continuing contravention of s 57 of the Online Safety Act. That alleged continuing contravention comprised X Corp's claimed failure to comply with the reporting notice issued on 22 February 2023 by preparing a report by 29 March 2023 in the manner and form specified in the notice to the extent that X Corp was capable of doing so. The further progress of the civil penalty proceeding awaits the outcome of this proceeding.
The merger agreement
43 Twitter Inc and X Corp entered into an instrument titled "Agreement and Plan of Merger" dated 15 March 2023 (the merger agreement). Article 2.1 of the merger agreement provided –
2.1 Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the NRS, the Company shall be merged with and into the Acquiror as of the Effective Time. Following the Effective Time, the separate corporate existence of the Company shall cease and the Acquiror shall be the surviving corporation (the "Surviving Corporation"). The effects and consequences of the Merger shall be as set forth in this Agreement and the NRS.
44 For the purposes of the merger agreement: (a) "NRS" referred to the Nevada Revised Statutes; (b) "the Company" was Twitter Inc; and (c) "the Acquiror" was X Corp. The definitions set out in the merger agreement also provided for a definition of "the Effective Time", which was the time and date provided in the Articles of Merger, being the article of merger filed with the Nevada Secretary of State pertaining to the merger. That document was not in evidence, but I will infer that the date specified in the document was 15 March 2023, consistently with the agreed fact that Twitter Inc merged into X Corp on that day.
45 Article 3.2 of the merger agreement provided –
3.2 Effect. Upon the Effective Time, (a) the Acquiror, without further act, deed or other transfer, shall retain or succeed to, as the case may be, and possess and be vested with all the rights, privileges, immunities, powers, franchises, and authority, of a public as well as of a private nature, of the Company; (b) all property of every description and every interest therein, and all debts and other obligations of or belonging to or due to the Company on whatever account shall thereafter be taken and deemed to be held by or transferred to, as the case may be, or invested in the Acquiror without further act or deed; (c) title to any real estate, or any interest therein vested in the Company, shall not revert or in any way be impaired by reason of the Merger; and (d) all of the rights of creditors of the Company shall be preserved unimpaired, and all liens upon the property of the Company shall be preserved unimpaired, and all debts, liabilities, obligations and duties of the Company shall thenceforth remain with or be attached to, as the case may be, the Acquiror and may be enforced against it to the same extent as if it had incurred or contracted all such debts, liabilities, obligations, and duties.
(Emphasis in italics added.)
