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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 12/08/20 Gaucho Group Holdings, Inc. S-1/A 132:13M M2 Compliance LLC/FA |
Document/Exhibit Description Pages Size
1: S-1/A Pre-Effective Amendment to Registration Statement HTML 1.77M
(General Form)
2: EX-1 Underwriting Agreement or Conflict Minerals Report HTML 242K
3: EX-3.5 Articles of Incorporation/Organization or Bylaws HTML 65K
5: EX-4.10 Instrument Defining the Rights of Security Holders HTML 111K
4: EX-4.9 Instrument Defining the Rights of Security Holders HTML 120K
6: EX-5.1 Opinion of Counsel re: Legality HTML 43K
7: EX-21.1 Subsidiaries List HTML 38K
8: EX-23.1 Consent of Expert or Counsel HTML 37K
15: R1 Document and Entity Information HTML 52K
16: R2 Condensed Consolidated Balance Sheets HTML 170K
17: R3 Condensed Consolidated Balance Sheets HTML 74K
(Parenthetical)
18: R4 Condensed Consolidated Statements of Operations HTML 103K
19: R5 Condensed Consolidated Statements of Comprehensive HTML 62K
Loss
20: R6 Condensed Consolidated Statement of Changes in HTML 186K
Temporary Equity and Stockholders' (Deficiency)
Equity
21: R7 Condensed Consolidated Statements of Cash Flows HTML 173K
22: R8 Organization HTML 43K
23: R9 Going Concern and Management's Liquidity Plans HTML 49K
24: R10 Summary of Significant Accounting Policies HTML 132K
25: R11 Inventory HTML 46K
26: R12 Property and Equipment HTML 46K
27: R13 Prepaid Foreign Taxes HTML 39K
28: R14 Investments and Fair Value of Financial HTML 65K
Instruments
29: R15 Accrued Expenses HTML 49K
30: R16 Deferred Revenues HTML 41K
31: R17 Loans Payable HTML 76K
32: R18 Debt Obligations HTML 61K
33: R19 Income Taxes HTML 67K
34: R20 Convertible Debt Obligations HTML 48K
35: R21 Related Party Transactions HTML 46K
36: R22 Benefit Contribution Plan HTML 42K
37: R23 Temporary Equity and Stockholders' Deficiency HTML 141K
38: R24 Leases HTML 45K
39: R25 Segment Data HTML 95K
40: R26 Commitments and Contingencies HTML 54K
41: R27 Subsequent Events HTML 47K
42: R28 Summary of Significant Accounting Policies HTML 195K
(Policies)
43: R29 Summary of Significant Accounting Policies HTML 80K
(Tables)
44: R30 Inventory (Tables) HTML 47K
45: R31 Property and Equipment (Tables) HTML 44K
46: R32 Investments and Fair Value of Financial HTML 57K
Instruments (Tables)
47: R33 Accrued Expenses (Tables) HTML 47K
48: R34 Deferred Revenues (Tables) HTML 41K
49: R35 Loans Payable (Tables) HTML 67K
50: R36 Debt Obligations (Tables) HTML 54K
51: R37 Income Taxes (Tables) HTML 67K
52: R38 Convertible Debt Obligations (Tables) HTML 44K
53: R39 Temporary Equity and Stockholders' Deficiency HTML 117K
(Tables)
54: R40 Leases (Tables) HTML 46K
55: R41 Segment Data (Tables) HTML 88K
56: R42 Commitments and Contingencies (Tables) HTML 50K
57: R43 Organization (Details Narrative) HTML 38K
58: R44 Organization (Details Narrative) (10-K) HTML 38K
59: R45 Going Concern and Management's Liquidity Plans HTML 75K
(Details Narrative)
60: R46 Going Concern and Management's Liquidity Plans HTML 51K
(Details Narrative) (10-K)
61: R47 Summary of Significant Accounting Policies HTML 65K
(Details Narrative)
62: R48 Summary of Significant Accounting Policies HTML 96K
(Details Narrative) (10-K)
63: R49 Summary of Significant Accounting Policies - HTML 58K
Schedule of Plant and Equipment, Useful Life
(Details) (10-K)
64: R50 Summary of Significant Accounting Policies - HTML 50K
Schedule of Long-lived Assets by Geographic Areas
(Details) (10-K)
65: R51 Summary of Significant Accounting Policies - HTML 58K
Schedule of Revenue from External Customers by
Geographic Areas (Details) (10-K)
66: R52 Summary of Significant Accounting Policies - HTML 58K
Schedule of Revenue Recognized
Multiple-Deliverable Arrangements (Details)
67: R53 Summary of Significant Accounting Policies - HTML 58K
Schedule of Revenue Recognized
Multiple-Deliverable Arrangements (Details) (10-K)
68: R54 Summary of Significant Accounting Policies - HTML 52K
Schedule of Antidilutive Securities Excluded from
Computation of Earnings Per Share (Details)
69: R55 Summary of Significant Accounting Policies - HTML 52K
Schedule of Antidilutive Securities Excluded from
Computation of Earnings Per Share (Details) (10-K)
70: R56 Inventory - Schedule of Inventory (Details) HTML 48K
71: R57 Inventory - Schedule of Inventory (Details) (10-K) HTML 48K
72: R58 Property and Equipment (Details Narrative) (10-K) HTML 48K
73: R59 Property and Equipment - Schedule of Property, HTML 62K
Plant and Equipment (Details) (10-K)
74: R60 Prepaid Foreign Taxes (Details Narrative) (10-K) HTML 46K
75: R61 Investments and Fair Value of Financial HTML 43K
Instruments (Details Narrative)
76: R62 Investments and Fair Value of Financial HTML 43K
Instruments (Details Narrative) (10-K)
77: R63 Investments and Fair Value of Financial HTML 55K
Instruments - Schedule of Investments at Fair
Value (Details)
78: R64 Investments and Fair Value of Financial HTML 55K
Instruments - Schedule of Investments at Fair
Value (Details) (10-K)
79: R65 Investments and Fair Value of Financial HTML 43K
Instruments - Schedule of Fair Value, Assets
Measured on Recurring Basis (Details)
80: R66 Investments and Fair Value of Financial HTML 43K
Instruments - Schedule of Fair Value, Assets
Measured on Recurring Basis (Details) (10-K)
81: R67 Accrued Expenses (Details Narrative) (10-K) HTML 43K
82: R68 Accrued Expenses - Schedule of Accrued Expenses HTML 53K
(Details)
83: R69 Accrued Expenses - Schedule of Accrued Expenses HTML 54K
(Details) (10-K)
84: R70 Deferred Revenues (Details Narrative) (10-K) HTML 52K
85: R71 Deferred Revenues - Schedule of Deferred Revenues HTML 43K
(Details) (10-K)
86: R72 Loans Payable (Details Narrative) HTML 121K
87: R73 Loans Payable (Details Narrative) (10-K) HTML 136K
88: R74 Loans Payable - Schedule of Loans Payable HTML 73K
(Details)
89: R75 Loans Payable - Schedule of Loans Payable HTML 64K
(Details) (10-K)
90: R76 Loans Payable - Schedule of Future Minimum HTML 44K
Principal Payments of Loans Payable (Details)
(10-K)
91: R77 Debt Obligations (Details Narrative) HTML 40K
92: R78 Debt Obligations (Details Narrative) (10-K) HTML 125K
93: R79 Debt Obligations - Schedule of Debt Obligations HTML 59K
(Details)
94: R80 Debt Obligations - Schedule of Debt Obligations HTML 59K
(Details) (10-K)
95: R81 Income Taxes (Details Narrative) (10-K) HTML 72K
96: R82 Income Taxes - Schedule of Income Before Income HTML 43K
Tax, Domestic and Foreign (Details) (10-K)
97: R83 Income Taxes - Schedule of Components of Income HTML 60K
Tax Provision (Benefit) (Details) (10-K)
98: R84 Income Taxes - Schedule of Effective Income Tax HTML 56K
Rate Reconciliation (Details) (10-K)
99: R85 Income Taxes - Schedule of Deferred Tax Assets HTML 59K
(Details) (10-K)
100: R86 Convertible Debt Obligations (Details Narrative) HTML 71K
101: R87 Convertible Debt Obligations - Schedule of HTML 50K
Convertible Debt Obligations (Details)
102: R88 Related Party Transactions (Details Narrative) HTML 71K
103: R89 Related Party Transactions (Details Narrative) HTML 64K
(10-K)
104: R90 Benefit Contribution Plan (Details Narrative) HTML 40K
105: R91 Benefit Contribution Plan (Details Narrative) HTML 40K
(10-K)
106: R92 Temporary Equity and Stockholders' Deficiency HTML 123K
(Details Narrative)
107: R93 Temporary Equity and Stockholders' Deficiency HTML 369K
(Details Narrative) (10-K)
108: R94 Temporary Equity and Stockholders' Deficiency - HTML 76K
Summary of Warrants Activity (Details)
109: R95 Temporary Equity and Stockholders' Deficiency - HTML 76K
Summary of Warrants Activity (Details) (10-K)
110: R96 Temporary Equity and Stockholders' Deficiency - HTML 58K
Schedule of Warrants Outstanding and Exercisable
(Details)
111: R97 Temporary Equity and Stockholders' Deficiency - HTML 54K
Schedule of Warrants Outstanding and Exercisable
(Details) (10-K)
112: R98 Temporary Equity and Stockholders' Deficiency - HTML 51K
Schedule of Fair Value Assumptions of Stock Option
(Details)
113: R99 Temporary Equity and Stockholders' Deficiency - HTML 51K
Schedule of Fair Value Assumptions of Stock Option
(Details) (10-K)
114: R100 Temporary Equity and Stockholders' Deficiency - HTML 76K
Schedule of Stock Option Activity (Details)
115: R101 Temporary Equity and Stockholders' Deficiency - HTML 76K
Schedule of Stock Option Activity (Details) (10-K)
116: R102 Temporary Equity and Stockholders' Deficiency - HTML 70K
Schedule of Stock Option Outstanding and
Exercisable (Details)
117: R103 Temporary Equity and Stockholders' Deficiency - HTML 70K
Schedule of Stock Option Outstanding and
Exercisable (Details) (10-K)
118: R104 Leases (Details Narrative) HTML 48K
119: R105 Leases - Schedule of Supplemental Cash Flows HTML 46K
Information Related to Leases (Details)
120: R106 Segment Data (Details Narrative) HTML 38K
121: R107 Segment Data (Details Narrative) (10-K) HTML 38K
122: R108 Segment Data - Schedule of Segment Information HTML 59K
(Details)
123: R109 Segment Data - Schedule of Segment Information HTML 111K
(Details) (10-K)
124: R110 Commitments and Contingencies (Details Narrative) HTML 61K
125: R111 Commitments and Contingencies (Details Narrative) HTML 55K
(10-K)
126: R112 Commitments and Contingencies - Schedule of HTML 46K
Supplemental Cash Flows Information Related to
Leases (Details) (10-K)
127: R113 Commitments and Contingencies - Schedule of Future HTML 40K
Minimum Payments On Operating Leases (Details)
(10-K)
128: R114 Subsequent Events (Details Narrative) HTML 85K
129: R115 Subsequent Events (Details Narrative) (10-K) HTML 67K
131: XML IDEA XML File -- Filing Summary XML 253K
130: EXCEL IDEA Workbook of Financial Reports XLSX 199K
9: EX-101.INS XBRL Instance -- vino-20200930 XML 3.43M
11: EX-101.CAL XBRL Calculations -- vino-20200930_cal XML 311K
12: EX-101.DEF XBRL Definitions -- vino-20200930_def XML 1.39M
13: EX-101.LAB XBRL Labels -- vino-20200930_lab XML 1.75M
14: EX-101.PRE XBRL Presentations -- vino-20200930_pre XML 1.66M
10: EX-101.SCH XBRL Schema -- vino-20200930 XSD 326K
132: ZIP XBRL Zipped Folder -- 0001493152-20-023111-xbrl Zip 264K
Exhibit 3.5
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GAUCHO group HOLDINGS, INC.
(a Delaware corporation)
ARTICLE I
NAME
The name of the corporation is Gaucho Group Holdings, Inc.
ARTICLE II
REGISTERED AGENT
The address of the registered office of the corporation in the State of Delaware is Incorporating Services, Ltd., 3500 South Dupont Highway, Dover, Delaware, 19901, Kent County. The name of its registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
PURPOSE
The purpose of the corporation is to engage in any lawful act or activity for which a Corporation may be organized under the Delaware General Corporation Law (“DGCL”).
ARTICLE IV
CAPITAL STOCK
A. Common Stock.
(1) The total number of shares of common stock, par value $0.01 per share, that the corporation is authorized to issue is 150,000,000.
(2) Each holder of common stock shall be entitled to one vote for each share of common stock held on all matters as to which holders of common stock shall be entitled to vote. Except for and subject to those preferences, rights, and privileges expressly granted to the holders of all classes of stock at the time outstanding having prior rights, and any series of preferred stock which may from time to time come into existence, and except as may be otherwise provided by the laws of the State of Delaware, the holders of common stock shall have exclusively all other rights of stockholders of the corporation, including, but not limited to, (a) the right to receive dividends when, as and if declared by the Board of Directors of the corporation out of assets lawfully available therefore, and (b) in the event of any distribution of assets upon the dissolution and liquidation of the corporation, the right to receive ratably and equally all of the assets of the corporation remaining after the payment to the holders of preferred stock of the specific amounts, if any, which they are entitled to receive as may be provided herein or pursuant hereto
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B. Preferred Stock.
(1) The total number of shares of preferred stock, par value $0.01 per share, that the Corporation is authorized to issue is 11,000,000.
(2) The Board of Directors is expressly authorized at any time, and from time to time, to provide for the issuance of shares of preferred stock in one or more series, with such voting powers, full or limited, or without voting powers and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue thereof adopted by the Board of Directors, subject to the limitations prescribed by law and in accordance with the provisions hereof, including but not limited to the following:
a. The designation of the series and the number of shares to constitute the series.
b. The dividend rate of the series, the conditions and dates upon which such dividends shall be payable, the relation which such dividends shall bear to the dividends payable on any other class or classes of stock, and whether such dividends shall be cumulative or noncumulative.
c. Whether the shares of the series shall be subject to redemption by the corporation and, if made subject to such redemption, the times, prices and other terms and conditions of such redemption.
d. The terms and amount of any sinking fund provided for the purchase or redemption of the shares of the series.
e. Whether or not the shares of the series shall be convertible into or exchangeable for shares of any other class or classes or of any other series of any class or classes of stock of the corporation, and, if provision be made for conversion or exchange, the times, prices, rates, adjustments and other terms and conditions of such conversion or exchange.
f. The extent, if any, to which the holders of the shares of the series shall be entitled to vote with respect to the election of directors or otherwise.
g. The restrictions, if any, on the issue or reissue of any additional preferred stock.
h. The rights of the holders of the shares of the series upon the dissolution, liquidation, or winding up of the corporation.
i. Any other relative rights, preferences, and limitations.
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C. Reverse Stock Split.
(1) Upon the filing and effectiveness of this Amended and Restated Certificate of Incorporation (the “Effective Time”) pursuant to the Delaware General Corporation Law, each fifteen (15) shares of Common Stock either issued and outstanding or held in treasury immediately prior to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one (1) share of Common Stock (the “Reverse Stock Split”). All fractional shares as a result of the Reverse Stock Split will be rounded up to the nearest whole number. The total number of the Corporation’s authorized shares of Common Stock or Preferred Stock shall not be affected by the foregoing.
(2) Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the elimination of fractional share interests as described above.
ARTICLE V
DIRECTORS
A. Authority, Number and Election of Directors. The affairs of the corporation shall be conducted by the Board of Directors. The number of directors of the corporation shall be fixed from time to time in the manner provided in the bylaws of the corporation and may be increased or decreased from time to time in the manner provided in the bylaws; provided, however, that, except as otherwise provided in this Article 5, the number of directors shall not be less than two nor more than nine. Election of directors need not be by written ballot except and to the extent provided in the bylaws. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and qualified, subject, however, to such director’s prior death, resignation, retirement, disqualification or removal from office.
B. Removal. Subject to any rights of the holders of any series of preferred stock, a director may be removed from office without cause by the stockholders prior to the expiration of his or her term of office. Any director may be removed for cause by the Board at a special meeting of the Board of Directors.
C. Quorum. A quorum of the Board of Directors for the transaction of business shall not consist of less than a majority of the total number of directors, except as otherwise may be provided in this Amended and Restated Certificate of Incorporation or in the bylaws with respect to filling vacancies.
D. Newly Created Directorships and Vacancies. Except as otherwise fixed pursuant to the rights of the holders of any class or series of preferred stock to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause may be filled by the affirmative vote of a majority of the remaining directors then in office, or by a sole remaining director, even though less than a quorum of the Board of Directors, or by the stockholders . Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the new directorship which was created or in which the vacancy occurred and until such director’s successor shall have been elected and qualified.
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ARTICLE VI
Except as otherwise provided in this Amended and Restated Certificate of Incorporation, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, repeal, alter, amend and rescind any or all of the bylaws of the corporation, provided however; that any bylaw made by the Board of Directors is subject to amendment or repeal by the stockholders of the Corporation.
ARTICLE VII
STOCKHOLDERS
A. Meetings. Meetings of stockholders may be held within or without the State of Delaware, as determined by the Board of Directors. Each meeting of stockholders will be held on the date and at the time and place determined by the Board of Directors.
B. Special Meetings. Special meetings of stockholders may be called by the chief executive officer, the Board of Directors or the holders of ten percent (10%) or more of the shares entitled to vote at such meeting. Any request by a stockholder for a special meeting shall state the purpose or purposes of the proposed meeting, in accordance with the requirements of the Bylaws, and shall include all of the information required by the Bylaws. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
C. Action by Written Consent. Action required or permitted to be taken by stockholders at any annual or special meeting of stockholders may be taken by written consent.
ARTICLE VIII
VOTING REQUIREMENT
Notwithstanding any other provisions of this Amended and Restated Certificate of Incorporation or of the bylaws (and notwithstanding the fact that a lesser percentage may be otherwise specified by law, this Amended and Restated Certificate of Incorporation or the bylaws), the affirmative vote of the holders of not less than sixty six and two-thirds percent (66 2/3%) of the outstanding shares of the capital stock of the corporation entitled to vote generally in the election of directors (considered for this purpose as one class), shall be required to amend or repeal or adopt any provisions inconsistent with Articles 5, 8, 9 or 10 of this Amended and Restated Certificate of Incorporation.
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ARTICLE IX
LIABILITY OF OFFICERS AND DIRECTORS
A. General. A director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as currently in effect or as the same may hereafter be amended.
B. Amendment. No amendment, modification or repeal of this Article 9, nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article 9, shall adversely affect any right or protection of a director that exists at the time of such amendment, modification or repeal.
ARTICLE X
INDEMNIFICATION
A. General. The corporation shall indemnify to the fullest extent permitted by and in the manner permissible under the DGCL, as amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), any person made, or threatened to be made, a party to any threatened, pending or completed action, suit, or proceeding, whether criminal, civil, administrative, or investigative, by reason of the fact that such person (1) is or was a director or officer of the corporation or any predecessor of the corporation or (2) served any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner, trustee, employee or agent at the request of the corporation or any predecessor of the corporation; provided, however, that except as provided in Section 10(D), the corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized in advance by the Board of Directors.
B. Advancement of Expenses. The right to indemnification conferred in this Article 10 shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the corporation within twenty days after the receipt by the corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the corporation of an undertaking by or on behalf of such director or officer to repay all amounts so advanced if it shall ultimately be determined by a final judicial decision from which there is no right of appeal that such director or officer is not entitled to be indemnified under this Article 10 or otherwise.
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C. Procedure for Indemnification. To obtain indemnification under this Article 10, a claimant shall submit to the corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this Section 10(C), a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant or if there are no Disinterested Directors (as hereinafter defined), by Independent Counsel (as hereinafter defined); or (2) by a majority vote of the Disinterested Directors, even though less than a quorum, or by a majority vote of a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within ten days after such determination.
D. Certain Remedies. If a claim under Section 10(A) is not paid in full by the corporation within 30 days after a written claim pursuant to Section 10(C) has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the reasonable expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standard of conduct which makes it permissible under the DGCL for the corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the corporation (including its Board of Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
E. Binding Effect. If a determination shall have been made pursuant to Section 10(C) that the claimant is entitled to indemnification, the corporation shall be bound by such determination in any judicial proceeding commenced pursuant to Section 10(D).
F. Validity of this Article. The corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to Section 10(D) that the procedures and presumptions of this Article 10 are not valid, binding and enforceable and shall stipulate in such proceeding that the corporation is bound by all the provisions of this Article 10.
G. Nonexclusivity. The right to indemnification and to the advancement of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 10 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise. No repeal or modification of this Article 10 shall in any way diminish or adversely affect the rights of any present or former director or officer of the corporation or any predecessor thereof hereunder in respect of any occurrence or matter arising prior to any such repeal or modification.
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H. Insurance. The corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
I. Indemnification of Other Persons. The corporation may grant rights to indemnification, and rights to the advancement by the corporation of expenses incurred in defending any proceeding in advance of its final disposition, to any present or former employee or agent of the corporation or any predecessor of the corporation to the fullest extent of the provisions of this Article 10 with respect to the indemnification and advancement of expenses of directors and officers of the corporation.
J. Severability. If any provision or provisions of this Article 10 shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article 10 (including, without limitation, each portion of any paragraph of this Article 10 containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article 10 (including, without limitation, each such portion of any paragraph of this Article 10 containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
K. Certain Definitions. For purposes of this Article 10:
(1) “Disinterested Director” means a director of the corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant and otherwise has no material interest in the matter as determined by the Board.
(2) “Independent Counsel” means a law firm, a member of a law firm, or an independent practitioner that is experienced in matters of Delaware corporation law and shall include any such person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the corporation or the claimant in an action to determine the claimant’s rights under this Article 10. Independent Counsel shall be selected by the Board of Directors.
ARTICLE XI
AMENDMENTS
Subject to Article 8, the corporation reserves the right to alter, amend, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred herein are granted subject to this reservation.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of the Corporation, has executed this Amended and Restated Certificate of Incorporation the __ day of ___________ 20____ and shall have an Effective Time of the time of filing with the Delaware Secretary of State as of ___________ ___, 20__.
| GAUCHO Group HOLDINGS, Inc. | ||
| By: | ||
| Name: | Scott L. Mathis | |
| Its: | President & Chief Executive Officer | |
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