Exhibit
10.1


 


AMENDMENT
AND EXCHANGE AGREEMENT


 


This
Amendment and Exchange Agreement (the “Agreement”) is entered into as of the 30th day of November, 2022, by and among
Gaucho Group Holdings, Inc., a Delaware corporation (the “Company”) and the investor signatory hereto (the “Holder”),
with reference to the following facts:


 


A. Prior
to the date hereof, pursuant to that Securities Purchase Agreement, dated as of November 3, 2021, by and between the Company and the
investors (including the Holder, the “Holders”) (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 Registration Rights Agreement
by and between the Company and the Holders dated November 9, 2021 (as the same has been amended, restated, amended and restated, supplemented
or otherwise modified prior to the date hereof, the “Registration Rights Agreement”), 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, an “Existing Note” and together with the Securities Purchase Agreement, the “Existing
Note Documents”). Capitalized terms used but not otherwise defined herein shall have the meanings as set forth in the Securities
Purchase Agreement (as amended hereby) or, as the context may require, the Existing Notes.


 


B. As
of the date of this Agreement, the Holder is the holder of such aggregate principal amount of Existing Notes as set forth on the signature
page of the Holder attached hereto and has not assigned, transferred or exchanged any of its Existing Notes.


 


C. The
Company and the Holder desire to amend and waive certain provisions of the Existing Note Documents and exchange (the “Exchange”
or the “Transaction”) $100 in aggregate principal amount of the Existing Note (the “Exchange Note”),
on the basis and subject to the terms and conditions set forth in this Agreement, for a warrant, in the form attached hereto as Exhibit
A (the “New Warrant”), exercisable into such aggregate number of shares of Common Stock of the Company as
set forth on the signature page of the Holder attached hereto (the “New Warrant Shares”, and together with the New
Warrant, collectively, the “New Securities”).


 


D. The
New Warrant and this Agreement and such other documents and certificates related thereto are collectively referred to herein as the “Exchange
Documents”.


 


E. The
Exchange is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as
amended (the “Securities Act”).


 


NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:


 


1. Exchange.
On the Closing Date (as defined below), subject to the terms and conditions of this Agreement, pursuant to Section 3(a)(9) of the Securities
Act, the Holder shall convey, assign and transfer the Exchange Note to the Company in exchange for which the Company shall issue the
New Warrant to the Holder. On the Closing Date, in exchange for the Exchange Note, the Company shall deliver or cause to be delivered
to the Holder (or its designee) the New Warrant at the address for delivery set forth on the signature page of the Holder attached hereto.
Immediately following the delivery of the New Warrant to the Holder (or its designee), the Holder shall relinquish all rights, title
and interest in the Exchange Note (including any claims the Holder may have against the Company related thereto) and assign the same
to the Company, and the Exchange Note shall be deemed canceled.


 






    	 



     


    

 


2. Ratifications;
Incorporation of Terms under Transaction Documents.


 


(a) Ratifications.
Except as otherwise expressly provided herein, the Securities Purchase Agreement and each other Transaction Document, is, and shall continue
to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the date hereof: (i) all
references in the Securities Purchase Agreement to “this Agreement”, “hereto”, “hereof”, “hereunder”
or words of like import referring to the Securities Purchase Agreement shall mean the Securities Purchase Agreement as amended by this
Agreement, and (ii) all references in the other Transaction Documents to the “Securities Purchase Agreement”, “thereto”,
“thereof”, “thereunder” or words of like import referring to the Securities Purchase Agreement shall mean the
Securities Purchase Agreement as amended by this Agreement.


 


(b) Amendments
to Securities Purchase Agreement. Effective as of the date hereof, the Securities Purchase Agreement is hereby amended as follows
(and any such agreements, covenants and related provisions therein shall be deemed incorporated by reference herein, mutatis mutandis,
as amended as such):


 


(i) Section
4(k) of the Agreement is hereby amended and restated in its entirety as follows:


 


(k) Additional
Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written
consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue
any other securities that would cause a breach or default under the Notes. Unless otherwise agreed upon in writing by the Buyers,
for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the
Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension
thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not
available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the
Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or
otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any
equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that
term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any
preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring
during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”).
Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or
standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such
pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of
Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate,
exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of
any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of
the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers;
(ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date
hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is
made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible
Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price
of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan
that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of
shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially
changed in any manner that adversely affects any of the Buyers; (iii) shares of Common Stock issued pursuant to that certain Common
Stock Purchase Agreement and Registration Rights Agreement with Tumim Stone Capital dated November 8, 2022 and any subsequent equity
line of credit mutually agreed upon with Tumim Stone Capital (the “Permitted Equity Line”); (iv) 454,576 shares
of Common Stock and warrants to purchase 454,576 shares of Common Stock pursuant to the terms of those certain notes which converted
on August 30, 2022; (v) shares of Common Stock and warrants to purchase shares of Common Stock to be issued in connection with a
private placement convertible notes of up to $1,500,000 proceeds at a price per share not less than $2.40 and an additional
$3,750,000 upon the exercise of all warrants; (vi) any shares of Common Stock issued or issuable in connection with any bona fide
strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the
primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of
the securities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance,
strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the actual owners of such assets or
securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants, officers, directors
or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of
an asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in
addition to the investment of funds, and (z) the number or amount of securities issued to such Persons by the Company shall not be
disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or
commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company,
as applicable and (vii) the Conversion Shares, (each of the foregoing in clauses (i) through (vii), collectively the
“Excluded Securities”) and (ix) subject to the Company’s compliance with Section 10 of the Note (including,
without limitation, the issuances of Subsequent Warrants (as defined in the Note) to the Buyers in connection therewith as required
thereunder, if applicable), any bone fide public offering of Common Stock and/or Options of the Company. “Approved Stock
Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or
subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued
to any employee, consultant, officer or director for services provided to the Company in their capacity as such.


 






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3. Limited
Waivers and Additional Terms.


 


a.
The Holder hereby waives, in part, the Amortization (as defined in the Existing Notes) required on November 9, 2022, such that the accrued
and unpaid interest on such applicable Amortization Amount and any unpaid Amortization Amounts (including any Make-Whole Amount and accrued
and unpaid Late Charges) with respect to each such Amortization Date (as defined in the Existing Notes) shall be due and payable on the
Maturity Date (as defined in the Existing Notes) or such earlier date as any such amount shall become due and payable pursuant to
the other terms of the Existing Note and/or this Agreement.


 


b.
The Holder hereby extends the Maturity Date from November 9, 2022 to February 9, 2023 as set forth in Section 33(ff) of the Existing
Notes. The Conversion Amount and all outstanding Amortization Amounts and Amortization Redemption Amounts (as defined in the Existing
Notes) shall be due and payable in full on the Maturity Date or such earlier date as any such amount shall become due and payable
pursuant to the other terms of the Existing Note and/or this Agreement.


 


c. Pursuant
to Section 7(g) of the Existing Notes, the Company hereby reduces the Conversion Price of the Notes to $6.84 for the Trading Days of
December 1, 2022, through and inclusive of February 9, 2023. Any conversion which occurs shall be voluntary at the election of the Holder,
which shall evidence its election as to the Existing Note being converted in writing on a Conversion Notice.


 


d. Until
the Conversion Amount and all outstanding Amortization Amounts and Amortization Redemption Amounts are paid in full, including through
the issuance of Conversion Shares, the outstanding balance of the Existing Notes will accrue interest at 9% per annum.


 


e. Any
amount repaid pursuant to the Existing Notes in cash or through the issuance of Conversion Shares shall include a 15% premium payable
in cash or through the issuance of additional Conversion Shares.


 


f. For
any sale of securities made pursuant to the Permitted Equity Line (as defined in the Securities Purchase Agreement), 50% of the proceeds
(less the fee to the Placement Agent) from such sale shall be used to pay satisfy the Conversion Amount and all Amortization Redemption
Amounts.


 


g. The
Holder hereby waives the requirement in Section 2 of the Registration Rights Agreement requiring the filing and effectiveness of a Registration
Statement (as defined in the Registraton Rights Agreement) covering the resale of all of the Registrable Securities (as defined in the
Registration Rights Agreement).


 






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h. The
Holder hereby waives the requirement in Section 4(d) regarding use of proceeds from the sale of the Securities but not with respect to
any other subsequent placement of securities to pay off in full the loan set forth on Schedule 4(d)(i) as of November 9, 2021.


 


i. The
Holder hereby waives all breaches which have occurred under the terms of the Existing Note Documents (as the same has been amended, restated,
amended and restated, supplemented or otherwise modified prior to the date hereof) through and including the date of execution of this
Agreement as set forth on Schedule 3(c) of this Agreement.


 


4. Company
Representations and Warranties. As of the date hereof and as of the Closing Date (as defined below):


 


4.1. Each
of the Company and each of its Subsidiaries are entities duly organized and validly existing and in good standing under the laws of the
jurisdiction in which they are formed, and have the requisite power and authority to own their properties and to carry on their business
as now being conducted and as presently proposed to be conducted. Each of the Company and each of its Subsidiaries is duly qualified
as a foreign entity to do business and is in good standing in every jurisdiction in which the character of the properties owned or leased
by it or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). As used in this
Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets, liabilities,
operations (including results thereof), condition (financial or otherwise) or prospects of the Company and its Subsidiaries, taken as
a whole, (ii) the transactions contemplated hereby or in any of the other Exchange Documents or any other agreements or instruments to
be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to perform
any of their respective obligations under any of the Exchange Documents (as defined below). Other than the Persons set forth on Schedule
3(a) of the Securities Purchase Agreement, the Company has no subsidiaries.


 


4.2. Authorization
and Binding Obligation. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement,
the New Warrant and each of the other agreements entered into by the parties hereto in connection with the transactions contemplated
by the Exchange Documents and to consummate the Transaction (including, without limitation, the issuance of the New Warrant in accordance
with the terms hereof and thereof). As of the Closing Date, the execution and delivery of the Exchange Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the New
Warrant and the reservation for issuance and issuance of the New Warrant Shares issuable upon exercise of the New Warrant will have been
duly authorized by the Company’s Board of Directors (or a duly authorized committee thereof) and no further filing, consent, or
authorization will be required by the Company, its Board of Directors or its stockholders (other than such filings as may be required
by any federal or state securities laws, rules or regulations). This Agreement has been and, as of the Closing Date, the other Exchange
Documents to which the Company is a party will have been, duly executed and delivered by the Company, and constitute or will constitute,
as applicable, the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective
terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and
remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws.


 






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4.3. No
Conflict. The execution, delivery and performance of the Exchange Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby (including, without limitation, the issuance of the New Warrant and reservation for
issuance and issuance of the New Warrant Shares) will not (i) result in a violation of its Certificate of Incorporation or any other
organizational documents of the Company or any of its Subsidiaries, any capital stock of the Company or any of its Subsidiaries or Bylaws
of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its Subsidiaries is a party, after giving effect to the consent and limited waiver
contained in Section 3 above and the receipt by the Company of the Required Consents (as defined below), or (iii) result in a violation
of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the
rules and regulations of the Nasdaq Capital Markets LLC (the “Principal Market”) and including all applicable federal
laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or
any of its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that would
not reasonably be expected to have a Material Adverse Effect.


 


4.4. No
Consents. Except as set forth on Schedule 4.4 (the “Required Consents”), neither the Company nor any Subsidiary
is required to obtain any consent from, authorization or order of, or make any filing or registration with (other than such filings as
may be required by any federal or state securities laws, rules or regulations or any Nasdaq rules), any Governmental Entity or any regulatory
or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under
or contemplated by the Exchange Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations,
orders, filings and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been
or will be obtained or effected on or prior to the Closing Date, and neither the Company nor any of its Subsidiaries are aware of any
facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration,
application or filings contemplated by the Exchange Documents.


 


4.5. Securities
Law Exemptions. Assuming the accuracy of the representations and warranties of the Holder contained herein, the offer and issuance
by the Company of the New Securities is exempt from registration under the Securities Act pursuant to the exemption provided by Section
3(a)(9) of the Securities Act thereof.


 


4.6. Status
of Existing Notes; Issuance of New Securities.


 


(a) The
Company has no knowledge that any Existing Note is subject to dispute and to the knowledge of the Company there is no action based on
any Existing Note that is currently pending in any court or other legal venue and to the knowledge of the Company no judgments based
upon any Existing Note have been previously entered in any legal proceeding. The Company has not received any written notice from the
Holder or any other person challenging or disputing any Existing Note, or any portion thereof, and prior to the Exchange, the Company
is unconditionally obligated to pay the entire aggregate principal amount outstanding under the Existing Notes (and any accrued and unpaid
interest thereunder) without defense, counterclaim or offset.


 






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(b) As
of the Closing Date, the issuance of the New Warrant will be duly authorized and upon issuance in accordance with the terms of the Exchange
Documents shall be validly issued, fully paid and non-assessable and free from all Liens (as defined in the Existing Notes). Upon issuance
upon exchange, in accordance with the New Warrant, the New Warrant Shares, when issued, will be validly issued, fully paid and nonassessable
and free from all Liens with respect to the issue thereof, with the Holder being entitled to all rights accorded to a holder of Common
Stock. By virtue of Section 3(a)(9) under the Securities Act, the New Warrant will have a Rule 144 holding period that will be deemed
to have commenced as of the Closing Date (as defined in the Securities Purchase Agreement), the date of the original issuance of the
Existing Notes to the Holders. At any time on and after May 9, 2022, assuming (i) the Holder is not an affiliate of the Company and (ii)
at such time of determination the Company has not failed to satisfy the requirements of Rule 144(c)(1), including, without limitation,
the failure to satisfy the current public information requirement under Rule 144(c) (a “Current Public Information Failure”),
(A) the New Warrant shall not be required to bear any restrictive legend and shall be freely transferable by the Holder pursuant to and
in accordance with Rule 144 of the Securities Act (“Rule 144”) and (B) to the extent any applicable New Warrant Shares
are issued pursuant to a “cashless exercise” of the New Warrant, such New Warrant Shares shall not be required to bear any
restrictive legend and shall be freely transferable by the Holder pursuant to and in accordance with Rule 144.


 


4.7. Transfer
Taxes. On the Closing Date, all share transfer or other taxes (other than income or similar taxes) that are required to be paid in
connection with the issuance of the New Warrant to be issued to the Holder hereunder will be, or will have been, fully paid or provided
for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


4.8. Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in material violation of any term of or in default
under its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding series of preferred
stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation, memorandum of association,
articles of association, Certificate of Incorporation or certificate of incorporation or bylaws, respectively. Neither the Company nor
any of its Subsidiaries is in material violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable
to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation
of any of the foregoing, except in all cases for possible violations which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in the SEC Documents,
the Company is not in material violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge
of any facts or circumstances that could reasonably lead to delisting or suspension of the Common Stock by the Principal Market in the
foreseeable future. Except as set forth in SEC Documents, during the two years prior to the date hereof, (i) the Common Stock has been
listed or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended by the Securities
and Exchange Commission (“SEC”) or the Principal Market and (iii) the Company has received no communication, written
or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal Market. The
Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and neither the Company nor any such
Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or
permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries
or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting
or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or
any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects,
individually or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company
or any of its Subsidiaries.


 






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4.9. No
Consideration Paid. No consideration, commission or other remuneration has been paid by the Holder to the Company, its Subsidiaries
or any of their agents or affiliates in connection with the Exchange.


 


4.10. Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided the Holder or its agents or counsel with
any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company
or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Exchange Documents
and any matters disclosed in the 8-K Filing (as defined below). The Company understands and confirms that the Holder will rely on the
foregoing representations in effecting transactions in securities of the Company.


 


5. Holder’s
Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the Exchange,
the Holder hereby represents and warrants with and to the Company, as of the date hereof and as of the Closing Date, as follows:


 


5.1 Reliance
on Exemptions. The Holder understands that the New Securities are being offered and exchanged in reliance on specific exemptions
from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings
of the Holder set forth herein and in the other Exchange Documents in order to determine the availability of such exemptions and the
eligibility of the Holder to acquire the New Securities.


 


5.2
No Governmental Review. The Holder understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the New Securities or the fairness or suitability of the investment
in the New Securities nor have such authorities passed upon or endorsed the merits of the offering of the New Securities.




 


5.3 Validity;
Enforcement. This Agreement and the other Exchange Documents to which the Holder is a party have been duly and validly authorized,
executed and delivered on behalf of the Holder and shall constitute the legal, valid and binding obligations of the Holder enforceable
against the Holder in accordance with their respective terms, except as such enforceability may be limited by general principles of equity
or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and remedies.


 






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5.4 No
Conflicts. The execution, delivery and performance by the Holder of this Agreement and the other Exchange Documents to which the
Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not (i) result in a violation
of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture or instrument to which the Holder is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws) applicable to the Holder, except in the case of clauses (ii) and (iii)
above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the ability of the Holder to perform its obligations hereunder.


 


5.5 Investment
Risk; Sophistication. The Holder is acquiring the New Warrant hereunder in the ordinary course of its business. The Holder has such
knowledge, sophistication, and experience in business and financial matters so as to be capable of evaluation of the merits and risks
of the prospective investment in the New Warrant, and has so evaluated the merits and risk of such investment. The Holder is an “accredited
investor” as defined in Regulation D under the Securities Act.


 


5.6 Ownership
of Exchange Note. The Holder owns the Exchange Note free and clear of any Liens (other than the obligations pursuant to this Agreement,
the Transaction Documents and applicable securities laws) and has the requisite power and authority to enter into and perform its obligations
under this Agreement and each of the other Exchange Documents to which it is a party and to consummate the Transaction.


 


5.7 Transfer
or Resale. The Holder understands that except as provided Section 10 hereof: (i) the New Securities have not been and are not being
registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless
(A) subsequently registered thereunder, (B) the Holder shall have delivered to the Company (if requested by the Company) an opinion of
counsel, in a form reasonably acceptable to the Company, to the effect that such New Securities to be sold, assigned or transferred may
be sold, assigned or transferred pursuant to an exemption from such registration, or (C) the Holder provides the Company with reasonable
assurance that such New Securities can be sold, assigned or transferred pursuant to Rule 144; (ii) any sale of the New Securities made
in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale
of the New Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules
and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register
the New Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption
thereunder. Notwithstanding the foregoing, the New Securities may be pledged in connection with a bona fide margin account or other loan
or financing arrangement secured by the New Securities and such pledge of New Securities shall not be deemed to be a transfer, sale or
assignment of the New Securities hereunder, and the Holder effecting a pledge of New Securities shall not be required to provide the
Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Exchange Document,
including, without limitation, this Section 5.7.


 






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6. Closing;
Conditions. Subject to the conditions set forth below, the Exchange shall take place at the offices of Kelley Drye & Warren LLP,
101 Park Avenue, New York, NY 10178, on the Business Day immediately following such date as the Company shall have satisfied all conditions
to closing below, or at such other time and place as the Company and the Holder mutually agree (the “Closing” and
the “Closing Date”).


 


6.1. Condition’s
to Holder’s Obligations. The obligation of the Holder to consummate the Exchange is subject to the fulfillment, to the Holder’s
reasonable satisfaction, prior to or at the Closing, of each of the following conditions (unless waived by the Holder in writing, prior
to the Closing):


 


(a) Representations
and Warranties; Covenants. After giving effect to the consent and limited waiver contained in Section 3, the representations and
warranties of the Company contained in this Agreement shall be true and correct in all material respects (except for those representations
and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects) on the date hereof and
on and as of the Closing Date as if made on and as of such date (except for representations and warranties that speak as of a specific
date, which are accurate in all material respects (except for those representations and warranties that are qualified by materiality
or Material Adverse Effect, which are accurate in all respects) as of such specified date). After giving effect to the consent and limited
waiver contained in Section 3, the Company shall have performed, satisfied and complied in all respects with the covenants, agreements
and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date.


 


(b) Issuance
of Securities. At the Closing, the Company shall issue the New Warrant to the Holder.


 


(c) No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before
any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit or obtain substantial damages in respect
of, this Agreement or the consummation of the transactions contemplated by this Agreement.


 


(d) Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Holder, and the Holder shall have received all such counterpart
originals or certified or other copies of such documents as they may reasonably request.


 


(e) No
Event of Default. After giving effect to the Exchange, no Event of Default (as defined in the Existing Notes) or event that with
the passage of time or giving of notice would constitute an Event of Default shall have occurred and be continuing.


 


(f) Consents.
The Company shall have obtained all governmental, regulatory or third party consents and approvals (or waiver of such consents or approvals),
if any, necessary for the Exchange, including without limitation, those required by the Principal Market, if any, and the Required Consents.


 






    	9



     


    

 


(g) Listing.
The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been
suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market.


 


6.2. Conditions
to the Company’s Obligations. The obligation of the Company to consummate the Exchange is subject to the fulfillment, to the
Company’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions (unless waived by the Company
in writing, prior to the Closing):


 


(a) Representations
and Warranties. The representations and warranties of the Holder contained in this Agreement shall be true and correct in all material
respects (except for those representations and warranties that are qualified by materiality or material adverse effect, which are accurate
in all respects) on the date hereof and on and as of the Closing Date as if made on and as of such date (except for representations and
warranties that speak as of a specific date, which are accurate in all material respects (except for those representations and warranties
that are qualified by materiality or material adverse effect, which are accurate in all respects) as of such specified date).


 


(b) No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before
any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit, or obtain substantial damages in respect
of, this Agreement or the consummation of the transactions contemplated by this Agreement.


 


(c) Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Company and the Company shall have received all such counterpart
originals or certified or other copies of such documents as the Company may reasonably request.


 


7. No
Integration. None of the Company, its Subsidiaries, any of their affiliates, or any Person acting on their behalf shall, directly
or indirectly, make any offers or sales of any security (as defined in the Securities Act) or solicit any offers to buy any security
or take any other actions, under circumstances that would require registration of any of the New Warrant Shares under the Securities
Act or cause this offering of the New Warrant Shares to be integrated with such offering or any prior offerings by the Company for purposes
of Regulation D under the Securities Act.


 






    	10



     


    

 


8. Additional
New Warrant Covenants.


 


(a) Reporting
Status; Financial Information. Until the date on which the Holder shall have sold all of the New Securities (the “Reporting
Period”), the Company shall timely file all reports required to be filed with the SEC pursuant to the Securities Act of 1934,
as amended (the “1934 Act”), and the Company shall not terminate its status as an issuer required to file reports
under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.
The Company agrees to send the following to each holder of the New Warrant (each, an “Investor”) during the Reporting
Period: (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, within
one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
any interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash flow statements
for any period other than annual, any Current Reports on Form 8-K and any registration statements (other than on Form S-8) or amendments
filed pursuant to the Securities Act, (ii) unless the following are either filed with the SEC through EDGAR or are otherwise widely disseminated
via a recognized news release service (such as PR Newswire), on the same day as the release thereof, facsimile copies of all press releases
issued by the Company or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices
and other information made available or given to the stockholders of the Company generally, contemporaneously with the making available
or giving thereof to the stockholders.


 


(b) Listing.
The Company shall maintain the Common Stock’s authorization for quotation on the Principal Market. Neither the Company nor any
of its Subsidiaries shall take any action which would be reasonably expected to result in the delisting or suspension of the Common Stock
on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section
8(b).


 


(c) Exercise
Procedures. The form of Exercise Notice (as defined in the New Warrant) included in the New Warrant sets forth the totality of the
procedures required of the Investor in order to exercise the New Warrant. No legal opinion or other information or instructions shall
be required of the Investor to exercise the New Warrant. The Company shall honor exercises of the New Warrant and shall deliver the New
Warrant Shares in accordance with the terms, conditions and time periods set forth in the New Warrant. Without limiting the preceding
sentences, no ink-original Exercise Notice shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Exercise Notice form be required in order to exercise the New Warrant.


 


(d) Reservation
of Shares. So long as any portion of the New Warrant remains outstanding, the Company shall take all action necessary to at all times
have authorized, and reserved for the purpose of issuance, no less than 100% of the sum of the maximum number of New Warrant Shares issuable
upon exercise of the New Warrant then outstanding (without regard to any limitations on the exercise of the New Warrant set forth therein)
(collectively, the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock
reserved pursuant to this Section 8(d) be reduced other than proportionally in connection with any exercise of the New Warrant. If at
any time the number of shares of Common Stock authorized and reserved for issuance by the Company is not sufficient to meet the Required
Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares,
including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company’s obligations
pursuant to the Transaction Documents, in the case of an insufficient number of authorized shares, obtain stockholder approval of an
increase in such authorized number of shares, and voting the management shares of the Company in favor of an increase in the authorized
shares of the Company to ensure that the number of authorized shares is sufficient to meet the Required Reserve Amount.


 






    	11



     


    

 


(e) Pledge
of New Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that
the New Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement
that is secured by the New Securities. The pledge of New Securities shall not be deemed to be a transfer, sale or assignment of the New
Securities hereunder, and no Investor effecting a pledge of New Securities shall be required to provide the Company with any notice thereof
or otherwise make any delivery to the Company pursuant to this Agreement or any other Exchange Document, including, without limitation,
Section 5.7 hereof; provided that an Investor and its pledgee shall be required to comply with the provisions of Section 5.7 hereof in
order to effect a sale, transfer or assignment of New Securities to such pledgee. The Company hereby agrees to execute and deliver such
documentation as a pledgee of the New Securities may reasonably request in connection with a pledge of the New Securities to such pledgee
by the Holder.


 


9. Fees.
The Company shall promptly reimburse Kelley Drye & Warren, LLP (counsel to the Holder), on demand, for all reasonable, documented
costs and expenses incurred by it in connection with preparing and delivering this Agreement (including, without limitation, all reasonable,
documented legal fees and disbursements in connection therewith, and due diligence in connection with the transactions contemplated thereby)
in an aggregate amount not to exceed $15,000.


 


10. Holding
Period. For the purposes of Rule 144, the Company acknowledges that the holding period of the New Warrant (and upon cashless
exercise of the New Warrant, the New Warrant Shares) may be tacked onto the holding period of the Exchange Note, and the Company agrees
not to take a position contrary to this Section 10. The Company acknowledges and agrees that from and after May 9, 2022 assuming (a)
the Holder is not an affiliate of the Company and (b) at such time of determination no Current Public Information Failure exists, (i)
the New Warrant shall not be required to bear any restrictive legend and shall be freely transferable by the Holder pursuant to and in
accordance with Rule 144 and (ii) to the extent any applicable New Warrant Shares are issued pursuant to a “cashless exercise”
of the New Warrant, such New Warrant Shares shall not be required to bear any restrictive legend and shall be freely transferable by
the Holder pursuant to and in accordance with Rule 144.


 


11. Register;
Transfer Agent Instructions; Legend.


 


(a) Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice
to each Investor, a register for the New Warrant in which the Company shall record the name and address of the Person in whose name the
New Warrant has been issued (including the name and address of each transferee), and the number of New Warrant Shares issuable upon exercise
of the New Warrant held by such Person. The Company shall keep the register open and available at all times during business hours for
inspection of the Investor or its legal representatives.


 






    	12



     


    

 


(b) Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent (the “Transfer Agent”)
and any subsequent transfer agent in a form acceptable to the Holder (the “Irrevocable Transfer Agent Instructions”)
to issue certificates or credit shares to the applicable balance accounts at the Depository Trust Company (“DTC”),
registered in the name of the Holder or its respective nominee(s), for the New Warrant Shares in such amounts as specified from time
to time by the Holder to the Company upon the exercise of the New Warrant. The Company represents and warrants that no instruction other
than the Irrevocable Transfer Agent Instructions referred to in this Section 11(b) will be given by the Company to its Transfer Agent
with respect to the New Warrant Shares, and that the New Warrant Shares shall otherwise be freely transferable on the books and records
of the Company, as applicable, to the extent provided in this Agreement and the other Transaction Documents. If the Holder effects a
sale, assignment or transfer of the New Warrant Shares, the Company shall permit the transfer and shall promptly instruct its Transfer
Agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations
as specified by the Holder to effect such sale, transfer or assignment. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Holder. Accordingly, the Company acknowledges that the remedy at law for a breach of its
obligations under this Section 11(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the
provisions of this Section 11(b) that the Holder shall be entitled, in addition to all other available remedies, to an order and/or injunction
restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any
bond or other security being required. The Company shall cause its counsel to issue each legal opinion referred to in the Irrevocable
Transfer Agent Instructions to the Transfer Agent as follows: (i) upon each exercise of the New Warrant (unless such issuance is covered
by a prior legal opinion previously delivered to the Transfer Agent), and (ii) on each date a registration statement with respect to
the issuance or resale of any of the New Warrant Shares is declared effective by the SEC. Any fees (with respect to the Transfer Agent,
counsel to the Company or otherwise) associated with the issuance of such opinions or the removal of any legends on any of the New Warrant
Shares shall be borne by the Company.


 


(c) Legends.
The Holder understands that the New Warrant has been issued (or will be issued in the case of the New Warrant Shares) pursuant to an
exemption from registration or qualification under the Securities Act and applicable state securities laws, and except as set forth below,
the New Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against transfer of such stock certificates):


 


[NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A)
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO
THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 






    	13



     


    

 


(d) Removal
of Legends. Certificates evidencing New Securities shall not be required to contain the legend set forth in Section 11(c) above or
any other legend (i) while a registration statement covering the resale of such New Securities is effective under the Securities Act,
(ii) following any sale of such New Securities pursuant to Rule 144 (assuming neither the transferor nor the transferee is an affiliate
of the Company), (iii) if such New Securities are eligible to be sold, assigned or transferred under Rule 144 (provided that the Holder
provides the Company with reasonable assurances that such New Securities are eligible for sale, assignment or transfer under Rule 144
which shall not include an opinion of Holder’s counsel), (iv) in connection with a sale, assignment or other transfer (other than
under Rule 144), provided that the Holder provides the Company with an opinion of counsel to the Holder, in a generally acceptable form,
to the effect that such sale, assignment or transfer of the New Securities may be made without registration under the applicable requirements
of the Securities Act or (v) if such legend is not required under applicable requirements of the Securities Act (including, without limitation,
controlling judicial interpretations and pronouncements issued by the SEC). If a legend is not required pursuant to the foregoing with
respect to such New Securities, the Company shall no later than two (2) Trading Days (or such earlier date as required pursuant to the
1934 Act or other applicable law, rule or regulation for the settlement of a trade initiated on the date the Holder delivers such legended
certificate representing such New Securities to the Company) following the delivery by the Holder to the Company or the transfer agent
(with notice to the Company) of a legended certificate representing such New Securities (endorsed or with stock powers attached, signatures
guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, if applicable), together with any other deliveries
from the Holder as may be required above in this Section 11(d), as directed by the Holder, either: (A) provided that the Company’s
transfer agent is participating in the DTC Fast Automated Securities Transfer Program and such New Securities are New Warrant Shares,
credit the aggregate number of shares of Common Stock to which the Holder shall be entitled to the Holder’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer agent is not participating
in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier) to the Holder, a certificate
representing such New Securities that is free from all restrictive and other legends, registered in the name of the Holder or its designee
(the date by which such credit is so required to be made to the balance account of the Holder’s or the Holder’s nominee with
DTC or such certificate is required to be delivered to the Holder pursuant to the foregoing is referred to herein as the “Share
Delivery Deadline”). The Company shall be responsible for any transfer agent fees or DTC fees with respect to any issuance
of New Securities or the removal of any legends with respect to any New Securities in accordance herewith.


 






    	14



     


    

 


(e) Failure
to Timely Deliver; Buy-In. If the Company fails, for any reason or for no reason, to issue and (i) if the Transfer Agent is not participating
in the DTC Fast Automated Securities Transfer Program, deliver (or cause to be delivered) to the Holder (or its designee) by the applicable
Share Delivery Deadline a certificate for the number of New Warrant Shares submitted for legend removal by the Holder pursuant to Section
11(d) above to which the Holder is entitled and register such New Warrant Shares on the Company’s share register or (ii) if the
Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of the Holder or the
Holder’s designee with DTC for such number of New Warrant Shares submitted for legend removal by the Holder pursuant to Section
11(d) above to which the Holder is entitled (in each case, a “Delivery Failure”), and if on or after such Trading
Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by
the Holder of shares of Common Stock submitted for legend removal by the Holder pursuant to Section 11(d) above that the Holder is entitled
to receive from the Company (a “Buy-In”), then the Company shall, within two (2) Trading Days after the Holder’s
request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase
price (including brokerage commissions and other out-of-pocket expenses, if any, for the shares of Common Stock so purchased) (the “Buy-In
Price”), at which point the Company’s obligation to so deliver such certificate or credit the Holder’s balance
account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to the Holder a certificate
or certificates or credit the balance account of the Holder or the Holder’s designee with DTC representing such number of shares
of Common Stock that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash to the Holder
in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of New Warrant Shares that the Company
was required to deliver to the Holder by the Share Delivery Deadline multiplied by (B) the lowest Closing Sale Price (as defined in the
Warrant”) of the Common Stock on any Trading Day during the period commencing on the date of the delivery by the Holder to the
Company of the Holder’s request under this Section 11(e) and ending on the date of such delivery and payment under this clause
(ii). Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including,
without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the
terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery Failure, this Section 11(e) shall not
apply to the Holder to the extent the Company has already paid such amounts in full to the Holder with respect to such Delivery Failure,
as applicable, pursuant to the analogous section of the New Warrant held by the Holder. Additionally, if the Company fails for any reason
to deliver to the Holder the Warrant Shares subject to an Exercise Notice (as defined in the Warrant) by the Share Delivery Deadline,
the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to
such exercise (based on the Weighted Average Price (as defined in the Warrant) of the Common Stock on the date of the applicable Notice
of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated
damages begin to accrue) for each Trading Day after such Share Delivery Deadline until such Warrant Shares are delivered or Holder rescinds
such exercise.


 


(f) FAST
Compliance. While the New Warrant remain outstanding, the Company shall maintain a transfer agent that participates in the DTC Fast
Automated Securities Transfer Program.


 


12. Blue
Sky. The Company shall make all filings and reports relating to the Exchange required under applicable securities or “Blue
Sky” laws of the states of the United States following the date hereof, if any.


 


13. Disclosure
of Transaction.


 


(a) On
or before 9:00 a.m., New York time, on the first (1st) Business Day after the date of this Agreement, the Company shall file
a Current Report on Form 8-K describing all the material terms of the transactions contemplated by the Exchange Documents in the form
required by the Exchange Act and attaching this Agreement and the forms of the New Warrant (including all attachments, the “8-K
Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information
(if any) provided to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or
agents in connection with the transactions contemplated by the Exchange Documents. In addition, effective upon the filing of the 8-K
Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written
or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents,
on the one hand, and the Holder or any of its affiliates, on the other hand, relating to the transactions contemplated by the Exchange
Documents, shall terminate.


 






    	15



     


    

 


(b) Except
as may be required by the Securities Purchase Agreement or the New Warrant, the Company shall not, and the Company shall cause each of
its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Holder with any material,
non-public information regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written
consent of the Holder (which may be granted or withheld in the Holder’s sole discretion). To the extent that the Company delivers
any material, non-public information to the Holder without the Holder’s consent, other than as required by the Securities Purchase
Agreement or the New Warrant, the Company hereby covenants and agrees that the Holder shall not have any duty of confidentiality with
respect to such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries nor the Holder shall
issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the
Company shall be entitled, without the prior approval of the Holder, to make any press release or other public disclosure with respect
to such transactions (i) in substantial conformity with the 8-K Filing and (ii) as is required by applicable law and regulations. Notwithstanding
anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly
acknowledges and agrees that the Holder shall not have (unless expressly agreed to by the Holder after the date hereof in a written definitive
and binding agreement executed by the Company and the Holder), any duty of confidentiality with respect to any material, non-public information
regarding the Company or any of its Subsidiaries.


 


14. Termination.
If the Transaction is not consummated on or prior to December 9, 2022, the Holder may terminate this Agreement by written notice to the
Company and this Agreement shall thereafter be null and void, ab initio.


 


15. Independent
Nature of Holder’s Obligations and Rights. The obligations of the Holder under this Agreement are several and not joint
with the obligations of any other holder of Existing Notes of the Company (each, an “Other Holder”), and the Holder
shall not be responsible in any way for the performance of the obligations of any Other Holder under any other agreement by and between
the Company and any Other Holder (each, an “Other Agreement”). Nothing contained herein or in any Other Agreement,
and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Holder and Other Holders are in any way acting in concert
or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement and the Company
acknowledges that, to the best of its knowledge, the Holder and the Other Holders are not acting in concert or as a group with respect
to such obligations or the transactions contemplated by this Agreement or any Other Agreement. The Company and the Holder confirm that
the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel
and advisors. The Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights
arising out of this Agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding
for such purpose.


 










16. Most
Favored Nations. The Company hereby represents and warrants as of the date hereof and covenants and agrees that from the date
hereof through the date that the Existing Notes are no longer outstanding (the “MFN Termination Date”) none of the
terms offered to any Other Holder with respect to any Existing Note (including any security subsequently exchanged therefor), including,
without limitation with respect to any consent, release, amendment, settlement, or waiver relating to any exchange of any such security
(each an “Settlement Document”), is or will be more favorable to such Person (other than any reimbursement of legal
fees) than those of the Holder and this Agreement. If, and whenever during the period beginning on the date hereof and ending on the
MFN Termination Date, the Company enters into a Settlement Document, then (i) the Company shall provide notice thereof to the Holder
immediately following the occurrence thereof and (ii) the terms and conditions of this Agreement shall be, without any further action
by the Holder or the Company, automatically amended and modified in an economically and legally equivalent manner such that the Holder
shall receive the benefit of the more favorable terms and/or conditions (as the case may be) set forth in such Settlement Document, provided
that upon written notice to the Company at any time the Holder may elect not to accept the benefit of any such amended or modified term
or condition, in which event the term or condition contained in this Agreement shall apply to the Holder as it was in effect immediately
prior to such amendment or modification as if such amendment or modification never occurred with respect to the Holder. The provisions
of this Section 17 shall apply similarly and equally to each Settlement Document entered into on or prior to the MFN Termination Date.


 


17. Miscellaneous
Provisions. Section 9 of the Securities Purchase Agreement (as amended hereby) is hereby incorporated by reference herein, mutatis
mutandis.


 





[The
remainder of the page is intentionally left blank]


 






    	16



     


    


 


IN WITNESS WHEREOF, the
Holder and the Company have executed this Agreement as of the date first set forth on the first page of this Agreement. 


 


	 	COMPANY:
	 	 
	 	GAUCHO GROUP HOLDINGS, INC.
	 	 
	 	By:	 
	 	Name:	Scott
    L. Mathis
	 	Title:	President
    & CEO


 




    	 



     


    

 


IN
WITNESS WHEREOF, the Holder and the Company have executed this Agreement as of the date first set forth on the first page of this
Agreement.


 


	 

     
	 	HOLDER:
	Principal
    Amount of Existing Note of Holder:	 	[Name]
	 	 	 	 
	$____________	 	By:	        
	 	 	Name:	 
	 	 	Title:	 
	Aggregate
    Number of New Warrant Shares issuable upon exercise of the New Warrant (without regard to any limitations on exercise set forth therein):
    	 	 	 
	 	 	 	 
	_____________	 	 	 
	 	 	 	 
	Existing
    Amortization Amount:	 	 	 
	 	 	 	 
	$____________	 	 	 
	 	 	 	 
	New
    Amortization Amount after giving effect to waivers herein:	 	 	 
	 	 	 	 
	$[_____________]

    
	 	 	 


 




    	 



     


    

 


Schedule
3(c)


 


	1.	Section
                                            4(d) of the Securities Purchase Agreement—see Section 3(b) above.
	 	 
	2.	Section
                                            4(h) of the Securities Purchase Agreement—non-timely pledge of additional securities
                                            of Scott L. Mathis.
	 	 
	3.	Section
                                            4(k) of the Securities Purchase Agreement—additional issuances of securities.
	 	 
	4.	Section
                                            4(n) of the Securities Purchase Agreement—issuance of variable securities.
	 	 
	5.	Section
                                            4(o) of the Securities Purchase Agreement—participation right of Holders upon additional
                                            issuances of securities.
	 	 
	6.	Section
                                            4(p) of the Securities Purchase Agreement—additional issuance of securities dilutive.
	 	 
	7.	Section
                                            4(z) of the Securities Purchase Agreement—issuance of additional securities and integration.
	 	 
	8.	Section
                                            3(e) of the Existing Notes—right of Alternate Conversion upon Event of Default (no
                                            available registration statement effective for more than 10 days).
	 	 
	9.	Section
                                            4(b) of the Existing Notes—redemption right upon Event of Default.
	 	 
	10.	Section
                                            7 of the Existing Notes—issuance of additional securities and right of adjustment of
                                            Conversion Price.
	 	 
	11.	Section
                                            10 of the Existing Notes—issuance of additional securities subject to optional redemption.
	 	 
	12.	Section
                                            15(n) of the Existing Notes—issuance of additional securities.