EZGO EZGO Technologies Ltd

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 6-K

 

REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934

 

For the month of October 2024

 

Commission File Number: 001-39833

 

EZGO Technologies Ltd.

(Translation of registrant’s name into English)

 

Building #A, Floor 2, Changzhou Institute of Dalian University of Technology,

Science and Education Town,

Wujin District, Changzhou City

Jiangsu, China 213164

(Address of principal executive offices)

 

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.

 

Form 20-F ☒        Form 40-F ☐

 

 

 

INFORMATION CONTAINED IN THIS FORM 6-K REPORT

 

On April 29, 2024, EZGO Technologies Ltd., a British Virgin Islands company (the “Company”), was named as defendant in a lawsuit in the Supreme Court for the State of New York, County of New York (Index No. 652191/2024) by Empery Asset Master, Ltd., Empery Tax Efficient, LP, and Empery Tax Efficient III, LP (collectively, the “Plaintiffs”), relating to certain purported notices of exercise and the number of warrant shares issuable under certain exchange warrants (the “Exchange Warrants”) issued to the Plaintiffs in September 2023. The Plaintiffs’ complaint asserts purported causes of action against the Company for “breach of contract – damages”, declaratory judgment, and “breach of contract – specific performance” in connection with the Company’s purported failure to honor the Plaintiffs’ exercise requests.

 

As previously disclosed, in September 2023, the Plaintiffs collectively invested approximately $3.33 million in the Company and received ordinary shares, warrants and the Exchange Warrants pursuant to a securities purchase agreement entered into by and among the Company and the Plaintiffs. On April 12, 2024, the Company effected a 1-for-40 reverse share split. Immediately following the reverse share split, the Plaintiffs repeatedly sought to exercise the Exchange Warrants on an “alternative cashless exercise” basis, which the Company considers to be inconsistent with the terms of the Exchange Warrants, and disputes that the Plaintiffs are entitled to the requested shares. The Company wholly denies the allegations and claims made in the lawsuit and is currently defending the lawsuit.

 

On May 23, 2024, the Plaintiffs filed a motion for a preliminary injunction seeking an order (1) directing the Company to deliver the shares sought in their warrant exercise requests; (2) directing the Company to deliver all shares pursuant to future requests; (3) preventing the Company from issuing or delivering any shares to other holders until the Company honors Plaintiffs’ outstanding exercise requests; and (4) directing the Company to instruct its transfer agent to comply with the Court’s preliminary injunction order. On July 1, 2024, the court denied the Plaintiffs’ motion for a preliminary injunction in its entirety.

 

On July 19, 2024, the Company filed a motion to dismiss all of the Plaintiffs’ claims against the Company. The Company’s motion to dismiss is fully submitted and remains pending as of this time.

 

On October 29, 2024 (the “Effective Date”), the Company entered into a Settlement Agreement and Release (the “Settlement Agreement”) with the Plaintiffs, which resolved and settled the above referenced lawsuit between the Company and Plaintiffs. Pursuant to the Settlement Agreement, the Plaintiffs and the Company agreed to enter into certain Side Letter Agreements (the “Side Letter Agreements”) to amend the Exchange Warrants, which reduced the Warrant Shares (as defined in the Side Letter Agreements) to no more than 3,000,000 ordinary shares of the Company allocated to the Plaintiffs, exercisable at any time on or after the Trading Day (as defined in the Exchange Warrants) immediately following the Effective Date and through the Termination Date (as defined in the Side Letter Agreements). The Company also agreed to pay the Plaintiffs in the amount of $10,000 (the “Settlement Payment”) as compensation for costs incurred by the Plaintiffs in connection with the lawsuit and the Settlement Agreement. Additionally, the Plaintiffs and the Company each agreed to fully release the other from all claims arising out of the allegations and claims asserted in the lawsuit, subject to certain carve-outs (including any claims that the Plaintiffs or the Company may have against the other for a breach of the Settlement Agreement, the Side Letter Agreements or the Exchange Warrants (as amended pursuant to the Side Letter Agreements) and conditions.

 

  

As previously disclosed in the Company’s report of foreign private issuer on Form 6-K filed with the U.S. Securities and Exchange Commission on September 13, 2023, the Company may not effect the exercise of any Exchange Warrant, and a holder will not be entitled to exercise any portion of an Exchange Warrant, which, upon giving effect to such exercise, would cause the aggregate number of the Company’s ordinary shares beneficially owned by the holder (together with its affiliates) to exceed 4.99% (or, at the election of the holder, 9.99%) of the number of ordinary shares outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Exchange Warrants (as amended pursuant to the Side Letter Agreements).

 

Within three business days following the last to occur of (i) the execution of the Settlement Agreement, (ii) the execution of the Side Letter Agreements, and (iii) the transmittal by the Company of the Settlement Payment, the Plaintiffs will file a stipulation discontinuing the lawsuit without prejudice.

 

The Settlement Agreement and the form of Side Letter Agreements are attached as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 6-K. The description of the terms of the Settlement Agreement and the Side Letter Agreements is not intended to be complete and is qualified in its entirety by reference to such exhibits.

 

This report shall be deemed to be incorporated by reference into the registration statements of the Company on Form F-3 (File No. 333-272011 and 333-263315) and to be a part thereof from the date on which this report is filed, to the extent not superseded by documents or reports subsequently filed or furnished.

 

Exhibit Index

 

Exhibit No.		Description
10.1†		Settlement Agreement and Release dated as of October 29, 2024
10.2		Form of Side Letter Agreements

 

†

Portions of the exhibit have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K. The Company hereby agrees to furnish a copy of any omitted portion to the SEC upon request.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

	EZGO Technologies Ltd.
	By:	/s/ Jianhui Ye
	Name:	Jianhui Ye
	Title:	Chief Executive Officer

 

Date: October 30, 2024

 

 

3

 

Exhibit 10.1

 

SETTLEMENT AGREEMENT AND RELEASE

 

This Settlement Agreement and Release (the “Agreement”) is made and entered into this 29th day of October, 2024 (the “Effective Date”), by and among Empery Asset Master Ltd., Empery Tax Efficient, LP and Empery Tax Efficient III, LP (collectively, “Empery” or the “Plaintiffs”) on the one hand and EZGO Technologies Ltd. (“EZGO”) on the other hand. Empery and EZGO are referred to herein collectively as the “Parties” and each individually as a “Party.”

 

WHEREAS, the Parties entered into a Securities Purchase Agreement dated September 11, 2023 (the “SPA”) whereby each Empery entity received, among other securities, Exchange Warrants (as defined in the SPA) (the “Exchange Warrants”) and Common Warrants (as defined in the SPA) (the “Common Warrants”);

 

WHEREAS, Empery contends that EZGO failed to honor exercises of Exchange Warrants, which prompted Empery to file the lawsuit against EZGO styled as Empery Asset Master, Ltd. et al. v. EZGO Technologies, Ltd., Index No. 652191/2024 (Sup. Ct. N.Y. Co.) (the “Lawsuit”);

 

WHEREAS, EZGO denies the allegations in the Lawsuit and denies any liability to Plaintiffs with respect to the Lawsuit and the Exchange Warrants;

 

WHEREAS, to avoid the uncertainty, expense, and burden of litigation, the Parties desire to resolve the Lawsuit and the claims between them upon the terms and in the manner provided in this Agreement, with no Party admitting or acknowledging any fault or liability to any other Party.

 

NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Amendment of the Exchange Warrants. Empery and EZGO hereby agree that each Exchange Warrant held by any of the Empery entities shall be amended pursuant to the terms and conditions of the Side Letter Agreements by and between EZGO and each respective Empery entity in the form attached hereto as Exhibit A (collectively, the “Side Letter Agreements”), which Side Letter Agreements shall be executed by EZGO and the respective Empery entities simultaneously herewith. Notwithstanding anything to the contrary contained herein, upon any breach (other than an immaterial breach) by EZGO of this Agreement, the Side Letter Agreements or the Exchange Warrants (as amended pursuant to the Side Letter Agreements), Empery may in its sole discretion, by written notice to EZGO, terminate this Agreement (other than as set forth in the next sentence), at which time the Side Letter Agreements shall also be terminated. Notwithstanding anything to the contrary contained herein or in the Side Letter Agreements, if this Agreement and the Side Letter Agreements are terminated in accordance with the immediately preceding sentence, the Parties agree that (i) any Warrant Shares delivered by EZGO upon exercise of the Exchange Warrants (as amended pursuant to the Side Letter Agreements) prior to such termination shall be deemed, for purposes of the Lawsuit and otherwise, to reduce the number for Warrant Shares underlying the Exchange Warrants (without regard to the Side Letter Agreements), and (ii) the provisions set forth in Section 11 hereof and this sentence shall survive such termination.

 

 

2. Settlement Payment by EZGO. Within five (5) business days following the Effective Date, EZGO shall make a single payment in the amount of USD $10,000.00 to Empery’s legal counsel as compensation for costs incurred by Empery in connection with the Lawsuit and this Agreement (the “Settlement Payment”). EZGO shall make the Settlement Payment by wire transfer to the following account:

 

[Wire Instructions]

 

3. Express Waiver by Empery with Respect to Adjustments in Common Warrants. The Parties agree that the transactions provided for in this Agreement and the accompanying Side Letter Agreements, including the amendment of the Exchange Warrants (as set forth in the Side Letter Agreements) and any subsequent issuance or delivery of Warrant Shares to Empery in connection therewith shall not be deemed a Share Combination Event (as defined in the Common Warrants) or a Dilutive Issuance (as defined in the Common Warrants) for purposes of the Common Warrants held by Empery. For the avoidance of doubt, each Empery entity expressly and irrevocably waives, and agrees that it shall not assert, any right to adjustment which may have existed under Section 3(b) and/or Section 3(c) of the Common Warrants in connection with the transactions provided for in this Agreement and the accompanying Side Letter Agreements, as well as any subsequent issuance or delivery of Warrant Shares to Empery in connection therewith.

 

4. Mutual Releases.

 

(a) Plaintiffs’ Releases of EZGO. Upon (x) the execution of this Agreement and the Side Letter Agreements, (y) the payment by EZGO of the Settlement Payment and (z) EZGO’s due and timely delivery of all Warrant Shares issuable under the Exchange Warrants (as amended pursuant to the Side Letter Agreements), Plaintiffs on behalf of (i) themselves and their current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors, and (ii) each of their predecessors, successors, parents, subsidiaries, affiliates, and each of their respective current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors (the “Plaintiff Releasing Parties”), fully and irrevocably release, settle, acquit and forever discharge (i) EZGO and its current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors, and (ii) each of their predecessors, successors, parents, subsidiaries, affiliates and divisions, and each of their respective current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors (the “EZGO Released Parties”) to the fullest extent permitted by applicable law from any and all claims, counterclaims, complaints, causes of action, suits, losses of every kind, demands, debts or expenses (including, but not limited to, attorneys’ fees and costs actually incurred), liens, contractual obligations, undertakings, warranties, liabilities or damages of whatever nature, at law, in equity, or otherwise, whether known or unknown, suspected or unsuspected, asserted or unasserted, whether for equitable, declaratory, monetary, injunctive or any other type of relief whatsoever that the Plaintiff Releasing Parties have, had or may have against the EZGO Released Parties, arising out of or relating to the allegations and claims asserted in the Lawsuit, from the beginning of the world through the date of signing this Agreement; provided that nothing in this Section 4(a) releases EZGO from the obligations contained in this Agreement, the Side Letter Agreements, or the Exchange Warrants (as amended pursuant to the Side Letter Agreements).

 

 

(b) EZGO Releases of Plaintiffs. Upon the execution of this Agreement and the Side Letter Agreements, EZGO, on behalf of (i) itself and its current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors, and (ii) each of their predecessors, successors, parents, subsidiaries, affiliates and divisions, and each of their respective current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors (the “EZGO Releasing Parties”), fully and irrevocably releases, settles, acquits and forever discharges (i) Plaintiffs and their current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, attorneys and advisors, and (ii) each of Plaintiffs’ predecessors, successors, parents, subsidiaries, affiliates and divisions, and each of their respective current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors (the “Plaintiff Released Parties”) to the fullest extent permitted by applicable law from any and all claims, counterclaims, complaints, causes of action, suits, losses of every kind, demands, debts or expenses (including, but not limited to, attorneys’ fees and costs actually incurred), liens, contractual obligations, undertakings, warranties, liabilities or damages of whatever nature, at law, in equity, or otherwise, whether known or unknown, suspected or unsuspected, asserted or unasserted, whether for equitable, declaratory, monetary, injunctive or any other type of relief whatsoever that the EZGO Releasing Parties have, had or may have against the Plaintiff Released Parties, arising out of or relating to the allegations and claims asserted in the Lawsuit, from the beginning of the world through the date of signing this Agreement; provided that nothing in this Section 4(b) releases Plaintiffs from the obligations contained in this Agreement, the Side Letter Agreements, or the Exchange Warrants (as amended pursuant to the Side Letter Agreements).

 

(c) The Plaintiff Releasing Parties and the EZGO Releasing Parties each understand and agree that the Parties’ agreement to provide these general releases is a material condition of this Agreement and to the amendment of the Exchange Warrants as provided in the Side Letter Agreements.

 

 

(d) The Plaintiff Releasing Parties represent that they have no other suits, claims, complaints or demands of any kind whatsoever currently pending against the EZGO Released Parties with any local, state, or federal court or other tribunal, nor are they aware of any facts that would serve as the basis for any civil or administrative proceeding against the EZGO Released Parties.

 

(e) The EZGO Releasing Parties represent that they have no other suits, claims, complaints or demands of any kind whatsoever currently pending against the Plaintiff Released Parties with any local, state, or federal court or other tribunal, nor are they aware of any facts that would serve as the basis for any civil or administrative proceeding against the Plaintiff Released Parties.

 

(f) The Plaintiff Releasing Parties and EZGO Releasing Parties hereby acknowledge and waive any and all rights and protections under California Civil Code Section 1542, or any similar provision of state or federal law. The Parties each acknowledge that they have been advised by their attorneys of the contents and effects of Section 1542, which section has been duly explained and reads as follows:

 

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

 

5. No Release for Certain Breaches. Notwithstanding anything to the contrary in this Agreement or the Side Letter Agreements, the releases contained in this Agreement do not and are not intended to release any claims that either Party may have against the other Party for a breach of this Agreement, the Side Letter Agreements or the Exchange Warrants (as amended pursuant to the Side Letter Agreement).

 

6. Covenant Not to Sue. Each Party covenants never to institute, participate in, assist or encourage, either directly or indirectly, any suit, action, arbitration or proceeding, at law or in equity, against the EZGO Released Parties or the Plaintiff Released Parties, as applicable, arising from or related to the claims, counterclaims, complaints, causes of action, suits, losses, demands, debts or expenses (including, but not limited to, attorneys’ fees and costs actually incurred), liens, liabilities or damages that are released in this Agreement. Nothing in this paragraph shall limit Empery’s right upon any breach of this Agreement, any Side Letter Agreements or the Exchange Warrants (as amended pursuant to the Side Letter Agreements) to either commence an action regarding the claims asserted in the Lawsuit, or in Empery’s sole discretion, commence an action to enforce its rights under this Agreement, the Side Letter Agreements or the Exchange Warrants (as amended pursuant to the Side Letter Agreements).

 

 

7. Dismissal of the Lawsuit. Within three (3) business days following the last-occurring of (i) the execution of this Agreement, (ii) the execution of the Side Letter Agreements, and (iii) the transmittal by EZGO of the Settlement Payment pursuant to Section 2 hereof, Plaintiffs will file a stipulation discontinuing the Lawsuit without prejudice that shall be executed by counsel for Plaintiffs and EZGO.

 

8. No Admission of Liability. The Parties have entered into this Agreement and Side Letter Agreements solely for the purposes of avoiding the expense and inconvenience of litigation. Neither the execution of this Agreement nor the Side Letter Agreements, nor the effectuation of the settlement as set forth herein and therein, shall constitute or be construed in any manner whatsoever as an admission or concession of liability or wrongdoing, or lack of merit of any claims or defenses, on the part of either Party. This Agreement, the Side Letter Agreements, and any other evidence of the terms of this settlement, shall not be offered or received in evidence in any action or other proceeding as an admission or concession of liability or wrongdoing, or lack of merit of any claims or defenses, on the part of either Party.

 

9. Ownership of Claims. Each Party warrants and represents that it is the sole and lawful owner of all rights, title and interests in and to any claims, counterclaims, complaints, causes of action, suits, losses, demands, debts or expenses (including, but not limited to, attorneys’ fees and costs actually incurred), liens, liabilities or damages that are the subject of this Agreement, including without limitation the releases set forth in this Agreement, and that it has not sold, assigned, granted, transferred or hypothecated any right, title or interest in any such claims, counterclaims, complaints, causes of action, suits, losses, demands, debts or expenses (including, but not limited to, attorneys’ fees and costs actually incurred), liens, liabilities or damages to any other person or entity.

 

10. Disclosure. The Company shall (a) by the Disclosure Time, file a Current Report on Form 6-K with the Securities and Exchange Commission. From and after the filing of such Form 6-K, the Company represents to Empery that it shall have publicly disclosed all material, non-public information delivered to Empery by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents. In addition, effective upon the issuance of such Form 6-K, 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, agents, employees, Affiliates or agents, on the one hand, and Empery or any of its Affiliates on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that Empery shall be relying on the foregoing covenant in effecting transactions in securities of the Company. As used herein, “Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 8:30 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City time) and 8:30 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.

 

 

11. Governing Law and Venue. This Agreement shall be construed under and governed by the laws of the State of New York, without regard to choice-of-law principles. Any suit, action, or proceeding between the Parties arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in New York, New York, and the Parties each hereby submit to the personal jurisdiction thereof and agree to such courts as the appropriate venue, and expressly waive any objection to such jurisdiction or venue based on the doctrine of forum non conveniens. Each Party irrevocably waives personal service of process and consents to being served in any suit, action or proceeding to enforce this Agreement in the manner set forth in Section 22 of this Agreement (including email delivery as set forth therein). In connection with any suit by Plaintiffs to enforce any good faith claim for the delivery of shares due under the Exchange Warrants (as amended pursuant to the Side Letter Agreements), EZGO agrees that Plaintiffs shall be entitled to obtain specific performance to enforce EZGO’s obligation to deliver the shares and preliminary injunctive relief to the extent such relief directs EZGO to deliver the shares to Plaintiffs. EZGO further agrees that Plaintiffs have no adequate remedy at law in connection with any claim seeking to enforce this Agreement or the Exchange Warrants (as amended pursuant to the Side Letter Agreements). In connection with any motion for a preliminary injunction seeking to compel delivery of shares pursuant to the Exchange Warrants (as amended pursuant to the Side Letter Agreements), EZGO further agrees not to raise any objection that such an award constitutes the final relief in the action and agrees that the return of any shares issued pursuant to a preliminary injunction order shall be a sufficient remedy should a court determine at trial that Plaintiffs were not entitled to such shares. EZGO waives any right to demand an undertaking or bond in connection with any award of temporary or preliminary relief. EZGO further acknowledges and agrees that any court order directing the issuance of its shares may be implemented by EZGO’s transfer agent directly. In the event of any breach of this Agreement, the Side Letter Agreements or the Exchange Warrants (as amended pursuant to the Side Letter Agreements), EZGO consents to service of process as set forth above and to respond to the complaint in any action arising out of or related to this Agreement no later than thirty (30) calendar days after service. In the event of any suit to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.

 

12. No Waiver. Any failure by a Party to pursue any breach of any provision of this Agreement shall not constitute a waiver of that provision, or any other provision, of this Agreement. The failure of a Party to insist upon the strict performance of any term or condition in this Agreement shall not be considered a waiver or relinquishment of further compliance therewith.

 

13. Entire Agreement; Amendments. This Agreement, the Side Letter Agreements and the Exchange Warrants (as amended pursuant to the Side Letter Agreements) contain the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the Parties with respect thereto. In entering this Agreement and the Side Letter Agreements, no Party has relied upon any representation or warranty of the other Party that is not included in this Agreement or the Side Letter Agreements.

 

14. No Oral Modification. This Agreement may not be amended, modified or terminated, except by a written instrument signed by each of the Parties hereto.

 

15. Saving Clause and Severability. If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired, provided that no Party is deprived of the material benefits of this Agreement. If owing to the invalidity or unenforceability of any provision of this Agreement any Party is deprived of the material benefits of this Agreement, the Parties shall substitute for the invalid or unenforceable provision, a provision that will allow such Party or Parties to enjoy such material benefits.

 

 

16. Binding Effect. This Agreement shall inure to the benefit of the Parties and their current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors and shall be binding upon each of the Parties and their permitted assigns, successors, heirs, and representatives.

 

17. Authority to Enter Into and Understanding of Agreement. Each Party hereto represents and warrants as respects itself that: (i) the individual executing this Agreement on its behalf is duly authorized to do so; (ii) such Party is entering this Agreement of its own free will, free of any duress, undue influence or compulsion by any person or entity, and has the full authority and capacity necessary to do so; (iii) such Party is represented by counsel of its own choosing in connection with this Agreement; and (iv) such Party has read this Agreement and understands all of the terms hereof.

 

18. Agreement Jointly Drafted. The Parties agree that each and every provision of this Agreement and the Side Letter Agreements shall be deemed to have been simultaneously drafted by each of the Parties, and no laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to the interpretation or enforcement of this Agreement or the Side Letter Agreements.

 

19. Non-Inducement. The Parties warrant that no promise or inducement has been made or offered, except as set forth herein, and that this Agreement is executed voluntarily to dispose of all claims identified in this Agreement, without reliance upon any statement or representation by any attorney, agent or other representative acting on behalf of any of the Parties.

 

20. Attorneys’ Fees and Costs. With the exception of the Settlement Payment set forth in Section 2 hereof, each Party to this Agreement shall bear its own attorneys’ fees and costs arising out of or related to the Lawsuit, this Agreement and the claims released herein, and the Side Letter Agreements, and no further claim shall be made therefore.

 

21. No Third-Party Beneficiaries. The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights (including, without limitation, any third-party beneficiary rights) to any other person.

 

22. Notice. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email at the email address set forth below at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email at the email address set forth below on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2^nd) Trading Day following the date of mailing, if sent by an overnight courier or (d) upon actual receipt by the party to whom such notice is required to be given.

 

 

	If to Empery:	c/o Empery Asset Management, LP 1 Rockefeller Plaza, Suite 1205 New York, New York 10020 Attention: Brett Director E-mail: notices@emperyam.com   With a copy (which shall not constitute notice) to:   OLSHAN FROME WOLOSKY LLP 1325 Avenue of the Americas New York, NY 10019 Direct: 212.451.2213 Facsimile: 212.451.2222 Email: TFleming@olshanlaw.com
	If to EZGO	EZGO Technologies Ltd. Building #A, Floor 2 Changzhou Institute of Dalian University of Technology Science and Education Town Wujin District, Changzhou City Jiangsu, China 213164 Attention: Jianhui Ye Email copies to each of the following: yejianhui@ez-go.com.cn wujingyan@ez-go.com.cn zhaozebin@ez-go.com.cn ir@ez-go.com.cn    With a copy (which shall not constitute notice) to:   Sullivan & Worcester LLP 1251 Avenue of the Americas New York, New York 10020 Attention: Christopher Shields Email: cshields@sullivanlaw.com

 

23. No Assignment. This Agreement may not be assigned, conveyed or otherwise transferred, in whole or in part, by either Party (other than by the operation of law in connection with a merger or sale) without express written consent of the non-assigning Party.

 

24. Counterparts. This Agreement may be executed in counterparts, and each counterpart, when executed, shall have the efficacy of a signed original. Photographic, emailed, imaged and facsimiled copies of such signed counterparts may be used in lieu of the originals for any purpose.

 

25. Headings. The headings of the paragraphs of this Agreement have been inserted for reference only and are not part of this Agreement and are not to be used in any way in the construction or interpretation hereof.

 

[Signatures on next page]

 

 

IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned have executed this Agreement as of the Effective Date.

 

	EMPERY ASSET MASTER LTD.
	By: Empery Asset Management, LP, its authorized agent
	/s/ Brett Director
	Name:	Brett Director
	Title:	General Counsel
	EMPERY TAX EFFICIENT, LP
	By: Empery Asset Management, LP, its authorized agent
	/s/ Brett Director
	Name:	Brett Director
	Title:	General Counsel
	EMPERY TAX EFFICIENT III, LP
	By: Empery Asset Management, LP, its authorized agent
	/s/ Brett Director
	Name:	Brett Director
	Title:	General Counsel
	EZGO TECHNOLOGIES LTD.
	/s/ Jianhui Ye
	By: Jianhui Ye
	Title of Authorized Signatory: Chief Executive Officer

 

 

9

 

Exhibit 10.2

 

SIDE LETTER

 

This letter confirms the understanding and agreement (the “Agreement”) made as of October 29, 2024, by and between EZGO Technologies Ltd., a British Virgin Islands business company (the “Company”), and the signatory hereto (the “Warrant Holder”). The Warrant Holder and the Company will be referred to individually as a “Party” and collectively as the “Parties.”

 

RECITALS

 

WHEREAS, the Warrant Holder and the Company are parties to that certain Securities Purchase Agreement, dated September 11, 2023 (the “SPA”), previously entered into by and among the Company and certain other parties listed on the signature pages thereto;

 

WHEREAS, pursuant to the terms of the SPA, on September 13, 2023, the Company issued to Warrant Holder certain warrant evidencing the right to purchase ordinary shares of the Company (“Ordinary Shares”), a copy of which is attached hereto as Exhibit A (the “Exchange Warrant”);

 

WHEREAS, on the date hereof, the Company entered into a Settlement Agreement and Release (the “Settlement Agreement”) with the Warrant Holder and certain other parties listed on the signature pages thereto, pursuant to which the Parties have agreed to amend the Exchange Warrant, effective as of the date hereof (the “Effective Date”), on the terms and conditions set forth in this Agreement;

 

NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth in this Agreement and the Settlement Agreement, for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and intending to be legally bound, it is hereby agreed as follows. All capitalized terms used but not defined herein shall have the meaning ascribed to them in (i) the Exchange Warrant and (ii) if not defined in the Exchange Warrant, the SPA.

 

1. Recitals. The Parties agree that the above Recitals are true and correct in all respects.

 

2. Amendments to the Exchange Warrant. The Parties agree and acknowledge that the “Warrant Shares” shall be reduced to [●]¹, and the “Termination Date” of the Exchange Warrant shall be the later of (A) 6:00 PM (New York time) on January 28, 2025 and (B) the Trading Day immediately following such time as the total aggregate trading volume of the Ordinary Shares on the principal Trading Market, as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), beginning on the Trading Day immediately following the Effective Date exceeds 15,000,000 shares (as such number may be adjusted for stock splits, stock dividends, etc.). For avoidance of doubt, the Exchange Warrant shall cease to be exercisable and any right to exercise shall terminate and become void after the Termination Date. For the avoidance of doubt, the Company hereby acknowledges and agrees that this Warrant may be exercised by the Holder via one or more “alternative cashless exercises”.

 

2.1

The following definitions shall be removed in their entirety from Section 1 of the Exchange Warrant: “Board of Directors” and “Business Day”.

 

2.2

The following definition from Section 1 of the Exchange Warrant shall be removed and replaced with the following:

 

“Ordinary Shares” means the ordinary shares of the Company, $0.04 par value per share, and any other class of securities into which such securities may hereafter be reclassified or changed.

 

1	To insert pro rata portion of 3,000,000 Warrant Shares allocated to the Holder.

 

 

2.3

Section 2(d)(i) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

i. Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to Holder or (B) this Warrant is being exercised via cashless exercise (which for all purposes under this Warrant shall include an alternative cashless exercise), and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder, or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of Exercise together with delivery of the aggregate Exercise Price to the Company (other than in the case of a cashless exercise) and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. Notwithstanding anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for purposes of Regulation SHO under the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery of the Warrant Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by one (1) Trading Day after the Warrant Share Delivery Date, provided that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise) is received by the Company on or prior to the Warrant Share Delivery Date, 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 VWAP of the Ordinary Shares 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 Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. For avoidance of doubt, the Company shall not be deemed to be in violation of the Settlement Agreement and this Section 2(d)(i), provided, that the Warrant Shares are delivered to the Holder no later than one (1) Trading Day after the Warrant Share Delivery Date. The Company agrees to maintain a Transfer Agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice of Exercise.

 

2.4

Section 2(d)(vii) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

vii. Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.

 

 

2.5

Section 3(b) and Section 3(c) of the Exchange Warrant shall be amended and restated to read in full as follows, respectively:

 

[Intentionally Omitted].

 

2.6

Section 3(f) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

f) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions other than to an Affiliate of the Company, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer by the Company (or that is approved or recommended by the Company) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding Ordinary Shares or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall use reasonable best efforts to cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(f) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares prior to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(f) regardless of (i) whether the Company has sufficient authorized Ordinary Shares for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.

 

 

2.7

Section 3(i) of the Exchange Warrant shall be removed in its entirety.

 

2.8

Section 4(a) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

a) Transferability. This Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto as Exhibit B duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.

 

2.9

Section 5(c) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.

 

2.10

The first paragraph of Section 5(d) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

The Company covenants that, during the period the Warrant is outstanding, it will have authorized and unissued Ordinary Shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).

 

 

2.11

Section 5(e) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in New York County, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts. and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served. In addition to the foregoing, Section 11 of the Settlement Agreement is incorporated by reference herein. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under the federal securities laws.

 

2.12

Section 5(f) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.

 

2.13

Section 5(h) of the Exchange Warrant shall be amended and restated to read in full as follows:

 

h) Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at Building #A, Floor 2, Changzhou Institute of Dalian University of Technology, Science and Education Town, Wujin District, Changzhou City Jiangsu, China 213164 Attention: Jianhui Ye, Chief Executive Officer, email address: yejianhui@ez-go.com.cn; Jingyan Wu, Chief Financial Officer, email address: wujingyan@ez-go.com.cn; Zebin Zhao, Chief Operating Officer, email address: zhaozebin@ez-go.com.cn; and email address: ir@ez-go.com.cn, or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report of Foreign Private Issuer on Form 6-K.

 

 

3. Representations and Warranties.

 

a. By Warrant Holder. The Warrant Holder hereby warrants and represents to the Company that (i) the execution, delivery and performance of this Agreement by the Warrant Holder has been duly and validly authorized by all necessary corporate action on the part of the Warrant Holder, and no other corporate action on the part of the Warrant Holder, its governing body or its equity holders is necessary to authorize the execution, delivery and performance by the Warrant Holder of this Agreement; (ii) this Agreement has been duly executed and delivered by the Warrant Holder and, assuming the due execution and delivery by the Company, constitutes the legal, valid and binding obligation of the Warrant Holder, enforceable against the Warrant Holder in accordance with its terms; and (iii) the Warrant Holder is the sole owner and beneficiary of the Exchange Warrant, free and clear of any liens or other encumbrances, rights or interests, and the Warrant Holder has not transferred, sold or otherwise assigned any of the Exchange Warrant or any of the rights of the Warrant Holder under the Exchange Warrant that were issued to it under the SPA.

 

b. By Company. The Company hereby warrants and represents to the Warrant Holder that (i) the execution, delivery and performance of this Agreement by the Company has been duly and validly authorized by all necessary corporate action on the part of the Company, and no other corporate action on the part of Company, its governing body or its equity holders is necessary to authorize the execution, delivery and performance by the Company of this Agreement; and (ii) this Agreement has been duly executed and delivered by the Company and, assuming the due execution and delivery by the Warrant Holder, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

4. Entire Agreement. This Agreement, the Settlement Agreement and the Exchange Warrant (as amended by this Agreement) contain and comprise the entire agreement and understanding between the Parties, that no other representation, promise, covenant or agreement of any kind whatsoever has been made to cause any Party to execute this Agreement or the Settlement Agreement, and that all agreements and understandings between the Parties are embodied and expressed herein and in the Settlement Agreement.

 

 

5. Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Parties or, in the case of a waiver, by the Party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement will be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor will any delay or omission of either Party to exercise any right hereunder in any manner impair the exercise of any such right.

 

6. Successors and Assigns. A Party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of each other Party.

 

7.  Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement will not in any way be affected or impaired thereby and the Parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, will incorporate such substitute provision in this Agreement.

 

8.  Third-Party Beneficiaries. No provision of this Agreement is intended to, and no provision of this Agreement shall, confer upon any party other than the Parties (and their successors and assigns, if any) any rights or remedies under this Agreement.

 

9.  Binding Effect. This Agreement shall inure to the benefit of the Parties and their current and former principals, members, shareholders, directors, managers, officers, employees, agents, representatives, partners, joint venturers, consultants, beneficiaries, heirs, assigns, executors, administrators, trustees, attorneys and advisors and shall be binding upon each of the Parties and their permitted assigns, successors, heirs, and representatives.

 

10.  Governing Law. This Agreement shall be construed under and governed by the laws of the State of New York, without regard to choice-of-law principles. Any suit, action, or proceeding between the Parties arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in New York County, New York, and the Parties each hereby submit to the personal jurisdiction thereof and agree to such courts as the appropriate venue, and expressly waive any objection to such jurisdiction or venue based on the doctrine of forum non conveniens. Each Party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding to enforce this Agreement in the manner set forth in Section 11 of the Settlement Agreement. In the event of any suit to enforce this Agreement, the prevailing shall be entitled to recover its reasonable attorney’s fees and expenses.

 

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

 

12.  Construction. The Parties agree that each of them and/or their respective counsel has reviewed and had an opportunity to revise this Agreement and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any amendments hereto. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against any Party.

 

13.  Electronic exchange of documents. In relation to the electronic exchange of documents (a) the Parties may exchange executed counterparts of this Agreement, or any other document required to be executed under this Agreement, by delivery from one party to the other party by emailing a pdf (portable document format) copy of the executed counterpart to that other party (“Electronic Delivery”), and (b) Electronic Delivery of an executed counterpart will be deemed effective delivery of the original executed counterpart, from the date and time of receipt by the other party.

 

14. Expenses. Each Party will pay its own costs and expenses in connection with the negotiation, preparation, execution, and performance of this Agreement.

 

15. No Merger. The warranties, undertakings and indemnities in this Agreement do not merge at the Effective Date.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have executed this Agreement as of the date first set forth above.

 

WARRANT HOLDER:
	[____________]
	By:	[____]
	Title of Authorized Signatory:

 

COMPANY:
	EZGO TECHNOLOGIES LTD.
	By:	Jianhui Ye
	Title of Authorized Signatory: Chief Executive Officer

 

[Signature Page to Side Letter]

 

 

EXHIBIT A

 

EXCHANGE WARRANT TO PURCHASE ORDINARY SHARES

 

[see attached]

 

 

 

 

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