-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R9W+PLosneCih7sc9HCpmRXfH3iOdocRSsIAgpFu1THlQ5vz07FJHq2F+V3k3HMv WWPkJJUn33+VL8qq4/gHoQ== 0001019687-08-003771.txt : 20080819 0001019687-08-003771.hdr.sgml : 20080819 20080819125728 ACCESSION NUMBER: 0001019687-08-003771 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20080630 FILED AS OF DATE: 20080819 DATE AS OF CHANGE: 20080819 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Nascent Wine Company, Inc. CENTRAL INDEX KEY: 0001310213 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-BEER, WINE & DISTILLED ALCOHOLIC BEVERAGES [5180] IRS NUMBER: 820576512 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: 1934 Act SEC FILE NUMBER: 333-120949 FILM NUMBER: 081026949 BUSINESS ADDRESS: STREET 1: 2355-A PASEO DE LAS AMERICAS CITY: SAN DIEGO STATE: CA ZIP: 92154 BUSINESS PHONE: (619) 661-0458 MAIL ADDRESS: STREET 1: 2355-A PASEO DE LAS AMERICAS CITY: SAN DIEGO STATE: CA ZIP: 92154 10-Q/A 1 nascent_10qa1-063008.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q/A (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended: June 30, 2008 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ____________ to _____________ Commission File Number: 333-120949 NASCENT WINE COMPANY, INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Nevada 82-0576512 ------ ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 2355 B Paseo de las Americas San Diego, Ca. 92154 -------------- ----- (Address of principal executive offices) (Zip Code) (619) 661 0458 -------------- (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [x] No [ ] Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act. Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ] Smaller reporting company [X] Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Securities Act). Yes [ ] No [X] The number of shares of Common Stock outstanding as of August 14, 2008 was 84,749,969 EXPLANATORY NOTE This Amendment No. 1 on Form 10-Q/A to Nascent Wine Company, Inc. (the "Company" or the "Registrant") Quarterly Report on Form 10-Q for the quarter ended June 30, 2008 (the "Original Filing"), which was filed with the Securities and Exchange Commission on August 14, 20087, is being filed to amend or include certain exhibits contained in Item 7. Except for the amendments described above, this Form 10-Q/A does not modify or update other disclosures in, or exhibits to, the Original Filing. Item 7. Exhibits The following Exhibits are incorporated herein by reference or are filed with this report as indicated below. Exhibit No. Description ----------- ----------- Exhibit 4.1 The Company's 2008 Long-Term Incentive Compensation Plan Exhibit 10.1 Employment Agreement dated August 14, 2008 by and between the Company and Sandro Piancone Exhibit 10.2 Settlement Agreement dated August 8, 2008 Exhibit 10.3 Employment Agreement dated August 14, 2008 by and between the Company and Peter White SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, hereunto duly authorized. NASCENT WINE COMPANY, INC. Dated: August __, 2008 By: /s/ Sandro Piancone --------------------------------- Sandro Piancone Chief Executive Officer Pursuant to the requirements of the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. /s/ Sandro Piancone Chief Executive Officer Date: August __, 2008 - ------------------------- and Director Sandro Piancone /s/ Peter V. White Chief Financial Officer, Date: August __, 2008 - ------------------------- Treasurer and Director Peter V. White EX-4.1 2 nascent_10qa-ex0401.txt STOCK OPTION PLAN EXHIBIT 4.1 NASCENT WINE COMPANY, INC (AKA NASCENT FOOD SERVICE, INC.) A NEVADA CORPORATION 2008 STOCK OPTION PLAN Article I. Establishment and Purpose ------------------------------------ 1.1 ESTABLISHMENT. Nascent Wine Company, a Nevada corporation (the "Company"), hereby establishes a stock option plan for officers, directors, employees and consultants who provide services to the Company, as described herein, which shall be known as the 2008 Stock Option Plan (the "Plan"). It is intended that certain of the options issued under the Plan to employees of the Company shall constitute "Incentive Stock Options" within the meaning of section 422A of the Internal Revenue Code ("Code"), and that other options issued under the Plan shall constitute "Nonstatutory Options" under the Code. The Board of Directors of the Company (the "Board") shall determine which options are to be Incentive Stock Options and which are to be Nonstatutory Options and shall enter into option agreements with recipients accordingly. 1.2 PURPOSE. The purpose of this Plan is to enhance the Company's stockholder value and financial performance by attracting, retaining and motivating the Company's officers, directors, key employees and consultants and to encourage stock ownership by such individuals by providing them with a means to acquire a proprietary interest in the Company's success through stock ownership. Article II. Definitions ----------------------- 2.1 DEFINITIONS. Whenever used herein, the following capitalized terms shall have the meanings set forth below, unless the context clearly requires otherwise. (a) "Board" means the Board of Directors of the Company. (b) "Code" means the Internal Revenue Code of 1986, as amended. (c) "Committee" shall mean the Committee provided for by Article IV hereof. (d) "Company" means Nascent Wine Company, a Nevada corporation and its successor and/or surviving corporations . (e) "Consultant" means any person or entity, including an officer or director of the Company who provides services (other than as an Employee) to the Company and shall include a Nonemployee Director, as defined below. (f) "Date of Exercise" means the date the Company receives notice, by an Optionee, of the exercise of an Option pursuant to section 8.1 of the Plan. Such notice shall indicate the number of shares of Stock the Optionee intends to exercise. (g) "Employee" means any person, including an officer or director of the Company who is employed by the Company. (h) "Fair Market Value" means the fair market value of Stock upon which an Option is granted under this Plan. (i) "Incentive Stock Option" means an Option granted under this Plan which is intended to qualify as an "incentive stock option" within the meaning of section 422A of the Code. (j) "Nonemployee Director" means a member of the Board who is not an employee of the Company at the time an Option is granted hereunder. (k) "Nonstatutory Option" means an Option granted under the Plan which is not intended to qualify as an Incentive Stock Option within the meaning of section 422A of the Code. Nonstatutory Options may be granted at such times and subject to such restrictions as the Board shall determine without conforming to the statutory rules of section 422A of the Code applicable to Incentive Stock Options. (l) "Option" means the right, granted under the Plan, to purchase Stock of the Company at the option price for a specified period of time. For purposes of this Plan, an Option may be either an Incentive Stock Option or a Nonstatutory Option. (l. a) "Performance -Based Deferred Stock" means a right, granted under the Plan, to purchase Stock of the Company at Performance price for a specific period of time meeting certain agreed performance based criteria. (m) "Optionee" means an Employee or Consultant holding an Option under the Plan. (n) "Parent Corporation" shall have the meaning set forth in section 425(e) of the Code with the Company being treated as the employer corporation for purposes of this definition. (o) "Significant Shareholder" means an individual who, within the meaning of section 422A(b)(6) of the Code, owns securities possessing more than ten percent of the total combined voting power of all classes of securities of the Company. In determining whether an individual is a Significant Shareholder, an individual shall be treated as owning securities owned by certain relatives of the individual and certain securities owned by corporations in which the individual is a shareholder; partnerships in which the individual is a partner; and estates or trusts of which the individual is a beneficiary, all as provided in section 425(d) of the Code. (p) "Stock" means the $0.001 par value common stock of the Company. 2 2.2 GENDER AND NUMBER. Except when otherwise indicated by the context, any masculine terminology when used in this Plan also shall include the feminine gender, and the definition of any term herein in the singular also shall include the plural. Article III. Eligibility and Participation ------------------------------------------ 3.1 ELIGIBILITY AND PARTICIPATION. All Employees are eligible to participate in this Plan and receive Incentive Stock Options and/or Nonstatutory Options hereunder. All Consultants are eligible to participate in this Plan and receive Nonstatutory Options hereunder. Optionees in the Plan shall be selected by the Board from among those Employees and Consultants who, in the opinion of the Board, are in a position to contribute materially to the Company's continued growth and development and to its long-term financial success. Article IV. Administration -------------------------- 4.1 ADMINISTRATION. The Board shall be responsible for administering the Plan. The Board is authorized to interpret the Plan; to prescribe, amend, and rescind rules and regulations relating to the Plan; to provide for conditions and assurances deemed necessary or advisable to protect the interests of the Company; and to make all other determinations necessary or advisable for the administration of the Plan, but only to the extent not contrary to the express provisions of the Plan. Determinations, interpretations or other actions made or taken by the Board, pursuant to the provisions of this Plan, shall be final and binding and conclusive for all purposes and upon all persons. The Plan shall be administered by the Board until the Board establishes a Compensation Committee of the Board (the "Committee") which will be an executive committee of the Board, consisting of not less than two (2) members of the Board, at least one of whom are not executive officers or salaried employees of the Company. The members of the Committee may be directors who are eligible to receive Options [as defined in section 2.1 paragraph L]. under the Plan, but Options may be granted to such persons only by action of the full Board and not by action of the Committee. The Committee shall have full power and authority, subject to the limitations of the Plan and any limitations imposed by the Board, to construe, interpret and administer the Plan and to make determinations which shall be final, conclusive and binding upon all persons, including, without limitation, the Company, the stockholders, the directors and any persons having any interests in any Options which may be granted under the Plan, and, by resolution or resolution providing for the creation and issuance of any such Option, to fix the terms upon which, the time or times at or within which, and the price or prices at which any Stock may be purchased from the Company upon the exercise of Options, which terms, time or times and price or prices shall, in every case, be set forth or incorporated by reference in the instrument or instruments evidencing such Option, and shall be consistent with the provisions of the Plan. The Board may from time to time remove members from or add members to, the Committee. The Board may terminate the Committee at any time. Vacancies on the Committee, howsoever caused, shall be filled by the Board. The Committee shall select one of its members as Chairman, and shall hold meetings at such times and places as the Chairman may determine. A majority of the Committee at which a quorum is present, or acts reduced to or approved in writing by all of the members of the Committee, shall be the valid acts of the Committee. 3 Where the Committee has been created by the Board, references herein to actions to be taken by the Board shall be deemed to refer to the Committee as well, except where limited by the Plan or the Board. The Board shall have all of the enumerated powers of the Committee but shall not be limited to such powers. No member of the Board or the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted under it. 4.2 SPECIAL PROVISIONS FOR GRANTS TO OFFICERS OR DIRECTORS. Rule 16b-3 under the Securities and Exchange Act of 1934 (the "Act") provides that the grant of a stock option to a director or officer of a company subject to the Act will be exempt from the provisions of section 16(b) of the Act if the conditions set forth in said Rule are satisfied. Unless otherwise specified by the Board, grants of Options hereunder to individuals who are officers or directors of the Company shall be made in a manner that satisfies the conditions of said Rule. Article V. Stock Subject to the Plan ------------------------------------ 5.1 NUMBER. The total number of shares of Stock hereby made available and reserved for issuance under the Plan shall be 30,000,000. The aggregate number of shares of Stock available under this Plan shall be subject to adjustment as provided in section 5.3. The total number of shares of Stock may be authorized but unissued shares of Stock, or shares acquired by purchase as directed by the Board from time to time in its discretion, to be used for issuance upon exercise of Options granted hereunder. 5.2 UNUSED STOCK. If an Option shall expire or terminate for any reason without having been exercised in full, the unpurchased shares of Stock subject thereto shall (unless the Plan shall have terminated) become available for other Options under the Plan. 5.3 ADJUSTMENT IN CAPITALIZATION. In the event of any change in the outstanding shares of Stock by reason of a stock dividend or split, recapitalization, reclassification or other similar corporate change, the aggregate number of shares of Stock set forth in section 5.1 shall be appropriately adjusted by the Board to reflect such change. The Board's determination shall be conclusive; provided, however, that fractional shares shall be rounded to the nearest whole share. In any such case, the number and kind of shares of Stock that are subject to any Option (including any Option outstanding after termination of employment) and the Option price per share shall be proportionately and appropriately adjusted without any change in the aggregate Option price to be paid therefor upon exercise of the Option. Article VI. Duration of the Plan -------------------------------- 6.1 DURATION OF THE PLAN. The Plan shall be in effect until ten years from the effective date of the Plan. Any Options outstanding at the end of said period shall remain in effect in accordance with their terms. The Plan shall terminate before the end of said period, if all Stock subject to it has been purchased pursuant to the exercise of Options granted under the Plan. 4 Article VII. Terms of Stock Options ----------------------------------- 7.1 GRANT OF OPTIONS. Subject to section 5.1, Options may be granted to Employees or Consultants at any time and from time to time as determined by the Board; provided, however, that Consultants may receive only Nonstatutory Options, and may not receive Incentive Stock Options. The Board shall have complete discretion in determining the number of Options granted to each Optionee. In making such determinations, the Board may take into account the nature of services rendered by such Employees or Consultants, their present and potential contributions to the Company, and such other factors as the Board in its discretion shall deem relevant. The Board also shall determine whether an Option is to be an Incentive Stock Option or a Nonstatutory Option. In the case of Incentive Stock Options the total Fair Market Value (determined at the date of grant) of shares of Stock with respect to which incentive stock options are exercisable for the first time by the Optionee during any calendar year under all plans of the Company under which incentive stock options may be granted (and all such plans of any Parent Corporations and any subsidiary corporations of the Company) shall not exceed $100,000. (Hereinafter, this requirement is sometimes referred to as the "$100,000 Limitation.") Nothing in this Article VII shall be deemed to prevent the grant of Options permitting exercise in excess of the maximums established by the preceding paragraph where such excess amount is treated as a Nonstatutory Option. The Board is expressly given the authority to issue amended or replacement Options with respect to shares of Stock subject to an Option previously granted hereunder. An amended Option amends the terms of an Option previously granted (including an extension of the terms of such Option) and thereby supersedes the previous Option. A replacement Option is similar to a new Option granted hereunder except that it provides that it shall be forfeited to the extent that a previously granted Option is exercised, or except that its issuance is conditioned upon the termination of a previously granted Option. 7.2 NO TANDEM OPTIONS. Where an Option granted under the Plan is intended to be an Incentive Stock Option, the Option shall not contain terms pursuant to which the exercise of the Option would affect the Optionee's right to exercise another Option, or vice versa, such that the Option intended to be an Incentive Stock Option would be deemed a tandem stock option within the meaning of the regulations under section 422A of the Code. 7.3 OPTION AGREEMENT; TERMS AND CONDITIONS TO APPLY UNLESS OTHERWISE SPECIFIED. As determined by the Board on the date of grant, each Option shall be evidenced by an Option agreement (the "Option Agreement") that includes the nontransferability provisions required by section 10.2 hereof and specifies: whether the Option is an Incentive Stock Option or a Nonstatutory Option; the Option price; the term (duration) of the Option; the number of shares of Stock 5 to which the Option applies; any vesting or exercisability restrictions which the Board may impose; in the case of an Incentive Stock Option, a provision implementing the $100,000 Limitation; and any other terms or conditions which the Board may impose. All such terms and conditions shall be determined by the Board at the time of grant of the Option. If not otherwise specified by the Board, the following terms and conditions shall apply to Options granted under the Plan: (a) TERM. The Option shall be exercisable to purchase Stock for a period of ten years from the date of grant, as evidenced by the execution date of the Option Agreement. (b) EXERCISE OF OPTION. Unless an Option is terminated as provided hereunder, an Optionee may exercise his Option for up to, but not in excess of, the number of shares of Stock subject to the Option specified below, based on the terms and conditions of the option. The Board may specify terms and conditions at its sole discretion. All Option Agreements shall incorporate the provisions of the Plan by reference, with certain provisions to apply depending upon whether the Option Agreement applies to an Incentive Stock Option or to a Nonstatutory Option. 7.4 OPTION PRICE. No Incentive Stock Option granted pursuant to this Plan shall have an Option price that is less than the Fair Market Value of the Stock on the date the Option is granted. Incentive Stock Options granted to Significant Stockholders shall have an Option price of not less than 110 percent of the Fair Market Value of the Stock on the date of grant. The Option price for Nonstatutory Options shall be established by the Board and shall not be less than 100 percent of the Fair Market Value of the Stock on the date of grant. 7.5 TERM OF OPTIONS. Each Option shall expire at such time as the Board shall determine, provided, however, that no Option shall be exercisable later than ten years from the date of its grant. 7.6 EXERCISE OF OPTIONS. Options granted under the Plan shall be exercisable at such times and be subject to such restrictions and conditions as the Board shall in each instance approve, which need not be the same for all Optionees. 7.7 PAYMENT. Payment for all shares of Stock shall be made at the time that an Option, or any part thereof, is exercised, and no shares shall be issued until full payment therefor has been made. Payment shall be made (i) in cash or certified funds, or (ii) if acceptable to the Board, in Stock or in some other form; provided, however, in the case of an Incentive Stock Option, that said other form of payment does not prevent the Option from qualifying for treatment as an Incentive Stock Option within the meaning of the Code. Article VIII. Written Notice, Issuance Of ----------------------------------------- Stock Certificates, Stockholder Privileges ------------------------------------------ 6 8.1 WRITTEN NOTICE. An Optionee wishing to exercise an Option shall give written notice to the Company, in the form and manner prescribed by the Board. Full payment for the shares exercised pursuant to the Option must accompany the written notice. 8.2 ISSUANCE OF STOCK CERTIFICATES. As soon as practicable after the receipt of written notice and payment, the Company shall deliver to the Optionee or to a nominee of the Optionee a certificate or certificates for the requisite number of shares of Stock. 8.3 PRIVILEGES OF A STOCKHOLDER. An Optionee or any other person entitled to exercise an Option under this Plan shall not have stockholder privileges with respect to any Stock covered by the Option until the date of issuance of a stock certificate for such stock. Article IX. Termination of Employment or Services ------------------------------------------------- Except as otherwise expressly specified by the Board for Nonstatutory Options, all Options granted under this Plan shall be subject to the following termination provisions: 9.1 DEATH. If an Optionee's employment in the case of an Employee, or provision of services as a Consultant, in the case of a Consultant, terminates by reason of death, the Option may thereafter be exercised at any time prior to the expiration date of the Option or within 12 months after the date of such death, whichever period is the shorter, by the person or persons entitled to do so under the Optionee's will or, if the Optionee shall fail to make a testamentary disposition of an Option or shall die intestate, the Optionee's legal representative or representatives. The Option shall be exercisable only to the extent that such Option was exercisable as of the date of Optionee's death. 9.2 TERMINATION OTHER THAN FOR CAUSE OR DUE TO DEATH. In the event of an Optionee's termination of employment, in the case of an Employee, or termination of the provision of services as a Consultant, in the case of a Consultant, other than by reason of death, the Optionee may exercise such portion of his Option as was exercisable by him at the date of such termination (the "Termination Date") at any time within three (3) months of the Termination Date; provided, however, that where the Optionee is an Employee, and is terminated due to disability within the meaning of Code section 422A, he may exercise such portion of his Option as was exercisable by him on his Termination Date within one year of his Termination Date. In any event, the Option cannot be exercised after the expiration of the term of the Option. Options not exercised within the applicable period specified above shall terminate. In the case of an Employee, a change of duties or position within the Company, shall not be considered a termination of employment for purposes of this Plan. The Option Agreements may contain such provisions as the Board shall approve with reference to the effect of approved leaves of absence upon termination of employment. 7 9.3 TERMINATION FOR CAUSE. In the event of an Optionee's termination of employment, in the case of an Employee, or termination of the provision of services as a Consultant, in the case of a Consultant, which termination is by the Company for cause, any Option or Options held by him under the Plan, to the extent not exercised before such termination, shall forthwith terminate. Article X. Rights of Optionees ------------------------------ 10.1 SERVICE. Nothing in this Plan shall interfere with or limit in any way the right of the Company to terminate any Employee's employment, or any Consultant's services, at any time, nor confer upon any Employee any right to continue in the employ of the Company, or upon any Consultant any right to continue to provide services to the Company. 10.2 NONTRANSFERABILITY. Except as otherwise specified by the Board for Nonstatutory Options, Options granted under this Plan shall be nontransferable by the Optionee, other than by will or the laws of descent and distribution, and shall be exercisable during the Optionee's lifetime only by the Optionee. Article XI. Optionee-Employee's ------------------------------- Transfer or Leave of Absence ---------------------------- 11.1 OPTIONEE-EMPLOYEE'S TRANSFER OR LEAVE OF ABSENCE. For Plan purposes: (a) A transfer of an Optionee who is an Employee within the Company, or (b) a leave of absence for such an Optionee (i) which is duly authorized in writing by the Company, and (ii) if the Optionee holds an Incentive Stock Option, which qualifies under the applicable regulations under the Code which apply in the case of Incentive Stock Options, shall not be deemed a termination of employment. However, under no circumstances may an Optionee exercise an Option during any leave of absence, unless authorized by the Board. Article XII. Amendment, Modification ------------------------------------ and Termination of the Plan --------------------------- 12.1 AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board may at any time terminate, and from time to time may amend or modify the Plan, provided, however, that no such action of the Board, without approval of the stockholders, may: (a) increase the total amount of Stock which may be purchased through Options granted under the Plan, except as provided in Article V; (b) change the class of Employees or Consultants eligible to receive Options; No amendment, modification or termination of the Plan shall in any manner adversely affect any outstanding Option under the Plan without the consent of the Optionee holding the Option. Article XIII. Acquisition, Merger and Liquidation ------------------------------------------------- 8 13.1 ACQUISITION. In the event that an Acquisition occurs with respect to the Company, the Company shall have the option, but not the obligation, to cancel Options outstanding as of the effective date of Acquisition, whether or not such Options are then exercisable, in return for payment to the Optionees of an amount equal to a reasonable estimate of an amount (hereinafter the "Spread") equal to the difference between the net amount per share of Stock payable in the Acquisition, or as a result of the Acquisition, less the exercise price of the Option. In estimating the Spread, appropriate adjustments to give effect to the existence of the Options shall be made, such as deeming the Options to have been exercised, with the Company receiving the exercise price payable thereunder, and treating the shares receivable upon exercise of the Options as being outstanding in determining the net amount per share. For purposes of this section, an "Acquisition" shall mean any transaction in which substantially all of the Company's assets are acquired or in which a controlling amount of the Company's outstanding shares are acquired, in each case by a single person or entity or an affiliated group of persons and/or entities. For purposes of this section a controlling amount shall mean more than 50% of the issued and outstanding shares of stock of the Company. The Company shall have such an option regardless of how the Acquisition is effectuated, whether by direct purchase, through a merger or similar corporate transaction, or otherwise. In cases where the acquisition consists of the acquisition of assets of the Company, the net amount per share shall be calculated on the basis of the net amount receivable with respect to shares upon a distribution and liquidation by the Company after giving effect to expenses and charges, including but not limited to taxes, payable by the Company before the liquidation can be completed. Where the Company does not exercise its option under this section 13.1, the remaining provisions of this Article XIII shall apply, to the extent applicable. 13.2 MERGER OR CONSOLIDATION. Subject to any required action by the stockholders, if the Company shall be the surviving corporation in any merger or consolidation, any Option granted hereunder shall pertain to and apply to the securities to which a holder of the number of shares of Stock subject to the Option would have been entitled in such merger or consolidation. 13.3 OTHER TRANSACTIONS. A dissolution or a liquidation of the Company or a merger and consolidation in which the Company is not the surviving corporation shall cause every Option outstanding hereunder to terminate as of the effective date of such dissolution, liquidation, merger or consolidation. However, the Optionee either (i) shall be offered a firm commitment whereby the resulting or surviving corporation in a merger or consolidation will tender to the Optionee an option (the "Substitute Option") to purchase its shares on terms and conditions both as to number of shares and otherwise, which will substantially preserve to the Optionee the rights and benefits of the Option outstanding hereunder granted by the Company, or (ii) shall have the right immediately prior to such dissolution, liquidation, merger, or consolidation to exercise any unexercised Options whether or not then exercisable, subject to the provisions of this Plan. The Board shall have absolute and uncontrolled discretion to determine whether the Optionee has been offered a firm commitment and whether the tendered Substitute Option will substantially preserve to the Optionee the rights and benefits of the Option outstanding hereunder. In any event, any Substitute Option for an Incentive Stock Option shall comply with the requirements of Code section 425(a). 9 Article XIV. Securities Registration ------------------------------------ 14.1 SECURITIES REGISTRATION. In the event that the Company shall deem it necessary or desirable to register under the Securities Act of 1933, as amended, or any other applicable statute, any Options or any Stock with respect to which an Option may be or shall have been granted or exercised, or to qualify any such Options or Stock under the Securities Act of 1933, as amended, or any other statute, then the Optionee shall cooperate with the Company and take such action as is necessary to permit registration or qualification of such Options or Stock. Unless the Company has determined that the following representation is unnecessary, each person exercising an Option under the Plan may be required by the Company, as a condition to the issuance of the shares pursuant to exercise of the Option, to make a representation in writing (a) that the Optionee is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the distribution of any part thereof, (b) that before any transfer in connection with the resale of such shares, the Optionee will obtain the written opinion of counsel for the Company, or other counsel acceptable to the Company, that such shares may be transferred. The Company may also require that the certificates representing such shares contain legends reflecting the foregoing. Article XV. Tax Withholding --------------------------- 15.1 TAX WITHHOLDING. Whenever shares of Stock are to be issued in satisfaction of Options exercised under this Plan, the Company shall have the power to require the recipient of the Stock to remit to the Company an amount sufficient to satisfy federal, state and local withholding tax requirements. Article XVI. Indemnification ---------------------------- 16.1 INDEMNIFICATION. To the extent permitted by law, each person who is or shall have been a member of the Board shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit, or proceeding to which he may be a party or in which he may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him in settlement thereof, with the Company's approval, or paid by him in satisfaction of judgment in any such action, suit or proceeding against him, provided he shall give the Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company's articles of incorporation or bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or Article XVII Performance -Based Deferred Stock ---------------------------------------------- FORM OF PERFORMANCE-BASED DEFERRED STOCK AWARD AGREEMENT 10 This AWARD AGREEMENT (the "Award Agreement") is made effective as of , between the Company, and (the "Participant"). WHEREAS, the Company desires to grant an award (the "Award") of performance-based deferred stock pursuant to the Plan and the terms and conditions set forth herein; NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows: 1. GRANT OF AWARD. The Company hereby grants to Participant an Award consisting of shares of Common Stock of the Company ("Stock"). The Award granted under this Award Agreement is intended to qualify under Sections 7(c) and (g) of the Plan. The grant of this Award is subject to the Participant's execution and return of this Award Agreement to the Company. 2. NATURE OF AWARD. The Company agrees to issue the number of shares of Stock provided in Section 1 to Participant (or, in the event of Participant's death, to Participant's beneficiary designated prior to death in a manner acceptable to the Company, or, if no such beneficiary has been so designated, to Participant's estate) (such designated beneficiary or the estate, as the case may be, being herein referred to as Participant's "Beneficiary") at the times and upon achievement of the conditions specified in Section 4, subject to the terms and conditions of the Plan and the Award Agreement. The Award is unfunded and unsecured, and Participant's rights to any Stock hereunder shall be no greater than those of an unsecured general creditor of the Company. The Award may not be assigned, transferred, pledged, hypothecated or otherwise disposed of, except for disposition at death as provided above. The Award does not entitle Participant to any rights as a shareholder with respect to any shares of Stock subject to the Award, unless and until such shares of Stock have been issued to Participant. The Award is intended to constitute an arrangement that qualifies as a "short term deferral" exempt from the requirements of Section 409A of the Code, and shall be construed accordingly. The Award is intended to constitute "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and regulations thereunder. 3. INCORPORATION OF PLAN. The Award is subject to the terms and conditions of the Plan, as from time to time amended, the provisions of which are incorporated by reference in this Award Agreement. The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms or provisions of the Plan shall govern and prevail. 11 4. PERFORMANCE VESTING CRITERIA. (a) Participant shall be entitled to have issued to Participant the number of shares of Stock subject to the Award upon the satisfaction of the performance condition(s) at the times or within the time frames (the "Performance Period(s)") set forth in Appendix A or in connection with a Change in Control as provided in Section 5. None of the foregoing performance conditions shall be deemed to have been satisfied unless the Committee shall have so certified in accordance with Section 162(m) of the Code. (b) If a performance condition required for the vesting of any portion of the Award is not satisfied by the end of the last Performance Period in Appendix A for achieving such performance conditions, such portion of the Award shall thereupon be immediately forfeited. (c) At the end of each Performance Period, or at such earlier time selected by the Committee, the Committee shall determine whether and to what extent the performance condition(s) have been met. Such results shall be certified in writing by the Committee prior to any Stock being issued hereunder. Except as provided in Section 5, in no event shall the Participant be deemed to be vested in any Award prior to the achievement of the performance conditions and certification of the Committee as provided above. 5. CHANGE IN CONTROL. Upon the occurrence of a Change in Control, Participant shall immediately and automatically be entitled to have issued to Participant any shares of Stock to which Participant has not yet become entitled pursuant to Section 4 and which prior to the Change in Control had not been forfeited (whether or not the performance condition(s) specified under Section 4 above has/have been satisfied). 6. ISSUANCE OF STOCK. As soon as practicable after Participant's right to have issued to Participant any share of Stock subject to the Award has vested under Section 4 or Section 5 above, but in no event later than the 15th day of the 3rd month following the close of the calendar year in which such vesting occurs or, if later, the close of the fiscal year of the Company in which such vesting occurs, the Company shall issue to Participant (or, if Participant has died, to Participant's Beneficiary) such shares of Stock evidenced either by a stock certificate or by such other evidence of record ownership as the Company deems appropriate. Notwithstanding the foregoing, if Participant's right to any shares of Stock subject to the Award vests in connection with a Change in Control, or has previously vested but such shares of Stock has not yet been issued prior to the Change in Control, the Company in its discretion, to the extent consistent with Section 409A of the Code and subject to such conditions as the Company may prescribe (including, where vesting has not yet occurred, a condition that the Stock be relinquished if the Change in Control does not occur), may issue such shares of Stock to Participant sufficiently in advance of the Change in Control to permit Participant to participate in the Change in Control as a shareholder with respect to such shares of Stock. 12 7. TERMINATION OF EMPLOYMENT. a. If Participant's employment with the Company or any of its subsidiaries terminates during the Performance Period by reason of death or disability, Participant will continue to be eligible to receive payment of the Award, if any, that would otherwise be payable pursuant to paragraph 6, but any such amount shall be pro rated for the portion of the Performance Period that elapsed prior to this termination of employment. b. If Participant's employment with the Company terminates during the Performance Period other than by reason of death or disability, or a Change in Control, the Award shall terminate and Participant shall immediately and automatically forfeit all rights to the Award, including to the receipt of any shares of Stock under the Award. 8. NO RIGHTS OF A STOCKHOLDER OR TO CONTINUED EMPLOYMENT. The Participant shall have no rights as a stockholder of the Company with respect to the Stock underlying an Award unless and until certificates evidencing such Stock shall have been issued by the Company to the Participant. Until such time, the Participant shall not be entitled to dividends or distributions in respect of any shares of Stock subject to an Award or to vote such Stock on any matter submitted to the shareholders of the Company. This Agreement shall not confer upon the Participant any right to continued employment by the Company. 9. ADJUSTMENTS. The Award and the shares of Stock subject to the Award are subject to adjustment as provided in the Plan. 10. WITHHOLDING. Participant or Beneficiary shall, no later than the date on which any share of Stock is issued to Participant or Beneficiary and as a condition to such transfer, pay to the Company in cash, or make arrangements satisfactory to the Committee regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld with respect to such income. If any taxes are required to be withheld prior to such issue of such share of Stock (for example, upon the vesting of the right to receive such share), the Company may require Participant or Beneficiary to pay such taxes timely in cash by separate payment, may withhold the required taxes from other amounts payable to Participant or Beneficiary, or may agree with Participant or Beneficiary on other arrangements for the payment of such taxes, all as the Company determines in its discretion. 11. SECTION 83(b) NOT APPLICABLE. Because the Award does not give to Participant a present ownership right in any Stock, but only a conditional right to acquire shares of Stock in the future, Participant shall not be entitled to make a so-called "83(b) election" with respect to the shares of Stock subject to the Award. 12. ENTIRE AGREEMENT. This Award Agreement and the Plan constitute the entire understanding between the Participant and the Company and its Subsidiaries, and supersede all other agreements, whether written or oral, with respect to the Award. The Participant agrees to accept as binding, conclusive and final all decisions and interpretations of the Committee of the Company with respect to any question that may arise under the Plan and this Agreement. 13 13. NOTICE. Unless otherwise provided herein, any notice or other communication hereunder shall be in writing and shall be given by registered or certified mail. Any notice given by the Company to the Participant directed to him at his address on file with the Company shall be effective to bind any other person who shall acquire rights hereunder. The Company shall be under no obligation whatsoever to advise or notify the Participant of the existence, maturity or termination of any rights hereunder and the Participant shall be deemed to have familiarized himself with all matters contained herein and in the Plan which may affect any of the Participant's rights or privileges hereunder. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Nevada. Article XVII. Requirements of Law --------------------------------- 17.1 REQUIREMENTS OF LAW. The granting of Options and the issuance of shares of Stock upon the exercise of an Option shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. 17.2 GOVERNING LAW. The Plan and all agreements hereunder shall be construed in accordance with and governed by the laws of the State of Nevada Article XVIII. Effective Date of Plan ------------------------------------- 18.1 EFFECTIVE DATE. The Plan shall be effective on June 1, 2008 and required subsequent ratification of the of the Stockholders. Article XIX. Compliance With Code --------------------------------- 19.1 COMPLIANCE WITH CODE. Incentive Stock Options granted hereunder are intended to qualify as Incentive Stock Options under Code section 422A. If any provision of this Plan is susceptible to more than one interpretation, such interpretation shall be given thereto as is consistent with Incentive Stock Options granted under this Plan being treated as Incentive Stock Options under the Code. 19.2 Article XX. No Obligation to Exercise Option -------------------------------------------- 20.1 NO OBLIGATION TO EXERCISE. The granting of an Option shall impose no obligation upon the holder thereof to exercise such Option. Dated at __________ , effective as of ____________________ . Nascent Wine Company, Inc. a Nevada corporation By: Chief Executive Officer, 14 NASCENT WINE COMPANY A NEVADA CORPORATION INCENTIVE STOCK OPTION AGREEMENT UNDER THE 2008 STOCK OPTION PLAN Between: _______________, a _______________ corporation (the "Company"), and _______________________________________________________ (the "Employee"), dated ____________________. The Company hereby grants to the Employee an option (the "Option") to purchase __________ shares of the Company's $__________ par value common stock ("Stock") under the _______________ 2008 Stock Option Plan (the "Plan") upon the following terms and conditions: 1. PURCHASE PRICE. The purchase price of the Stock shall be $__________ per share, which is not less than the fair market value of the Stock on the date of this Agreement. 2. INCENTIVE STOCK OPTION. The Option shall be an Incentive Stock Option, as defined in the Plan. 3. PERIOD OF EXERCISE. The Option will expire ten years from the date of this Agreement. The Option may be exercised only while the Employee is actively employed by the Company and as provided in Section 6, dealing with termination of employment. The Option may be exercised for up to, but not in excess of, the amounts of shares subject to the Option specified below, based on the Employee's number of years of continuous employment with the Company from the date hereof. In applying the following limitations, the amount of shares, if any, previously purchased by Employee shall be counted in determining the amount of shares the Employee can purchase at any time in accordance with said limitations. The Employee may exercise the Option in the following amounts and in accordance with the conditions set forth in paragraph 7.3 of the Plan: Where the Employee holds (whether under this Option alone or under this Option in conjunction with other incentive stock options) incentive stock options upon shares of the Company's common stock having an aggregate fair market value (determined at the time of grant of each option) exceeding $100,000, the $100,000 Limitation set forth in Section 4 below may impose additional limitations upon the exercisability of this Option and any other incentive stock options granted to the Employee. Such limitations are in addition to, and not in lieu of, the limitations set forth in this Section 3. 15 5. TRANSFERABILITY. This Option is not transferable except by will or the laws of descent and distribution and may be exercised during the lifetime of the Employee only by him or her. 6. TERMINATION OF EMPLOYMENT. In the event that employment of the Employee with the Company is terminated, the Option may be exercised (to the extent exercisable at the date of his termination) by the Employee within three months after the date of termination; provided, however, that: (a) If the Employee's employment is terminated because he is disabled within the meaning of Internal Revenue Code section 422A, the Employee shall have one year rather than three months to exercise the Option (to the extent exercisable at the date of his termination). (b) If the Employee dies, the Option may be exercised (to the extent exercisable by the Employee at the date of his death) by his legal representative or by a person who acquired the right to exercise such option by bequest or inheritance or by reason of the death of the Employee, but the Option must be exercised within one year after the date of the Employee's death. (c) If the Employee's employment is terminated for cause, this Option shall terminate immediately. (d) In no event (including death of the Employee) may this Option be exercised more than ten years from the date hereof. 7. NO GUARANTEE OF EMPLOYMENT. This Agreement shall in no way restrict the right of the Company to terminate Employee's employment at any time. 8. INVESTMENT REPRESENTATION; LEGEND. The Employee (and any other purchaser under paragraphs 6(a) or 6(b) hereof) represents and agrees that all shares of Stock purchased by him under this Agreement will be purchased for investment purposes only and not with a view to distribution or resale. The Company may require that an appropriate legend be inscribed on the face of any certificate issued under this Agreement, indicating that transfer of the Stock is restricted, and may place an appropriate stop transfer order with the Company's transfer agent with respect to the Stock. 9. METHOD OF EXERCISE. The Option may be exercised, subject to the terms and conditions of this Agreement, by written notice to the Company. The notice shall be in the form attached to this Agreement and will be accompanied by payment (in such form as the Company may specify) of the full purchase price of the Stock to be issued, and in the event of an exercise under the terms of paragraphs 6(a) or 6(b) hereof, appropriate proof of the right to exercise the Option. The Company will issue and deliver certificates representing the number of shares purchased under the Option, registered in the name of the Employee (or other purchaser under paragraph 6 hereof) as soon as practicable after receipt of the notice. 16 10. WITHHOLDING. In any case where withholding is required or advisable under federal, state or local law in connection with any exercise by Employee hereunder, the Company is authorized to withhold appropriate amounts from amounts payable to Employee, or may require Employee to remit to the Company an amount equal to such appropriate amounts. 11. INCORPORATION OF PLAN. This Agreement is made pursuant to the provisions of the Plan, which Plan is incorporated by reference herein. Terms used herein shall have the meaning employed in the Plan, unless the context clearly requires otherwise. In the event of a conflict between the provisions of the Plan and the provisions of this Agreement, the provisions of the Plan shall govern. _________________ a _______________ corporation By: ------------------------------- ____________________, President ACCEPTED: ______________________________ ____________________, Employee 17 --------------- A _______________ CORPORATION NON-STATUTORY STOCK OPTION AGREEMENT UNDER THE 2008 STOCK OPTION PLAN Between: _______________, a _______________ corporation (the "Company"), and _________________ (the "Consultant") dated _________________. The Company hereby grants to the Consultant an option (the "Option") to purchase __________ shares of the Company's common stock under the _______________ 2008 Stock Option Plan (the "Plan") upon the following terms and conditions: 1. PURCHASE PRICE. The purchase price of the Stock shall be $__________ per share, which is not less than the fair market value of the Stock on the date of this Agreement. 2. NON-STATUTORY OPTION. The Option shall be a Non-Statutory Option, as defined in the Plan. 3. PERIOD OF EXERCISE. The Option will expire ten years from the date of this Agreement. The Option may be exercised only while the Consultant is actively providing consulting services to the Company and as provided in Section 6, dealing with termination of services. 4. The Option may be exercised for up to, but not in excess of, the amounts of shares subject to the Option specified below, based on the Consultant's number of years of continuous services with the Company from the date hereof. In applying the following limitations, the amount of shares, if any, previously purchased by Consultant shall be counted in determining the amount of shares the Consultant can purchase at any time in accordance with said limitations. The Consultant may exercise the Option in the following amounts and in accordance with the conditions set forth in paragraph 7.3 of the Plan: 1 In the event the Consultant's services with the Company are terminated due to Consultant's disability or death as described in paragraphs 6(a) and 6(b), the foregoing vesting schedule shall be accelerated and the Option shall upon such disability or death become exercisable in whole or in part, but it shall not be exercisable after the expiration of four (4) years from the date hereof. This Option may not be exercised for less than fifty shares at any time unless the number of shares purchased is the total number purchasable at the time under the Option. 5. TRANSFERABILITY. This Option is not transferable except by will or the laws of descent and distribution and may be exercised during the lifetime of the Consultant only by him. 6. TERMINATION OF SERVICES. In the event of a termination in the providing of consulting services by Consultant, including serving as a Non-employee Director as defined in the Plan, to the Company, the Option may be exercised (to the extent exercisable at the date of his termination) by the Consultant within three months after the date of such termination; provided, however, that: (a) If the Consultant's consulting relationship is terminated because he is disabled within the meaning of Internal Revenue Code section 422A, the Consultant shall have one year rather than three months to exercise the Option (to the extent exercisable at the date of his termination). (b) If the Consultant dies, the Option may be exercised (to the extent exercisable by the Consultant at the date of his death) by his legal representative or by a person who acquired the right to exercise such option by bequest or inheritance or by reason of the death of the Consultant, but the Option must be exercised within one year after the date of the Consultant's death. (c) If the Consultant's consulting relationship is terminated for cause, this Option shall terminate immediately. (d) In no event (including death of the Consultant) may this Option be exercised more than ten years from the date hereof. 7 NO GUARANTEE OF SERVICES. This Agreement shall in no way restrict the right of the Company or any Subsidiary Corporation to terminate Consultant's consulting relationship at any time. 8 INVESTMENT REPRESENTATION; LEGEND. The Consultant (and any other purchaser under paragraphs 6(a) or 6(b) hereof) represents and agrees that all shares of Stock purchased by him under this Agreement will be purchased for investment purposes only and not with a view to distribution or resale. The Company may require that an appropriate legend be inscribed on the face of any certificate issued under this Agreement, indicating that transfer of the Stock is restricted, and may place an appropriate stop transfer order with the Company's transfer agent with respect to the Stock. 2 9 METHOD OF EXERCISE. The Option may be exercised, subject to the terms and conditions of this Agreement, by written notice to the Company. The notice shall be in the form attached to this Agreement and will be accompanied by payment (in such form as the Company may specify) of the full purchase price of the Stock to be issued, and in the event of an exercise under the terms of paragraphs 6(a) or 6(b) hereof, appropriate proof of the right to exercise the Option. The Company will issue and deliver certificates representing the number of shares purchased under the Option, registered in the name of the Consultant (or other purchaser under paragraph 6 hereof) as soon as practicable after receipt of the notice. 10 INCORPORATION OF PLAN. This Agreement is made pursuant to the provisions of the Plan, which Plan is incorporated by reference herein. Terms used herein shall have the meaning employed in the Plan, unless the context clearly requires otherwise. In the event of a conflict between the provisions of the Plan and the provisions of this Agreement, the provisions of the Plan shall govern. _________________ a _______________ corporation By: ------------------------------- ____________________, President ACCEPTED: ____________________, Consultant 3 FORM OF NASCENT WINE COMPANY, INC. PERFORMANCE-BASED DEFERRED STOCK AWARD AGREEMENT UNDER THE AMENDED AND RESTATED 2008 LONG-TERM INCENTIVE PLAN This AWARD AGREEMENT (the "Award Agreement") is made effective as of , between Nascent Wine Company , Inc., a Nevada corporation (the "Company"), and (the "Participant"). Capitalized terms not otherwise defined herein shall have the same meanings as in the Long-Term Incentive Plan (the "Plan"). WHEREAS, the Company desires to grant an award (the "Award") of performance-based deferred stock pursuant to the Plan and the terms and conditions set forth herein; NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows: 1. GRANT OF AWARD. The Company hereby grants to Participant an Award consisting of ______________________ shares of Common Stock of the Company ("Stock"). The Award granted under this Award Agreement is intended to qualify under Sections 7(c) and (g) of the Plan. The grant of this Award is subject to the Participant's execution and return of this Award Agreement to the Company. 2. NATURE OF AWARD. The Company agrees to issue the number of shares of Stock provided in Section 1 to Participant (or, in the event of Participant's death, to Participant's beneficiary designated prior to death in a manner acceptable to the Company, or, if no such beneficiary has been so designated, to Participant's estate) (such designated beneficiary or the estate, as the case may be, being herein referred to as Participant's "Beneficiary") at the times and upon achievement of the conditions specified in Section 4, subject to the terms and conditions of the Plan and the Award Agreement. The Award is unfunded and unsecured, and Participant's rights to any Stock hereunder shall be no greater than those of an unsecured general creditor of the Company. The Award may not be assigned, transferred, pledged, hypothecated or otherwise disposed of, except for disposition at death as provided above. The Award does not entitle Participant to any rights as a shareholder with respect to any shares of Stock subject to the Award, unless and until such shares of Stock have been issued to Participant. The Award is intended to constitute an arrangement that qualifies as a "short term deferral" exempt from the requirements of Section 409A of the Code, and shall be construed accordingly. The Award is intended to constitute "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and regulations thereunder. 3. INCORPORATION OF PLAN. The Award is subject to the terms and conditions of the Plan, as from time to time amended, the provisions of which are incorporated by reference in this Award Agreement. The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms or provisions of the Plan shall govern and prevail. 4 4. PERFORMANCE VESTING CRITERIA. (a) Participant shall be entitled to have issued to Participant the number of shares of Stock subject to the Award upon the satisfaction of the performance condition(s) at the times or within the time frames (the "Performance Period(s)") set forth in Appendix A or in connection with a Change in Control as provided in Section 5. None of the foregoing performance conditions shall be deemed to have been satisfied unless the Committee shall have so certified in accordance with Section 162(m) of the Code. (b) If a performance condition required for the vesting of any portion of the Award is not satisfied by the end of the last Performance Period in Appendix A for achieving such performance conditions, such portion of the Award shall thereupon be immediately forfeited. (c) At the end of each Performance Period, or at such earlier time selected by the Committee, the Committee shall determine whether and to what extent the performance condition(s) have been met. Such results shall be certified in writing by the Committee prior to any Stock being issued hereunder. Except as provided in Section 5, in no event shall the Participant be deemed to be vested in any Award prior to the achievement of the performance conditions and certification of the Committee as provided above. 5. CHANGE IN CONTROL. Upon the occurrence of a Change in Control, Participant shall immediately and automatically be entitled to have issued to Participant any shares of Stock to which Participant has not yet become entitled pursuant to Section 4 and which prior to the Change in Control had not been forfeited (whether or not the performance condition(s) specified under Section 4 above has/have been satisfied). 6. ISSUANCE OF STOCK. As soon as practicable after Participant's right to have issued to Participant any share of Stock subject to the Award has vested under Section 4 or Section 5 above, but in no event later than the 15th day of the 3rd month following the close of the calendar year in which such vesting occurs or, if later, the close of the fiscal year of the Company in which such vesting occurs, the Company shall issue to Participant (or, if Participant has died, to Participant's Beneficiary) such shares of Stock evidenced either by a stock certificate or by such other evidence of record ownership as the Company deems appropriate. Notwithstanding the foregoing, if Participant's right to any shares of Stock subject to the Award vests in connection with a Change in Control, or has previously vested but such shares of Stock has not yet been issued prior to the Change in Control, the Company in its discretion, to the extent consistent with Section 409A of the Code and subject to such conditions as the Company may prescribe (including, where vesting has not yet occurred, a condition that the Stock be relinquished if the Change in Control does not occur), may issue such shares of Stock to Participant sufficiently in advance of the Change in Control to permit Participant to participate in the Change in Control as a shareholder with respect to such shares of Stock. 5 7. TERMINATION OF EMPLOYMENT. a. If Participant's employment with the Company or any of its subsidiaries terminates during the Performance Period by reason of death or disability, Participant will continue to be eligible to receive payment of the Award, if any, that would otherwise be payable pursuant to paragraph 6, but any such amount shall be pro rated for the portion of the Performance Period that elapsed prior to this termination of employment. b. If Participant's employment with the Company terminates during the Performance Period other than by reason of death or disability, or a Change in Control, the Award shall terminate and Participant shall immediately and automatically forfeit all rights to the Award, including to the receipt of any shares of Stock under the Award. 8. NO RIGHTS OF A STOCKHOLDER OR TO CONTINUED EMPLOYMENT. The Participant shall have no rights as a stockholder of the Company with respect to the Stock underlying an Award unless and until certificates evidencing such Stock shall have been issued by the Company to the Participant. Until such time, the Participant shall not be entitled to dividends or distributions in respect of any shares of Stock subject to an Award or to vote such Stock on any matter submitted to the shareholders of the Company. This Agreement shall not confer upon the Participant any right to continued employment by the Company. 9. ADJUSTMENTS. The Award and the shares of Stock subject to the Award are subject to adjustment as provided in Section 4(c) of the Plan. 10. WITHHOLDING. Participant or Beneficiary shall, no later than the date on which any share of Stock is issued to Participant or Beneficiary and as a condition to such transfer, pay to the Company in cash, or make arrangements satisfactory to the Committee regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld with respect to such income. If any taxes are required to be withheld prior to such issue of such share of Stock (for example, upon the vesting of the right to receive such share), the Company may require Participant or Beneficiary to pay such taxes timely in cash by separate payment, may withhold the required taxes from other amounts payable to Participant or Beneficiary, or may agree with Participant or Beneficiary on other arrangements for the payment of such taxes, all as the Company determines in its discretion. 11. SECTION 83(b) NOT APPLICABLE. Because the Award does not give to Participant a present ownership right in any Stock, but only a conditional right to acquire shares of Stock in the future, Participant shall not be entitled to make a so-called "83(b) election" with respect to the shares of Stock subject to the Award. 12. ENTIRE AGREEMENT. This Award Agreement, Appendix A attached hereto, and the Plan constitute the entire understanding between the Participant and the Company and its Subsidiaries, and supersede all other agreements, whether written or oral, with respect to the Award. The Participant agrees to accept as binding, conclusive and final all decisions and interpretations of the Committee of the Company with respect to any question that may arise under the Plan and this Agreement. 6 13. NOTICE. Unless otherwise provided herein, any notice or other communication hereunder shall be in writing and shall be given by registered or certified mail. Any notice given by the Company to the Participant directed to him at his address on file with the Company shall be effective to bind any other person who shall acquire rights hereunder. The Company shall be under no obligation whatsoever to advise or notify the Participant of the existence, maturity or termination of any rights hereunder and the Participant shall be deemed to have familiarized himself with all matters contained herein and in the Plan which may affect any of the Participant's rights or privileges hereunder. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Nevada. Nascent Wine Company , INC. BY: ------------------------------------ PARTICIPANT: ------------------------------ ------------------------------------------- SIGNATURE ------------------------------------------- STREET ADDRESS ------------------------------------------- CITY, STATE, ZIP CODE 7 FORM OF PHOENIX FOOTWEAR GROUP, INC. NON-EMPLOYEE DIRECTOR PERFORMANCE-BASED DEFERRED STOCK AWARD AGREEMENT UNDER THE AMENDED AND RESTATED 2001 LONG-TERM INCENTIVE PLAN This AWARD AGREEMENT (the "Award Agreement") is made effective as of , 200___, between Phoenix Footwear Group, Inc., a Delaware corporation (the "Company"), and (the "Participant"). Capitalized terms not otherwise defined herein shall have the same meanings as in the Amended and Restated 2001 Long-Term Incentive Plan (the "Plan"). WHEREAS, the Company desires to grant an award (the "Award") of performance-based deferred stock pursuant to the Plan and the terms and conditions set forth herein; NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows: 1. GRANT OF AWARD. The Company hereby grants to Participant an Award consisting of ___ shares of Common Stock of the Company ("Stock"). The Award granted under this Award Agreement is intended to qualify under Sections 7(c) and (g) of the Plan. The grant of this Award is subject to the Participant's execution and return of this Award Agreement to the Company. 2. NATURE OF AWARD. The Company agrees to issue the number of shares of Stock provided in Section 1 to Participant (or, in the event of Participant's death, to Participant's beneficiary designated prior to death in a manner acceptable to the Company, or, if no such beneficiary has been so designated, to Participant's estate) (such designated beneficiary or the estate, as the case may be, being herein referred to as Participant's "Beneficiary") at the times and upon achievement of the conditions specified in Section 4, subject to the terms and conditions of the Plan and the Award Agreement. The Award is unfunded and unsecured, and Participant's rights to any Stock hereunder shall be no greater than those of an unsecured general creditor of the Company. The Award may not be assigned, transferred, pledged, hypothecated or otherwise disposed of, except for disposition at death as provided above. The Award does not entitle Participant to any rights as a shareholder with respect to any shares of Stock subject to the Award, unless and until such shares of Stock have been issued to Participant. The Award is intended to constitute an arrangement that qualifies as a "short term deferral" exempt from the requirements of Section 409A of the Code, and shall be construed accordingly. The Award is not intended to constitute "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and regulations thereunder. 3. INCORPORATION OF PLAN. The Award is subject to the terms and conditions of the Plan, as from time to time amended, the provisions of which are incorporated by reference in this Award Agreement. The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms or provisions of the Plan shall govern and prevail. 8 4. PERFORMANCE VESTING CRITERIA. (a) Participant shall be entitled to have issued to Participant the number of shares of Stock subject to the Award upon the satisfaction of the performance condition(s) at the times or within the time frames (the "Performance Period(s)") set forth in Appendix A or in connection with a Change in Control as provided in Section 5. (b) If a performance condition required for the vesting of any portion of the Award is not satisfied by the end of the last Performance Period in Appendix A for achieving such performance conditions, such portion of the Award shall thereupon be immediately forfeited. (c) At the end of each Performance Period, or at such earlier time selected by the Committee, the Committee shall determine whether and to what extent the performance condition(s) have been met. Such results shall be certified in writing by the Committee prior to any Stock being issued hereunder. Except as provided in Section 5, in no event shall the Participant be deemed to be vested in any Award prior to the achievement of the performance conditions and certification of the Committee as provided above. 5. CHANGE IN CONTROL. Upon the occurrence of a Change in Control, Participant shall immediately and automatically be entitled to have issued to Participant any shares of Stock to which Participant has not yet become entitled pursuant to Section 4 and which prior to the Change in Control had not been forfeited (whether or not the performance condition(s) specified under Section 4 above has/have been satisfied). 6. ISSUANCE OF STOCK. As soon as practicable after Participant's right to have issued to Participant any share of Stock subject to the Award has vested under Section 4 or Section 5 above, but in no event later than the 15th day of the 3rd month following the close of the calendar year in which such vesting occurs or, if later, the close of the fiscal year of the Company in which such vesting occurs, the Company shall issue to Participant (or, if Participant has died, to Participant's Beneficiary) such shares of Stock evidenced either by a stock certificate or by such other evidence of record ownership as the Company deems appropriate. Notwithstanding the foregoing, if Participant's right to any shares of Stock subject to the Award vests in connection with a Change in Control, or has previously vested but such shares of Stock has not yet been issued prior to the Change in Control, the Company in its discretion, to the extent consistent with Section 409A of the Code and subject to such conditions as the Company may prescribe (including, where vesting has not yet occurred, a condition that the Stock be relinquished if the Change in Control does not occur), may issue such shares of Stock to Participant sufficiently in advance of the Change in Control to permit Participant to participate in the Change in Control as a shareholder with respect to such shares of Stock. 9 7. TERMINATION OF SERVICE. a. If Participant's directorship with the Company or any of its subsidiaries terminates during the Performance Period by reason of death or disability, Participant will continue to be eligible to receive payment of the Award, if any, that would otherwise be payable pursuant to paragraph 6, but any such amount shall be pro rated for the portion of the Performance Period that elapsed prior to this termination of the directorship. b. If Participant's directorship with the Company terminates during the Performance Period other than by reason of death or disability, or a Change in Control, the Award shall terminate and Participant shall immediately and automatically forfeit all rights to the Award, including to the receipt of any shares of Stock under the Award. 8. NO RIGHTS OF A STOCKHOLDER OR TO CONTINUED BOARD MEMBERSHIP. The Participant shall have no rights as a stockholder of the Company with respect to the Stock underlying an Award unless and until certificates evidencing such Stock shall have been issued by the Company to the Participant. Until such time, the Participant shall not be entitled to dividends or distributions in respect of any shares of Stock subject to an Award or to vote such Stock on any matter submitted to the shareholders of the Company. This Agreement shall not confer upon the Participant any right to continued membership on the Company's Board of Directors. 9. ADJUSTMENTS. The Award and the shares of Stock subject to the Award are subject to adjustment as provided in Section 4(c) of the Plan. 10. WITHHOLDING. Participant or Beneficiary shall, no later than the date on which any share of Stock is issued to Participant or Beneficiary and as a condition to such transfer, pay to the Company in cash, or make arrangements satisfactory to the Committee regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld with respect to such income. If any taxes are required to be withheld prior to such issue of such share of Stock (for example, upon the vesting of the right to receive such share), the Company may require Participant or Beneficiary to pay such taxes timely in cash by separate payment, may withhold the required taxes from other amounts payable to Participant or Beneficiary, or may agree with Participant or Beneficiary on other arrangements for the payment of such taxes, all as the Company determines in its discretion. 11. SECTION 83(b) NOT APPLICABLE. Because the Award does not give to Participant a present ownership right in any Stock, but only a conditional right to acquire shares of Stock in the future, Participant shall not be entitled to make a so-called "83(b) election" with respect to the shares of Stock subject to the Award. 12. ENTIRE AGREEMENT. This Award Agreement, Appendix A attached hereto, and the Plan constitute the entire understanding between the Participant and the Company and its Subsidiaries, and supersede all other agreements, whether written or oral, with respect to the Award. The Participant agrees to accept as binding, conclusive and final all decisions and interpretations of the Committee of the Company with respect to any question that may arise under the Plan and this Agreement. - 10 13. NOTICE. Unless otherwise provided herein, any notice or other communication hereunder shall be in writing and shall be given by registered or certified mail. Any notice given by the Company to the Participant directed to him at his address on file with the Company shall be effective to bind any other person who shall acquire rights hereunder. The Company shall be under no obligation whatsoever to advise or notify the Participant of the existence, maturity or termination of any rights hereunder and the Participant shall be deemed to have familiarized himself with all matters contained herein and in the Plan which may affect any of the Participant's rights or privileges hereunder. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. PHOENIX FOOTWEAR GROUP, INC. BY: ---------------------------------- PARTICIPANT: ---------------------------- ----------------------------------------- SIGNATURE ----------------------------------------- STREET ADDRESS ----------------------------------------- CITY, STATE, ZIP CODE 11 FORM OF NASCENT WINE COMPANY, INC. NON-EMPLOYEE DIRECTOR PERFORMANCE-BASED DEFERRED STOCK AWARD AGREEMENT 2008 LONG-TERM INCENTIVE PLAN This AWARD AGREEMENT (the "Award Agreement") is made effective as of , 200___, between a Nevada , Inc., corporation (the "Company"), and (the "Participant"). Capitalized terms not otherwise defined herein shall have the same meanings as in the 2008 Long-Term Incentive Plan (the "Plan"). WHEREAS, the Company desires to grant an award (the "Award") of performance-based deferred stock pursuant to the Plan and the terms and conditions set forth herein; NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows: 1. GRANT OF AWARD. The Company hereby grants to Participant an Award consisting of ___ shares of Common Stock of the Company ("Stock"). The Award granted under this Award Agreement is intended to qualify under Sections 7(c) and (g) of the Plan. The grant of this Award is subject to the Participant's execution and return of this Award Agreement to the Company. 2. NATURE OF AWARD. The Company agrees to issue the number of shares of Stock provided in Section 1 to Participant (or, in the event of Participant's death, to Participant's beneficiary designated prior to death in a manner acceptable to the Company, or, if no such beneficiary has been so designated, to Participant's estate) (such designated beneficiary or the estate, as the case may be, being herein referred to as Participant's "Beneficiary") at the times and upon achievement of the conditions specified in Section 4, subject to the terms and conditions of the Plan and the Award Agreement. The Award is unfunded and unsecured, and Participant's rights to any Stock hereunder shall be no greater than those of an unsecured general creditor of the Company. The Award may not be assigned, transferred, pledged, hypothecated or otherwise disposed of, except for disposition at death as provided above. The Award does not entitle Participant to any rights as a shareholder with respect to any shares of Stock subject to the Award, unless and until such shares of Stock have been issued to Participant. The Award is intended to constitute an arrangement that qualifies as a "short term deferral" exempt from the requirements of Section 409A of the Code, and shall be construed accordingly. The Award is not intended to constitute "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and regulations thereunder. 3. INCORPORATION OF PLAN. The Award is subject to the terms and conditions of the Plan, as from time to time amended, the provisions of which are incorporated by reference in this Award Agreement. The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms or provisions of the Plan shall govern and prevail. 12 4. PERFORMANCE VESTING CRITERIA. (a) Participant shall be entitled to have issued to Participant the number of shares of Stock subject to the Award upon the satisfaction of the performance condition(s) at the times or within the time frames (the "Performance Period(s)") set forth in Appendix A or in connection with a Change in Control as provided in Section 5. (b) If a performance condition required for the vesting of any portion of the Award is not satisfied by the end of the last Performance Period in Appendix A for achieving such performance conditions, such portion of the Award shall thereupon be immediately forfeited. (c) At the end of each Performance Period, or at such earlier time selected by the Committee, the Committee shall determine whether and to what extent the performance condition(s) have been met. Such results shall be certified in writing by the Committee prior to any Stock being issued hereunder. Except as provided in Section 5, in no event shall the Participant be deemed to be vested in any Award prior to the achievement of the performance conditions and certification of the Committee as provided above. 5. CHANGE IN CONTROL. Upon the occurrence of a Change in Control, Participant shall immediately and automatically be entitled to have issued to Participant any shares of Stock to which Participant has not yet become entitled pursuant to Section 4 and which prior to the Change in Control had not been forfeited (whether or not the performance condition(s) specified under Section 4 above has/have been satisfied). 6. ISSUANCE OF STOCK. As soon as practicable after Participant's right to have issued to Participant any share of Stock subject to the Award has vested under Section 4 or Section 5 above, but in no event later than the 15th day of the 3rd month following the close of the calendar year in which such vesting occurs or, if later, the close of the fiscal year of the Company in which such vesting occurs, the Company shall issue to Participant (or, if Participant has died, to Participant's Beneficiary) such shares of Stock evidenced either by a stock certificate or by such other evidence of record ownership as the Company deems appropriate. Notwithstanding the foregoing, if Participant's right to any shares of Stock subject to the Award vests in connection with a Change in Control, or has previously vested but such shares of Stock has not yet been issued prior to the Change in Control, the Company in its discretion, to the extent consistent with Section 409A of the Code and subject to such conditions as the Company may prescribe (including, where vesting has not yet occurred, a condition that the Stock be relinquished if the Change in Control does not occur), may issue such shares of Stock to Participant sufficiently in advance of the Change in Control to permit Participant to participate in the Change in Control as a shareholder with respect to such shares of Stock. 13 7. TERMINATION OF SERVICE. a. If Participant's directorship with the Company or any of its subsidiaries terminates during the Performance Period by reason of death or disability, Participant will continue to be eligible to receive payment of the Award, if any, that would otherwise be payable pursuant to paragraph 6, but any such amount shall be pro rated for the portion of the Performance Period that elapsed prior to this termination of the directorship. b. c. If Participant's directorship with the Company terminates during the Performance Period other than by reason of death or disability, or a Change in Control, the Award shall terminate and Participant shall immediately and automatically forfeit all rights to the Award, including to the receipt of any shares of Stock under the Award. d. 8. NO RIGHTS OF A STOCKHOLDER OR TO CONTINUED BOARD MEMBERSHIP. The Participant shall have no rights as a stockholder of the Company with respect to the Stock underlying an Award unless and until certificates evidencing such Stock shall have been issued by the Company to the Participant. Until such time, the Participant shall not be entitled to dividends or distributions in respect of any shares of Stock subject to an Award or to vote such Stock on any matter submitted to the shareholders of the Company. This Agreement shall not confer upon the Participant any right to continued membership on the Company's Board of Directors. 9. ADJUSTMENTS. The Award and the shares of Stock subject to the Award are subject to adjustment as provided in the Plan. 10. WITHHOLDING. Participant or Beneficiary shall, no later than the date on which any share of Stock is issued to Participant or Beneficiary and as a condition to such transfer, pay to the Company in cash, or make arrangements satisfactory to the Committee regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld with respect to such income. If any taxes are required to be withheld prior to such issue of such share of Stock (for example, upon the vesting of the right to receive such share), the Company may require Participant or Beneficiary to pay such taxes timely in cash by separate payment, may withhold the required taxes from other amounts payable to Participant or Beneficiary, or may agree with Participant or Beneficiary on other arrangements for the payment of such taxes, all as the Company determines in its discretion. 11. SECTION 83(b) NOT APPLICABLE. Because the Award does not give to Participant a present ownership right in any Stock, but only a conditional right to acquire shares of Stock in the future, Participant shall not be entitled to make a so-called "83(b) election" with respect to the shares of Stock subject to the Award. 12. ENTIRE AGREEMENT. This Award Agreement, Appendix A attached hereto, and the Plan constitute the entire understanding between the Participant and the Company and its Subsidiaries, and supersede all other agreements, whether written or oral, with respect to the Award. The Participant agrees to accept as binding, conclusive and final all decisions and interpretations of the Committee of the Company with respect to any question that may arise under the Plan and this Agreement. 14 13. NOTICE. Unless otherwise provided herein, any notice or other communication hereunder shall be in writing and shall be given by registered or certified mail. Any notice given by the Company to the Participant directed to him at his address on file with the Company shall be effective to bind any other person who shall acquire rights hereunder. The Company shall be under no obligation whatsoever to advise or notify the Participant of the existence, maturity or termination of any rights hereunder and the Participant shall be deemed to have familiarized himself with all matters contained herein and in the Plan which may affect any of the Participant's rights or privileges hereunder. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Nevada . Nascent Wine company, Inc.. BY: ----------------------------------- PARTICIPANT: ----------------------------- ------------------------------------------ SIGNATURE ------------------------------------------ STREET ADDRESS ------------------------------------------ CITY, STATE, ZIP CODE 15 --------------- A _______________ CORPORATION NOTICE OF EXERCISE OF STOCK OPTION ISSUED UNDER THE 200__ STOCK OPTION PLAN To: Compensation Committee --------------- --------------- --------------- I hereby exercise my Option dated __________ to purchase __________ shares of $__________ par value common stock of the Company at the option exercise price of $ per share. Enclosed is a certified or cashier's check in the total amount of $ , or payment in such other form as the Company has specified. I represent to you that I am acquiring said shares for investment purposes and not with a view to any distribution thereof. I understand that my stock certificate may bear an appropriate legend restricting the transfer of my shares and that a stock transfer order may be placed with the Company's transfer agent with respect to such shares. I request that my shares be issued in my name as follows: ------------------------------------------------------- (Print your name in the form in which you wish to have the shares registered ------------------------------------------------------- (Social Security Number) ------------------------------------------------------- (Street and Number) ------------------------------------------------------- (City) (State) (Zip Code) Dated: , 200__. Signature: --------------------- -------------------------- 16 EX-10.1 3 nascent_10qa-ex1001.txt EMPLOYMENT AGREEMENT FOR SANDRO PIANCONE, DATED AUGUST 14, 2008 EXHIBIT 10.1 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of the 14th day of August 2008 by and between Nascent Wine Company, Inc. and its successors and survivors with principal offices currently located at 2355 Paseo De Las Americas, San Diego, California 92154 (the "Company"), and Sandro Piancone with principal address at 826 Scenic Terrace Place, Chula Vista, CA 91914 ("Executive"). WHEREAS: A. The Company and the Executive acknowledge and agree that the Company has, prior to the execution of this Agreement, employed Executive under various oral and written agreements, understandings, and arrangements. B. The Company and the Executive acknowledge and agree that each party seeks to revoke all prior oral and written agreements, understandings, and arrangements between the Company and the Executive in connection with Executive's employment by the Company. C. The Company desires to be assured of the continued association and services of Executive for the Company. NOW THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, receipt of which Executive and Company hereby acknowledge, Executive and Company agree as follows: 1.00. EMPLOYMENT. The Company hereby employs Executive, subject to the supervision and direction of the Company's Board of Directors. Executive shall hold the title of CEO of the Company. 1.01 POSITION. Executive agrees to carry out duties and responsibilities of the position as reasonably determined by the Board of Directors. 2.00. TERM OF EMPLOYMENT. The initial term (the "Initial Term") of Executive's employment shall be for the period commencing on 1st day of August 2008 and terminating on July 31, 2012. The term of employment shall be automatically renewed for a period of five (5) years (the "Renewal Term") following the close of the Initial Term unless the Company gives written notice to Executive no later than thirty (30) days prior to the close of the Initial Term. However, notwithstanding the above provisions, the term of Executive's employment may be terminated earlier pursuant to sections 7.00, 8.00, or 9.00. of this Agreement. Executive's obligations under Sections 12.00 and 13.00, and the sub-sections thereto below shall remain in full force and effect after any such termination. 3.00. COMPENSATION & REIMBURSEMENT. The Company and the Executive agree that the Company shall pay Executive a salary, compensation, benefits, and reimbursement for allowable expense as follows: 3.01. SALARY. Subject to the conditions set forth in Section 3.00, for all services rendered by Executive under this Agreement, the Company shall pay Executive a base salary of One hundred and fifty thousand Dollars ($150,000) per annum, payable on a bi-monthly basis in equal installments (the "Base Salary"). The amount of the Base Salary may be increased at any time, and from time to time by the Company's Board of Directors or a designated committee thereof. The Base Salary may be adjusted annually to reflect changes in the Consumer Price Index for the San Diego, California base area. No such change shall in any way abrogate, alter, terminate or otherwise effect the other terms of this Agreement. 3.02. ADDITIONAL BENEFITS & VACATION. Subject to the conditions set forth in section 3.00 and in addition to the Base Salary, Executive shall be entitled to all other benefits of employment as established from time to time and provided to the other management of the Company or its affiliates. Executive shall be entitled to receive four (4) weeks of vacation (with payment of Executive's Base Salary) ("Paid Vacation") per annum. Executive may also take 4 weeks Paid Vacation during the first year of employment. One-half of any vacation time not used by December 31 shall accrue to the following year. 3.03. REIMBURSEMENT. Executive shall be reimbursed for all reasonable "out-of-pocket" business expenses for business travel and business entertainment incurred in connection with the performance of his duties under this Agreement so long as: (i.) such expenses constitute business deductions from taxable income for the Company and are excludable from taxable income to the Executive under the governing laws and regulations of the Internal Revenue Code (provided, however, that Executive shall be entitled to full reimbursement in any case where the Internal Revenue Service may, under Section 274(n) of the Internal Revenue Code, disallow to the Company 20% of meals and entertainment expenses); and (ii) to the extent such expenses do not exceed the amounts allocable for such expenses in budgets that are approved from time to time by the Company. The reimbursement of Executive's business expenses shall be upon monthly presentation to and approval by the Company of valid receipts and other appropriate documentation for such expenses. 4.00. SCOPE OF DUTIES. The scope of Executive's duties to the Company include the following: 4.01. ASSIGNMENT OF DUTIES. Executive shall have such duties as may assigned to him from time to time by the Company's Board of Directors commensurate with his experience and responsibilities in the position for which he is employed pursuant to Section 1.00 above. Such duties shall be exercised subject to the control and supervision of the Company's Board of Directors. 4.02. GENERAL SPECIFICATIONS OF DUTIES. Executive's duties shall include, but not be limited to the duties as follows: 2 (A) serve as CEO and Director with responsibilities for such matters that are usual and customary responsibilities for an Executive serving in the above capacities and acting on behalf of and for the sole benefit the Company. (B) serve in such other equal capacities for the Company as assigned by the Company's Board of Directors. The foregoing specifications are not intended as a complete itemization of the duties which Executive shall perform and undertake on behalf of the Company in satisfaction of his employment obligations under this Agreement. 5.00 EXECUTIVE'S PLAN. Executive shall submit to the Board of Directors for its approval, not later than sixty (60) days before the beginning of each calendar year an annual Stragetic/Operating plan describing the activities (the "Activities") to be undertaken by Executive on behalf of the Company (the "Plan") or by the Company during the following calendar year. The Company and the Executive agree, that by mutual written agreement, the Plan may be revised one or more times during any calendar year to reflect the exigencies of market conditions and the Company's operating realities. Each Plan shall include the following information: (i.) budget projections, (ii.) measurable goals, (iii.) assumptions underlying principal projections, and (iv.) specified goals with respective calendar milestones. 6.00 EXECUTIVE'S DEVOTION OF TIME. Executive hereby agrees to devote his full time, abilities and energy to the faithful performance of the duties assigned to him and to the promotion and forwarding of the business affairs of the Company. Executive further agrees he has a fiduciary duty not to divert any business opportunities from the Company to himself or to any other person or business entity. 6.01. CONFLICTING ACTIVITIES. Executive shall not, during the term of this Agreement, be engaged in any other business activity without prior consent of the Board of Directors of the Company; provided, however, that this restriction shall not be construed as preventing Executive from investing his personal assets in passive investments in business entities which are not in competition with the Company or in violation of his fiduciary duties to the Company. 6.02. FIDUCIARY DUTIES OF EXECUTIVE. Executive hereby agrees he is bound by fiduciary duties required under Nevada Revised Statutes 78.138. Executive further agrees to promote and develop all business opportunities that come to his attention relating to current or anticipated future business of the Company, in a manner consistent with the best interests of the Company and with his duties under this Agreement. Should Executive discover a business opportunity while in the employ of the Company using the Company's resources that does not relate to the current or anticipated future business of the Company, he shall first offer such opportunity to the Company. Should the Board of Directors elect not exercise the Company's right to pursue this business opportunity within a reasonable period of time, not to exceed sixty (60) days, then Executive may develop the business opportunity for himself; provided, however, that such development may in no way conflict or interfere with the duties owed by Executive to the Company under this Agreement. Further, Executive may develop such business opportunities only on his own time, and may not use any service, personnel, equipment, supplies, facility, or trade secrets of the Company in the development of such business opportunity. As used herein, the term "business opportunity" shall not include business opportunities involving investment in publicly traded stocks, bonds or other securities, or other investments of a personal nature. 3 7.00 TERMINATION OF EMPLOYMENT. If the Executive is terminated without cause, or this agreement is not renewed, the Executive shall immediately and automatically be deemed a consultant (the "Executive Consultant") of the Company and enter into a four year consulting agreement (the "Consulting Agreement"). Compensation shall be $100,000 per year payable bi-monthly. Additionally, the Executive Consultant shall be reimbursed promptly for expenses incurred while performing projects which may be assigned by the CEO and/or the Board of Directors. The Executive Consultant shall make himself available for a minimum of 20 hours a month. Additional consulting hours shall be billed at a rate of $100.00 per hour, payable by the Company within seven (7) days of the invoice date. Additionally, all unvested stock options and/or performance grants shall immediately vest upon non-renewal of this Agreement. Also, the Company shall immediately take whatever action that may be required cause the Executive to be removed as a guarantor, co-signer or co-borrow of any and all borrowing made for the benefit of the Company, its successors and/or survivors. 7.01 CHANGE IN RESPONSIBILITIES AND/ORCONTROL. If the responsibilities of the Executive are changed or diminished as determined by the Executive OR at least thirty (30) percent of the ownership of the Company's Common Stock has changed as a result of a merger, acquisition or any other business combination OR the majority of the Company's Board of Directors are replaced. The Executive shall within 60 days decide to exercise the right to immediately and automatically be deemed a Executive Consultant of the Company and enter into a four year agreement. Compensation shall be $100,000 per year payable bi-monthly.Also, the Company shall immediately take whatever action that may be required cause the Executive to be removed as a guarantor, co-signer or co-borrow of any and all borrowing made for the benefit of the Company, its successors and/or survivors. 8.00. TERMINATION. (a) DEATH OR DISABILITY. This Agreement shall automatically terminate upon the death or Disability of Executive and, thereafter all of his rights hereunder, including the rights to receive compensation and benefits, except as otherwise required by law, shall terminate; provided that, upon termination of this Agreement as a result the death or Disability of Executive, Executive or his estate shall be entitled to a one-time pro rata share (through the termination date) of any target bonus for the fiscal year in which such termination occurred (the "Pro Rated Bonus"). As used herein, the term "Disability" means the physical or mental illness or incapacity (including, without limitation, as a result of abuse of alcohol or other drugs or controlled substances) of Executive which results in the Executive being unable to substantially perform the duties and services required to be performed under this Agreement for a period of: (i) one hundred twenty (120) consecutive days or longer or (ii) one hundred eighty (180) days in any three hundred sixty (360) consecutive day period. (b) TERMINATION WITH NOTICE BY EITHER PARTY. The Company or Executive may terminate this Agreement for any reason or no reason upon thirty (30) days prior written notice to the other. In case of termination by the Company only under this paragraph, the Company shall pay Executive as an Executive Consultant prusuants to the terms of section 7.0 and/or 7. (c) TERMINATION FOR GOOD CAUSE. As used herein "GOOD CAUSE" shall mean any one or more of the following as determined by a majority vote of the Board of Directors: 4 (1) a continuing material breach or material default (including, without limitation, any material deriliction of duty) by Executive of the terms of this Agreement, except for any such breach or default which is caused by the physical disability of Executive (as determined by a neutral physician); (2) gross negligence, willful misfeasance or breach of fiduciary duty by Executive; (3) conviction of Executive of a felony that would materially and adversely affect: (i) the business reputation of the Company or (ii) the performance of the Executive's duties hereunder. In the event of a termination by the Company for Good Cause, the Company will pay the Executive the Base Salary earned and expenses reimbursable under this Agreement incurred through the date of the Executive's termination, and shall have no further responsibility for termination or other payments to Executive. (d) TERMINATION FOR GOOD REASON. Executive may terminate his employment under this Agreement at any time for "Good Reason." In case of termination hereof by the Executive for Good Reason, the Company shall pay Executive as an Exeutive Consulant pursuant to Sections 7.0 and/or 7.01. Executive shall maintain any rights that Executive may have been specifically granted to Executive pursuant to any of the Company's retirement plans, supplementary retirement plans, profit sharing and savings plans, healthcare, 401(k) any other employee benefit plans sponsored by the Company. ." For purposes of this Agreement, the term "GOOD REASON" means, in each case without the consent of Executive: (1) any material diminution in the office, title, duties, powers, authority or responsibilities, which diminution is not corrected within thirty (30) days after the Company receives written notice thereof from Executive; (2) (A) the Company fails to pay Executive his Base Salary in accordance with generally applicable Company policy or (B) Executive's Base Salary is decreased without consent of Executive, which failure or decrease is not corrected within thirty (30) days after the Company receives written notice thereof from Executive; pROVIDED, HOWEVER, that the foregoing shall not apply in the case of a decrease to Executive's Base Salary made as part of an across the board base salary decrease affecting all of the Company's senior executive officers as provided for in Section 3(a) hereof; or (3) Executive is discriminatorily denied material benefits under the Company's prevailing policies and plans, which denial is not corrected within thirty (30) days after the Company receives written notice thereof from Executive. (e) TERMINATION UPON A CHANGE OF CONTROL. In the event that: (i) this Agreement or Executive's employment with the Company is terminated by the Company or its successor or (ii) the duties of Executive are materially diminished or (iii) Executive is required to relocate his principal place of employment with the Company more than seventy-five (75) miles from his principal place of employment with the Company as of the date hereof, in either case within three (3 months following the occurrence of a "Change of Control" (as 5 defined below) of the Company (each, a "SEVERENCE TRIGGERING EVENT"), then: (A) the Company shall shall engage the Executive as a Executive Consultant prusunat to Sections 7and/or 7.01. (2) Executive shall maintain any rights that Executive may have been specifically granted to Executive pursuant to any of the Company's or its successor's retirement plans, supplementary retirement plans, profit sharing and savings plans, healthcare, 401(k) and any other employee benefit plans sponsored by the Company and (iii) all unvested options and performance grants to acquire shares of Company common stock granted to Executive under the Company's 2008 Incentive Plan or any succesor plan shall immediately become fully vested and shall be exerciseable over a period of three (5) years from the occurrence of a Severence Triggering Event. For purposes of this Agreement, the term "CHANGE OF CONTROL" means the occurrence of any one or more of the following events (it being agreed that, with respect to paragraphs (i) and (iii) of this definition below, a "Change of Control" shall not be deemed to have occurred if the applicable third party acquiring party is an "affiliate" of the Company within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended): (i) An acquisition (whether directly from the Company or otherwise) of any voting securities of the Company (the "VOTING SECURITIES") by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities and Exchange Act of 1934, as amended (the "1934 ACT")), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of forty percent (40%) or more of the combined voting power of the Company's then outstanding Voting Securities. (ii) The individuals who, as of the date hereof, are members of the Company's Board of Directors cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least fifty-one percent (51%) of the members of the Board of Directors; or (iii) Approval by the Board of Directors and, if required, stockholders of the Company of , or execution by the Company of any definitive agreement with respect to, or the consummation of (it being understood that the mere execution of a term sheet, memorandum of understanding or other non-binding document shall not constitute a Change of Control): (A) A merger, consolidation or reorganization involving the Company, where either or both of the events described in clauses (i) or (ii) above would be the result; (B) A liquidation or dissolution of or appointment of a receiver, rehabilitator, conservator or similar person for, or the filing by a third party of an involuntary bankruptcy against, the Company; or (C) An agreement for the sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a subsidiary of the Company). 9.00 COVENANT NOT TO COMPETE. The Executive acknowledges that he is Chief Executive Officer of the Company and in such capacity the Executive will have access to corporate records, business plans, and all of the business research conducted by or on behalf of the Company. The Executive also acknowledges that he will have access to confidential information about the Company and its 6 affairs and that he will have access to other "proprietary information" (as defined in section 13.00 hereto) acquired by the Company at the expense of the Company for use in its business. The Executive has industry knowledge and skills. The Executive's services to the Company are special, unique and extraordinary. Accordingly, by execution of this Agreement. 9.01 NON-COMPETITION BY EXECUTIVE. Executive agrees that during the Employment Period and twelve (12) months after the Executive's Employment period with the Company or any of its affiliates, successors or assigns, Executive will not, unless acting with the Company's express written consent, directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of or be connected as an officer, employee, partner or otherwise with any business engaged in the development, sale or distribution of services incorporating the business, products or strategy of the Company. The Executive shall also not directly or indirectly solicit any such business from any individual or entity which obtained such products from the Company at any time during the Executive's Employment Period or directly or indirectly solicit any such business from any individual or entity previously solicited by the Executive on behalf of the Company. 9.02 NEED FOR COVENANT, LEGAL REMEDIES. The Executive expressly agrees and acknowledges that this Covenant Not to Compete is reasonably necessary for the Company's Protection because of the nature and scope of the Company's business and the Executive's position with and services for the Company. Further, the Executive acknowledges that, in the event of his breach of this Covenant Not to Compete, money damages will not sufficiently compensate the Company for its injury caused thereby, the Executive accordingly agrees that in addition to such money damages the Executive shall, if Company so elects, be restrained and enjoined from any continuing breach of this Covenant Not to Compete without any bond or other security being required by any court. The Executive acknowledges that any breach of this Covenant Not to Compete would result in irreparable damages to the Company. 9.03 ACKNOWLEDGEMENTS BY EXECUTIVE. The Executive expressly agrees and acknowledges as follows: (1) This Covenant Not to Compete is reasonable as the time and does not place any unreasonable burden upon him. (2) The general public will not be harmed as a result of enforcement of this Covenant Not to Compete. (3) Executive has requested or has had the opportunity to request that his personal legal counsel review this Covenant Not to Compete. (4) The Executive understands and hereby agrees to each and every term and condition of this Covenant Not to Compete. Initials:___________________________________________ 10.00 PROPRIETARY INFORMATION. The Executive acknowledges that he is Chief Executive Officer of the Company and in such capacity the Executive will have access to corporate records, business plans, and all of the business research conducted by or on behalf of the Company. The Executive also acknowledges that he will have access to confidential information about the Company and its affairs and that he will have access to other "proprietary information" as defined in Section 9.03 herein acquired by the Company at the expense of the Company for use in its business. 7 10.01 RETURN OF PROPRIETARY INFORMATION. Upon termination of this Agreement for any reason, the Executive shall immediately turn over to the Company and "Proprietary Information," as defined below. The Executive shall have no right to retain any copies of any material qualifying as Proprietary Information for any reason whatsoever after termination of his employment hereunder without the express written consent of the Company. 10.02 NON-DISCLOSURE. It is understood and agreed that, in the course of his employment hereunder and through his activities for and on behalf of the Proprietary Information in trust and confidence for the Company. The Executive agrees that he shall not, during the term of this Agreement or thereafter, in any fashion, form or manner, directly or indirectly, retain use, make copies of, divulge, disclose or communicate to any person, in any manner whatsoever, except when necessary or required in the normal course of the Executive's employment hereunder and for the benefit of the Company or with the express written consent of the Company, any of the Company's Proprietary Information or any information of any kind, nature, or description whatsoever concerning any matter affecting or relating to the Company's business. 10.03 PROPRIETARY INFORMATION DEFINED. For purposes of this Agreement, "Proprietary Information" means and includes the following: (1) any written, typed or printed lists or other materials identifying the business, products, or strategy conducted by or on behalf of the Company; (2) any financial or other information supplied by customers of the Company; (3) any and all data or information involving the techniques, programs, methods or contracts employed by the Company in the conduct of its business; (4) any lists, documents, manuals, records, forms, or other materials created and used by the Company in the conduct of its business; (5) any descriptive materials describing the methods and procedures employed by the Company in the conduct of its business; and (6) any other secret or confidential information concerning the Company's business, affairs or technology. The term "list", "document", or their equivalent, as used in this Section, are not limited to a physical writing or compilation, but also include computer software and any and all information whatsoever regarding the subject matter in the "list" or "document" whether or not such compilation has been reduced to writing. Not withstanding the foregoing, Proprietary Information shall cease to be protected hereunder once it has become part of the public domain, or upon the written agreement of the Company. 11.00 TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes any and all prior agreements and understandings between the parties with respect to employment or with respect to the compensation of the Executive by the Company. 12.00 ASSIGNMENT. This Agreement is personal in nature and neither of the parties hereto shall, without the prior written consent of the other, assign or transfer this Agreement or any rights or obligations hereunder; provided, however, that in the event of the merger, consolidation or transfer sale of all or substantially all of the assets of the Company with or to any other individual or entity, this Agreement shall, subject to the provisions hereof, be binding upon and inure to the benefit of such successor and such successor shall discharge and perform all the promises, covenants, duties, and obligations of the Company hereunder. Not withstanding the foregoing, Proprietary Information shall cease to be protected hereunder once it has become part of the public domain, or upon the written agreement of the Company. 8 13.00 TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes any and all prior agreements and understandings between the parties with respect to employment or with respect to the compensation of the Executive by the Company. 14.00 NOTICE. Any notice under this Agreement must be in writing, may be telecopied or sent by 24-hour express guaranteed courier, or hand-delivered, or may be served by depositing the same in the United States mail, addressed to the party to be notified, postage-prepaid and registered or certified with a return receipt requested. The addresses of the parties for the receipt of notice shall be as follows: If to the Company: Nascent Wine Company, Inc. 2355 Paseo De Las Americas Suite A San Diego, CA 92154 If to the Executive: Each notice given by registered or certified mail shall be deemed delivered and effective on the date of delivery as shown on the return receipt, and each notice delivered in any other manner shall be deemed to be effective as of the time of actual delivery thereof. Each party may change its address for notice by giving notice thereof in the manner specified above. 15.00 GOVERNING LAW. This Agreement and the document referenced herein and the legal relations thus created between the parties hereto shall be governed by and construed under and in accordance with laws of the U.S. States and CA . 16.00 ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the parties respecting the matters within its scope and may be modified only in writing. 17.00 WAIVER. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right power hereunder at any one time or times. 18.00 ATTORNEY'S FEES. The Executive and the Company agree that in any arbitration or legal proceedings arising out of the Agreement, each party shall pay his or its own legal fees and expenses. 19.00 ARBITRATION. All claims, disputes and other matters in question between the parties concerning or arising out of the employment relationship, this Agreement and/or the termination of this Agreement shall be decided by arbitration in San Diego, California in accordance with the rules of the American Arbitration Association, unless the parties mutually agree otherwise. The award by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any California or Federal court having jurisdiction thereof. 20.00 EXHIBIT AND COUNTERPARTS. Exhibit A attached to this Agreement is incorporated into and is an integral part of this Agreement. This Agreement may be executed in any number of counterparts. 9 21.00 SEVERABILITY. In the event that a court of competent jurisdiction determines that any portion of this Agreement is in violation of any law, statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken. All portions of this Agreement shall modify the stricken terms as narrowly as possible to give as much effect as possible to the intentions of the parties under this Agreement. 22.00 ACKNOWLEDGEMENT. The parties to this Agreement understand and agree that the Company has only a operating history and that the industry in which the Company operates is highly competitive an subject to risks that are beyond the Company's control and influence. In the event the Company discontinues its operations at any time for any or no reason whatsoever or becomes unable to perform its duties and obligations as specified herein, the Executive agrees to look solely to the Company for performance under this Agreement and will not look to the Company's other officers, stockholders, agents, or any combination of them. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has hereunto executed this Agreement, effective the first day written above. Nascent Wine Company, Inc BY: /s/ Sandro Piancone --------------------------------- Sandro Piancone THE EXECUTIVE /s/ Sandro Piancone ------------------------------------- Sandro Piancone 10 EX-10.2 4 nascent_10qa-ex1002.txt SETTLEMENT AGREEMENT EXHIBIT 10.2 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made as of June 30, 2008 ("Settlement Date") by and between NASCENT WINE COMPANY, INC. ("Nascent"), represented by Sandro Piancone, and RAFAEL MORALES CUEVAS (collectively the "Buyers"), ALEJANDRO GUTIERREZ PEDERZINI and LETICIA GUTIERREZ PEDERZINI (collectively the "Sellers"), PASANI, S.A. DE C.V. ("Pasani"), represented by Alejandro Gutierrez Pederzini and ECO PAK DISTRIBUTING, LLC. ("Eco Pak"), represented by Sandro Piancone and Alejandro Gutierrez Pederzini, with the appearance of INTERNATIONAL FOOD SERVICE SPECIALISTS, ("IFS"), represented by Sandro Piancone. EXPLANATORY STATEMENTS ---------------------- A. On May 10, 2007, the Buyers executed a Stock Purchase Agreement ("STOCK PURCHASE AGREEMENT"), with the Sellers for one hundred percent of the issued and outstanding shares of Pasani common stock, defaulting the Buyers with their payment obligation under the STOCK PURCHASE AGREEMENT and the Promissory Note 1/1, referred under 1.2 of the STOCK PURCHASE AGREEMENT ("NOTE"); B. The parties desire to enter into this Agreement in order to provide for full settlement and discharge of all claims. REPRESENTATIONS --------------- I. NASCENT: a) That is a corporation validly incorporated and existing under the laws of the State of Nevada in the United States of America. b) That Mr. Sandro Piancone has the power and authority to enter into the present agreement in representation of Nascent and that such have not been modified or revoked totally or partially. c) That the execution, delivery and performance of this Agreement have been duly authorized by all requisite action, and: (i) will not violate any provision of applicable law, the company's organizational documents, any provision of any obligation to which the company is bound and (ii) will not conflict with, result in a breach of, or constitute a default under, any such order, indenture, judgment, decree, agreement, obligation, commitment or other instrument. d) That no consent, authorization, approval or waiver from, or registration, declaration or filing with, any agency, entity, authority or person is required to be obtained or made by or with respect to the company in connection with the execution, delivery and performance of this Agreement. 1 II. RAFAEL MORALES CUEVAS: a) That is an individual of legal age, of Mexican nationality, married under the separation of property marital system and with legal capacity to enter into the present agreement. III. ALEJANDRO GUTIERREZ PEDERZINI: a) That is an individual of legal age, of Mexican nationality, married under the separation of property marital system and with legal capacity to enter into the present agreement. IV. LETICIA GUTIERREZ PEDERZINI: a) That is an individual of legal age, of Mexican nationality, single and with legal capacity to enter into the present agreement. V. PASANI: a) That is a corporation validly incorporated and existing under the laws of Mexico. b) That Mr. Alejandro Gutierrez Pederzni has the power and authority to enter into the present agreement in representation of Pasani and that such have not been modified or revoked totally or partially. c) That the execution, delivery and performance of this Agreement have been duly authorized by all requisite action, and: (i) will not violate any provision of applicable law, the company's organizational documents, any provision of any obligation to which the company is bound and (ii) will not conflict with, result in a breach of, or constitute a default under, any such order, indenture, judgment, decree, agreement, obligation, commitment or other instrument. d) That no consent, authorization, approval or waiver from, or registration, declaration or filing with, any agency, entity, authority or person is required to be obtained or made by or with respect to the company in connection with the execution, delivery and performance of this Agreement. VI. ECO PAK: a) That is a company validly incorporated and existing under the laws of the State of Texas in the United States of America. b) That Mr. Sandro Piancone and Mr. Alejandro Gutierrez Pederzini have the power and authority to enter into the present agreement in representation of Eco Pak and that such have not been modified or revoked totally or partially. 2 c) That the execution, delivery and performance of this Agreement have been duly authorized by all requisite action, and: (i) will not violate any provision of applicable law, the company's organizational documents, any provision of any obligation to which the company is bound and (ii) will not conflict with, result in a breach of, or constitute a default under, any such order, indenture, judgment, decree, agreement, obligation, commitment or other instrument. d) That no consent, authorization, approval or waiver from, or registration, declaration or filing with, any agency, entity, authority or person is required to be obtained or made by or with respect to the company in connection with the execution, delivery and performance of this Agreement and the sale of the Interests in Eco Pak as defined below. VII. IFS: a) That is a company validly incorporated and existing under the laws of the state of Nevada in the United States of America. b) That its legal representative is Mr. Sandro Piancone. VIII. THE PARTIES IN THIS AGREEMENT CONJUNCTLY REPRESENT: a) That they mutually recognize the legal capacity and authority with which they conduct in this agreement. Being in agreement with the foregoing, the parties mutually agree to abide by what they have agreed in the following: CLAUSES ------- PASANI - ------ 1.1 ENDORSEMENT OF PASANI SHARES. The Sellers and the Buyers in this act rescind by mutual agreement and convenience, the STOCK PURCHASE AGREEMENT and Nascent, represented by Sandro Piancone, and Rafael Morales Cuevas in this act endorse in property and deliver one hundred percent of the shares that were object of the STOCK PURCHASE AGREEMENT to Alejandro Gutierrez Pederzini and Leticia Gutierrez Pederzini in the percentages that both had before the sale, in exchange the Sellers will return the NOTE but will not have to pay back the $500,000.00 (Five hundred thousand dollars & 00/100) received from the Buyers as amortization of the total payment due in November 2007. 1.2 WORKING CAPITAL. With respect to the working capital as defined under the STOCK PURCHASE AGREEMENT, funded by Nascent to Pasani, Pasani will obligate to repay Nascent: 3 (i) $500,000.00 (Five hundred thousand Dollars of the United States of America & 00/100) provided in cash, within 180 (one hundred eighty) days from the Settlement Date; (ii) $185,000.00 (One hundred eighty five thousand Dollars of the United States of America & 00/100) provided as additional funds, within 180 (One hundred eighty) days from Settlement Date; (iii) $312,451.87 (Three hundred twelve thousand four hundred fifty one Dollars of the United States of America & 87/100) provided in inventory, within 180 (one hundred eighty) days from the Settlement Date. 1.3 JULY PRODUCTS. Pasani obligates to pay Nascent within 60 (sixty) days from July 31, 2008 the amount of $92,259.13 (Ninety two thousand two hundred fifty nine Dollars of the United States of America & 13/100) for product delivered from Nascent to Pasani during the month of July 2008. 1.4 PAYMENTS. All payments that would have to be made by Pasani to Nascent will be made on the established date by cashier's check in the domicile of Nascent. ECO PAK - ------- 2.1 TRANSFER OF OWNERSHIP. On Settlement Date, Nascent transfers to Alejandro Gutierrez Pederzini 100% (one hundred percent) interest ("Interest") in Eco Pak for $70,000.00 (seventy thousand Dollars of the United States of America & 00/100). For this purpose, Nascent authorizes Alejandro Gutierrez Pederzini by this Settlement Agreement to proceed with the necessary process to accomplish such ownership transfer assigning and transferring the Interests to him and he in this act will give in exchange a cashier's check for the expressed above amount to Nascent. 2.2 IFS. With respect to the inventory provided by IFS to Eco Pak, Eco Pak will pay to IFS the amount of $110,000.00 (One hundred ten thousand Dollars of the United States of America & 00/100) in two installments. The installments will be paid as follows: (i) $50,000.00 (Fifty thousand Dollars of the United States of America & 00/100) at Settlement Date with a cashier's check; (ii) $60,000.00 (Sixty thousand Dollars of the United States of America & 00/100) by September 15, 2008, with a cashier's check to be delivered at the domicile of Nascent. MISELLAENOUS - ------------ 3.1 PRESS RELEASE. From the signing of this Agreement, Nascent Wine Company, Inc obligates to make a press release to inform the termination of the relationship between Nascent with Pasani, and Eco Pak, as well as to make all the updates and applicable disclosures to the Securities and Exchange Commission, within the time frame as required by law. 4 3.2 BROADEST RELIEF. All parties to this agreement grant each other the broadest relief allowed by law in connection to the obligations assumed under the SHAREHOLDERS AGREEMENT, the NOTE, and all related transactions and thus not hold any legal action or title to exercise further. Additionally, Alejandro Gutierrez Pederzini shall not seek restitution for any and all expenditures made by Eco Pak and Pasani during the period from May 11, 2007 (date of purchase) to July 31, 2008. 3.3 CHOICE OF LAW. For all related to the interpretation, fulfillment, validity, controversy and/or execution of the present agreement, the parties submit to the laws and jurisdiction of the courts of Mexico, Distrito Federal expressly waiving any other jurisdiction which may now or in the future be entitled for any reason. 3.4 DOMICILE. For the effects and notices of this agreement, the parties establish the following domiciles: BUYERS. - ------- 2355-A Paseo de las Americas, San Diego, California 92154 Attn. Sandro Piancone, CEO With a copy to: __________________________ __________________________ SELLERS. - -------- 20770 Highway 281 - Suite 108-494 San Antonio, Texas 78258 Attn. Alejandro Gutierrez Pederzini With a copy to: Larios y Rodriguez del Bosque Insurgentes Sur 800, Piso 15, Despacho 1 y 2. Col. Del Valle, Mexico, 03100, Distrito Federal. Attn. Carlos Perez del Toro ECO PAK - ------- 20770 Highway 281 - Suite 108-494 San Antonio, Texas 78258 Attn. Alejandro Gutierrez Pederzini 5 PASANI - ------ Abel 69 Col. Guadalupe Tepeyac Mexico 07840 Distrito Federal In case of a change of domicile of any of the parties, the party that changes its domicile will have to notify the other party with twenty days of anticipation and in the case of defaulting on this provision all the practice notices in the above mentioned domiciles would be considered valid. Once read this agreement by the parties and being aware of its content and legal consequences, having knowledge of the legal texts that are related it is signed by three originals on the 8th day of the month of August of 2008. BUYERS - ----------------------- ------------------------ Name: Name: Nascent Wine Company Inc. Rafael Morales Cuevas Represented by Sandro Piancone SELLERS - -------------------------- ------------------------ Name: Name: Alejandro Gutierrez Pederzini Leticia Gutierrez Pederzini ECO PAK - -------------------------- -------------------------- Name: Name: Eco Pak Distributing, LLC. Eco Pak Distributing, LLC. Represented by Sandro Piancone Represented by Alejandro Gutierrez 6 PASANI - ---------------------- Name: Pasani, S.A. de C.V. Represented by Alejandro Gutierrez Pederzini IFC - ---------------------- Name: International Food Service Specialists Represented by Sandro Piancone WITNESS WITNESS - ----------------------- ----------------------- Name: Name: Peter V. White Carlos Perez del Toro Moreschi 7 EX-10.3 5 nascent_10qa-ex1003.txt EMPLOYMENT AGREEMENT FOR PETER WHITE, DATED AUGUST 14, 2008 EXHIBIT 10.3 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of this 14th day of August 2008 by and between Nascent Wine Company, Inc. and its successors and survivors with principal offices currently located at 2355 Paseo De Las Americas, San Diego, California 92154 (the "Company"), and Peter V. White with principal address at 5056 Ciardi Court Carlsbad CA, 92008 ("Executive"). WHEREAS: A. The Company and the Executive acknowledge and agree that the Company has, prior to the execution of this Agreement, employed Executive under various oral and written agreements, understandings, and arrangements. B. The Company and the Executive acknowledge and agree that each party seeks to revoke all prior oral and written agreements, understandings, and arrangements between the Company and the Executive in connection with Executive's employment by the Company. C. The Company desires to be assured of the continued association and services of Executive for the Company. NOW THEREFORE in consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, receipt of which Executive and Company hereby acknowledge and agree as follows: 1.00. EMPLOYMENT. The Company hereby employs Executive, subject to the supervision and direction of the Chief Executive Officer and the Company's Board of Directors. 1.01. POSITION. Executive agrees to carry out duties and responsibilities of the position, as reasonably determined by the Chief Executive Officer and Board of Directors. Executive shall report to the Chief Executive Officer. Executive shall hold the title of Chief Financial Officer, Treasurer and Director of the Company. 2.00. TERM OF EMPLOYMENT. The initial term (the "Initial Term") of Executive's employment shall be for the period commencing on 14th day of August 2008 and terminating on July 31, 2010. The term of employment shall be automatically renewed for a period of two (2) years (the "Renewal Term") following the close of the Initial Term unless the Company gives written notice to Executive no later than thirty (30) days prior to the close of the Initial Term. However, notwithstanding the above provisions, the term of Executive's employment may be terminated earlier pursuant to sections 7.00, 8.00, or 9.00 of this Agreement. Executive's obligations under Sections 12.00 and 13.00, and the sub-sections thereto below shall remain in full force and effect after any such termination.] 3.00. COMPENSATION & REIMBURSEMENT. The Company and the Executive agree that the Company shall pay Executive a salary, compensation, benefits, and reimbursement for allowable expense as follows: 3.01. SALARY. Subject to the conditions set forth in Section 3.00, for all services rendered by Executive under this Agreement, the Company shall pay Executive a base salary of One hundred and fifty thousand Dollars ($150,000) per annum, payable on a bi-monthly basis in equal installments (the "Base Salary"). The amount of the Base Salary may be increased at any time, and from time to time, by the Company's Board of Directors or a designated committee thereof. The Base Salary may be adjusted annually to reflect changes in the Consumer Price Index for the San Diego, California base area. No such change shall in any way abrogate, alter, terminate or otherwise effect the other terms of this Agreement. 3.02. ADDITIONAL BENEFITS & VACATION. Subject to the conditions set forth in section 3.00 and in addition to the Base Salary, Executive shall be entitled to all other benefits, of employment as established from time to time and provided to the other management of the Company or its affiliates. Executive shall be entitled to receive four (4) weeks of vacation (with payment of Executive's Base Salary) ("Paid Vacation") per annum. One-half of any vacation time not used by December 31st of that year shall accrue to the following year. 3.03. REIMBURSEMENT. Executive shall be reimbursed for all reasonable "out-of-pocket" business expenses for business travel and business entertainment incurred in connection with the performance of his duties under this Agreement so long as: (i.) such expenses constitute business deductions from taxable income for the Company and are excludable from taxable income to the Executive under the governing laws and regulations of the Internal Revenue Code (provided, however, that Executive shall be entitled to full reimbursement in any case where the Internal Revenue Service may, under Section 274(n) of the Internal Revenue Code, disallow to the Company 20% of meals and entertainment expenses); and (ii) to the extent such expenses do not exceed the amounts allocable for such expenses in budgets that are approved from time to time by the Company. The reimbursement of Executive's business expenses shall be upon monthly presentation to and approval by the Company of valid receipts and other appropriate documentation for such expenses. 4.00. SCOPE OF DUTIES. The scope of Executive's duties to the Company include the following: 4.01. ASSIGNMENT OF DUTIES. Executive shall have such duties as may assigned to him from time to time by the Company's Board of Directors and/or Chief Executive Officer of the Company commensurate with his experience and responsibilities in the position for which he is employed pursuant to Section 1.00 above. Such duties shall be exercised subject to the control and supervision of the Company's Board of Directors and the Chief Executive Officer of the Company. 2 4.02. GENERAL SPECIFICATIONS OF DUTIES. Executive's duties shall include, but not be limited to the duties as follows: (A) serve as Chief Financial Officer, Treasurer and Director with responsibilities for such matters that are usual and customary responsibilities for an Executive serving in the above capacities and acting on behalf of and for the sole benefit of the Company. (B) serve in such other equal capacities for the Company as assigned by the Company's Board of Directors. The foregoing specifications are not intended as a complete itemization of the duties which Executive shall perform and undertake on behalf of the Company in satisfaction of his employment obligations under this Agreement. 5.00 EXECUTIVE'S PLAN. Executive, in conjunction with the CEO, shall submit to the Board of Directors for its approval, not later than sixty (60) days before the beginning of each calendar year a stragetic and annual operating plan describing the activities ("Activities") to be undertaken by Executive on behalf of the Company (the "Plan") or by the Company during the following calendar year. The Company and the Executive agree, that by mutual written agreement, the Plan may be revised one or more times during any calendar year to reflect the exigencies of market conditions and the Company's operating realities. Each Plan shall include the following information: [(i.) budget projections, (ii.) measurable goals, (iii.) assumptions underlying principal projections, and (iv.) specified goals with respective calendar milestones. 6.00 EXECUTIVE'S DEVOTION OF TIME. Executive hereby agrees to devote his full time, abilities and energy to the faithful performance of the duties assigned to him and to the promotion and forwarding of the business affairs of the Company. Executive further agrees that he has a fiduciary duty not to divert any business opportunities from the Company to himself or to any other person or business entity. 6.01. CONFLICTING ACTIVITIES. Executive shall not, during the term of this Agreement, be engaged in any other business activity without prior consent of the Board of Directors of the Company; provided, however, that this restriction shall not be construed as preventing Executive from investing his personal assets in passive investments in business entities which are not in competition with the Company, or in violation of his fiduciary duties to the Company. 6.02. FIDUCIARY DUTIES OF EXECUTIVE. Executive hereby agrees he is bound by all fiduciary duties required under Nevada Revised Statues 78.138. Executive further agrees to promote and develop all business opportunities that come to his attention relating to current or anticipated future business of the Company, in a manner consistent with the best interests of the Company and with his duties under this Agreement. Should Executive discover a business opportunity while in the employ of the Company using the Company's resources that does not relate to the current or anticipated future business of the Company, he shall first offer such opportunity to the Company. Should the Board of Directors elect not to exercise the Company's right to pursue this business opportunity within a reasonable period of time, not to exceed sixty (60) days, then Executive may develop the business opportunity for himself; provided, however, that such development may in no way conflict or interfere with the duties owed by Executive to the Company 3 under this Agreement. Further, Executive may develop such business opportunities only on his own time, and may not use any service, personnel, equipment, supplies, facility, or trade secrets of the Company in the development of such business opportunity. As used herein, the term "business opportunity" shall not include business opportunities involving investment in publicly traded stocks, bonds or other securities, or other investments of a personal nature. 7.00 TERMINATION OF EMPLOYMENT. If the Executive is terminated without cause, or this agreement is not renewed, the Executive shall immediately and automatically be deemed a consultant (the "Executive Consultant") of the Company and enter into a four year consulting agreement (the "Consulting Agreement"). Compensation shall be $75,000 per year payable bi-monthly. Additionally, the Executive Consultant shall be reimbursed promptly for expenses incurred while performing projects which may be assigned by the CEO and/or the Board of Directors. The Executive Consultant shall make himself available for 20 days a month. Additional consulting hours shall be billed at a rate of $100.00 per hour, payable by the Company within seven (7) days of the invoice date. Additionally, all unvested stock options and/or performance grants shall immediately vest upon non-renewal of this Agreement. 7.01 CHANGE IN RESPONSIBILITIES AND/OR CONTROL. If the responsibilities of the Executive are changed or diminished as determined by the Executive OR at least thirty (30) percent of the ownership of the Company's Common Stock has changed as a result of a merger, acquisition or any other business combination OR the majority of the Company's Board of Directors are replaced. The Executive shall within 60 days decide to exercise the right to immediately and automatically be deemed a Executive Consultant of the Company and enter into a four year agreement. Compensation shall be $75,000 per year payable bi-monthly. . The Executive Consultant shall make himself available for a minimum of 20 hours a month. Additional consulting hours shall be billed at a rate of $100.00 per hour, payable by the Company within seven (7) days of the invoice date. Additionally, all unvested stock options and/or performance grants shall immediately vest upon non-renewal of this Agreement 8.00. TERMINATION. (a) Death or Disability. This Agreement shall automatically terminate upon the death or Disability of Executive and, thereafter all of his rights hereunder, including the rights to receive compensation and benefits, except as otherwise required by law, shall terminate; provided that, upon termination of this Agreement as a result the death or Disability of Executive, Executive or his estate shall be entitled to a one-time pro rata share (through the termination date) of any target bonus for the fiscal year in which such termination occurred (the "Pro Rated Bonus"). As used herein, the term "Disability" means the physical or mental illness or incapacity (including, without limitation, as a result of abuse of alcohol or other drugs or controlled substances) of Executive which results in the Executive being unable to 4 substantially perform the duties and services required to be performed under this Agreement for a period of: (i) one hundred twenty (120) consecutive days or longer or (ii) one hundred eighty (180) days in any three hundred sixty (360) consecutive day period. TERMINATION WITH NOTICE BY EITHER PARTY. The Company or Executive may terminate this Agreement for any reason or no reason upon thirty (30) days prior written notice to the other. In case of termination by the Company only under this paragraph, the Company shall pay Executive as an Executive Consultant prusuants to the terms of section 7.0 and/or 7. (b) TERMINATION FOR GOOD CAUSE. As used herein "GOOD CAUSE" shall mean any one or more of the following as determined by a majority vote of the Board of Directors: (1) a continuing material breach or material default (including, without limitation, any material deriliction of duty) by Executive of the terms of this Agreement, except for any such breach or default which is caused by the physical disability of Executive (as determined by a neutral physician); (2) gross negligence, willful misfeasance or breach of fiduciary duty by Executive; (3) conviction of Executive of a felony that would materially and adversely affect: (i) the business reputation of the Company or (ii) the performance of the Executive's duties hereunder. In the event of a termination by the Company for Good Cause, the Company will pay the Executive the Base Salary earned and expenses reimbursable under this Agreement incurred through the date of the Executive's termination, and shall have no further responsibility for termination or other payments to Executive. (c) TERMINATION FOR GOOD REASON. Executive may terminate his employment under this Agreement at any time for "Good Reason." In case of termination hereof by the Executive for Good Reason, the Company shall pay Executive as an Exeutive Consulant pursuant to Sections 7.0 and/or 7.01. Executive shall maintain any rights that Executive may have been specifically granted to Executive pursuant to any of the Company's retirement plans, supplementary retirement plans, profit sharing and savings plans, healthcare, 401(k) any other employee benefit plans sponsored by the Company. ." For purposes of this Agreement, the term "GOOD REASON" means, in each case without the consent of Executive: (1) any material diminution in the office, title, duties, powers, authority or responsibilities, which diminution is not corrected within thirty (30) days after the Company receives written notice thereof from Executive; (2) (A) the Company fails to pay Executive his Base Salary in accordance with generally applicable Company policy or (B) Executive's Base Salary is decreased without consent of Executive, which failure or decrease is not corrected within thirty (30) days after the Company receives written notice thereof from Executive; pROVIDED, HOWEVER, that the foregoing shall not apply in the case of a decrease to Executive's Base Salary made as part of an across the board base salary decrease affecting all of the Company's senior executive officers as provided for in Section 3(a) hereof; or 5 (3) Executive is discriminatorily denied material benefits under the Company's prevailing policies and plans, which denial is not corrected within thirty (30) days after the Company receives written notice thereof from Executive. (d) TERMINATION UPON A CHANGE OF CONTROL. In the event that: (i) this Agreement or Executive's employment with the Company is terminated by the Company or its successor or (ii) the duties of Executive are materially diminished or (iii) Executive is required to relocate his principal place of employment with the Company more than seventy-five (75) miles from his principal place of employment with the Company as of the date hereof, in either case within three (3 months following the occurrence of a "Change of Control" (as defined below) of the Company (each, a "SEVERENCE TRIGGERING EVENT"), then: (A) the Company shall shall engage the Executive as a Executive Consultant prusunat to Sections 7.0 and/or 7.01. (2) Executive shall maintain any rights that Executive may have been specifically granted to Executive pursuant to any of the Company's or its successor's retirement plans, supplementary retirement plans, profit sharing and savings plans, healthcare, 401(k) and any other employee benefit plans sponsored by the Company and (iii) all unvested options and performance grants to acquire shares of Company common stock granted to Executive under the Company's 2008 Incentive Plan or any succesor plan shall immediately become fully vested and shall be exerciseable over a period of three (5) years from the occurrence of a Severence Triggering Event. For purposes of this Agreement, the term "CHANGE OF CONTROL" means the occurrence of any one or more of the following events (it being agreed that, with respect to paragraphs (i) and (iii) of this definition below, a "Change of Control" shall not be deemed to have occurred if the applicable third party acquiring party is an "affiliate" of the Company within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended): (i) An acquisition (whether directly from the Company or otherwise) of any voting securities of the Company (the "VOTING SECURITIES") by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities and Exchange Act of 1934, as amended (the "1934 ACT")), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of forty percent (40%) or more of the combined voting power of the Company's then outstanding Voting Securities. (ii) The individuals who, as of the date hereof, are members of the Company's Board of Directors cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least fifty-one percent (51%) of the members of the Board of Directors; or (iii) Approval by the Board of Directors and, if required, stockholders of the Company of, or execution by the Company of any definitive agreement with respect to, or the consummation of (it being understood that the mere execution of a term sheet, memorandum of understanding or other non-binding document shall not constitute a Change of Control): (A) A merger, consolidation or reorganization involving the Company, where either or both of the events described in clauses (i) or (ii) above would be the result; 6 (B) A liquidation or dissolution of or appointment of a receiver, rehabilitator, conservator or similar person for, or the filing by a third party of an involuntary bankruptcy against, the Company; or (C) An agreement for the sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a subsidiary of the Company). 9.00 COVENANT NOT TO COMPETE. The Executive acknowledges that he is Chief Executive Officer of the Company and in such capacity the Executive will have access to corporate records, business plans, and all of the business research conducted by or on behalf of the Company. The Executive also acknowledges that he will have access to confidential information about the Company and its affairs and that he will have access to other "proprietary information" (as defined in section 13.00 hereto) acquired by the Company at the expense of the Company for use in its business. The Executive has industry knowledge and skills. The Executive's services to the Company are special, unique and extraordinary. Accordingly, by execution of this Agreement. 9.01 NON-COMPETITION BY EXECUTIVE. Executive agrees that during the Employment Period and twelve (12) months after the Executive's Employment period with the Company or any of its affiliates, successors or assigns, Executive will not, unless acting with the Company's express written consent, directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of or be connected as an officer, employee, partner or otherwise with any business engaged in the development, sale or distribution of services incorporating the business, products or strategy of the Company. The Executive shall also not directly or indirectly solicit any such business from any individual or entity which obtained such products from the Company at any time during the Executive's Employment Period or directly or indirectly solicit any such business from any individual or entity previously solicited by the Executive on behalf of the Company. 9.02 NEED FOR COVENANT, LEGAL REMEDIES. The Executive expressly agrees and acknowledges that this Covenant Not to Compete is reasonably necessary for the Company's Protection because of the nature and scope of the Company's business and the Executive's position with and services for the Company. Further, the Executive acknowledges that, in the event of his breach of this Covenant Not to Compete, money damages will not sufficiently compensate the Company for its injury caused thereby, the Executive accordingly agrees that in addition to such money damages the Executive shall, if Company so elects, be restrained and enjoined from any continuing breach of this Covenant Not to Compete without any bond or other security being required by any court. The Executive acknowledges that any breach of this Covenant Not to Compete would result in irreparable damages to the Company. 9.03 ACKNOWLEDGEMENTS BY EXECUTIVE. The Executive expressly agrees and acknowledges as follows: (1) This Covenant Not to Compete is reasonable as the time and does not place any unreasonable burden upon him. (2) The general public will not be harmed as a result of enforcement of this Covenant Not to Compete. 7 (3) Executive has requested or has had the opportunity to request that his personal legal counsel review this Covenant Not to Compete. (4) The Executive understands and hereby agrees to each and every term and condition of this Covenant Not to Compete. Initials:___________________________________________ 10.00 PROPRIETARY INFORMATION. The Executive acknowledges that he is Chief Executive Officer of the Company and in such capacity the Executive will have access to corporate records, business plans, and all of the business research conducted by or on behalf of the Company. The Executive also acknowledges that he will have access to confidential information about the Company and its affairs and that he will have access to other "proprietary information" as defined in Section 9.03 herein acquired by the Company at the expense of the Company for use in its business. 10.01 RETURN OF PROPRIETARY INFORMATION. Upon termination of this Agreement for any reason, the Executive shall immediately turn over to the Company and "Proprietary Information," as defined below. The Executive shall have no right to retain any copies of any material qualifying as Proprietary Information for any reason whatsoever after termination of his employment hereunder without the express written consent of the Company. 10.02 NON-DISCLOSURE. It is understood and agreed that, in the course of his employment hereunder and through his activities for and on behalf of the Proprietary Information in trust and confidence for the Company. The Executive agrees that he shall not, during the term of this Agreement or thereafter, in any fashion, form or manner, directly or indirectly, retain use, make copies of, divulge, disclose or communicate to any person, in any manner whatsoever, except when necessary or required in the normal course of the Executive's employment hereunder and for the benefit of the Company or with the express written consent of the Company, any of the Company's Proprietary Information or any information of any kind, nature, or description whatsoever concerning any matter affecting or relating to the Company's business. 10.03 PROPRIETARY INFORMATION DEFINED. For purposes of this Agreement, "Proprietary Information" means and includes the following: (1) any written, typed or printed lists or other materials identifying the business, products, or strategy conducted by or on behalf of the Company; (2) any financial or other information supplied by customers of the Company; (3) any and all data or information involving the techniques, programs, methods or contracts employed by the Company in the conduct of its business; (4) any lists, documents, manuals, records, forms, or other materials created and used by the Company in the conduct of its business; (5) any descriptive materials describing the methods and procedures employed by the Company in the conduct of its business; and (6) any other secret or confidential information concerning the Company's business, affairs or technology. The term "list", "document", or their equivalent, as used in this Section, are not limited to a physical writing or compilation, but also include computer software and any and all information whatsoever regarding the subject matter in the "list" or "document" whether or not such compilation has been reduced to writing. Not withstanding the foregoing, Proprietary Information shall cease to be protected hereunder once it has become part of the public domain, or upon the written agreement of the Company. 8 11.00 TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes any and all prior agreements and understandings between the parties with respect to employment or with respect to the compensation of the Executive by the Company. 12.00 ASSIGNMENT. This Agreement is personal in nature and neither of the parties hereto shall, without the prior written consent of the other, assign or transfer this Agreement or any rights or obligations hereunder; provided, however, that in the event of the merger, consolidation or transfer sale of all or substantially all of the assets of the Company with or to any other individual or entity, this Agreement shall, subject to the provisions hereof, be binding upon and inure to the benefit of such successor and such successor shall discharge and perform all the promises, covenants, duties, and obligations of the Company hereunder. Not withstanding the foregoing, Proprietary Information shall cease to be protected hereunder once it has become part of the public domain, or upon the written agreement of the Company. 13.00 TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes any and all prior agreements and understandings between the parties with respect to employment or with respect to the compensation of the Executive by the Company. 14.00 NOTICE. Any notice under this Agreement must be in writing, may be telecopied, or sent by 24-hour express guaranteed courier, or hand-delivered, or may be served by depositing the same in the United States mail, addressed to the party to be notified, postage-prepaid and registered or certified with a return receipt requested. The addresses of the parties for the receipt of notice shall be as follows: If to the Company: Nascent Wine Company, Inc. 2355 Paseo De Las Americas Suite A San Diego, CA 92154 If to the Executive: Peter V. White 5056 Ciardi Court Carlsbad, CA 92008 Each notice given by registered or certified mail shall be deemed delivered and effective on the date of delivery as shown on the return receipt, and each notice delivered in any other manner shall be deemed to be effective as of the time of actual delivery thereof. Each party may change its address for notice by giving notice thereof in the manner specified above. 15.00 GOVERNING LAW. This Agreement and the document referenced herein and the legal relations thus created between the parties hereto shall be governed by and construed under and in accordance with laws of the U.S. States and CA . 16.00 ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the parties respecting the matters within its scope and may be modified only in writing. 9 17.00 WAIVER. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right power hereunder at any one time or times. 18.00 ATTORNEY'S FEES. The Executive and the Company agree that in any arbitration or legal proceedings arising out of the Agreement, each party shall pay his or its own legal fees and expenses. 19.00 ARBITRATION. All claims, disputes and other matters in question between the parties concerning or arising out of the employment relationship, this Agreement and/or the termination of this Agreement shall be decided by arbitration in San Diego, California in accordance with the rules of the American Arbitration Association, unless the parties mutually agree otherwise. The award by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any California or Federal court having jurisdiction thereof. 20.00 EXHIBIT AND COUNTERPARTS. Exhibit A attached to this Agreement is incorporated into and is an integral part of this Agreement. This Agreement may be executed in any number of counterparts. 21.00 SEVERABILITY. In the event that a court of competent jurisdiction determines that any portion of this Agreement is in violation of any law, statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken. All portions of this Agreement shall modify the stricken terms as narrowly as possible to give as much effect as possible to the intentions of the parties under this Agreement. 22.00 ACKNOWLEDGEMENT. The parties to this Agreement understand and agree that the Company has only a operating history and that the industry in which the Company operates is highly competitive an subject to risks that are beyond the Company's control and influence. In the event the Company discontinues its operations at any time for any or no reason whatsoever or becomes unable to perform its duties and obligations as specified herein, the Executive agrees to look solely to the Company for performance under this Agreement and will not look to the Company's other officers, stockholders, agents, or any combination of them. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has hereunto executed this Agreement, effective the first day written above. Nascent Wine Company, Inc BY: /s/ Sandro Piancone --------------------------------- Sandro Piancone THE EXECUTIVE /s/ Peter V. White ------------------------------------- Peter V. White 10 -----END PRIVACY-ENHANCED MESSAGE-----