Exhibit 10(b)

 

# **RETENTIONAGREEMENT**

 

 

        This Retention Agreement ("Agreement") is enteredinto and effective as of March 31, 2001 (“Effective Date”), between The NewhallLand and Farming Company (a California Limited Partnership) ("NLF")and Thomas E. Dierckman ("Employee").  NLF's ultimate managing general partner is Newhall ManagementCorporation ("NMC") and where appropriate will be referred togetherwith NLF as the "Company." The Company and Employee are referred to in this Agreement as the"Parties."

 

## RECITALS

        WHEREAS, Employee is employed as NLF’s and NMC's Senior VicePresident-Valencia Division;

 

        WHEREAS, the retention of Employee in such managementposition is consistent with the Company's policy of establishing andmaintaining a sound and vital management to protect and enhance the bestinterests of the Company and the holders of its depository units;

 

        NOW, THEREFORE, the Parties, in consideration of the mutualcovenants contained herein, and for other valuable consideration received,hereby agree as follows:

 

1)     Retention and Responsibilities:

 

a)     The Company will continue to retainEmployee as Senior Vice President of NLF and NMC during the term of thisAgreement.   Employee agrees to serve insuch capacity as well as on such standing committees and in such othercapacities as the Board may determine.  Employee will have duties, responsibilities and authorities commensuratewith those capacities and/or as the Board may determine.   Employee will use his best efforts topromote the interests of the Company and its unit holders and will devote hisworking time to the business and affairs of the Company.   Employee will effectively and competentlyperform his duties and responsibilities to enhance the Company's profitabilityand the value of the depository units held by the Company's unit holders.

 

2)     Compensation:

 

a)     Except as otherwise provided in thisAgreement, Employee will continue to receive his current salary, subject toadjustments by the Board, medical, dental, life, disability insurance, retirementplan benefits, 401(k) plan benefits, employee savings plan benefits, expensereimbursement benefits, Company automobile benefits and bonuses, includingthose benefits provided under the NLF Executive Incentive Compensation Plan,Unit options or Unit based rights agreements under the Company's 1995Option/Award Plan or the Company’s Option, Appreciation Rights and RestrictedPlan, the NLF Retirement Plan, the NLF Pension Restoration Plan, the NLFEmployee Savings Plans, the NLF Employee Savings Restoration Plan, the Changeof Control Severance Program, as amended, the NLF Retention Incentive Program(adopted in March 2001) and any other fringe benefits as described in theCompany Employee Handbook in accordance with the eligibility participation requirementsand the terms set forth therein and/or the applicable benefit policies or plans("Company Benefits").

3)     Term of Agreement and Termination:

 

a)     Term:  Unless earlier terminated as provided in (b) through (f) of thisParagraph 3, this Agreement shall be for a term of three (3) years.  On the first anniversary of the EffectiveDate and on each anniversary date thereafter, this Agreement will beautomatically extended for an additional year, unless either Party gives theother Party at least thirty (30) days advance written notice of his or itsdesire not to extend this Agreement for an additional year.  So as to avoid any doubt, at the time such anotice is effective, the remaining term on this Agreement will be two years.

 

b)    Death:  This Agreement, including the severance compensation provided forin Paragraph 5, and Employee's employment will terminate upon the death ofEmployee.  In such event, the Companywill pay to Employee's estate or other authorized representative, his salaryfor the month in which he dies, as well as any other Company Benefits,including bonuses, retirement payments, medical benefits, and accrued butunused vacation due him or his spouse through the date of his death inaccordance with the terms and conditions of applicable Company policies and/orplans.  Thereafter, the Company willhave no further obligation whatsoever to his estate or other authorizedrepresentative.

 

c)     Disability:  This Agreement, including the severancecompensation provided for in Paragraph 5, will terminate upon Employee'sdisability.  Unless otherwise prohibitedby any State or Federal law, this Agreement and Employee's employment hereunderwill terminate on the date that he, is determined, as defined by reference tothe Company's Long-Term Disability Plan ("LTD Plan"), then in effect,to be "disabled" from performing any material portion of his currentduties, due to physical or mental illness or injury.  In such event, Employee will be solely compensated in accordancewith the LTD Plan and any other applicable Company policies and/or plans.

 

d)    Termination for Cause:  This Agreement, including the severancecompensation provided for in Paragraph 5, and Employee's employment may beimmediately terminated if any of the following events occur during the term ofhis employment hereunder ("Termination for Cause"):   (1) Employee is convicted of anymisdemeanor involving moral turpitude, any felony, is engaged in any willfulconduct for which the Company could incur civil liability to any other employeeor third party or commits any act of fraud, forgery, intentionalmisrepresentation, embezzlement or dishonesty; (2) Employee commits gross negligence in the performance ornonperformance of his duties, habitually neglects to perform those duties orotherwise breaches any of his obligations under this Agreement; (3) Employeebreaches his duty of loyalty to the Company; (4) Employee engages in unethicalconduct or conduct injurious to the reputation of the Company; or (5) Employeefails or refuses to perform the services called for by this Agreement orassignments given to him by the Board. If Termination for Cause occurs, then the Company will pay Employee hissalary for the month in which termination occurs, any accrued but unusedvacation and any other Company Benefits that are due him under applicableCompany policies or plans through the end of the month of his termination.  Thereafter, the Company will have no furtherobligations whatsoever to Employee.

e)     Termination Without Cause:  The Company shall have the right, at anytime, to terminate this Agreement and Employee's employment, without cause, bywritten notice to Employee ("Termination Without Cause").  Employee's Termination Without Cause will beeffective on the date specified in the written notice ("TerminationDate").  In the event of aTermination Without Cause, the Company will pay Employee the severance benefitsprovided in Paragraph 5 of this Agreement.  Additionally, Employee will be paid all earned but unused vacation as ofthe Termination Date.

 

f)     Change of Control:  Neither (b), (c), (d) or (e) of thisParagraph 3 shall apply to a change of control as defined in the Change ofControl and Severance Program executed between Employee and the Company, datedNovember 19, 1997 ("Change of Control Program").  In the event of such a change of control,the Change of Control Program shall become effective, as provided therein, thisAgreement shall be terminated and superceded, and Employee shall be solelycompensated as provided therein.

 

4)     Execution of Addendums A, B and C:In the event that Employee is Terminated Without Cause under Paragraph 3 (e) ofthis Agreement, Employee must fully comply with all of the requirements of thisParagraph 4 to be entitled to the severance benefits provided in Paragraph 5,including specifically the payment of the Lump Sum provided in Paragraph 5(a).

 

a)     Resignation:  Employee agrees to tender the resignation ofhis employment with the Company along with all of the positions that he holdsat that time with the Company or any of its affiliated entities, partnershipsor divisions, including specifically: Senior Vice President of NLF and NMC, Member of the Company's ManagementCommittee, Director of Valencia Water Company, Director in the Valencia TownCenter Hotel Company and Director in the TP Golf Company.  In addition, Employee will sell or exchangeall partnership and membership interests that he may have, as the case may be,in Newhall General Partnership and its affiliated entities, including but notlimited to Valencia Town Center Hotel Company and TP Golf Company, under theterms of the respective shareholder agreements, partnership agreements or othergoverning documents.  Employee agrees toexecute whatever documents are necessary to effect his resignation from all ofthose positions as well as any other positions that he holds with the Companyor any affiliated entities, partnerships, or divisions as of the TerminationDate under Paragraph 3(e).  Employee'sletter of resignation, which is attached hereto as Addendum A and by thisreference incorporated herein, will be accepted by the Company effective theclose of business on his Termination Date.

 

b)    Mutual General Releases:  In further consideration for thecompensation provided for in Paragraph 5 of this Agreement and as a conditionprecedent to receipt of the Lump Sum Payment provided for therein, Employeeagrees to execute a document that conforms to Addendum B which is attachedhereto and by this reference incorporated herein ("Mutual General Releases"). The Company reserves, the right withinits sole discretion, to amend, delete or otherwise revise the Mutual GeneralReleases to comply with any changes in applicable laws and/or to make theMutual General Releases fully effective in releasing and forever dischargingCompany Releases from the Claims as defined therein.  If Employee fails to execute the Mutual General Releases on theTermination Date, or any other subsequent date mutually agreed to by theParties, then this Agreement and the Consulting Agreement shall become null andvoid and non-enforceable and Employee shall not be entitled to nor shall he bepaid any of the benefits provided for in this Agreement, includingspecifically, the Lump Sum Payment provided in Paragraph 5(a) of thisAgreement.

5)     Severance Compensation:  If Employee is Terminated Without Cause andhe fully complies with all of the requirements of Paragraph 4 of thisAgreement, then he shall be entitled to receive the following severancebenefits:

 

a)     Lump Sum Payment.  Within five (5) business days of the lapseof the seven (7) day revocation period provided in Paragraph 11 of the MutualGeneral Releases, the Company shall pay Employee a lump sum payment equal totwo times:  (i) the yearly base salaryEmployee is making on the Termination Date; plus (ii) an amount equal to theaverage of the bonuses paid to Employee pursuant to the NLF Executive IncentiveCompensation Plan ("Bonus Plan") for the three Company fiscal yearspreceding the Termination Date, less applicable withholding taxes ("LumpSum Payment").  The Lump SumPayment shall be deemed to have been made under this Paragraph 5 on the datethe payment is tendered to Employee. The Company and Employee shall mutually agree on the method and timingof the Lump Sum Payment delivery to Employee.

 

b)    Additional Services Payment:  In the event the Termination Date occursduring the third or fourth calendar quarter, then Employee will be paid apro-rated bonus under the Bonus Plan in effect for the fiscal year in which theTermination Date occurs.  The pro-ratedamount will be calculated by using the number of calendar days from January 1of the year in which the Termination Date occurs through the Termination Dateas the numerator and 360 as the denominator, multiplied by the amount of thebonus that would have been paid as determined under the Bonus Plan.  The determination of the amount will be madeat the same time as the bonuses are determined under the Bonus Plan for Companyemployees.  The payment("Additional Services Payment") will be made to Employee within thesame month that payment is made to Company employees;  provided, however, that Employee, as a condition precedent topayment of the Additional Services Payment executes and returns to theCompany  a document that conforms toAddendum C, which is by this reference incorporated herein("Acknowledgement of Payment"). The Additional Services Payment will be made to Employee coincident withthe execution and delivery of Acknowledgment of Payment to the Company.

 

In the event TerminationDate occurs during the first two calendar quarters, then Employee will not beeligible to receive an Additional Services Payment for the Company's fiscalyear during which the Termination Date occurs.

c)     Unit Options and other Unit-Based Rights:  Employee will not be granted any additionalUnit options or Unit-based rights beyond those granted through the TerminationDate.  Any existing options orUnit-based rights, including any granted to Employee prior to the TerminationDate, will be exercisable or distributed as the case may be, in accordance withthe respective Unit options or Unit-based rights agreements and the Company'srespective Plans under which the options or rights were granted.  Any Unit options or Unit-based rightsgranted to Employee prior to the Termination Date that are not 100% vested onthat date, shall become 100% vested upon the fifth business day following theseven day revocation period in Paragraph 11 of the Mutual General Releases.

 

d)    Retirement/Savings Plans:  Any benefits or payments due Employee underthe NLF Retirement Plan, the NLF Pension Restoration Plan, the NLF EmployeeSavings Restoration Plan, the NLF Employee Savings Plan and any employeebenefit plans qualified under Section 401(a) of the Internal Revenue Code willbe paid in accordance with the provisions contained in each of those plans.

 

e)     Purchase of Car:  Employee will have the option to purchasethe Company car assigned to him on the Termination Date at the low wholesalebluebook price for that car.  IfEmployee chooses not to exercise that option, then he shall return the car andhis keys to the car to the Company on or before the Termination Date.

 

f)     No Other Payments or Benefits:  Except as otherwise provided in thisParagraph 5, Employee shall not earn or be entitled to receive any other wagesand/or benefits whatsoever after the Termination Date.  Benefits payable under this Paragraph 5 willterminate, supersede and be in lieu of any severance pay benefits, Change ofControl Program benefits or any other wage and/or benefits provided for in anyemployment agreement, the Change of Control Program, severance policy orbenefit agreement between Employee and the Company or any other policy,agreement, practice or plan (including the NLF Retention Incentive Programadopted in March 2001) of the Company.

 

g)    Medical Benefits:  As part of Company's early retirementbenefits, the Company's medical and dental HMO plans will be provided at nocost to Employee and his eligible dependents until Employee's sixty-fifth(65th) birthday, provided that Employee is eligible for those benefits on andafter the Termination Date.  If Employeeselects a medical plan other than the HMO plan, he and his eligible dependentswill pay the difference between the amount of the premiums charged for thecoverage selected and the premiums for the same coverage under the Company'sHMO plan.  Should Employee die beforeage 65, his surviving spouse and eligible dependents will continue to receivethe medical benefits until the date Employee would have reached age sixty-five(65).

 

6)     Recitals:  The Recital's stated above are incorporated herein by thisreference as part of the Agreement.

 

7)     Indemnification Agreement:  The Mutual General Releases, when executedby Employee, as provided in Paragraph 4(b) of this Agreement shall not in anymanner amend the terms of, or affect NLF's obligations, under that certainamended Indemnification Agreement dated November 14, 1990 between Employee andNLF.

8)     Attorney Consultation:  Employee acknowledges that he has beenadvised to consult with an attorney before signing this Agreement and theMutual General Releases incorporated herein as Addendum B, and that he hasvoluntarily and knowingly executed this Agreement after having had theopportunity to consult with an attorney. Employee further acknowledges that he has had an adequate opportunity toconsult with an attorney and that he has had an adequate opportunity to makewhatever investigation or inquiry he or his counsel may deem necessary or desirablein conjunction with the subject matter of this Agreement prior to signingit.  Employee further acknowledges thathe has been advised that he may consider the terms of this Agreement fortwenty-one (21) days before signing it. This Agreement was provided to Employee on August 31, 2001.  Accordingly, Employee has until September21, 2001 to decide whether he will sign the Agreement.  To the extent that Employee takes less thantwenty-one (21) days to consider this Agreement prior to signing it, he acknowledgesthat he has had sufficient time to consult with an attorney and that he doesnot desire additional time.

 

9)     Revocation Period:  This Agreement is revocable by Employee fora period of seven (7) days following execution and return of the Agreement tothe Company.  The revocation must be inwriting, must specifically revoke this Agreement, and must be delivered toTrude Tsujimoto, Corporate Secretary, at The Newhall Land and Farming Company,23823 Valencia Boulevard, Valencia, California, 91355, prior to the end of theseventh (7th) day following execution and delivery of this Agreement to theCompany.  Upon expiration of the seven(7) day period, this Agreement becomes effective, enforceable and irrevocable.

 

10)   Mediation/Arbitration:

 

a)     Employee and the Company agree that anyArbitrable Claims that arise between them will be submitted first to mediationand then to binding arbitration. Employee and the Company further agree that neither of them will commenceany demand for arbitration without first submitting a formal written demand tothe other Party for mediation of the dispute. When such a demand is made, the dispute will be submitted to mediationbefore a mutually agreeable mediator in the Los Angeles area.  The cost of the mediation shall be borneequally by the Parties.

 

b)    Any controversy, dispute or claim betweenthe Parties which may arise from, out of, or relate to this Agreement, or itssubject matter or the Addendums, including the validity, enforceability,construction or application of any of the terms, provisions, or conditions ofthis Agreement or the arbitrability of any such matter (collectively referredto herein as "Arbitrable Claims") shall be submitted:  (i) first to Mediation under Paragraph10(a), and if it is not resolved through Mediation, then (ii) to  final and binding arbitration in LosAngeles, California, or such other location as the Parties shall mutually agreein writing under the auspices of the American Arbitration Association("AAA").  The Parties agreethat neither of them may initiate in any way or prosecute any claim, charge,lien, demand, right of action or cause of action of any nature whatsoeverarising out of or related to this Agreement before any court, tribunal, oradministrative agency against the other Party, and that they each acknowledgethat their agreement to the mediation/arbitration provisions under thisParagraph 10 shall constitute an effective waiver of any right to have anyArbitrable Claims determined by judge or jury. The Parties further agree to be bound by the Employment DisputeResolution Rules of AAA ("Rules") and that all Arbitrable Claims willbe heard by the AAA pursuant to those Rules. The Parties further agree that in the event this Agreement, or any partthereof is not enforceable, all other provisions shall remain in force.

c)     The arbitrator shall have jurisdiction todetermine all Arbitrable Claims and may grant any relief authorized in law orequity for such claim.  However, thearbitrator may not modify or change the terms of this Agreement or theAddendums.  The Parties agree that thedecision of the arbitrator shall not be appealable and that judgment upon anaward rendered by the arbitrator may be entered for enforcement in any court ofcompetent jurisdiction.  All ArbitrableClaims must be submitted to mediation within thirty (30) days of the date suchclaim first arose to be arbitrable.

 

d)    Except as otherwise stated above, neitherParty may initiate in any way or prosecute any claim, charge, lien, demand,right of action or cause of action of any nature whatsoever arising out of orrelated to this Agreement or the Addendums before any court, tribunal oradministrative agency against the other Party. A Party who initiates litigation or asserts Arbitrable Claims in any courtor before any tribunal or administrative body, shall pay all reasonableattorneys' fees and costs incurred by the opposing Party in defending suchlitigation and/or claims.

 

11)   Confidential Information:

 

a)     Employee shall not (nor will Employee assistany other person to do so) during or after the termination of his employmentwith the Company, directly or indirectly reveal, report, publish or discloseConfidential Information to any person, firm or corporation not expresslyauthorized by the Company to receive such Confidential Information, or use (orassist any person to use) such Confidential Information except for the benefitof the Company.  This provision shallnot preclude disclosures required by law, nor shall it apply to informationwhich has entered the public domain other than by reason of the action ofEmployee.  The term "ConfidentialInformation," as used herein, means all information or material notgenerally known by non-Company personnel which (i) gives the Company somecompetitive business advantage or the opportunity of obtaining such advantageor the disclosure of which could be detrimental to the interests of theCompany; (ii) which is owned by the Company or in which the Company has aninterest in; and (iii) which is either marked "ConfidentialInformation," "Proprietary Information," or other similarmarking, known by Employee to be considered confidential and proprietary by theCompany or from all the relevant circumstances should reasonably be assumed byEmployee to be confidential and proprietary to the Company.  Confidential Information includes, but isnot limited to, the following types of information and other information of asimilar nature (whether or not reduced to writing):  trade secrets, inventions, drawings, file data, documentation,diagrams, specifications, know how, processes, formulas, models, flow charts,software in various stages of development, source codes, object codes, researchand development procedures, research or development and test results, marketingtechniques and materials, marketing and development plans, price lists, pricingpolicies, business plans, information relating to customers and/or suppliers'identities, characteristics and agreements, financial information andprojections, and employee files. Confidential Information also includes any information described abovewhich the Company obtains from another party and which the Company treats asproprietary information or designates as Confidential Information, whether ornot owned or developed by the Company.  Notwithstanding the above, however, no information constitutesConfidential Information if it is generic information or general knowledgewhich Employee would have learned in the course of similar employment elsewherein the trade or if it is otherwise publicly known and in the public domain.

b)    Employee agrees on or before the last dateof his employment under this Agreement to surrender to the Company all notes,data, sketches, drawings, manuals, documents, records, data bases, programs, blueprints,memoranda, specifications, customer lists, financial reports, equipment and allother physical forms of expression incorporating or containing any ConfidentialInformation, it being distinctly understood that all such writings, physicalforms of expression and other things are the exclusive property of theCompany.   Employee acknowledges thatthe unauthorized taking of any of the Company's trade secrets is a crime underCalifornia Penal Code Section 499(c) and is punishable by imprisonment.  Employee further acknowledges that suchunauthorized taking of the Company's trade secrets could also result in civilliability under California Civil Code Section 3426, and that willfulmisappropriation may result in an award against him for triple the amount ofthe Company's damages and the Company's attorneys fees in collecting suchdamages.

 

c)     If Employee breaches, or threatens tocommit a breach of, any of these non-disclosure provisions (collectively, the"Restrictive Covenants"), the Company shall have the following rightsand remedies, each of which shall be in addition to, and not in lieu of, anyother rights and remedies available to the Company under law or in equity:  the right and remedy to have the RestrictiveCovenants specifically enforced or to have any actual or threatened breachthereof enjoined by any court having equity jurisdiction, all without the needto prove any amount of actual damage or that monetary damages would not providean adequate remedy, it being acknowledged and agreed that any such breach orthreatened breach will cause irreparable injury to the Company and thatmonetary damages will not provide an adequate remedy to the Company; and theright and remedy to require Employee to account for and pay over to the Companyall compensation, profits, monies, accruals, increments or other benefitsderived or received by him or any associated party deriving such benefits as aresult of any such breach of the Restrictive Covenants.

 

d)    Nothing in this Agreement or any otheragreement between Employee and the Company shall prohibit or impede or beconstrued to prohibit or impede Employee from lawfully competing with theCompany, lawfully working for any competitor of the Company or otherwiselawfully pursuing his career in the residential and commercial developmentindustry, so long as Employee complies with these non-disclosureprovisions.  The Parties agree thatthese non-disclosure provisions shall continue in effect after Employee'semployment with the Company has terminated and notwithstanding any terminationof this Agreement.

12)   Non-Solicitation of Employees orCustomers:  For a period of one (1)year following the last date of Employee's employment with the Company,Employee agrees not to solicit or induce any employee or supplier of theCompany to terminate his/her employment or relationship with the Company or to,directly or indirectly, solicit the trade of or otherwise do business with anycustomer or supplier of the Company and/or any one of its affiliated entitiesso as to offer or sell any product or service which would be competitive withany product or service sold by the Company or its affiliates during thatperiod.

 

13)   Employee Benefit Plans:  Except as otherwise specifically provided inthis Agreement to the contrary, all of the health and other employee benefit orcompensation plans or programs referred to and contemplated by this Agreement(collectively referred to as "Plans") shall be governed solely by theterms of the underlying plan documents and by applicable law.  Except as otherwise specifically provided inthis Agreement to the contrary, nothing in this Agreement shall impair theCompany's right to amend, modify, replace, and/or terminate any and all suchPlans in its sole discretion or in accordance with the terms thereof.  This Agreement is for the sole benefit ofEmployee and the Company, and is not intended to create a Plan, or, except asotherwise provided herein, to modify the terms of existing Plans.  Also, any payments made pursuant to thisAgreement shall not be taken into account (*i.e.*, as "compensation") forpurposes of determining the amount of benefits payable under any other Plans.

 

14)   Entire Agreement:  This Agreement is the only agreement andunderstanding between the Parties pertaining to the subject matter hereof, andsupercedes and nullifies all prior agreements, summaries of agreement,descriptions of compensation packages, discussions, negotiations,understandings, representations or warranties, whether verbal or writtenbetween the Parties pertaining to such subject matter.  This Agreement is binding on Employee'sheirs and shall not be assignable by Employee for any purpose.  This Agreement will be binding on any successorsand assigns of the Company.

 

15)   Severability:  If any provision of this Agreement or anyportion of such provision is held to be invalid or unenforceable, the remainingprovisions or portions shall nevertheless be given effect.  It is the intent of the Parties that allprovisions shall be construed so as to be valid and enforceable, and if itshould be determined that any provision is not valid and enforceable, aprovision which would effectuate the intent of the Parties and would be validand enforceable shall be substituted for the invalid and unenforceableprovision.

 

16)   Amendment and Waiver:  This Agreement may be amended, modified orsupplemented only by a writing executed by Employee and a designee of theBoard.  Either Party may, in writing,waive any provision of this Agreement to the extent that such provision is forthe benefit of the waiving Party.  Nowaiver by either Party of a breach of any provision of this Agreement shall beconstrued as a waiver of any subsequent or different breach, and no forbearanceby a Party to seek a remedy for non-compliance or breach by the other Partyshall be construed as a waiver of any right or remedy with respect to suchnon-compliance and/or breach.

17)   Construction and Applicable Law:  The language of this Agreement and theAddendums have been approved by the Parties after the opportunity to consultwith legal counsel and the language of these documents shall be construed as awhole according to their fair meaning and not strictly for or against eitherParty.  This Agreement and the Addendumsshall in all respects be interpreted, enforced and governed by and under thelaws of the State of California.

 

18)   Notice:  Except as otherwise provided in this Agreement or any amendmentssubsequently executed between the Parties, any notice required or permitted tobe given hereunder shall be in writing and shall be deemed to have been givenupon personal delivery, or on the date it is postmarked, by certified orregistered mail, postage pre-paid, addressed to Employee at the address on filewith the Company and to the Company at its corporate headquarters.  The Company's current corporate headquartersis located at The Newhall Land and Farming Company, 23823 Valencia Boulevard,Valencia, CA 91355, Attention:  Secretary.  It shall be Employee's responsibility tokeep the Company advised in writing of any change in his address under thisParagraph of the Agreement.

 

 

 

 

 

(signature page tofollow)

        WHEREFORE, the Parties have executed this Agreement on thedates provided hereinafter.

 
| DATED:  September 4, 2001 | EMPLOYEE:                                                                |
|--------------------------------|--------------------------------------------------------------------------|
|                           |                                                                     |   |
|                           |                                                                     |   |
|                           |                                                                     | /s/  Thomas E. Dierckman |
|                           |                                                                     | Thomas E. Dierckman |
|                           |                                                                     |   |
|                           |                                                                     |   |
|                           |                                                                     |   |
| DATED:  August 30, 2001   | THE NEWHALL LAND AND  FARMING COMPANY (a California Limited Partnership) |
|                           | By:                                                                      | Newhall Management  Limited Partnership, its |
|                           |                                                                     | Managing General  Partner |
|                           | By:                                                                      | Newhall Management  Corporation, its |
|                           |                                                                     | Managing General  Partner |
|                           |                                                                     |   |
|                           | By:                                                                      | /s/ Gary M.  Cusumano |
|                           | Name:                                                                    | Gary M. Cusumano |
|                           | Title:                                                                   | Chief Executive  Officer |
|                           |                                                                     |   |
|                           | By:                                                                      | /s/ Trude A.  Tsujimoto |
|                           | Name:                                                                    | Trude A.  Tsujimoto |
|                           | Title:                                                                   | Secretary |
|                                |                                                                          |  |  |  |

 

[NEWHALL LANDLETTERHEAD]

 

 

ADDENDUM A

 

 

Date_________

 

 

 

PERSONAL AND CONFIDENTIAL

 

The Board of Directors

The Newhall Land andFarming Company

and Newhall ManagementCorporation

23823 Valencia Boulevard

Valencia, California91355

 

                Re:  Resignation

 

Dear Ladies andGentlemen:

 

                I hereby tender to you my resignation of employmentalong with my resignation of all positions that I hold effective the close ofbusiness on ____________.

 

                Should you need me to sign any additional documentsor paperwork to cause the foregoing to be completed, I will be happy to do so.

 

                                                                                                Verytruly yours,

 

 

 

                                                                                                ThomasE. Dierckman

 

## ADDENDUM B

 

## MUTUAL GENERAL RELEASES

 

 

        This Addendum to the Retention Agreement of Thomas E.Dierckman ("Agreement") is made and entered into this ____ day of_____________ by and between Thomas E. Dierckman ("Employee"), andThe Newhall Land and Farming Company (a California Limited Partnership)("Company") and by this reference the Agreement is incorporatedherein.  Employee and the Company arehereinafter sometimes referred to collectively as "the Parties."  This agreement ("Mutual GeneralReleases") is made for the purpose of settling and compromising all of theclaims, disputes and controversies between the Parties arising from any causewhatsoever on or prior to the date of Employee's execution of the MutualGeneral Releases.  So as to avoid anydoubt, the mutual releases contained herein, do not in any manner amend theterms of, or affect the Company's obligations, under that certain amended IndemnificationAgreement dated November 14, 1990 between Employee and the Company.

 

        NOW, THEREFORE, the Parties hereto for the consideration setforth in the Agreement, which is by this reference incorporated herein,mutually agree as follows:

 

1.     Consideration.  In consideration of the benefits providedfor in the Agreement as well as the Mutual General Releases and, for other goodand valuable consideration, the Parties give the releases, promises andcommitments contained herein.

 

2.     Scope of Settlement.  The compensation and benefits provided forin the Agreement are in full and complete settlement of all of Employee'sClaims against Company Releasees and fully compensates Employee for any and allsuch Claims.  Employee furtheracknowledges that he has received all wages and benefits due him through thelast date of his employment with the Company, except as otherwise provided inParagraph 5 of the Agreement.  Employeespecifically acknowledges that he has received the Lump Sum Payment and thatthe Company has fully complied with the provisions of Paragraph 5(a) of theAgreement.

3.     General Release of Company Releasees.  Employee, for himself and for his heirs,spouse, executors, administrators and assigns, acknowledges completesatisfaction of and unconditionally releases and forever discharges theCompany, Newhall Management Corporation, and any and all of its respectiveaffiliated companies, subsidiaries, divisions, affiliated entities,shareholders, partnerships, successors and assigns, and any and all of itspast, present and/or future officers, directors, members, partners, unitholders, agents, employees, administrators and assigns (hereinaftercollectively referred to as "Company Releasees"), from any and allclaims, demands, causes of action, costs, charges, fees and liabilities of any kindwhatsoever, whether known or unknown, unsuspected or latent, which Employee orany of his heirs, guardians, administrators, executors, successors in interest,and/or assigns have incurred or expect to incur, or now own or hold or have atany time heretofore owned or held, or may at any time own, hold or claim byreason of any matter or thing against Company Releasees, and each of them,arising from or by reason of any actual or alleged act, omission, transaction,practice, conduct or occurrence, or any other matter whatsoever on or prior tothe date of Employee's execution of the Mutual General Releases.  Without limiting the generality of theforegoing, Employee specifically waives and fully releases Company Releasees,and each of them, from any and all claims arising out of Employee's employmentwith the Company and/or the termination of that employment, any positionsEmployee held or services Employee rendered as well as Employee's resignationof all positions held with the Company, including but not limited to:  (a) any claim under the Americans withDisabilities Act, the California Fair Employment and Housing Act, the CivilRights Act of 1964, as amended, the Age Discrimination in Employment Act of1967 or the Older Workers Benefit Protection Act; Employee Retirement IncomeSecurity Act of 1974; (b) any other claim of employment discrimination (whetherbased on federal, state or local, statutory or decisional law; (c) any claimarising out of the terms and conditions of Employee's employment and/or any ofthe events relating directly or indirectly to or surrounding the termination ofhis employment; (d) any claims for severance, pension, bonuses, profit sharingor severance/termination payments; (e) any claim regarding any claimedemployment or benefit agreement or contract whether written or oral; (f) anyclaim for any alleged injuries incurred during Employee's employment with theCompany including any claims for rehabilitation; and (g) any other matter orclaim whatsoever between the Parties (jointly "Claims").  These releases do not include or releaseCompany Releases or any of them, from providing the benefits or making thepayments provided for in Paragraph 5 (b), (c), (d), and (g) of the Agreement.

 

4.     General Release of Employee's Releasees.  The Company fully releases and dischargesforever Employee and his spouse, children, agents, heirs and administrators andassigns ("Employee Releasees") from any and all liabilities, claims,causes of action, charges, complaints, obligations, costs, losses, damages,injuries and attorneys' fees, of any form whatsoever, whether known or unknown,unsuspected or latent, which the Company or any of its officers, employees,agents, administrators, successors in interest, and/or assigns have incurred orexpect to incur, or now own or hold, or have at any time heretofore owned orheld, or may at any time own, hold, or claim to hold by reason of any matter orthing, arising from any cause whatsoever on or prior to the date of Company'sexecution of the Mutual General Releases. Without limiting the generality of the foregoing, the Company fullyreleases and discharges each and all of Employee's Releasees from any and allclaims, demands and causes of action in connection with any and all matterspertaining to Employee's employment by the Company, including, but not limitedto, any and all damages of every kind whatsoever, express or implied duties orobligations, express or implied covenants, and promises on any and all of theabove, any other matter between the Parties, and any claims relating to andarising out of Employee's performance of his duties as an officer of theCompany.

 

5.     Non-Admission of Liability.  This Agreement shall not in any way beconstrued as an admission by either Party of any liability whatsoever, or as anadmission by either Party of any illegal or improper act or acts, of any kindor nature whatsoever, against the other Party.

6.     Releases Include Unknown Claims.  It is the intention of the Parties inexecuting the Mutual General Releases and in paying and receiving the monetaryand other consideration called for by the Agreement that the Mutual GeneralReleases shall be effective as a full and final accord and satisfaction andgeneral release of and from all liabilities, disputes, claims and matters,known or unknown, suspected or unsuspected arising from any cause whatsoever onor prior to the date of Employee's execution of the Mutual GeneralReleases.  In furtherance of thisintention, the Parties, and each of them, acknowledge that they are familiarwith Section 1542 of the Civil Code of the State of California, which providesas follows:

 

"A general releasedoes not extend to claims which the creditor does now know or suspect to existin his favor at the time of executing the release which if known by him musthave materially affected his settlement with the debtor."

 

The Parties, and each ofthem, waive and relinquish any right or benefit which they have or may haveunder Section 1542 of the Civil Code of the State of California or any similarprovision of statutory or non-statutory law of this or any other jurisdictionto the full extent that they may lawfully waive all such rights and benefitspertaining to the subject matter of the Agreement and the Mutual GeneralReleases.  In connection with suchwaiver and relinquishment, the Parties, and each of them, acknowledge that theyare aware that any legal counsel that they may retain may hereafter discoverclaims or facts in addition to or different from those which they now know orbelieve to exist with respect to the subject matter of the Mutual GeneralReleases, but that it is their intention hereby to fully, finally and foreversettle and release all the released matters, disputes and differences, knownand unknown, suspected or unsuspected, which now exist, may exist, orheretofore has existed, between them. In furtherance of this intention, the releases herein given shall be andremain in effect as full and complete general releases notwithstanding thediscovery and existence of any such additional or different claims or facts.

 

7.     Successors and Assigns.  This Agreement shall bind, and inure to thebenefit of, the respective heirs, legal representatives, successors, andassigns of the Parties hereto.

 

8.     Covenant Not to Sue.  The Parties, and each of them, represent andwarrant that they have no action, claim, charge or lawsuit intended, filed,prepared or pending against the other Party or their respective releasedparties and that they will not individually or as a member of any class file anyaction, claim, charge or lawsuit against the other Party, or any of theirrespective released parties, concerning the subject matter of the Agreement,the Mutual General Releases and/or any of the claims released under the MutualGeneral Releases.

 

9.     Construction.  The language of the Mutual General Releaseshas been approved by all Parties after the opportunity to consult with legalcounsel and the language of the Mutual General Releases shall be construed as awhole according to its fair meaning and not strictly for or against eitherParty.

 

10.   Entire Agreement and Governing Law.  The Mutual General Releases shall in allrespects be interpreted, enforced, and governed by and under the laws of theState of California.  The Mutual GeneralReleases constitutes the entire agreement between the Parties and supercedesall prior agreements, whether verbal or written, between the Parties pertainingto the subject matter hereof.

11.   Legal Consultation and RevocabilityPeriods:  The Parties expresslyintend, and Employee acknowledges and agrees, that as part of the potentialclaims released in Paragraphs 3 and 4 of the Mutual General Releases, Employeeis herein releasing the Company Releasees from any claims that he has or mayhave under the Age Discrimination in Employment Act of 1967,  29 U.S.. § 621 et seq.  Accordingly, Employee has been advised toreview the Mutual General Releases and represents and agrees:   (a) that he has been advised to consultwith an attorney prior to executing the Mutual General Releases;  (b) that he has had up to twenty-one (21)days to consider executing the Mutual General Releases and that he is knowinglyand voluntarily entering into the Mutual General Releases;  (c) that he received a copy of the MutualGeneral Releases on                       , 2001; (d)  that he has seven (7) days from the date ofexecution of the Mutual General Releases to rescind it by doing so in writingaddressed to the General Counsel and/or Secretary of the Company,  at its corporate headquarters located at TheNewhall Land and Farming Company, 23823 Valencia Boulevard, Valencia,California  91355; and (e) that theMutual General Releases will not be effective until the end of the seven (7)day revocation period.

 
| DATED: |   |                                | EMPLOYEE:                                                             |
|--------|--------|-------------------------------------|-----------------------------------------------------------------------|
|   |   |                                |                                                                  |
|   |   |                                |
|   |   | Thomas E. Dierckman                 |
|   |   |                                |                                                                  |
| DATED: |   |                                | THE NEWHALL LAND AND  FARMING COMPANY                                 |
|   |   | (a California Limited  Partnership) |
|   |   | By:                                 | Newhall Management  Limited Partnership, its Managing General Partner |
|   |   | By:                                 | Newhall Management  Corporation, its   Managing General Partner       |
|   |   |                                |                                                                  |
|   |   | By:                                 |                                                                  |
|   |   | Name:                               |                                                                  |
|   |   | Title:                              |                                                                  |
|   |   |                                |                                                                  |
|   |   | By:                                 |                                                                  |
|   |   | Name:                               |                                                                  |
|   |   | Title:                              |                                                                  |
|        |        |                                     |                                                                       |  |  |  |

 

ADDENDUM C

 

## ACKNOWLEDGMENT OF PAYMENT

 

 

        This Addendum to the Retention Agreement of Thomas E.Dierckman dated March 31, 2001 ("Agreement") is made and entered intothis ____ day of ______________ by and between Thomas E. Dierckman("Employee"), and The Newhall Land and Farming Company (a CaliforniaLimited Partnership) ("Company") and by this reference the Agreementis incorporated herein.  Employee andthe Company are hereinafter sometimes referred to collectively as "theParties."  This Acknowledgment ofPayment ("Acknowledgment") is made and entered into on the date setforth above.

 

        NOW, THEREFORE, the Parties hereto for the consideration setforth in the Agreement initially agree as follows:

 

        1.  Receipt ofPayment.  Employee herebyacknowledges that he has been paid the Additional Services Payment provided forin paragraph 5(b) of the Agreement and that the Company has fully complied withall the requirements of Paragraph 5(b) of the Agreement.

 

        2.  Successors andAssigns.  This Acknowledgment shallbind, inure to the benefit of, the respective heirs, legal representatives,successors, and assigns of the Parties hereto.

 

        3. Covenant Not To Sue.  The Parties, and each of them, represent and warrant that theyhave no action, claim, charge or lawsuit intended, filed, prepared or pendingagainst the other Party or their respective released parties and that they willnot individually or as a member of any class file any action, claim, charge orlawsuit against the other Party, or any of their respective released parties,concerning the subject matter of the Agreement, the Acknowledgment and/or anyof the claims released under the Mutual General Releases.

 

        4.  Construction.  The language of the Acknowledgment has beenapproved by all Parties after the opportunity to consult with legal counsel andthe language of the Acknowledgment shall be construed as a whole according toits fair meaning and not strictly for or against either Party.

 

        5.  EntireAgreement and Governing Law.  TheAcknowledgment shall in all respects be interpreted, enforced, and governed byand under the laws of the State of California. The Acknowledgment constitutes the entire agreement between the Partiesand supersedes all prior agreements, whether verbal or written, between theParties pertaining to the subject matter hereof.

 

 
| DATED: |   | , 2001                              | EMPLOYEE:                                                             |
|--------|--------|-------------------------------------|-----------------------------------------------------------------------|
|   |   |                                |                                                                  |
|   |   |                                |
|   |   | Thomas E. Dierckman                 |
|   |   |                                |                                                                  |
| DATED: |   | , 2001                              | THE NEWHALL LAND AND  FARMING COMPANY                                 |
|   |   | (a California Limited  Partnership) |
|   |   | By:                                 | Newhall Management  Limited Partnership, its Managing General Partner |
|   |   | By:                                 | Newhall Management  Corporation, its   Managing General Partner       |
|   |   |                                |                                                                  |
|   |   | By:                                 |                                                                  |
|   |   | Name:                               |                                                                  |
|   |   | Title:                              |                                                                  |
|   |   |                                |                                                                  |
|   |   | By:                                 |                                                                  |
|   |   | Name:                               |                                                                  |
|   |   | Title:                              |                                                                  |
|        |        |                                     |                                                                       |  |  |  |