**Exhibit10.36**

** **

PWRW&G DRAFT

12/20/01

 

**EXECUTIVEEMPLOYMENT AGREEMENT**

 

EXECUTIVE EMPLOYMENTAGREEMENT, made as of July 30, 2001 by and between AMERICAN SKIING COMPANY, aDelaware corporation (the “ Company”), and Foster A. Stewart, Jr. (the“Executive”).

 

WHEREAS, the Companydesires to employ the Executive and the Executive desires to continue to be soemployed, on the terms and subject to the conditions set forth in thisagreement (the “Agreement”);

 

NOW, THEREFORE, inconsideration of the mutual covenants set forth herein and for other good andvaluable consideration the parties hereto hereby agree as follows:

 

# 1.                                       Employment:Term.  The Company hereby agrees tocontinue to employ the Executive, and the Executive agrees to continue to be soemployed by the Company, upon the terms and subject to the conditions set forthherein, commencing as of July 30, 2001 (the “Commencement Date”) and ending onJuly 29, 2003 or, in the event of the Executive’s relocation to Salt Lake Cityin connection with his employment hereunder, July 29, 2004, in either caseunless earlier terminated in accordance with Section 4 of this Agreement; provided,however, that such term shall automatically be extended for additionalone (1) year periods unless, not later than sixty (60) days prior to theexpiration of the initial period (or any extension thereof pursuant to thisSection 1), either party hereto shall provide written notice of its or hisdesire not to extend the term hereof to the other party hereto (the initialperiod together with each one-year extension shall be referred to hereinafteras the “Term”).

 

# 2.                                       Position:  Conduct.

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## (a)                                  Duringthe Term, the Executive will hold the title and office of, and serve as aSenior Vice President of the Company and the Company’s General Counsel.  The Executive shall be responsible for themanagement of the legal department of the Company and of American SkiingCompany Resort Properties, Inc. (“ASCRP”). The Executive shall undertake theresponsibilities and exercise the authority customarily performed, undertakenand exercised by persons situated in a similar executive capacity, and shallperform such other specific duties and services (including service as anofficer, director or equivalent position of any direct or indirect subsidiarywithout additional compensation) as the Board of Directors of the Company (the“Board”) or Chief Executive Officer of the Company (the “CEO”) shall reasonablyrequest.  The Executive shall reportdirectly to the CEO of the Company. During the Term, the Company shall providethe Executive with executive office space and administrative and secretarialassistance and other support services consistent with his position.

 

## (b)                                 Duringthe 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 perform, to the best of his ability, all of hisduties and responsibilities hereunder. Nothing in this Agreement shall preclude the Executive from devotingreasonable time and 

 

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attention to (i) serving,with the approval of the Board or CEO, as a director, trustee or member of anycommittee of any organization, (ii) engaging in charitable and communityactivities and (iii) managing his personal investments and affairs; providedthat such activities do not involve any material conflict of interest with theinterests of the Company or, individually or collectively, interfere materiallywith the performance by the Executive of his duties and responsibilities underthis Agreement.  Notwithstanding theforegoing and except as expressly provided herein, during the Term, theExecutive may not accept employment with any other individual or entity, orengage in any other venture which is directly in conflict or competition withthe business of the Company.

 

## (c)                                  Subjectto the provisions of Section 3(h) hereof, the Executive’s office and place ofrendering his services under this Agreement shall (i) from the CommencementDate through no later than April 30, 2002 (or July 31 in the event theExecutive delivers a notice of failure to relocate described in this Section2(c)) be the offices of the Company in Portland, Maine and (ii) from April 30,2002 through the end of the Term the offices of the Company in the Salt LakeCity, Park City, Utah area.  Under nocircumstances shall the Executive be required to relocate from the Salt LakeCity, Park City Utah area after April 30, 2002 or provide services under thisAgreement in any other location other than in connection with reasonable and customarybusiness travel.   Upon relocation tothe Salt Lake City, Park City, Utah area, the Executive shall promptly applyfor admission to the bar of the State of Utah and shall take all reasonable andnecessary steps to ensure that he is admitted to practice law in the State ofUtah within a reasonable period of time following such relocation.

 

# 3.                                       Salary:  Additional Compensation: Perquisites andBenefits.

 

## (a)                                  Salary.  During the Term, the Company shall pay theExecutive a base salary (the “Base Salary”) at an annual rate of not less than$180,000.  Subject to annual review,such Base Salary may be increased from time to time but in no event shall bedecreased without the prior consent of the Executive.  Base Salary shall be paid in periodic installments in accordancewith the Company’s standard practice, but not less frequently thansemi-monthly.  The Company acknowledgesthat the Executive has not yet received an annual review or salary increase forthe Company’s 2001 fiscal year.

 

## (b)                                 Bonus.  For each fiscal year (August 1stthrough July 31st) during the Term, the Executive shall be eligibleto receive a bonus from the Company (the “Annual Bonus”).  The award and amount of the Annual Bonusshall be contingent 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 40% of Base Salary. For the avoidance of doubt it is agreed and understood that theExecutive shall be eligible to receive a bonus from the Company with respect tothe fiscal year ending July 31, 2001 at a target level of 20% of Base Salary tobe determined pursuant to the terms of the Company’s bonus program in effect asof the date such bonus is paid. Furthermore, notwithstanding anything to the contrary in the Company’sbonus program, Executive shall be eligible to receive his Annual Bonus for theCompany’s 2002 fiscal year so long as Executive has remained employed with theCompany through July 31, 2002, notwithstanding his departure from the Companysubsequent to such date.

 

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## (c)                                  EmployeeBenefits.  During the Term, theExecutive shall participate in all plans now existing or hereafter adopted bythe Company for its management employees or the general benefit of itsemployees, such as any pension, profit-sharing, bonuses, stock option or otherincentive compensation plans, life and health insurance plans, or otherinsurance plans and benefits on the same basis and subject to the samequalifications as other senior executive officers.

 

## (d)                                 Equity.

 

### (i)                                     TheExecutive shall be eligible for participation in the Company’s Phantom EquityPlan, as amended from time to time by the Compensation Committee of the Board(the “Equity Plan”) at a participation percentage equal to seven and one-halfpercent (7.5%).  The terms of suchparticipation shall be governed by the Equity Plan and an award agreemententered into by and between the Executive and the Company.

 

### (ii)                                  TheExecutive has previously been granted options to purchase a 14,000, 20,000 and60,000 shares of the Company’s common stock on October 22, 1998, January 27,2000 and September 28, 2000 respectively. The terms and conditions of each such option grant shall continue to begoverned by the Stock Option Agreements executed by and between the Company andthe Executive dated as of  October 22,1998, January 27, 2000 and September 28, 2000, respectively.

 

## (e)                                  Expenses.  The Company shall reimburse the Executive,in accordance with its standard policies from time to time in effect, for allout-of-pocket business expenses as may be incurred by the Executive in theperformance of his duties under this Agreement. Such reimbursement shallinclude, but not be limited to, (i) Maine and Utah bar fees and state barassociation dues (including dues for any committee or section memberships),(ii) all costs of the bar review course(s) in the State of Utah reasonablydeemed necessary or appropriate by Executive, (iii) cost of the State of Utahbar exam, (iv) American Bar Association dues, including any section orcommittee memberships, and (v) continuing legal education credit coursesrequired to maintain bar admission in Maine and Utah, including travel andlodging to and from the same.

 

## (f)                                    Vacation.  The Executive shall be entitled to vacationtime to be credited and taken in accordance with the Company’s policy from timeto time in effect for senior executives, which in any event shall not be lessthan a total of four (4) weeks per calendar year.

 

## (g)                                 Indemnification.  To the fullest extent permitted byapplicable law, the Executive shall be indemnified and held harmless by theCompany against any and all judgments, penalties, fines, amounts paid insettlements, and other reasonable expenses (including, without limitation,reasonable attorney’s fees and disbursements) actually incurred by theExecutive in connection with any threatened, pending or completed action, suitor proceeding (whether civil, criminal, administrative, investigative or other)relating to or in connection with any action or omission in his capacity as adirector, officer, attorney or employee of the Company except any action whichwould otherwise constitute “Cause” (as such term is defined in Section 4(b)(ii)or 4(b)(iii) of this Agreement). The Company shall maintain Directors andOfficers Insurance in accordance with past practices, which policies shallinclude coverage for 

 

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any liability resultingfrom Executive’s rendering of legal opinions in the course of his duties underSection 2(a) hereof or as otherwise requested by the Company.  Indemnification under this Section 3(g)shall be in addition to, and not in lieu of, any other indemnification by theCompany of it’s officers and directors.

 

## (h)                                 Relocationand Housing.

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### (i)                                     TheExecutive shall relocate to the Salt Lake City, Park City, Utah area not laterthan April 30, 2002; provided; however, that in the event theExecutive shall provide written notice to the Company of his intention not torelocate (“Relocation Refusal Notice”) on or prior to April 30, 2002, andcontinues in the employ of the Company through July 31, 2002 (unless earlierterminated by the Company other than for Cause (as such term is defined inSection 4(b)(ii) or 4(b)(iii) of this Agreement), or on account of theExecutive’s death or Disability), then upon his termination following thedelivery of such Relocation Refusal Notice he shall receive a lump sum paymentequal to 90 days of Base Salary.  Upon atermination pursuant to this Section 3(h)(i) the Executive shall not be entitledto any other payments or benefits that might otherwise be provided by Section 4of this Agreement, other that those provided under Section 4(c) and 4(h)hereof, provided, further, that in no manner shall the foregoingrestrict any payments which may be due or become due under the Retention Letteras defined below.

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### (ii)                                  Inconnection with the Executive’s relocation to the Salt Lake City, Park City,Utah area, the Company shall reimburse the Executive for reasonable relocationexpenses in connection with his relocation to the Salt Lake City, Park CityUtah area in accordance with the Company’s executive relocation policy.  In addition, if, and only if, the Executiverelocates to the Salt Lake City, Park City Utah area and does not deliver aRelocation Refusal Notice, from April 30, 2002 (or such earlier date as may beagreed by the parties) through the last day of the Term (without regard to anyextension thereof pursuant to the last sentence of Section 1 of this Agreement)the Company shall reimburse the Executive for housing costs for a residence inthe Salt Lake City, Park City, Utah area not to exceed $2,500 per calendarmonth

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## (i)                                     Retention.This Agreement shall not in anyway limit or reduce the obligations of theCompany with respect to the Executive and/or the Executive’s rights with respectto the Company set forth in the retention memorandum dated June 11, 2001 (the“Retention Letter”), which Retention Letter is annexed hereto as Exhibit“A”.   Notwithstanding the previoussentence and for the avoidance of doubt: (A) the term “cause” as used in saidRetention Letter shall have the meaning ascribed to such term in Section 4(b)hereof, (B) the phrase “current base salary” shall mean $180,000, (C) theprovisions of Section 10(b) and (c) of this Agreement shall apply to theRetention Letter as if such provisions were contained therein and (D)termination of this Agreement by the Executive for Good Reason, by the Companywithout Cause or following the death or Disability of the Executive shall eachconstitute “involuntary termination, other than for cause” for purposes of theRetention Letter.

 

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# 4.                                       Terminationand Severance.

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## (a)                                  Deathor Disability.  The Term shallterminate immediately upon the Executive’s death or, upon thirty (30) daysprior written notice by the Company, in the case of a determination of theExecutive’s Disability.  As used hereinthe term “Disability” means the Executive’s inability to perform his duties andresponsibilities under this Agreement for a period of more than 120 consecutivedays, or for more than 180 days, whether or not continuous, during any 365-dayperiod, due to physical or mental incapacity or impairment.  A determination of Disability will be madeby a physician reasonably satisfactory to both the Executive and the Companyand paid for by the Company whose decision shall be final and binding on theExecutive and the Company; providedthat if the parties cannotagree as to a physician, then each shall select and pay for a physician andthese two together shall select a third physician whose fee shall be borneequally by the Executive and the Company and whose determination of Disabilityshall be binding on the Executive and the Company.

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If the Term is terminatedupon the Executive’s death or Disability, the Company shall pay to theExecutive’s estate or the Executive, as the case may be, a lump sum paymentequal to (i) the Executive’s Base Salary through such termination date, (ii) apro rata portion of the Executive’s Annual Bonus with respect to the fiscal yearin which the termination occurred plus (iii) any accrued but unpaid vacationthrough the date of such termination.

 

## (b)                                 Terminationfor Cause.  The Term may beterminated by the Company upon notice (as set forth in this Section 4(b)) tothe Executive upon the occurrence of any event constituting “Cause” as definedbelow.  If the Term is terminated by theCompany for Cause, the Company will pay the Executive an aggregate amount equalto the Executive’s accrued and unpaid Base Salary and vacation pay through thedate of such termination.  For purposesof this Agreement, “Cause” shall mean the Executive’s (i) willful andintentional failure or refusal to perform or observe any of his materialduties, responsibilities or obligations set forth in this Agreement; provided,however, that the Company shall not be deemed to have Cause pursuant tothis clause (i) unless the Company gives the Executive written notice that thespecified conduct has occurred and making specific reference to this Section4(b)(i) and the Executive fails to cure the conduct within thirty (30) daysafter receipt of such notice; (ii) any willful and intentional act of theExecutive involving malfeasance, fraud, theft, misappropriation of funds,embezzlement or dishonesty relating to the Company; or (iii) the Executive’sconviction of, or a plea of guilty or nolo contendere to, an offense which is afelony in the jurisdiction involved or any felony or misdemeanor involvingmisappropriation of Company property.

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Termination of theExecutive for Cause shall be communicated by a Notice of Termination.  For purposes of this Agreement, a “Notice ofTermination” shall mean delivery to the Executive of a copy of a resolutionduly adopted by the affirmative vote of the majority of the entire membershipof the Board that the Executive was guilty of conduct constituting Cause andspecifying the particulars thereof in detail, including, with respect to anytermination based upon conduct described in clause (i) above, that theExecutive failed to cure such conduct during the thirty-day period followingthe date on which the Company gave written notice of the conduct referred to insuch clause (i).  For purposes of thisAgreement, no such purported termination of the Executive’s employment shall beeffective without such Notice of Termination.

 

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## (c)                                  Terminationby 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 theExecutive’s accrued and unpaid Base Salary and vacation through the date ofsuch termination, together with any payments due under Section 3(h)(i) hereof.

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## (d)                                 TerminationBy the Company without Cause (other than on account of death or Disability) orby the Executive for Good Reason. If the Term is terminated by the Companywithout Cause (other than by reason of death or Disability), or if theExecutive terminates the Term for Good Reason (as defined below), the Companyshall pay the Executive a lump sum equal to one times the sum of (i) theExecutive’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 suchTermination.  In addition, the Companyshall continue in effect the Executive’s health benefits at the Company’sexpense until the earlier of: (x) 180 days following such termination or (y)the date on which the Executive obtains comparable or superior health insurancecoverage from a subsequent employer.

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## (e)                                  Definition.  For purposes of this Agreement:

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### (i)                                     “GoodReason” shall mean the occurrence of any of the following, without the priorwritten consent of the Executive:  (A)assignment of the Executive of duties materially inconsistent with theExecutive’s position as described in Section 2(a) hereof, (B) any significantdiminution in the Executive’s duties or responsibilities, other than inconnection with the termination of the Executive’s employment for Cause,Disability or as a result of the Executive’s death or by the Executive otherthan for Good Reason; (C) the change in the location of the Company’s principalexecutive offices or the Executive’s principal place of employment to alocation outside the Salt Lake City, Park City, Utah area (other than PortlandMaine at anytime prior to the Executive’s relocation to the Salt Lake City,Park City, Utah area) or (D) the material breach by the Company of thisAgreement; provided, however, that Good Reason shall not existpursuant to this clause unless the Executive gives the Company written noticethat the specified conduct or breach has occurred and the Company fails to curethe conduct or breach within thirty (30) days of receipt of such notice.

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## (f)                                    Mitigation.  Under no circumstances shall the Executive,upon termination of his employment hereunder, be required to seek alternativeemployment and, in the event the Executive does secure other employment, noother compensation or other benefits received in respect of such employmentshall be set-off or in any other way limit or reduce the obligations of theCompany under this Section 4.

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## (g)                                 Taxes.  Notwithstanding the previous provisions, ifpayments made pursuant to this Section 4 are considered “parachute payments”under Section 280G of the Internal Revenue Code of 1986, as amended (the“Code”) then the sum of such parachute payments plus any other payments made bythe Company to the Executive which are considered parachute payments shall belimited to the greatest amount which may be paid to the Executive under Section280G 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 ofExecutive shall exceed the net after tax benefit if such reduction were notmade.  “Net after tax benefit” forpurposes of this 

 

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Agreement shall mean thesum of (i) the total amounts payable to Executive under Section 4, plus (ii)all other payments and benefits which the Executive receives or then isentitled to receive from the Company that would constitute a “parachutepayment” within the meaning of Section 280G 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.

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## (h)                                 SkiingPrivileges.  Upon termination of thisagreement for any reason other than by the Company for Cause, the Company shallissue to the Executive, his spouse and dependents seasons passes at the Companyowned or operated resort of Executive’s choice good for two (2) years followingsuch termination.

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# 5.                                       ConfidentialInformation.

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The Executiveacknowledges that the Company and its subsidiaries or affiliated ventures(“Company Affiliates”) own and have developed and compile, and will in thefuture 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 Executive hereby agrees that, during theTerm and thereafter, he will not use or disclose, furnish or make accessible toanyone, directly or indirectly, any Confidential Information of CompanyAffiliates; provided, however, that the foregoing restrictionshall not limit the Executive’s ability to use his experience as a generalcounsel in subsequent employment.

 

As used herein, the Term“Confidential Information” means any trade secrets, confidential or proprietaryinformation, or other knowledge, know-how, information, documents or materials,owned developed or possessed by Company Affiliate pertaining to its businessesthe confidentiality of which such company takes reasonable measures to protect,including, but not limited to, trade secrets, techniques, know-how (includingdesigns, plans, procedures, processes and research records), software, computerprograms, innovations, discoveries, improvements, research, developments, testresults, reports, specifications, data, formats, marketing data and businessplans and strategies, agreements and other forms of documents, expansion plans,budgets, projections, and salary, staffing and employment information.  Notwithstanding the foregoing, ConfidentialInformation shall not in any event include information which (i) was generallyknown or generally or generally available to the public prior to disclosure tothe Executive, (ii) becomes generally known or generally available to thepublic subsequent to its disclosure to the Executive through no wrongful act ofthe Executive, (iii) is or becomes available to the Executive from sourcesother than the Company Affiliates which sources are not known to the Executiveto be under any duty of confidentiality with respect thereto, (iv) theExecutive is required to disclose by applicable law or regulation or by orderof any court or federal, state or local regulatory or administrative body(provided that the Executive provides the Company with prior notice of thecontemplated disclosure and reasonably cooperates with the Company, at theCompany’s sole expense, in seeking a protective order or 

 

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other appropriateprotection of such information) or (v) known to Executive prior to hisemployment with the Company.

 

# 6.                                       Nonsolicitation.

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## (a)                                  TheExecutive recognizes and acknowledges that the services to be performed by himhereunder are special, unique and extraordinary and the Executive furtheracknowledges and recognizes the highly competitive nature of the business ofthe Company.  Executive understands thatthe provisions of this Section 6 may limit Executive’s ability to earn alivelihood in a business similar to the business of the Company butnevertheless agrees and hereby acknowledges that (i) such provisions do notimpose a greater restraint than is necessary to protect the goodwill or otherbusiness interests of the Company, (ii) such provisions contain reasonablelimitations as to time and scope of activity to be restrained, (iii) suchprovisions are not harmful to the general public, (iv) such provisions are notunduly burdensome to Executive, and (v) the consideration provided hereunder issufficient to compensate Executive for the restrictions contained in suchprovisions.  In consideration thereofand in light of Executive’s education, skills and liabilities, Executive agreesthat Executive will not assert in any forum that such provisions preventExecutive from earning a living or otherwise are void or unenforceable orshould be held or unenforceable. Accordingly, Executive agrees that during the Employment Term and for aperiod of twelve (12) months following termination of employment (the“Restrictive Period”), Executive will not (i) directly or indirectlysolicit or encourage any employee of the Company to leave the employment of theCompany, and (ii) directly or indirectly, solicit or encourage to cease towork with the Company any consultant then under contract with the Company.

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## (b)                                 Itis 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 court of competent jurisdiction finds thatany restriction contained in the Agreement is unenforceable, and suchrestriction cannot be amended so as to make it enforceable, such finding shallnot affect the enforceability of any of the other restrictions containedherein.

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# 7.                                       SpecificPerformance.

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## (a)                                  TheExecutive acknowledges that the services to be rendered by him hereunder are ofa special, unique, extraordinary and personal character and that the Companywould sustain irreparable harm in the event of a violation by the Executive ofSection 5 or 6 of this Agreement. Therefore, in addition to any other remedies available, the Companyshall be entitled to specific enforcement and/or injunction from any court ofcompetent jurisdiction restraining the Executive from committing or continuingany such violation of this Agreement without proving actual damages or postinga 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.

 

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## (b)                                 Ifany of the restrictions on activities of the Executive contained in Section 6hereof shall for any reason be held by a court of competent jurisdiction to beexcessively broad, such restrictions shall be construed so as thereafter to belimited or reduced to be enforceable to the maximum extent comparable with theapplicable law as it shall then appear; it being understood that by theexecution of this Agreement the parties hereto regard such restrictions as reasonableand compatible with their respective rights.

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# 8.                                       Withholding.  The parties agree that all payments to bemade to the Executive by the Company pursuant to the Agreement shall be subjectto all applicable withholding obligations of such company.

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# 9.                                       Notices.  All notices required or permitted hereundershall be in writing and shall be deemed given and received when deliveredpersonally, four (4) days after being mailed if sent by registered or certifiedmail, 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 withreceipt confirmed by the addressee. Such notices shall be addressed as follows:  (i) if to the Executive, to the address of the Executive on filewith the personnel records of the Company; (ii) if to the Company, at theprincipal executive offices of the Company, to the attention of the ChiefExecutive Officer; or (iii) to any other address of which such party may havegiven notice to the other parties in the manner specified above.

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# 10.                                 Miscellaneous.

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## (a)                                  ThisAgreement is a personal contract calling for the provisions of unique servicesby the Executive, and the Executive’s rights and obligations hereunder may notbe sold, transferred, assigned, pledged or hypothecated by the Executive.  The rights and obligations of the Companyhereunder will be binding upon and run in favor of their respective successorsand assigns.

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## (b)                                 ThisAgreement shall be governed by and construed and enforced in accordance withthe internal laws of the State of Maine, without regard to conflict of lawsprinciples.

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## (c)                                  Anycontroversy arising out of or relating to this Agreement or any breach hereofshall be settled by arbitration in Portland, Maine (or, following relocation byExecutive, Salt Lake City, Utah) by a single neutral arbitrator in accordancewith the Commercial Arbitration Rules of the American ArbitrationAssociation.  Judgement upon any awardrendered may be entered in any court having jurisdiction thereof, except in theevent of a controversy relating to any alleged violation by the Executive ofSection 6 or 7 hereof, in which case the Company shall be entitled to seekinjunction relief from a court of competent jurisdiction without therequirement to seek arbitration.

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## (d)                                 Theheadings 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)                                  Theprovisions of this Agreement which by their terms call for performance subsequentto the expiration or termination of the Term shall survive such expiration ortermination.

 

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## (f)                                    ThisAgreement constitutes the entire agreement of the parties hereto with respectto the subject matter hereof (other than any Stock Option Agreement enteredinto by and between the Executive and the Company or the Retention Letter asfurther described in Section 3(i) hereof and as annexed hereto as Exhibit “A”)and supersedes all other prior agreements and undertakings, both written andoral, among the parties with respect to the subject matter hereof, all of whichshall be terminated on the Commencement Date. In addition, that parties hereto hereby waive all rights such party mayhave under all other prior agreements and hereto hereby waive all rights suchparty may have under all other prior agreements and undertakings, both writtenand oral, among the parties hereto, or among the Executive, with respect to thesubject matter hereof.

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[SIGNATURE PAGEFOLLOWS]

 

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|   | **EXECUTIVE**                                |
|--------|----------------------------------------------|
|   |                                         |
|   | /s/ Foster A. Stewart,  Jr.                  |   |
|   | Foster A. Stewart, Jr.                       |
|   |                                         |
|   |                                         |
|   | **AMERICAN SKIING COMPANY**                  |
|   |                                         |
|   | /s/ William J. Fair                          |   |
|   | By:  B.J. Fair, Chief Executive Officer |

 

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