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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
John Adams Life Corporation
(Name of Issuer)
Common Stock, Without Par Value
(Title of Class of Securities)
006246102
(CUSIP Number)
Nicholas Del Sesto 4712 Barcelona Way Oceanside, CA 92056 (760) 941-3732
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 8, 1997
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement of Schedule 13G to report
the acquisition which is the subject of the Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be fiLled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
- ------------------- -----------------
CUSIP No. 006246102 Page 2 of 5 Pages
- ------------------- -----------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Nicholas A. Del Sesto and Carol Ann Del Sesto as Co- Trustees of the 1992
Nicholas and Carol Ann Del Sesto Family Trust, dated 8/14/92
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY --------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING --------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
--------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
not applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 of 7
<PAGE>
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Statement relates is the
Common Stock, without par value, of John Adams Life Corporation ("Issuer"), a
California corporation, which has its principal executive offices at 11845 W.
Olympic Boulevard, Suite 905, Los Angeles, California 90064.
ITEM 2. IDENTITY AND BACKGROUND.
The persons filing this Statement are Nicholas A. and Carol Ann Del Sesto
("Reporting Persons"), natural persons, whose address is 4712 Barcelona Way,
Oceanside, California 92056. Reporting Persons are Co-Trustees of the Nicholas
and Carol Ann Del Sesto Family Trust, dated August 14, 1992 (the "Trust") and
are the primary beneficiaries of the Trust. Reporting Person Nicholas A. Del
Sesto is retired. Reporting Person Carol Ann Del Sesto is the wife of Reporting
Person Nicholas A. Del Sesto.
During the last five years, neither Reporting Person has been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors).
During the last five years, neither Reporting Person has been a party to a civil
proceeding of judicial or administrative body, which as a result of such
proceeding either Reporting Person became subject to a judgment, decree or final
order enjoining future violations of or prohibiting or mandating activities
subject to Federal or State securities laws or finding any violation with
respect to such laws.
Reporting Persons are citizens of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The 501,000 shares (the "Shares") of the Issuer's common stock, which were
owned by the Trust and sold by the Reporting persons as Co-Trustees of the Trust
on October 8, 1997, were purchased by Reporting Persons over five years ago with
their personal funds. The original acquisition of the Shares was reported by
Reporting Persons on Schedule 13G filed in January 1987.
ITEM 4. PURPOSE OF TRANSACTION.
Reporting Persons do not have any plans or proposals which relate to or
would result in:
(a) the acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) an extraordinary corporate transaction involving the Issuer or any of
its subsidiaries;
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(c) a sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend policy of
the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
(g) changes in the Issuer's charter, bylaws, or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Issuer by any person;
(h) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) a class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The aggregate number of the shares of the Issuer's common stock, without
par value, beneficially owned by Reporting persons is zero (0) shares. Reporting
Persons sold 501,000 shares, their entire interest in the Issuer, on October 8,
1997, to Benjamin A. DeMotto, the Issuer's C.E.O., President and the Chairman of
its board of directors.
Each Reporting Person as a Co-Trustee of the 1992 Nicholas and Carol Ann
Del Sesto Family Trust, dated August 14, 1992, had prior to October 8, 1997 the
sole power to vote or direct the vote of all 501,000 shares held by Reporting
Persons. Each Reporting Person as a Co-Trustee of the Trust, had the sole power
to dispose or to direct the disposition of 501,000 shares of the Issuer's common
stock, without par value, held by Reporting Persons.
Reporting Persons have transferred the Shares from their ownership as
Co-Trustees of the 1992 Nicholas and Carol Ann Del Sesto Family Trust, dated
August 14, 1992. The sale of the Shares to Mr. DeMotto became effective on
October 8, 1997.
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<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Reporting Persons have no contracts, arrangements or understandings with
any person with respect to any securities of the Issuer, except for the Stock
Purchase Agreement made with Mr. DeMotto in connection with the sale of the
Shares to Mr. DeMotto on October 8, 1997.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The agreement between the Reporting Persons required by Rule
13d-1(f)(1)(iii) is attached hereto as Exhibit A, and the Stock Purchase
Agreement between Reporting Persons and Benjamin A. DeMotto is attached hereto
as Exhibit B.
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this Statement is true, complete and
correct.
October 8, 1997
Date
/s/ Nicholas Del Sesto
-------------------------------------------
Nicholas Del Sesto
Co-Trustee of the 1992 Nicholas and Carol
Ann Del Sesto Family Trust dated August 14,
1994
/s/ Carol Ann Del Sesto
-------------------------------------------
Carol Ann Del Sesto
Co-Trustee of the 1992 Nicholas and Carol
Ann Del Sesto Family Trust dated August 14,
1994
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<PAGE>
EXHIBIT A
---------
The undersigned agree that the Schedule 13D to which this agreement is
attached is filed on behalf of each of the undersigned.
Dated: October 8, 1997
/s/ Nicholas Del Sesto
-------------------------------------------
Nicholas Del Sesto
Co-Trustee of the 1992 Nicholas and Carol
Ann Del Sesto Family Trust dated August 14,
1994
/s/ Carol Ann Del Sesto
-------------------------------------------
Carol Ann Del Sesto
Co-Trustee of the 1992 Nicholas and Carol
Ann Del Sesto Family Trust dated August 14,
1994
<PAGE>
EXHIBIT B
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), is made and entered into this
8th day of October 1997, by and between BENJAMIN A. DEMOTTO ("Mr. DeMotto"), on
the one hand, and NICHOLAS A. DEL SESTO and CAROLEANNE DEL SESTO ("the Del
Sestos"), as individuals and as trustees of the 1992 NICHOLAS A. DEL SESTO and
CAROLEANNE DEL SESTO FAMILY TRUST dated August 14, 1992, ("the Trust"),
(collectively "the Parties"), on the other hand, in reference to the following
facts:
RECITALS
A. Whereas, the Trust and the Del Sestos, as trustees of the Trust, are
the beneficial and record owner of five hundred one thousand (501,000)
shares ("the Shares") of the common stock of John Adams Life
Corporation ("JALC").
B. Whereas, the Del Sestos are familiar with the business and history of
JALC and wish to sell the Shares.
C. Whereas, Mr. DeMotto has agreed to purchase the Shares and the Del
Sestos have agreed to sell the Shares on the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the Parties, intending to be
legally bound, agree as follows:
AGREEMENT
Section 1.
Sale and Purchase of Shares.
1.1 Transfer of Shares. At the Closing (as defined below) and on the terms
and subject to the conditions set forth in this Agreement, the Del Sestos hereby
sell, assign, transfer and deliver to Mr. DeMotto, and Mr. DeMotto hereby
purchases from the Del Sestos, the Shares.
1.2 Purchase Price. The consideration for the transfer of the Shares and
for the covenants and agreements made by the Del Sestos and set forth in this
Agreement shall be the payment by Mr. DeMotto to the Del Sestos of the sum
$250,500.00.
1
<PAGE>
1.3 Delivery of Consideration. Prior to the Closing, Mr. DeMotto shall
deliver the purchase price in the form of a personal check to the Del Sestos.
The Del Sestos shall deliver to the transfer agent the Shares, as evidenced by a
stock certificate or certificates representing 501,000 shares. At Closing, the
Del Sestos shall cause the transfer agent to transfer the Shares to Mr. DeMotto.
Section 2.
Delivery of Shares.
2.1 Transfer of Shares. The Del Sestos agree to deliver the Shares at the
Closing, as set forth above.
2.2 Further Assurances. The Del Sestos agree, from time to time hereafter
at Mr. DeMotto's request and without further consideration, to execute and
deliver to Mr. DeMotto such instruments of transfer, conveyance and assignment,
in addition to those delivered pursuant to Section 2.1 of this Agreement, as Mr.
DeMotto shall request, to transfer, convey and assign completely the Shares to
Mr. DeMotto.
Section 3.
Representations and Warranties of the Del Sestos.
The Del Sestos hereby represent, warrant, covenant, and agree to and with
Mr. DeMotto as follows:
3.1 Ownership. The Del Sestos are the owners, beneficially and of record,
of all the Shares, free and clear of all liens, encumbrances, security
agreements, equities, options, claims, charges and restrictions.
3.2 Authorization. The Del Sestos have the right, power, legal capacity and
authority to execute, deliver and perform this Agreement and to consummate the
transaction contemplated by it. This Agreement has been duly and validly
executed and delivered by the Del Sestos and constitutes the Del Sestos' binding
obligation, enforceable in accordance with its terms.
3.3 Investigation by the Del Sestos. The Del Sestos have conducted an
independent investigation of JALC and acknowledge that they have based their
decision to enter into this Agreement solely upon the results of that
investigation. The Del Sestos acknowledge that Mr. DeMotto has not made any
representations or warranties regarding JALC or the Shares to the Del Sestos,
other than those representations and warranties made in this Agreement.
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<PAGE>
3.4 Compliance with Laws. The Del Sestos have complied with, and are not in
violation of, any statute, law or regulation affecting the Shares, including but
not limited to the Securities Act of 1933 and the Securities Exchange Act of
1934.
3.5 No nonpublic material information. The Del Sestos are neither in the
possession of any material nonpublic information that could affect the price of
Shares nor in violation of any reporting requirements of any applicable law,
including but not limited to the Securities Act of 1933 and the Securities
Exchange Act of 1934.
3.6 No Violations. The execution, delivery and performance of the Agreement
by the Del Sestos and the consummation by the Del Sestos of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time or both: (a) violate any statute, ordinance, rule, regulation, order,
judgment or decree of any court or any governmental or regulatory body, agency
or authority applicable to the Del Sestos, or the Shares; (b) require the Del
Sestos to obtain any permit, consent or approval of any governmental, regulatory
body, agency or authority; or (c) result in a violation or breach by the Del
Sestos, conflict with, constitute (with or without due notice or lapse of time
or both) a default by the Del Sestos (or give rise to any right of termination,
cancellation, payment or acceleration) under, or any of the terms, conditions or
provisions of any note, bond, contract, mortgage, indenture, license, permit,
lease, or other instrument or obligation to which the Del Sestos are a party, or
by which the Del Sestos may be bound.
3.7 Litigation. There are no claims, actions, suits, proceedings or
investigations pending or, to the best knowledge of the Del Sestos, threatened
against the Del Sestos that could have a material adverse effect on any of the
Shares, on the condition of the Del Sestos or JALC, or on the ability of the
Parties hereto to consummate the transactions contemplated by this Agreement, at
law or in equity or before or by any court, arbitrator or federal, state,
municipal or other governmental department, commission, board, agency or
instrumentality. The Del Sestos are not subject to any continuing court or
administrative order, writ, injunction, or decree applicable to them that could
have a material adverse effect on the Shares or on the condition of the Del
Sestos or JALC, or the ability of the Parties hereto to consummate the
transactions contemplated by this Agreement.
3.8 Survival of Representation. The representations set forth in this
Agreement shall be continuous and shall survive the Closing.
Section 4.
Representations and Warranties by Mr. DeMotto.
Mr. DeMotto hereby represents, warrants, covenants and agrees to and with
the Del Sestos as follows:
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<PAGE>
4.1 Truth of Representations and Warranties. Mr. DeMotto has no actual
knowledge of any fact or occurrence that would render the representations and
warranties set forth herein false or misleading.
4.2 No Violations. The execution, delivery and performance of this
Agreement by Mr. DeMotto and the consummation by Mr. DeMotto of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time or both: (a) violate any statute, ordinance, rule, regulation, order,
judgement or decree of any court or any governmental or regulatory body, agency
or authority applicable to Mr. DeMotto, or the Shares; (b) require Mr. DeMotto
to obtain any permit, consent or approval of any governmental, regulatory body,
agency or authority; or (c) result in a violation or breach by Mr. DeMotto,
conflict with, constitute (with or without due notice or lapse of time or both )
a default by Mr. DeMotto (or give rise to any right of termination,
cancellation, payment or acceleration) under, or any of the terms, conditions or
provisions of any note, bond, contract, mortgage, indenture, license, permit,
lease, or other instrument or obligation to which Mr. DeMotto is a party, or by
which Mr. DeMotto may be bound.
4.3 No Actions. No action or proceeding has been instituted against Mr.
DeMotto before any court or other governmental body by any person or public
authority seeking to restrain or prohibit the execution and delivery of the
Agreement or the transaction contemplated hereby.
4.4 Authority. Mr. DeMotto has the right, power, legal capacity and
authority to enter into and perform his obligations under this Agreement. No
approvals or consents of any persons are necessary in order to consummate the
transactions contemplated in this Agreement. This Agreement constitutes a valid
and binding obligation, enforceable against Mr. DeMotto in accordance with its
terms.
4.5 No nonpublic material information. Mr. DeMotto is neither in the
possession of any material nonpublic information that could affect the price of
Shares nor in violation of any reporting requirements of any applicable law,
including but not limited to the Securities Act of 1933 and the Securities
Exchange Act of 1934.
4.6 Mr. DeMotto is an "Insider". Mr. DeMotto acknowledges that he is a
director, officer and beneficial owner of 56.6% of the common stock of John
Adams Life Corporation.
4.7 Adequate Information. Mr. DeMotto represents that he is the kind of
investor who can "fend" for himself, and that he is sophisticated and had access
to the information necessary to make an investment decision to acquire 501,000
common shares in John Adams Life Corporation (the "Shares") from the Del Sestos.
4.8 Mr. DeMotto to "Hold" the Shares. Mr. DeMotto is purchasing the Shares
for his own investment, and not with a view to or for sale in connection with
any distribution of the security. Mr. DeMotto has no commitment and is not aware
of any circumstances presently in
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existence which would make a disposition of the securities likely, and Mr.
DeMotto has a present intent to hold this investment indefinitely.
4.9 Restricted Stock. Mr. DeMotto is aware that an investment in the Shares
will contain a restrictive legend and as such the Shares are restricted
securities. Mr. DeMotto understands, on advice of California legal counsel, the
meaning of "restricted" stock. It has never been represented, guaranteed or
warranted by the Del Sestos, or any person connected with or acting on their
behalf, that Mr. DeMotto will be able to sell or liquidate these securities in
any specified period of time or that there will be any profit or appreciation to
be realized as a result of this proposed investment. Mr. DeMotto is aware that,
as a condition of this purchase, the certificate for his shares will be subject
to the restrictions of the standard federal legend condition, the same or
substantially similar, as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), AND ARE
RESTRICTED SECURITIES. THESE RESTRICTED SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN
EXEMPTION THEREFROM PURSUANT TO THE ACT AND APPLICABLE STATE
SECURITIES LAWS AND REGULATIONS."
4.10 Sophisticated Purchaser. By reason of his business and financial
experience, Mr. DeMotto has the capacity to protect his interests in connection
with the proposed transaction and can bear the economic risk of this proposed
investment, including the loss of the entire amount of the investment.
4.11 Reliance on Section 4(1). Mr. DeMotto understands that this offer and
sale is being made by the Del Sestos is in reliance upon the exemption from
Federal registration requirements provided by Section 4(1) of the Securities Act
of 1933, as amended. Mr. DeMotto, on advice of legal counsel, does not know of
any reason why the Agreement can not be governed by Section 4(1) of the
Securities Act of 1933, as amended.
4.12 No Advertisement. Mr. DeMotto represents that the purchase of the
Shares were not, to the best of his knowledge, accomplished by the publication
of any advertisement. For these purposes, the publication of an advertisement
means the dissemination to the public of any written, spoken or printed
communication by means of mail, messages, recorded telephone, any newspaper,
magazines or similar media, broadcast over radio or television or other media.
4.13 Private Sale. Mr. DeMotto represents and covenants that there was no
broker/dealer, selling agent or other financial intermediary involved in the
negotiation an/or consummation of the sale of the Shares, and that such
transaction was a negotiated "private sale"
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as that term in used by securities law practitioners, Mr. DeMotto acknowledges
that his legal counsel has explained to him the legal consequences of these
representations.
4.14 Compliance with Securities laws. Mr. DeMotto represents and covenants
that he has timely complied with all securities laws in connection with the
transaction as set forth in this Stock Purchase Agreement, including, but not
limited to, compliance with the Securities Act of 1933, as amended. Furthermore,
Mr. DeMotto represents and covenants that he has either complied with Sections
13 and 16 of the Securities Act of 1933, as amended, or such provisions are not
applicable to him. Furthermore, Mr. DeMotto represents that he has complied with
the California Corporations Code Section 25104 with respect to his purchase of
the Shares.
4.15 Counsel's Opinion. Mr. DeMotto represents and understands that the Del
Sesto's legal counsel's opinion is limited in scope to state that the Del
Sesto's have complied with Section 5 of the Securities Act of 1933, as amended,
by virtue of Section 4(1) of the Securities Act of 1933, as amended, in
connection with the transfer of the Shares. It is further understood by Mr.
DeMotto without the representations and warranties made by Mr. DeMotto herein
the Del Sestos' legal counsel would not deliver such opinion letter to the
transfer agent. The Del Sestos' legal counsel's opinion disclaims any other
compliance with any other laws or regulations/rules to effectuate a transfer of
the Shares.
4.16 Personal Relationship/Private Transaction. Mr. DeMotto represents that
he has a pre-existing business and personal relationship with Nicholas Del
Sestos.
4.17 California Resident. Mr. DeMotto represents that he is a California
resident.
4.18 Survival of Representations. The representations set forth in this
Agreement shall be continuous and shall survive the Closing.
Section 5.
No Broker.
The Parties acknowledge that no securities broker has acted in this
transaction and that no commission is due in connection with the transaction.
Section 6.
Mutual Releases.
6.1 Releases of Claims. Except as specifically provided in this Agreement,
in consideration of the Parties' performance of the covenants, promises and
obligations set forth in this Agreement, Mr. DeMotto, on the one hand, and the
Del Sestos, on the other hand, do each hereby generally and specifically
release, discharge and acquit the other and their respective
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officers, employees, principals, partners, agents, directors, attorneys,
shareholders, successors, predecessors, servants, representatives, past and
present, guarantors, indemnitors, insurers, heirs, successors, assignors,
assignees, and each of them, from any and all claims, demands, liabilities,
actions, causes of action, damages, expenses, and obligations of whatever
character, contractual and non-contractual, whether known or unknown, foreseen
or unforeseen, arising out of, related to, or connected with any and all acts
and/or omissions.
6.2 Waiver of Rights Under California Civil Code Section 1542 And Similar
Statutes. Except as expressly set forth in this Agreement, the Parties to this
Agreement, and each of them, waive any and all rights and benefits under Section
1542 of the California Civil Code, or any similar provision or statute of any
other state or of the United States. Section 1542 provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
6.3 Assumption of Risk. Except as provided herein each Party hereto
understands and acknowledges the significance and consequences of the specific
waiver of Section 1542, hereby assumes full responsibility for any injuries,
damages, losses or liability that he, she or it may hereafter incur from this
provision, and acknowledges that there is risk that subsequent to the execution
of this Agreement, one or more Parties hereto will incur or suffer loss, damages
or injures which are in some way caused by or related to the matters released
herein but which are unknown or unanticipated at the time this Agreement is
signed. Except as provided herein, all Parties hereto do hereby assume such risk
and agree that this Agreement shall apply to all unknown or unanticipated
results and occurrences described herein as well as those known and anticipated.
Section 7.
The Closing.
7.1 Time and Place. The closing ("Closing") of the transaction contemplated
in this Agreement shall be held on the date and at the time and place agreed
upon by Mr. DeMotto and the Del Sestos.
7.2 Conditions to Closing. The obligations of Mr. DeMotto and the Del
Sestos to close the transaction contemplated by this Agreement are subject to
the following:
a. The Del Sestos shall have executed this Agreement and delivered the
Shares to Mr. DeMotto.
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b. Mr. DeMotto shall have delivered to the Del Sestos the sum of $250,500.
c. The representations and warranties of the Del Sestos set forth in this
Agreement shall be true and correct as of the date of the Closing.
d. The representations and warranties of Mr. DeMotto set forth in this
Agreement shall be true and correct as of the date of the Closing.
Section 8.
Miscellaneous.
8.1 Rules of Construction. It is acknowledged by the Parties that each
Party had separate and independent advice of counsel. This Agreement was
prepared by each Party in conjunction with counseling from such Party's
respective attorney. Accordingly, each Party hereto waives any and all rights
which such party may have under Civil Code ss. 1654 and any other doctrine or
rule of construction which would require that a provision of this Settlement
Agreement should be construed against the party who drafted it. Each Party shall
pay all costs and expenses incurred or to be incurred by such party in
negotiating and preparing this Agreement.
8.2 Binding Effect. This Agreement shall inure to the benefit of and shall
be binding upon the Parties hereto and their respective successors and assigns.
8.3 Governing Law. This Agreement shall be deemed to be made in, and in any
and all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the State of California.
8.4 Severability. If any term or provision of this Agreement shall be
determined to be invalid, illegal, or unenforceable, then the remaining part of
this Agreement shall be separated from the invalid, illegal or unenforceable
term and shall not be affected thereby and shall continue in full force and
effect, and shall be construed as if the invalid, illegal or unenforceable terms
had never been incorporated into it.
8.5 Headings. The paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.6 Further Assurances. The Parties shall cooperate with the other, and
execute and deliver, or cause to be executed and delivered, all such other
instruments and take all such other actions as the party may be reasonably
requested to take from time to time in order to effectuate the provisions and
purposes of this Agreement.
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8.7 Notices. All communications provided for in this Agreement shall be in
writing and shall be deemed to be given when sent by facsimile transmission or
when delivered in person or five (5) days after being deposited in the United
States mail, first class, certified, or registered, with proper postage prepaid
and,
(a) if to the Del Sestos, addressed to them at the following address:
Mr. and Mrs. Nicholas Del Sestos
4712 Barcellona Way
Oceanside, California 92056
with a copy addressed to:
Michael C. Self, Esq.
Self & Bhamre
4400 MacArthur Blvd.
Suite 320
Newport Beach, California 92660
(b) if to Mr. DeMotto, addressed to him at the following address:
Mr. Benjamin A. DeMotto
11845 W. Olympic Blvd., Suite 905
Los Angeles, California 90064
with a copy addressed to:
Robert James Skousen, Esq.
Skousen & Skousen
12th Floor
2049 Century Park East
Los Angeles, California 90067-3101
or at any such place or places or to such other person or persons as shall be
designated in writing by the Parties hereto.
8.8 Counterparts: Facsimile Signatures. The Agreement may be executed in
two or more counterparts, by facsimile, each of which shall be deemed to be an
original but all of which together shall constitute one and the same instrument.
8.9 Indemnity. The Parties shall and do hereby indemnify and save each
other, and their agents, including their attorneys, from any and all loss,
damage, claim, liability, cost or expense, including, but not limited to,
attorneys' fees and costs, hereinafter incurred by the other party (or their
attorneys) for any omissions to state a material fact, misrepresentations or
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breach of this Agreement. The Del Sestos's and Mr. DeMotto's legal counsel are
intended third party beneficiaries of the provision.
8.10 Legal Advice. Each of the Parties warrants and represents: (a) that in
executing this Agreement, he or they has sought legal advice from California
legal counsel of their choice; (b) that each party has read the contents of this
Agreement: (c) that the terms of the Agreement and its consequences have been
completely read by, and satisfactorily explained by such counsel to, each such
party; (d) that each Party fully understands the terms and consequences of this
Agreement and voluntarily accepts the terms and consequences of this Agreement;
(e) that each party has relied upon the legal advice of their respective
attorneys, who are attorneys of their own choosing; (f) that hereafter no such
Parties shall deny the validity of this Agreement on the ground that it did not
have advice of counsel; and (g) each party hereto has the legal authority to
enter into this Agreement.
8.11 Gender. For purposes of the Agreement, whenever the context so
requires, the masculine, feminine and neuter genders shall include the others.
8.12 Attorneys' Fees and Costs. If any action, at law or in equity, or
arbitration, is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs,
expert fees, and any other necessary disbursements in addition to any other
relief to which that party may be entitled.
8.13 Arbitration. The Parties agree to submit all controversies, claims and
matters of difference to arbitration according to the rules and practices of the
American Arbitration Association from time to time in force, and as set forth
below:
a. Binding Arbitration. The Del Sestos and Mr. DeMotto agree that any
dispute, disagreement or controversy between the Del Sestos and Mr.
DeMotto, shall, on the written request of either the Del Sestos or Mr.
DeMotto, served on the other, be submitted to binding arbitration with the
American Arbitration Association ("AAA") in accordance with the commercial
rules of AAA. The Del Sestos and Mr. DeMotto agree to arbitrate all
demands, disputes, claims, or causes of action. If the amount in
controversy is $50,000 or less, the arbitration shall be conducted by one
neutral arbitrator selected by the mutual agreement of the Del Sestos and
Mr. DeMotto. If the amount in controversy is more than $50,000, the
arbitration shall be conducted by a panel of three neutral arbitrators
selected by the mutual agreement of the Del Sestos and Mr. DeMotto.
b. Right of Discovery. In conducting the arbitration, the Del Sestos
and Mr. DeMotto shall be entitled to engage in full and complete discovery
as set forth in the federal rules of civil procedure, and as though an
action were filed in the United States District Court for the Central
District of California.
c. Waiver of Right to Jury Trial. In agreeing to arbitration, the Del
Sestos and Mr. DeMotto understand and agree that both the Del Sestos and
Mr. DeMotto are waiving
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the right to a jury trial, or a trial before a judge in a public court. The
Del Sestos and Mr. DeMotto also understand and agree that the award of the
arbitrator(s) is subject only to limited review by a superior court (rather
than an appellate court), and that the superior court may not alter or
overturn the award even if it is incorrect legally of factually.
d. Venue. Any dispute between the Parties involving the interpretation
of this Agreement or the obligations of a party to it shall be determined
by binding arbitration in accordance with the arbitration rules of the
American Arbitration Association in the county of Los Angeles, state of
California, United States of America.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
"Mr. Nicholas Del Sestos"
/s/ Nicholas Del Sestos
---------------------------------
Nicholas Del Sestos
Individually, and as Trustee of
1992 NICHOLAS A. DEL SESTO AND
CAROLEANNE DEL SESTO FAMILY
TRUST dated August 14, 1992
"Ms. Caroleanne Del Sestos"
/s/ Caroleanne Del Sestos
---------------------------------
Caroleanne Del Sestos
Individually, and as Trustee of
1992 NICHOLAS A. DEL SESTO AND
CAROLEANNE DEL SESTO FAMILY
TRUST dated August 14, 1992
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"Mr. DeMotto"
/s/ Benjamin A. DeMotto
---------------------------------
Benjamin A. DeMotto
