Exhibit 10.2


 


ESCROW AGREEMENT


 


 


THIS ESCROW AGREEMENT
(this “Agreement”) is dated as of October 29, 2007 (the “Effective
Date”), by and among NASCENT WINE COMPANY, INC., a Nevada corporation (“Buyer”),
each of the Persons set forth on Schedule A hereto (“Sellers”),
and CORPORATE STOCK TRANSFER, INC. (the “Escrow Agent”).  Capitalized terms used but not defined herein
shall have the meaning set forth in the Stock Purchase Agreement (As defined
below).


RECITALS


 


WHEREAS, Sellers, Buyer and Comercial Targa, S.A. de
C.V. have entered into a Stock Purchase Agreement, dated as of October 29, 2007
(the “Stock Purchase Agreement”); and


 


WHEREAS, in accordance with the Stock Purchase
Agreement, Buyer is depositing with the Escrow Agent the sum of $250,000  (the “Escrow Funds”), which sum
shall be disbursed in accordance with the provisions of the Stock Purchase
Agreement and this Agreement.


 


NOW, THEREFORE, for and in consideration of the mutual
covenants contained in the Stock Purchase Agreement and herein, and other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, Buyer, Sellers and Escrow Agent hereby agree as follows:


 


1.             Deposit
of Cash.  Upon the Closing, Buyer
will cause to be delivered to the Escrow Agent (i) this Agreement and (ii) the
Escrow Funds by wire transfer of immediately available funds.


2.             Methods
of Disposition of Escrow Funds.  The
Escrow Agent will hold the Escrow Funds in its possession and will disburse
such Escrow Funds, or a portion thereof, as follows:


(a)           Upon receipt of a duly executed
certificate in substantially the form of Schedule I hereto (a “Certificate”),
as directed in such Certificate.


(b)           With reference to claims for payment
of Losses or for indemnification pursuant to the Stock Purchase Agreement, to
Buyer as follows:


(i)            Buyer may at any time give written
notice to Sellers and the Escrow Agent that Buyer is asserting one or more
claims for indemnification or payment of Losses pursuant to the Stock Purchase
Agreement (a “Notice of Claim”). 
Each Notice of Claim shall include a description of the basis for such
claim and an estimated dollar value of such claim, to the extent known. 


(ii)           If, on or prior to the 30th calendar
day following the date of delivery of a Notice of Claim, the Escrow Agent and
Buyer shall not have received a written notice from Sellers of the type
described below, then on the 31st  day or the next


 


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succeeding business day, the Escrow Agent shall
withdraw from the Escrow Funds and pay to Buyer an amount equal to the lesser
of (i) the aggregate of the claims asserted in the Notice of Claim, or (ii) the
balance of the Escrow Funds on the date of payment.  Any claim set forth in a Notice of Claim that
is not specifically disputed in a written notice from Sellers shall be paid by
the Escrow Agent even though a notice of dispute was given by Sellers with
respect to other claims set forth in the Notice of Claim.


(iii)          Sellers may deliver
to the Escrow Agent and Buyer, on or prior to the 30th calendar day
following the date of delivery of a Notice of Claim, a written notice to the
effect that Sellers dispute the fact or amount of any one or more of the claims
asserted in the Notice of Claim.  If such
notice of dispute from Sellers is delivered to the Escrow Agent and Buyer
within such time period, then the Escrow Agent shall not disburse from the
Escrow Funds the amount or amounts specifically disputed in the notice of
dispute from Sellers, unless pursuant to or in accordance with: (x) a duly
executed Certificate setting forth the amount of the Escrow Funds to be
distributed to Buyer or Sellers, as the case may be, or (y) an Order (as
defined in Section 6(k)).


(c)           To Sellers, in accordance with their
Pro Rata Shares as directed pursuant to the written instructions of Sellers, as
follows:  


(i)            On the six month
anniversary of the Closing Date, the amounts remaining, if any, of the Escrow
Funds (plus any interest and earnings on such amount) less the amount necessary
to cover all then outstanding Notices of Claim asserted by Buyer pursuant to
the Stock Purchase Agreement, which reserved amount shall thereafter be
distributed as described in Section 2(b).


3.             Execution
of Certificate.  To the extent all or
any portion of the Escrow Funds are required pursuant to the Stock Purchase
Agreement to be delivered to either Buyer or Sellers, Buyer and Sellers agree
to promptly (but in no event more than two (2) business days after such amount
is determined) execute and deliver to the Escrow Agent a certificate as
contemplated by Section 2 herein. 


4.             Disputes.  If a dispute occurs between the parties
hereto, then the Escrow Agent shall be entitled to take all actions provided
for in Section 6(l) herein and thereupon be discharged from all further duties
and liabilities under this Agreement. 
The occurrence of any such dispute shall not deprive the Escrow Agent of
its compensation earned prior thereto and the provisions of this Section 4
shall survive with respect thereto.


5.             Investments;
Disposition of Income.  The Escrow
Agent shall invest the Escrow Funds as
directed in writing by Buyer and Sellers. 
Any income received by the Escrow Agent from investments of the
Escrow Funds pursuant to this Section 5 shall be added to the Escrow Funds and
distributed as part of the Escrow Funds.


 


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6.             Concerning
the Escrow Agent.


(a)           The
Escrow Agent shall not be under any duty to give the Escrow Funds held by it
hereunder any greater degree of care than it gives its own similar property and
shall not be required to invest any funds held hereunder except as directed
pursuant to Section 5 herein.


(b)           This Agreement expressly sets forth
all the duties of the Escrow Agent with respect to any and all matters pertinent
hereto.  No implied duties or obligations
shall be read into this Agreement against the Escrow Agent.  The Escrow Agent shall not be bound by the
provisions of any other agreement among the parties hereto except this
Agreement.


(c)           The Escrow Agent shall not be liable,
except for its own gross negligence or willful misconduct, and, except with
respect to claims based upon such gross negligence or willful misconduct that
are successfully asserted against the Escrow Agent, the other parties hereto shall
jointly and severally indemnify and hold harmless the Escrow Agent (and any
successor Escrow Agent) from and against any and all losses, liabilities,
claims, actions, damages and expenses, including reasonable attorney’s fees and
disbursements, arising out of and in connection with this Agreement.  Without limiting the foregoing, the Escrow
Agent shall in no event be liable in connection with its investment or
reinvestment of any Escrow Funds held by it hereunder in good faith, in
accordance with the terms hereof, including, without limitation, any liability
for any delays (not resulting from its gross negligence or willful misconduct)
in the investment or reinvestment of the Escrow Funds, or any loss of interest
incident to any such delays.


(d)           The Escrow Agent shall be entitled to
rely upon any arbitration award, order, judgment, certification, demand,
notice, instrument or other writing delivered to it hereunder without being
required to determine the authenticity or the correctness of any fact stated therein
or the proprieties, validity or the service thereof.  The Escrow Agent may act in reliance upon any
instrument or signature reasonably believed by it to be genuine and may assume
that any person purporting to give notice or advice, accept receipt of or
execute any document, or make any statement in connection with the provisions
hereof, has been duly authorized to do so.


(e)           The Escrow Agent may act pursuant to
the reasonable advice of counsel with respect to any matter relating to this
Agreement and, except for its own gross negligence or willful misconduct, the
Escrow Agent shall not be liable for any action taken or omitted in accordance
with such advice.


(f)            The Escrow Agent is serving as
escrow holder only and has no interest in the Escrow Funds deposited
hereunder.  Any payments of income from
this Agreement shall be subject to withholding regulations then in force with
respect to United States Taxes.  The
parties hereto will provide the Escrow Agent with appropriate W-9 or other
applicable forms for tax identification number certification or nonresident
alien certifications.  This Section 6(f)
and Section 6(c) herein shall survive notwithstanding any termination of this
Agreement or the resignation of the Escrow Agent.


 


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(g)           The Escrow Agent makes no
representation as to the validity, value, genuineness or the collectibility of
any security or other documents or instrument held by or delivered to it.


(h)           The Escrow Agent shall not be called
upon to advise any party as to the wisdom in selling or retaining or taking or
refraining from any action with respect to any securities or other property
deposited hereunder.


(i)            The Escrow Agent (and any successor
Escrow Agent) may at any time resign as such by delivering the Escrow Funds to
any successor Escrow Agent jointly designated by the other parties hereto in
writing, or to any court of competent jurisdiction, whereupon the Escrow Agent
shall be discharged of and from any and all further obligations arising in
connection with this Agreement.  The
resignation of the Escrow Agent will take effect on the earlier of (i) the
appointment of a successor (including a court of competent jurisdiction), or
(ii) the day which is thirty (30) days after the date of delivery of its
written notice of resignation to the other parties hereto.  If at that time the Escrow Agent has not
received a designation of a successor Escrow Agent, the Escrow Agent’s sole
responsibility after that time shall be to safekeep the Escrow Funds until
receipt of a designation of successor Escrow Agent or a joint written
disposition instruction by the other parties hereto or an Order.


(j)            The Escrow Agent shall have no
responsibility for the contents of any writing of the court or any third party
contemplated herein as a means to resolve disputes and may rely without any
liability upon the contents thereof.


(k)           In the event of any disagreement
between the other parties hereto resulting in adverse claims or demands being
made in connection with the Escrow Funds, or in the event that the Escrow Agent
in good faith is in doubt as to what action it should take hereunder, the
Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow
Agent shall have received (i) an order of a court of competent jurisdiction
directing delivery of the Escrow Funds (an “Order”) or (ii) a written
agreement executed by the other parties hereto directing delivery of the Escrow
Funds, in which event the Escrow Agent shall disburse the Escrow Funds in
accordance with such Order or agreement. 
The Escrow Agent shall act on such Order without further question.


(l)            Notwithstanding anything to the
contrary contained herein, in the event of any dispute between the parties
hereto as to the facts of default, the validity or meaning of these
instructions or any other fact or matter relating to the transaction between
the parties, the Escrow Agent is instructed as follows:


(i)            That
it shall be under no obligation to act, except under process or order of court,
or until it has been adequately indemnified to its full satisfaction, and shall
sustain no liability for its failure to act pending such process or court order
or indemnification; and


(ii)           That
it may in its sole and absolute discretion, deposit the property herein or so
much thereof as remains in its hands with the then Clerk, or acting Clerk, of
the District Court of the City and County of Denver, State of Colorado,
interplead the


 


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parties hereto, and upon so depositing such property and filing its
complaint in interpleader it shall be relieved of all liability under the terms
hereof as to the property so deposited, and furthermore, the parties hereto for
themselves, their heirs, legal representatives, successors and assigns do
hereby submit themselves to the jurisdiction of said court.  The institution of any such interpleader
action shall not impair the rights of the Escrow Agent under Section 6(c)
above.  The right of the Escrow Agent to
file such an interpleader action shall not alter the fact that the dispute
shall be resolved by arbitration by the American Arbitration Association as
provided in the Supply Agreement.


(m)          Buyer and Sellers agree to each pay
50% the Escrow Agent’s compensation for the services hereunder, which is an
aggregate of $1,000  per year.  All reasonable expenses, disbursements and
advances incurred or made by the Escrow Agent in performance of its duties
hereunder (including reasonable fees, expenses and disbursements of its
counsel), shall be paid by Buyer.


(n)           No printed or other matter in any
language (including, without limitation, prospectuses, notices, reports and
promotional materials) which mentions the Escrow Agent’s name or the rights,
powers or duties of the Escrow Agent shall be issued by the other parties
hereto or on such parties’ behalf unless the Escrow Agent shall first have
given its specific written consent thereto.


7.             Notices.
Any notice, request, demand, waiver, consent, approval or other communication
which is required or permitted hereunder shall be in writing.  All such notices shall be delivered
personally, by facsimile, by email or by reputable overnight courier (costs
prepaid), and shall be deemed given or made when delivered personally, the
business day sent if sent by facsimile or email or one business day after
delivery to the overnight courier for next business day delivery.  All such notices are to be given or made to
the parties at the following addresses (or to such other address as any party
may designate by a notice given in accordance with the provisions of this
Section):


	
  If to Sellers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  c/o Comercial Targa,
  S.A. de C.V.

  	
   

  
	
   

  	
  Blvd. Insurgentes 19801 Nave 4-A

  	
   

  
	
   

  	
  Parque Industrial FIM-HER C.P.22216

  	
   

  
	
   

  	
  Tijuana, B.C., Mexico

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Buyer:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Nascent Wine Company,
  Inc.

  	
   

  
	
   

  	
  2355 Paseo de Las
  Americas

  	
   

  
	
   

  	
  San Diego,
  California  92154

  	
   

  
	
   

  	
  Attention:  Sandro Piancone, Chief Executive Officer

  	
   

  
	
   

  	
  Telephone:      (619)
  661-0458

  
	
   

  	
  Facsimile:       (619)
  661-97345

  



 


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  with a copy (which
  shall not serve as notice) to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Brownstein Hyatt Farber Schreck, P.C.

  	
   

  
	
   

  	
  410 17th Street, Suite
  2200

  	
   

  
	
   

  	
  Denver, Colorado  80202

  	
   

  
	
   

  	
  Attention:  Adam J. Agron

  	
   

  
	
   

  	
  Telephone:      (303)
  223-1100

  	
   

  
	
   

  	
  Facsimile:       (303)
  223-1111

  	
   

  
	
   

  	
   

  	
   

  
	
  If to the Escrow Agent:

  
	
   

  	
   

  	
   

  
	
   

  	
  Corporate Stock
  Transfer, Inc.

  	
   

  
	
   

  	
  3200 Cherry Creek
  Drive, Suite 430

  	
   

  
	
   

  	
  Denver, Colorado  80209

  	
   

  
	
   

  	
  Attention:  Carylyn Bell, President

  	
   

  
	
   

  	
  Telephone:      (303)
  282-4800

  	
   

  
	
   

  	
  Facsimile:       (303)
  777-2825

  	
   

  



 


8.             Waivers
and Amendments.  This Agreement may
be amended, superseded, canceled, renewed or extended and the terms hereof may
be waived only by a written instrument signed by Buyer and Sellers.


9.             Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


10.           Governing
Law; Severability.  This Agreement
shall be governed by, and construed in accordance with, the internal laws of
the State of Colorado, without reference to the choice of law or conflicts of
law principles thereof.  Should any
clause, section or part of this Agreement be held or declared to be void or
illegal for any reason, all other clauses, sections or parts of this Agreement
shall nevertheless continue in full force and effect.


11.           Assignment.  Neither the rights nor the obligations of any
party to this Agreement may be transferred or assigned, except by the express
written agreement of the parties hereto. 
Any purported assignment of this Agreement shall be null, void and of no
effect.


12.           Termination.  This Agreement shall terminate upon the
complete distribution of the Escrow Funds in accordance with the terms
hereof.  If any Escrow Funds are subject
to a dispute under Section 4 herein, this Agreement shall remain in full force
and effect until such dispute is resolved in accordance with Section 4 herein.


13.           Binding
Effect.  This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
representatives, successors and permitted assigns.


* * * * *


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be signed on the date and year first written above.


 


 


	
  BUYER:

  
	
   

  
	
  NASCENT WINE COMPANY, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Sandro Piancone

  
	
   

  	
  Sandro Piancone

  
	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  SELLERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Julia Olavarri de Arana

  
	
  Julia Olavarri de Arana

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Luís I. Arana Olavarri

  
	
  Luís I. Arana Olavarri

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Juan Carlos Arana Olavarri

  
	
  Juan Carlos Arana Olavarri

  
	
   

  	
   

  
	
   

  	
   

  
	
  ESCROW AGENT:

  
	
   

  	
   

  
	
  CORPORATE STOCK TRANSFER, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Carylyn Bell

  
	
   

  	
  Carylyn Bell

  
	
   

  	
  President

  
			



 


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SCHEDULE I


 


 


CERTIFICATE


 


Reference is hereby made to the Escrow Agreement (the “Escrow
Agreement”), dated as of October 29, 2007, by and among Nascent Wine
Company, Inc. (“Buyer”), each of the Persons set forth on the signature
page hereto (“Sellers”), and Corporate Stock Transfer, Inc. (the “Escrow
Agent”).  Capitalized terms used
herein but not defined herein have the meaning assigned such terms in the
Escrow Agreement.


 


1.             Buyer
and Sellers acknowledge and agree that Escrow Funds shall be released to [Buyer
/ Seller] pursuant to Section [2(a) or (b)] of the Escrow Agreement; and


 


2.             Accordingly,
Buyer and Seller hereby instruct the Escrow Agent to disburse [$            ]
of the Escrow Funds to [Buyer / Seller] as follows:


 


[Add Buyer’s or Seller’s wire
transfer instructions]


 


[Remainder of page intentionally left blank; signature page
to follow]


 


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                IN WITNESS
WHEREOF, Buyer and Seller have executed this certificate as of                     ,
200    .


 


	
  BUYER:

  	 

	
   

  	 

	
  NASCENT WINE COMPANY, INC.

  	 

	
   

  	 

	
  By:

  	
   

  
	
  Name:

  	
  Sandro Piancone

  
	
  Title:

  	
  Chief Executive Officer

  
	
   

  	 

	
   

  	 

	
  SELLERS:

  	 

	
   

  	 

	
   

  	 

	
   

  	 

	
  Julia Olavarri de Arana

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	 

	
  Luís I. Arana Olavarri

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	 

	
  Juan Carlos Arana Olavarri

  	 

	
   

  	
   

  	 

				



 


 


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