ANNEX A – Agreement and Plan of Merger — Twitter / Musk

ANNEX A

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

X HOLDINGS I, INC.,

X HOLDINGS II, INC.

and

TWITTER, INC.

Dated as of April 25, 2022

TABLE OF CONTENTS


ARTICLE I DEFINITIONS		A-2

ARTICLE II THE MERGER		A-11

Section 2.1	The Merger	A-11
Section 2.2	The Closing	A-11
Section 2.3	Effective Time	A-11
Section 2.4	Certificate of Incorporation and Bylaws	A-12
Section 2.5	Board of Directors	A-12
Section 2.6	Officers	A-12

ARTICLE III EFFECT OF THE MERGER ON CAPITAL STOCK		A-12

Section 3.1	Effect on Securities	A-12
Section 3.2	Payment for Securities; Exchange of Certificates	A-13
Section 3.3	Lost Certificates	A-15
Section 3.4	Transfers; No Further Ownership Rights	A-15
Section 3.5	Dissenting Shares	A-15
Section 3.6	Company Equity Awards	A-16
Section 3.7	Company ESPP	A-17

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY		A-18

Section 4.1	Organization and Qualification; Subsidiaries	A-18
Section 4.2	Capitalization	A-18
Section 4.3	Authority Relative to Agreement	A-19
Section 4.4	No Conflict; Required Filings and Consents	A-20
Section 4.5	Permits; Compliance With Laws	A-20
Section 4.6	Company SEC Documents; Financial Statements	A-21
Section 4.7	Information Supplied	A-21
Section 4.8	Disclosure Controls and Procedures	A-22
Section 4.9	Absence of Certain Changes or Events	A-22
Section 4.10	No Undisclosed Liabilities	A-22
Section 4.11	Litigation	A-22
Section 4.12	Employee Benefit Plans	A-22
Section 4.13	Labor Matters	A-24
Section 4.14	Intellectual Property	A-24
Section 4.15	Taxes	A-24
Section 4.16	Material Contracts	A-25
Section 4.17	RESERVED	A-25
Section 4.18	RESERVED	A-25
Section 4.19	Takeover Statutes	A-25
Section 4.20	Vote Required	A-25
Section 4.21	Brokers	A-26
Section 4.22	Opinions of Financial Advisors	A-26
Section 4.23	Rights Agreement	A-26
Section 4.24	RESERVED	A-26
Section 4.25	No Other Representations or Warranties	A-26

Article V REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB		A-27

Section 5.1	Organization and Qualification	A-27
Section 5.2	Authority Relative to Agreement	A-27
Section 5.3	No Conflict; Required Filings and Consents	A-28

A-i


Section 5.4	Financing	A-28
Section 5.5	Information Supplied	A-30
Section 5.6	Brokers	A-30
Section 5.7	Compliance With Laws	A-30
Section 5.8	Ownership of Company	A-30
Section 5.9	Solvency	A-31
Section 5.10	Parent Guarantee	A-31
Section 5.11	Acknowledgment of Disclaimer of Other Representations and Warranties	A-31

ARTICLE VI COVENANTS AND AGREEMENTS		A-32

Section 6.1	Conduct of Business by the Company Pending the Merger	A-32
Section 6.2	Preparation of the Proxy Statement; Company Stockholders’ Meeting	A-34
Section 6.3	Efforts to Close; Regulatory Filings	A-35
Section 6.4	Access to Information; Confidentiality	A-37
Section 6.5	Non-Solicitation; Competing Proposals	A-38
Section 6.6	Directors’ and Officers’ Indemnification and Insurance	A-41
Section 6.7	Notification of Certain Matters	A-43
Section 6.8	Public Announcements	A-43
Section 6.9	Employee Benefits	A-43
Section 6.10	Financing	A-44
Section 6.11	Financing Cooperation	A-48
Section 6.12	Acquisition Sub	A-50
Section 6.13	Rule 16b-3 Matters	A-50
Section 6.14	Delisting of Company Common Stock	A-51

ARTICLE VII CONDITIONS TO THE MERGER		A-51

Section 7.1	Conditions to the Obligations of Each Party	A-51
Section 7.2	Conditions to the Obligations of Parent and Acquisition Sub	A-51
Section 7.3	Conditions to the Obligation of the Company to Effect the Merger	A-52

ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER		A-52

Section 8.1	Termination	A-52
Section 8.2	Effect of Termination	A-53
Section 8.3	Termination Fee	A-54
Section 8.4	Amendment	A-56
Section 8.5	Extension; Waiver	A-56
Section 8.6	Expenses; Transfer Taxes	A-56

ARTICLE IX GENERAL PROVISIONS		A-56

Section 9.1	Non-Survival of Representations, Warranties and Agreements	A-56
Section 9.2	Notices	A-56
Section 9.3	Interpretation; Certain Definitions	A-58
Section 9.4	Severability	A-59
Section 9.5	Assignment	A-59
Section 9.6	Entire Agreement	A-59
Section 9.7	No Third-Party Beneficiaries	A-59
Section 9.8	Governing Law	A-59
Section 9.9	Specific Performance	A-59
Section 9.10	Consent to Jurisdiction	A-60
Section 9.11	Counterparts	A-61
Section 9.12	WAIVER OF JURY TRIAL	A-61
Section 9.13	Debt Financing Source Related Part	A-61

A-ii

Index of Defined Terms


Acceptable Confidentiality Agreement		Section 6.5(c)
Acquisition Sub		Article I, Preamble
Acquisition Sub Board		Article I, Recitals
Adverse Board Recommendation Change		Section 6.5(d), Article I
Affiliate		Article I
Aggregate Merger Consideration		Article I
Agreement		Article I, Preamble
Alternative Financing		Section 6.10(c), Article I
Alternative Financing Debt Commitment Letter		Section 6.10(c), Article I
Antitrust Laws		Section 4.4(b), Article I
Bank Debt Commitment Letter		Section 5.4, Article I
Bank Debt Financing		Section 5.4, Article I
Blue Sky Laws		Article I
Book-Entry Shares		Section 3.1(c), Article I
Business Day		Article I
Canceled Shares		Section 3.1(b)
CCC		Article I
Certificate of Merger		Section 2.3(a), Article I
Certificates		Section 3.1(c), Article I
Closing		Section 2.2, Article I
Closing Date		Section 2.2, Article I
Code		Article I
Company		Article I, Preamble
Company ASR Confirmations		Article I
Company Benefit Plan		Article I
Company Board		Article I, Recitals
Company Board Recommendation		Recitals
Company Bond Hedge Documentation		Article I
Company Bond Hedge Transactions		Article I
Company Bylaws		Section 4.1, Article I
Company Certificate of Incorporation		Section 4.1, Article I
Company Common Stock		Section 3.1(b), Article I
Company Disclosure Letter		Article I
Company Equity Awards		Article I
Company ESPP		Article I
Company Intellectual Property		Section 4.14(a), Article I
Company Material Adverse Effect		Article I
Company Material Contract		Section 4.16(a), Article I
Company Option		Article I
Company Permits		Section 4.5(a), Article I
Company PSU		Article I
Company Related Parties		Section 8.3(c), Article I
Company RSA		Article I
Company RSU		Article I
Company SEC Documents		Section 4.6(a), Article I
Company Service Provider		Article I
Company Stockholder Advisory Vote		Section 4.3(a), Article I
Company Stockholder Approval		Section 4.20, Article I
Company Stockholders’ Meeting		Section 6.2(c), Article I
Company Warrant Confirmations		Article I

A-iii


Competing Proposal		Section 6.5(g)(i), Article I
Consent		Section 4.4(b), Article I
Continuation Period		Section 6.9(a), Article I
Continuing Employees		Section 6.9(a), Article I
Contract		Article I
COVID-19		Article I
COVID-19 Measures		Article I
D&O Indemnified Parties		Section 6.6(a), Article I
Debt Commitment Letters		Section 5.4, Article I
Debt Financing		Section 5.4, Article I
Debt Financing Source		Article I
Debt Financing Source Related Party		Article I
DGCL		Article I, Recitals
Dissenting Shares		Section 3.5, Article I
DTC		Article I
Effective Time		Section 2.3(a), Article I
Enforceability Exceptions		Section 4.3(a), Article I
Equity Commitment Letter		Section 5.4, Article I
Equity Financing		Section 5.4
Equity Investor		Preamble
ERISA		Article I
ERISA Affiliate		Article I
Exchange Act		Article I
Exchange Fund		Section 3.2(a), Article I
Existing 2027 Senior Notes		Article I
Existing 2030 Senior Notes		Article I
Existing Convertible Notes		Article I
Existing Credit Agreement		Article I
Existing D&O Insurance Policies		Section 6.6(c), Article I
Existing Senior Notes		Article I
Expenses		Article I
Final Offering Period		Section 3.7, Article I
Financing		Section 5.4, Article I
Financing Agreements		Section 6.10(a)(i), Article I
Financing Commitments		Section 5.4, Article I
Financing Sources		Article I
Foreign Investment Laws		Article I
Foreign Plan		Article I
Funding Obligations		Section 5.4, Article I
GAAP		Article I
Goldman Sachs		Section 4.21, Article I
Governmental Authority		Article I
Guarantor		Recitals
Hazardous Materials		Article I
HSR Act		Article I
Intellectual Property Rights		Section 4.14(a), Article I
Intervening Event		Section 6.5(d)
IRS		Article I
J.P. Morgan		Section 4.21
Knowledge		Article I
Law		Article I

A-iv


Lien		Article I
Margin Loan Borrower		Section 5.4, Article I
Margin Loan Commitment Letter		Section 5.4, Article I
Margin Loan Financing		Section 5.4, Article I
Merger		Article I, Recitals
Merger Consideration		Section 3.1(c), Article I
Notice of Adverse Board Recommendation Change		Section 6.5(d), Article I
Notice of Superior Proposal		Section 6.5(d), Article I
Order		Article I
Parent		Article I, Preamble
Parent Board		Article I, Recitals
Parent Disclosure Letter		Article I
Parent Guarantee		Recitals
Parent Material Adverse Effect		Article I
Parent Owned Shares		Section 5.8
Parent Related Parties		Section 8.3(c), Article I
Parent Termination Fee		Article I
Paying Agent		Section 3.2(a), Article I
Paying Agent Agreement		Section 3.2(a), Article I
Permitted Lien		Article I
Person		Article I
Personal Information		Section 4.14
Post-Closing Plans		Section 6.9(b), Article I
Post-Closing Welfare Plans		Section 6.9(c), Article I
Proxy Statement		Section 4.7, Article I
Representatives		Section 6.4, Article I
SEC		Article I
Secretary of State		Section 2.3(a), Article I
Securities Act		Article I
Silver Lake Investment Agreement		Article I
Solvent		Section 5.9, Article I
Specified Provisions		Article I, Preamble
Stockholder Rights		Article I
Stockholder Rights Agreement		Article I
Stockholder Rights Plan		Article I
Subsidiary		Article I
Superior Proposal		Section 6.5(g)(iii), Article I
Surviving Corporation		Section 2.1, Article I
Tax		Article I
Tax Returns		Article I
Taxes		Article I
Termination Date		Section 8.1(b)(i), Article I
Termination Fee		Article I
Tesla Shares		Article I
Third Party		Article I
U.S.		Article I
Unvested Company Option		Section 3.6(a)(ii)
Unvested Company PSU		Section 3.6(b)(ii)
Unvested Company RSU		Section 3.6(d)(ii)
Unvested Option Consideration		Section 3.6(a)(ii)
Unvested PSU Consideration		Section 3.6(b)(ii)
Unvested RSA Consideration		Section 3.6(c)

A-v


Unvested RSU Consideration		Section 3.6(d)(ii)
Vested Company Option		Section 3.6(a)(i)
Vested Company PSU		Section 3.6(b)(i)
Vested Company RSU		Section 3.6(d)(i)
Vested Option Consideration		Section 3.6(a)(i)
Vested PSU Consideration		Section 3.6(b)(i)
Vested RSU Consideration		Section 3.6(d)(i)

A-vi

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER, dated as of April 25, 2022 (this “Agreement”), is made by and among Twitter, Inc., a Delaware corporation (the “Company”), X Holdings I, Inc., a Delaware corporation (“Parent”), X Holdings II, Inc., a Delaware corporation and a direct wholly owned Subsidiary of Parent (“Acquisition Sub”), and, solely for purposes of Sections 5.4, 6.2(d), 6.3, 6.8, 6.10, 6.11, 6.12 and 9.9 (the “Specified Provisions”), Elon R. Musk (the “Equity Investor”).

W I T N E S S E T H:

WHEREAS, the parties desire for Parent to acquire the Company by way of a merger (the “Merger”) of Acquisition Sub with and into the Company pursuant to the General Corporation Law of the State of Delaware (the “DGCL”) upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the board of directors of Acquisition Sub (the “Acquisition Sub Board”) has determined that it is advisable to, fair to and in the best interests of Acquisition Sub and its stockholders to effect the Merger of Acquisition Sub with and into the Company pursuant to the DGCL upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the Company’s board of directors (the “Company Board”) has, by resolutions duly adopted by the unanimous vote of the directors at a duly held meeting (i) determined that the terms and conditions of this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of the Company and the Company’s stockholders, (ii) authorized the execution and delivery of this Agreement and declared advisable and approved the consummation of the transactions contemplated by this Agreement, including the Merger, (iii) directed that this Agreement be submitted for consideration at a meeting of the Company’s stockholders and (iv) subject to the terms of this Agreement, recommended that the Company’s stockholders adopt this Agreement and approve the transactions contemplated by this Agreement, including the Merger (the “Company Board Recommendation”);

WHEREAS, the Acquisition Sub Board has, by resolutions duly adopted, (i) determined that the terms and conditions of this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of the Acquisition Sub and Parent, as the sole stockholder of Acquisition Sub; (ii) authorized the execution and delivery of this Agreement and declared advisable and approved the consummation of the transactions contemplated by this Agreement, including the Merger, (iii) directed that this Agreement be submitted for consideration by Parent, as the sole stockholder of Acquisition Sub and (iv) recommended that Parent, as the sole stockholder of Acquisition Sub approve the Merger, and Parent, as the sole stockholder of Acquisition Sub, has approved this Agreement and the consummation of the transactions contemplated by this Agreement, including the Merger;

WHEREAS, the board of directors of Parent (the “Parent Board”) has, by resolutions duly adopted by the unanimous vote of the directors, (i) adopted this Agreement and approved the consummation of the transactions contemplated by this Agreement, including the Merger and (ii) determined that this Agreement and the transactions contemplated by this Agreement are advisable and in the best interests of Parent and Elon Musk, as the sole stockholder of Parent;

WHEREAS, as a material inducement to, and as a condition to, the Company entering into this Agreement, concurrently with the execution of this Agreement, Elon Musk (the “Guarantor”) has entered into a limited guarantee, dated as of the date hereof, guaranteeing certain of Parent’s and Acquisition Sub’s obligations under this Agreement (the “Parent Guarantee”); and

A-1

ANNEX A – Agreement and Plan of Merger

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