.

 

(d)Equity. 

 

(i)The Executive shall be eligible for participation in the Company’s PhantomEquity Plan, as amended from time to time by the Compensation Committee of theBoard (the “Equity Plan”) at a participation percentage equal to twelve and onehalf percent

 

 

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(12.5%).The terms of such participation shall be governed by the Equity Plan and anaward agreement entered into by and between the Executive and the Company.

 

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

 

(e)Expenses. The Company shall reimburse the Executive, in accordance withits standard policies from time to time in effect, for all out-of-pocketbusiness expenses as may be incurred by the Executive in the performance of hisduties under this Agreement.

 

(f)Vacation. The Executive shall be entitled to vacation time to becredited and taken in accordance with the Company’s policy from time to time ineffect for senior executives, which in any event shall not be less than a totalof**four (4) weeks per calendaryear.

 

(g)Indemnification. To the fullest extent permitted by applicable law, theExecutive shall be indemnified and held harmless by the Company against any andall judgments, penalties, fines, amounts paid in settlements, and otherreasonable expenses (including, without limitation, reasonable attorney’s feesand disbursements) actually incurred by the Executive in connection with anythreatened, pending or completed action, suit or proceeding (whether civil,criminal, administrative, investigative or other) for any action or omission inhis capacity as a director, officer or employee of the Company except anyaction which would otherwise constitute “Cause” (as such term is defined inSection 4(b) of this Agreement). Indemnification under this Section 3(g) shallbe in addition to, and not in lieu of, any other indemnification by the Companyof it’s officers and directors.

 

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

 

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

 

TheCompany guarantees to purchase the home on 30 days notice anytime after March30, 2002 for a price of $315,000. This provision supercedes the normalappraisal process for determining the sales price.

 

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

 

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

 

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

 

(j)Signing and Retention Bonus. Upon the execution of this Agreement, theCompany shaJI pay to the Executive a signing bonus of $100,000 and the Companywill also pay $200,000 (the “Retention Payment”) into an escrow account.Provided that the Executive remains an employee of the Company or any of itssubsidiaries through April 30, 2002, escrow company shall release the RetentionPayment to the Executive. The Retention Payment shall be released from escrowimmediately upon the earliest to occur of the following events: (A) a Change ofControl (as defined in Section 4(f) of this Agreement) or (B) the Executive’stermination 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 otherwisemitigate the Company’s obligation to make any payments or provide any benefitsrequired by Section 4 of this Agreement.

 

4.**Terminationand Severance.**

 

(a)Death or Disability. The Term shall terminate immediately upon theExecutive’s death or, upon thirty (30) days prior written notice by theCompany, in the case of a determination of the Executive’s Disability. As usedherein the term “Disability” means the Executive’s inability to perform hisduties and responsibilities under this Agreement for a period of more than 120consecutive days, or for more than 180 days, whether or not continuous, duringany 365-day period, due to physical or mental incapacity or impairment. Adetermination of Disability will be made by a physician reasonably satisfactoryto both the Executive and the Company and paid for by the Company whosedecision shall be final and binding on the Executive and the Company; providedthat if the parties cannot agree as to aphysician, then each shall select and pay for a physician and these twotogether shall select a third physician whose fee shall be borne equally by theExecutive and the Company and whose determination of Disability shall bebinding on the Executive and the Company.

 

If**the Term is terminated upon theExecutive’s death or Disability, the Company shall pay to the Executive’sestate 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 prorata portion of the Executive’s Annual Bonus with respect to the fiscal year inwhich the termination occurred plus (iii) any accrued but unpaid vacationthrough the date of such termination.

 

(b)Termination for Cause. The Term may be terminated by the Company uponnotice (as set forth in this Section 4(b) to the Executive upon the occurrenceof any event constituting “Cause” as defined below. If the Term is tenninatedby the Company for Cause, the Company will pay the Executive an aggregateamount equal to the Executive’s accrued and unpaid Base Salary and vacation paythrough the date of such tennination. For purposes of this Agreement, “Cause”shall mean the Executive’s (i) willful and intentional failure or refusal toperform or observe any of his duties, responsibilities or obligations set forthin this Agreement; provided, however, that the Company shall not bedeemed to have Cause pursuant to this clause (i) unless the Company gives theExecutive written notice that the specified conduct has occurred and makingspecific reference to this Section 4(b )(i) and the Executive fails to cure theconduct within thirty (30) days after receipt of such notice; (ii) any willfuland intentional act of the Executive involving malfeasance, fraud, theft,misappropriation of funds, embezzlement or

 

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dishonestyaffecting the Company; or (iii) the Executive’s conviction of, or a plea ofguilty or nolo contendere to, an offense which is a felony in the jurisdictioninvolved or any lesser crime involving Company property.

 

Terminationof the Executive for Cause shall be communicated by a Notice of Termination.For purposes of this Agreement, a “Notice of Termination” shall mean deliveryto the Executive of a copy of a resolution duly adopted by the affirmative voteof the majority of the entire membership of the Board that the Executive wasguilty of conduct constituting Cause and specifying the particulars thereof indetail, including, with respect to any termination based upon conduct describedin clause (i) above, that the Executive failed to cure such conduct during thethirty-day period following the date on which the Company gave written noticeof the conduct referred to in such clause (i). For purposes of this Agreement,no such purported termination of the Executive’s employment shall be effectivewithout such Notice of Termination.

 

(c)Termination by the Executive without Good Reason. If the Term isterminated by the Executive other than because of death, Disability or for GoodReason (as such term is defined in Section 4(f) hereof, the Company shall payto the Executive an aggregate amount equal to the Executive’s accrued andunpaid 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 willreceive a lump sum payment of $250,000 upon such termination.

 

(d)Termination By the Company without Cause (other than on account of death ordisability) 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 byreason of death or Disability), or if the Executive terminates the term forGood Reason (as defined below), the Company shall pay the Executive a lump sumequal to one times the sum of (i) the Executive’s Base Salary as in effect onthe date of such termination and (ii) the amount of the Executive’s AnnualBonus for the fiscal year preceding such termination. In addition, the Companyshall 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 Executiveobtains comparable or superior health insurance coverage from a subsequentemployer.

 

(e)Termination following a Change in Control. If, within one (1) yearfollowing 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 Companywithout Cause (other than on account of death or disability), the Executiveshall receive a lump sum equal to two (2) times the sum of (i) the Executive’sAnnual Base Salary in effect as of the date of such termination and (ii) theamount of the Executive’s Annual Bonus for the fiscal year preceding suchtermination. In addition, the Company shall continue in effect the Executive’shealth insurance benefits until the earlier of: (x) one year following suchtermination or (y) the date on which the Executive obtains comparable orsuperior health insurance coverage from a subsequent employer.

 

(f)Definitions. For purposes of this Agreement, the following terms shallhave 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 theprior written consent of the Executive: (A) assignment of the Executive ofduties materially inconsistent with the Executive’s position as described inSection 2(a) hereof, (B) any significant diminution in the Executive’s dutiesor responsibilities, other than in connection with the termination of the Executive’semployment for Cause, Disability or as a result of the Executive’s death or bythe Executive other than for Good Reason; or (C) the change in the location ofthe Company’s principal executive offices or the Executive’s principal place ofemployment to a location outside the Salt Lake City, Park City, Utah area;

 

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

 

(A)the acquisition (other than from the Company) by any “Person” (as the term isused for purposes of Section 13(d) or 14(d) of the Exchange Act) of beneficialownership (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’sthen 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 andacknowledge that Oak Hill****CapitalPartners L.P. and/or its affiliates as of the date hereof owns at least 50% ofthe combined voting power of the Company’s outstanding voting securities; or

 

(B)the individuals who were members of the Board (the “Incumbent Board”) duringthe previous twelve (12) month period, cease for any reason to constitute atleast a majority of the Board; provjded, however, that if the election, ornomination for election by the Company’s stockholders, of any new director wasapproved by a vote of at least two-thirds of the Incumbent Board, such new directorshall, for purposes of this Agreement, be considered as a member of theIncumbent Board; or

 

(C)approval by stockholders of the Company of (a) merger or consolidationinvolving the Company in which the stockholders of the Company, immediatelybefore such merger or consolidation do not, as a result of such merger orconsolidation, own, directly or indirectly, more than sixty (60%) percent ofthe combined voting power of the then outstanding voting securities of thecorporation resulting from such merger or consolidation in substantially thesame proportion as their ownership of the combined voting power of thesecurities of the Company outstanding immediately before such merger orconsolidation or (b) a complete liquidation or dissolution of the Company or anagreement for the sale or other disposition of all or substantially all of theassets of the Company

 

(g)Mitigation. Under no circumstances shall the Executive, upon terminationof his employment hereunder, be required to seek alternative employment and, inthe event the Executive does secure other employment, no other compensation orother benefits received in respect of such employment shall be set-off or inany other way limit or reduce the obligations of the Company under this Section4.

 

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

 

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RevenueCode of 1986, as amended (the “Code”) then the sum of such parachute paymentsplus any other payments made by the Company to the Executive which areconsidered parachute payments shall be limited to the greatest amount which maybe paid to the Executive under Section 2800 without causing any loss ofdeduction to the Company under such section; butonly if, by reason of such reduction, the netafter tax benefit of Executive shall exceed the net after tax benefit if suchreduction were not made. “Net after tax benefit” for purposes of this Agreementshall mean the sum of (i) the total amounts payable to Executive under Section4, plus (ii) all other payments and benefits which the Executive receives orthen is entitled to receive from the Company that would constitute a “parachutepayment” within the meaning of Section 2800 of the Code, less (iii) the amountof federal income taxes payable with respect to the foregoing calculated at theminimum marginal income tax rate for each year in which the foregoing shall bepaid to Executive (based upon the rate in effect for such year as set forth inthe Code at the time of termination of Executive’s employment), less (iv) theamount of excise taxes imposed with respect to the payments and benefitsdescribed in (i) and (ii) above by Section 4999 of the Code.

 

5.ConfidentialInformation. 

 

TheExecutive acknowledges that the Company and its subsidiaries or affiliatedventures (“Company Affiliates”) own and have developed and compile, and will inthe future own, develop and compile certain Confidential Information and thatduring the course of his rendering services hereunder Confidential Informationwill be disclosed to the Executive by the Company Affiliates. The Executivehereby 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 orindirectly, any Confidential Information of Company Affiliates.

 

Asused 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 CompanyAffiliate pertaining to its businesses the confidentiality of which suchcompany takes reasonabJe measures to protect, including, but not limited to, tradesecrets, techniques, know-how (including designs, plans, procedures, processesand research records), software, computer programs, innovations, discoveries,improvements, research, developments, test results, reports, specifications,data, formats, marketing data and business plans and strategies, agreements andother 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 todisclosure to the Executive, (ii) becomes generally known or generallyavailable to the public subsequent to its disclosure to the Executive throughno wrongful act of the Executive, (iii) is or becomes available to theExecutive from sources other than the Company Affiliates which sources are notknown to the Executive to be under any duty of confidentiality with respectthereto, (iv) the Executive is required to disclose by applicable law orregulation or by order of any court or federal, state or local regulatory oradministrative body (provided that the Executive provides the Company withprior notice of the contemplated disclosure and reasonably cooperates with theCompany, at the Company’s sole expense, in seeking a protective order or

 

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otherappropriate protectjon of such information) or (v) known to Executive prior tohis 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 “RestrictivePeriod"), the Executive shall not (i) directly or indirectly, (A) solicitor encourage any employee of the Company to leave the employment of theCompany, or (B) hire any such employee who has left the employment of theCompany (other than as a result of the termination of such employment by theCompany) within one (1) year after the termination of such employee’semployment with the Company, and (ii) directly or indirectly, solicit orencourage to cease to work with the Company any consultant then under contractwith the Company.

 

(b)It is expressly understood and agreed that although Executive and the Companyconsider the restrictions contained in this Section 6 to be reasonable, if afinal judicial determination is made by a court of competent jurisdiction thatthe time or territory or any other restriction contained in the Agreement is anunenforceable restriction against Executive, the provisions of the Agreementshall not be rendered void but shall be deemed amended to apply as to suchmaximum time and territory and to such maximum extent as such court mayjudicially determine or indicate to be enforceable. Alternatively, if any courtof competent jurisdiction finds that any restriction contained in the Agreementis unenforceable, and such restriction cannot be amended so as to make itenforceable, such finding shall not affect the enforceability of any of theother restrictions contained herein.

 

7.Specific Perfonnance. 

 

(a)The Executive acknowledges that the services to be rendered by him hereunderare of a special, unique, extraordinary and personal character and that theCompany would sustain irreparable harm in the event of a violation by theExecutive of Section 5 or 6 of this Agreement. Therefore, in addition to anyother remedies available, the Company shall be entitled to specific enforcementand/or injunction from any court of competent jurisdiction restraining theExecutive from committing or continuing any such violation of this Agreementwithout proving actual damages or posting a bond or other security. Nothingherein shall be construed as prohibiting the Company from pursuing any otherremedies available to it for such breach or threatened breach, including therecovery of damages.

 

(b)If any of the restrictions on activities of the Executive contained in Section6 hereof shall for any reason be held by a court of competent jurisdiction tobe excessiveJy broad, such restrictions shall be construed so as thereafter tobe limited or reduced to be enforceable to the maximum extent comparable withthe applicable law as it shall then appear; it being understood that by the executionof this Agreement the parties hereto regard such restrictions as reasonable andcompatible with their respective rights.

 

8.Withholding. The parties agree that all payments to be made to theExecutive by the Company pursuant to the Agreement shall be subject to allapplicable withholding obligations of such company.

 

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9.Notices. All notices required or pennitted hereunder shall be in writingand shall be deemed given and received when delivered personally, four (4) daysafter 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 theaddressee. Such notices shall be addressed respectively:

 

If**to the Executive, to:

 

POBox 111

405Paris Hill Rd. Paris, Me 04271

 

Ifto the Company, to:

 

AmericanSkiing Company PO Box 450

Bethel,ME 04217 Attn: CEO

 

orto any other address of which such party may have given notice to the otherparties in the manner specified above.

 

10.Miscellaneous. 

 

(a)This Agreement is a personal contract calling for the provisions of uniqueservices by the Executive, and the Executive’s rights and obligations hereundermay not be sold, transferred, assigned, pledged or hypothecated by theExecutive. The rights and obligations of the Company hereunder will be bindingupon and run in favor of their respective successors and assigns.

 

(b)This Agreement shall be governed by and construed and enforced in accordancewith the internal laws of the State of Delaware, without regard to conflict oflaws principles.

 

(c)Any controversy arising out of or relating to this Agreement or any breachhereof shall be settled by arbitration in Salt Lake City, Utah by a singleneutral arbitrator in accordance with the Commercial Arbitration Rules of theAmerican Arbitration Association. Judgement upon any award rendered may beentered in any court having jurisdiction thereof, except in the event of acontroversy relating to any alleged violation by the Executive of Section 6 or7 hereof, in which case the Company shall be entitled to seek injunction relieffrom a court of competent jurisdiction without the requirement to seek arbitration.

 

(d)The headings of the various sections of this Agreement are for convenience ofreference only and shall not define or limit any of the terms or provisionshereof.

 

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(e)The provisions of this Agreement which by their terms call for performancesubsequent to the expiration or termination of the Term shall survive suchexpiration or termination.

 

(f)This Agreement constitutes the entire agreement of the parties hereto withrespect to the subject matter hereof (other than any Stock Option Agreemententered into by and between the Executive and the Company) and supersedes allother prior agreements and undertakings, both written and oral, among theparties with respect to the subject matter hereof, all of which shall beterminated on the Commencement Date. In addition, that parties hereto herebywaive all rights such party may have under all other prior agreements andhereto hereby waive all rights such party may have under all other prioragreements and undertakings, both written and oral, among the parties hereto,or among the Executive, with respect to the subject matter hereof.

 

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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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