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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report:
February
2, 2023
Gaucho
Group Holdings, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-40075 |
|
52-2158952 |
| State of |
|
Commission |
|
IRS Employer |
| Incorporation |
|
File Number |
|
Identification No. |
112
NE 41st Street, Suite 106
Miami,
FL 33137
Address
of principal executive offices
212-739-7700
Telephone
number, including Area code
Former
name or former address if changed since last report
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
| |
☐ |
Written communication pursuant
to Rule 425 under the Securities Act (17 CFR 230.425) |
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|
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☐ |
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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|
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☐ |
Pre-commencement communication
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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|
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☐ |
Pre-commencement communication
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405)
or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Common Stock |
|
VINO |
|
The Nasdaq Stock Market
LLC |
Item
1.01 Entry into a Material Definitive Agreement
As
previously reported on our Current Report on Form 8-K filed on November 8, 2021, Gaucho Group Holdings, Inc. (the “Company,”
“we,” “us” or “our”), and certain investors (the “Holders”) entered into that Securities
Purchase Agreement, dated as of November 3, 2021 (as the same has been amended, restated, amended and restated, supplemented or otherwise
modified prior to the date hereof, the “Securities Purchase Agreement”) and the Company issued to the Holders certain senior
secured convertible notes (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to
the date hereof, each, a “Note” and together with the Securities Purchase Agreement, the “Note Documents”).
For
the full description of the Note Documents, please refer to our Current Reports on Forms 8-K and the exhibits attached thereto as filed
with the SEC on November 8, 2021, March 1, 2022, May 2, 2022, May 13, 2022, July 5, 2022, September 23, 2022, and December 1, 2022.
On
February 2, 2023, the Company and the Holders entered into a fourth letter agreement (the “Letter Agreement #4”) pursuant
to which the parties agreed to reduce the Conversion Price of the Notes to the lower of: (i) the Closing Sale Price on the Trading Day
immediately preceding the Conversion Date; and (ii) the average Closing Sale Price of the common stock for the five Trading Days immediately
preceding the Conversion Date, beginning on the Trading Day of February 3, 2023. Any conversion which occurs shall be voluntary at the
election of the Holder. All terms not defined herein shall refer to the defined terms in the Note Documents.
The
foregoing description of the Letter Agreement #4 is a summary only, does not purport to be complete and is qualified in its entirety
by the full text of the document, a copy of which is attached as Exhibit 10.1, and incorporated herein by reference.
The
representations, warranties and covenants contained in the agreements described in Item 1.01 of this Current Report on Form 8-K are not
intended to be a source of factual, business or operational information about the Company; were made only for purposes of such agreements
and as of specific dates; were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon
by the parties, including being qualified by disclosures for the purpose of allocating contractual risk between the parties instead of
establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from
those applicable to investors or security holders. Accordingly, investors should not rely on the representations, warranties and covenants
or any descriptions thereof as characterizations of the actual state of facts or condition of the parties.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Letter Agreement #4 is incorporated by reference
into Item 2.03 of this Current Report on Form 8-K.
Item
3.02 Unregistered Sales of Equity Securities.
The
information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Letter Agreement #4 is incorporated by reference
into Item 3.02 of this Current Report on Form 8-K.
The
shares of common stock that have been and may be issued under the Note Documents and the Letter Agreement #4 are being offered and sold
in a transaction exempt from registration under the Securities Act of 1933, as amended, in reliance on Section 4(a)(2) thereof and/or
Rule 506(b) of Regulation D thereunder. The Company filed a Form D with the SEC on or about November 9, 2021.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, on the 3rd day of February 2023.
| |
Gaucho Group Holdings, Inc. |
| |
|
|
| |
By: |
/s/ Scott
L. Mathis |
| |
|
Scott L. Mathis, President & CEO |
Exhibit 10.1
 |
From
the Desk of Scott Mathis
Direct:
212.739.7650
Fax:
212.655.0140
smathis@gauchoholdings.com |
February
2, 2023
3i,
LP
140
Broadway Floor 38
New
York, NY 10005
Nomis
Bay, Ltd.
Wessex
House 3rd Floor
45
Reid Street
Hamilton,
HM 12
Bermuda
BPY
Limited
Wessex
House 3rd Floor
45
Reid Street
Hamilton,
HM 12
Bermuda
| Re: |
Conversion Price Voluntary Adjustment Notice |
Dear
Sirs:
Reference
is made to (a) that certain Securities Purchase Agreement dated as of November 3, 2021 (the “Purchase Agreement”)
between the Company and the purchasers identified therein, which are the same as the three addressees listed above (collectively, the
“Investors”), (b) a series of certain Amendment and Exchange Agreements dated as of February 22, 2022, September 22,
2022 and November 30, 2022 between the Company and the Investors, (c) those certain letter agreements between the Company and the Investors
on each of May 2, 2022, May 12, 2022, and July 1, 2022, (d) a series of senior secured convertible notes of the Company issued to the
Investors (the “Notes”), (e) and the other transaction documents, as modified from time to time, referred to collectively,
as the “Transaction Documents”. Capitalized terms used but not defined herein shall have the meanings given to them
in the Purchase Agreement, or if not defined therein, in the Notes, or if not defined therein, in the applicable Transaction Document,
in each case as of the date hereof.
This
letter agreement (this “Letter Agreement”) confirms our recent discussions about, among other matters, certain modifications
to the Senior Secured Convertible Notes.
| 1. | Pursuant
to Section 7(g) of the Notes, the Company hereby reduces the Conversion Price of the Notes
to the lower of: (i) the Closing Sale Price on the Trading Day immediately preceding the
Conversion Date and (ii) the average Closing Sale Price of the common stock for the five
Trading Days immediately preceding the Conversion Date, beginning on the Trading Day of February
3, 2023. Any conversion which occurs shall be voluntary at the election of the Holder, which
shall evidence its election as to the note being converted in writing on a conversion notice. |
This
Letter Agreement is a Transaction Document and is limited as written. As of the date first written above, each reference in the Purchase
Agreement or any other applicable Transaction Document to “this Agreement,” “hereunder,” “hereof,”
“herein,” or words of like import, and each reference in the other Transaction Documents to such Purchase Agreement
or other Transaction Documents (including, without limitation, by means of words like “thereunder,” “thereof”
and words of like import), shall refer to the Purchase Agreement as modified thereby, and this Letter Agreement and the Purchase Agreement
shall be read together and construed as a single agreement. The execution, delivery and effectiveness of this Letter Agreement shall
not, except as expressly provided herein, (A) waive or modify any right, power or remedy under, or any other provision of, any Transaction
Document or (B) commit or otherwise obligate any Purchaser to enter into or consider entering into any other amendment, waiver or modification
of any Transaction Document.
All
communications and notices hereunder shall be given as provided in the Transaction Documents. This Letter Agreement (a) shall be governed
by and construed in accordance with the law of the State of New York, (b) is for the exclusive benefit of the parties hereto and the
other Purchasers and beneficiaries of the Purchaser Agreement and, together with the other Transaction Documents, constitutes the entire
agreement of such parties, superseding all prior agreements among them, with respect to the subject matter hereof, (c) may be modified,
waived or assigned only in writing and only to the extent such modification, waiver or assignment would be permitted under the Transaction
Documents (and any attempt to assign this Letter Agreement without such writing shall be null and void), (d) is a negotiated document,
entered into freely among the parties upon advice of their own counsel, and it should not be construed against any of its drafters and
(e) shall survive the satisfaction or discharge of the amounts owing under the Transaction Documents. The fact that any term or provision
of this Letter Agreement is held invalid, illegal or unenforceable as to any person in any situation in any jurisdiction shall not affect
the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability or legality of such
offending term or provision in any other situation or jurisdiction or as applied to any person.
This
Letter Agreement is expressly conditioned on the following conditions precedent:
| (1) | The
Company’s Board of Directors shall have approved this Letter Agreement and all undertakings
thereto in all respects and shall provide written evidence of the same to the Investors by
February 3, 2023; and |
| | | |
| (2) | The
Company shall have verified and confirmed with its transfer agent that there are no impediments
to the issuance of shares as a result of this Letter Agreement. |
Kindly
confirm your agreement with the above by signing in the space indicated below and by PDFing a partially executed copy of this letter
to the undersigned, and which may be executed in identical counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement.
[Signatures
follow on next page]
| |
Very
truly yours, |
| |
|
| |
GAUCHO
GROUP HOLDINGS, INC. |
| |
|
| |
By: |
|
| |
|
Scott
L Mathis |
| |
|
President
& Chief Executive Officer |
AGREED
AND ACCEPTED:
| 3i,
LP |
|
| |
|
| By:
|
|
|
| Name: |
Maier
J Tarlow |
|
| Title:
|
Manager
On Behalf Of The GP |
|
| |
|
| Nomis
Bay, Ltd. |
|
| |
|
| By:
|
|
|
| Name:
|
|
|
| Title: |
|
|
| |
|
| BPY
Limited |
|
| |
|
| By: |
|
|
| Name:
|
|
|
| Title: |
|
|